Director of Public Prosecutions v Parker
[2023] VCC 2037
•3 November 2023
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-22-01571
Indictment No. N10149683
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BLAKE PARKER |
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JUDGE: | HIS HONOUR JUDGE TRAPNELL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 21 July 2023 25 September 2023 | |
DATE OF SENTENCE: | 3 November 2023 | |
CASE MAY BE CITED AS: | DPP v Parker | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 2037 | |
REASONS FOR SENTENCE
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Subject:Criminal law
Catchwords: Sentence – Trafficking in a drug of dependence – Possession of a drug of dependence – Middle-range offending – Early guilty plea – Genuine remorse – Relevant criminal history – History of substance abuse –Problematic prospects of rehabilitation – Double punishment – Totality principle
Legislation Cited: Drugs, Poisons and Controlled Substances Act 1981– Crimes Act 1958 – Sentencing Act 1991
Cases Cited:Barbaro v The Queen (2012) 226 A Crim R 354 – CD v The Queen [2013] VSCA 95 – Phillips v The Queen (2012) 37 VR 594 – Akoka v The Queen [2017] VSCA 214 – Pearce v The Queen (1998) 194 CLR 610 – R v Langdon [2004] VSCA 205
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr B Kerlin (21 July 2023) Ms E Fargher (25 September 2023) Mr D Vrech (3 November 2023) | Ms A Hogan, Solicitor for Public Prosecutions |
| For the Accused | Ms F Fox (21 July 2023 and Ms S Upperton (3 November 2023) | Slades & Parsons |
HIS HONOUR:
1Blake Parker, you have pleaded guilty to an indictment containing one charge of trafficking in a drug of dependence (Charge 1)[1] and one charge of possession of a drug of dependence (Charge 2).[2]
[1] Contrary to Drugs, Poisons and Controlled Substances Act 1981 s 71AC(1).
[2] Contrary to Drugs, Poisons and Controlled Substances Act 1981 s 73(1).
2Additionally, you have consented to this Court dealing with transferred related summary offences comprising one charge of commit an indictable offence whilst on bail (Summary Charge 4),[3] one charge of dealing with property suspected of being the proceeds of crime (Summary Charge 5)[4] and one charge of possessing a Schedule 4 poison, namely, sotalol hydrochloride (Summary Charge 8).[5]
[3] Contrary to Bail Act 1977 s 30B.
[4] Contrary to Crimes Act 1958 s 195.
[5] Contrary to Drugs, Poisons and Controlled Substances Act 1981 s 36B(2).
3The maximum penalty for trafficking in a drug of dependence is 15 years’ imprisonment.[6] The maximum penalty for possession of a drug of dependence for any purpose relating to trafficking, which purpose was admitted in this case, is 5 years’ imprisonment.[7] The maximum penalty for related Summary Charge 4 is 3 months’ imprisonment or 30 penalty units.[8] The maximum penalty for related Summary Charge 5 is 2 years’ imprisonment.[9] The maximum penalty for related Summary Charge 8 is 10 penalty units.[10]
[6] Pursuant to Drugs, Poisons and Controlled Substances Act 1981 s 71AC(1).
[7] Pursuant to Drugs, Poisons and Controlled Substances Act 1981 s 73(1)(c).
[8] Pursuant to Bail Act 1977 s 30B.
[9] Pursuant to Crimes Act 1958 s 195.
[10] Pursuant to Drugs, Poisons and Controlled Substances Act 1981 s 36B(2).
The facts
4The prosecution filed a Summary of Prosecution Opening for Plea dated 15 February 2023, which I am told by your counsel I can treat as a statement of agreed facts for the purposes of sentencing you.
Charge 1
5On 21 January 2022, you were observed walking into the McDonald’s restaurant in Narre Warren by police officers First Constable Nathan Metters (‘Metters’) and First Constable Phoebe Dowsett (‘Dowsett’). You were carrying a red and black backpack and you were speaking on your mobile phone. A short time later you left the restaurant.
6At approximately 7:35 pm, Metters and Dowsett also left the restaurant and observed you standing at the bottom of some steps, still speaking on your mobile phone.
7You approached the officers and asked them which McDonald’s store you were at and on what road the restaurant was located. You said you were on the phone attempting to order a taxi.
8Once you ended your phone call, the officers informed you you were in a designated search area under the Control of Weapons Act 1990 and would be searched.
9You cooperated with Metters, who conducted a search of your backpack and located two clear bags containing a clear crystal substance, later identified as methylamphetamine.
10Once the drugs were found, you ran from the scene. The officers pursued you on foot but discontinued the pursuit and returned to their vehicle to radio through a description of you and the incident.
11You were last seen by the officers jumping a fence into Marco Ciavarella Reserve in Narre Warren.
12A police cordon was created. At approximately 8:23 pm, you were sighted jumping a fence into the yard of a residential property in Meadow Wood Walk. At 8:29 pm, your mobile phone was located in the backyard of a property in Princes Highway, Narre Warren.
13Some time later, you were located in a shed at the rear of a residential property in Meadow Wood Walk, Narre Warren, where you were arrested by police. When you were cautioned, you became unwell and experienced an elevated heart rate and nausea. You were taken to Dandenong Hospital by ambulance for observation.
14The two bags of clear crystal substance were analysed and found to contain 247 grams of methylamphetamine in a mixed substance. A commercial quantity of the drug is 250 grams in a mixed substance.[11]
[11] Pursuant to Drugs, Poisons and Controlled Substances Act 1981 s 70 and Part 3 of Schedule Eleven, Methylamphetamine, Column 2A.
Charge 2, Summary Charge 5 and Summary Charge 8
15At approximately 8:44 pm that day, a 2010 blue Audi A5, belonging to your mother, was found in the Officeworks carpark at Fountain Gate shopping centre.
16The vehicle was seized and searched. Six tablets of 3,4-Methylenedioxy-N-Methylamphetamine (MDMA) (Charge 2), Victorian Registration Plates 1TS4TY, that were identified as having previously been used by you in committing unrelated offending, (Summary Charge 5) and five tablets of sotalol hydrochloride (Summary Charge 8) were located in the vehicle. You admit possessing these items.
Summary Charge 4
17You were on bail at the time of committing the present offences, having been bailed on 21 January 2021 at the Cowes police station.
Record of interview
18You were initially interviewed at 8:06 am on 22 January 2022, however, the interview could not be completed because of your ill-health. You were subsequently interviewed on 26 January 2022 at 10:52 am and provided a largely no comment interview, as was your right.
Offence seriousness
19Trafficking in a drug of dependence is a serious criminal offence, as indicated by the maximum penalty of 15 years’ imprisonment. This shows, unambiguously, how seriously the community, through the Parliament, views the conduct you have engaged in, in committing Charge 1.[12] Your counsel conceded the seriousness of the offence.
[12] Djordjic v The Queen [2018] VSCA 227 [68].
20The Court of Appeal has reiterated that the sentencing regime for drug trafficking offences is quantity-based and, while the quantity trafficked is not determinative of my assessment of the objective gravity of the offence charged in Charge 1 on the indictment, it will always be of importance.[13] All things being equal, the greater the quantity trafficked, the more serious the trafficking offence.[14] Other important indicators of offence seriousness are your role, the duration of your offending and your motivation for involvement in it.[15]
[13] DPP v Fatho and Ors [2019] VSCA 311 [70] (Maxwell P, Priest and Beach JJA) (‘Fatho’); Gregory (a pseudonym) v The Queen (2017) 268 A Crim R 1, 7–8 [23]–[24] (Maxwell P, Redlich and Beach JJA) (‘Gregory’).
[14] Fatho [70]. See also Gregory, ibid; DPP v Fernando (2017) 268 A Crim R 26, 38–40 [50]–[55] (Redlich JA); DPP v KMD (2015) 254 A Crim R 244, 254 [36], 257 [50]–[52], 260 [64] (Maxwell P, Weinberg and Beach JJA); Adams v The Queen (2008) 234 CLR 143.
[15] Gregory 8 [24].
21It is also pertinent for me to consider the harm that is inflicted on the community by offences involving trafficking in a drug of dependence, such as methylamphetamine.[16]
[16] R v Pidoto and O’Dea (2006) 14 VR 269, [45] (Maxwell P, Buchanan, Vincent and Eames JJA); Wong v The Queen (2001) 207 CLR 584, 609 [70] (Gaudron, Gummow and Jayne JJ); R v D’Aloia [2006] VSCA 237, [56] (Nettle JA).
22You possessed 247 grams of methylamphetamine for sale. As the prosecutor submitted, this is very considerably more than three grams, the quantity prescribed by the Drugs, Poisons and Controlled Substances Act 1981 as a traffickable quantity and is very close to the commercial quantity of 250 grams.
23This is a single date offence and there is no evidence of any frequency or regularity of trafficking. I also accept there is no allegation you were engaged in a major enterprise. When you were assessed by Brendan Brentwood, an officer of Morwell Community Correctional Services, you said your offending related to a ‘drug drop’ you were required to do to settle your partner’s drug debt.[17] You also told Gina Cidoni, a psychologist engaged by your legal representatives, that you and your partner ‘had accumulated a lot of debt due to [your] drug habit’ and you ‘felt coerced to offend due to threats to pay this debt’. Ms Cidoni’s report will be referred to in greater detail when discussing your personal circumstances.
[17] See EX C1.
24These admissions accord with the prosecution’s submission that the significant quantity of drugs you possessed allows for the court to draw the inference you were motivated by financial gain.
25Moreover, although I do not need to consider whether delivery was achieved or if drugs reached the public,[18] I do recognise your offending was only discovered as a result of your being searched in connection with you being in a control of weapons designated search area.
[18] Taumoefolau v The Queen (2015) 253 A Crim R 508, [34]–[36] (Hansen, Whelan and Beach JJA).
26Overall, I regard your offending in relation to Charge 1 as in the mid-range for offences of trafficking simpliciter. I assess your moral culpability as reasonably high. Clearly, denunciation, general deterrence and just punishment must all be given significant weight. Moreover, particularly in light of your prior criminal history, specific deterrence and protection of the community must also be given significant weight in my sentencing synthesis.
27Finally, I consider possession of a drug of dependence (MDMA), possession of a schedule 4 poison, committing an indictable offence whilst on bail and dealing with proceeds of crime are all serious enough criminal offences.
Personal circumstances
28You were assessed by Gina Cidoni on 14 February 2023. She prepared a ‘Psychological Assessment Report’ dated 22 February 2023, which was tendered at the plea hearing by your counsel.[19]
[19] EX D3.
29You were born in Sydney in September 1980 and are currently aged 42 years old. You reported to Ms Cidoni that your childhood was ‘happy and secure’. Your parents were married for 41 years, before your father died of heart failure in 2017. You often holidayed in Phillip Island as a family before moving there permanently.
30At age 19, you left the family home to live with two friends in Mount Waverley, before moving in with your girlfriend in Richmond. At age 21, when this relationship ended, you decided to rent a house in Phillip Island near your parents. Later, you moved to Karratha and Mt Isa to work in the mining industry.
31Following your father’s death, your mother was diagnosed with cancer, early onset dementia and she underwent a hip replacement. You were living with her until you first went into custody in 2019. There was a period of time, prior to you being remanded for the current matter, where you and your mother lived together in your mother’s home in Woolamai.
32You were in prison on remand for five months before you were bailed to attend rehabilitation at Odyssey House. As your counsel and Ms Cidoni have stated, you left Odyssey House prematurely because you were worried about your mother, who had also been diagnosed with Alzheimer’s/Vascular dementia.[20]
[20] See undated letter from Dr Arrhchanah Balachandran of Bass coast Health (Ex D5).
33Your mother has now been placed under a guardianship order and her financial affairs are being administered by the Public Advocate.[21] She is residing in a care facility in Inverloch. You told Ms Cidoni that you were in the process of changing your mother’s care arrangements and you would like to gain medical power of attorney. You also told Ms Cidoni that you had hoped your mother would be able to return home with you, as she is unhappy in the nursing home.
[21] See Victorian Civil and Administrative Tribunal, Order dated 2 November 2022 (Ex D6) and Office of the Public Advocate, Instrument of Guardianship Delegation, dated 25 November 2022 (Ex D7).
Education and employment history
34You attended Caulfield Grammar School from Preparatory grade to Year 7. When your parents encountered financial difficulties you were transferred to Huntingtower School for two terms, and then attended Frank Dando Sports Academy School for boys from Year 8 until halfway through Year 9.
35For a period after leaving school, you were unemployed and you told Ms Cidoni that you completed one year of a carpentry apprenticeship. Your father, who was a Human Resources Manager, found casual employment for you. You also did a series of ‘odd jobs’, including being a tour manager and managing a strip club. You also worked in the mines in Queensland and spent time labouring on building sites and worked with your friends, who are qualified carpenters. You have also worked in car sales.
Physical health
36Three months before the date of Ms Cidoni’s assessment of you, you were involved in a motorcycle accident where you lost control of the vehicle. You sustained a concussion and fractured your collarbone and three ribs. You attended Traralgon Hospital but left without being treated. You attended William Angliss Hospital the next day and you were admitted for one day. You told Ms Cidoni that your CT scan ‘came back normal’ and although it was recommended you undergo surgery for your fractured collarbone, you declined. Otherwise, you reported to Ms Cidoni that you are in sound physical health.
Mental health
37In 2013, Dr Kolesnikova of the Melbourne Clinic diagnosed you as suffering from ADHD. However, you have never taken medication to treat this condition.
38You told Ms Cidoni that, while you were at Odyssey House, the staff felt your ‘presentation was consistent with depression’ and they were also concerned you were ‘manic’.
39You reported to Ms Cidoni your mood was ‘stressed and low’. She administered the Millon Clinical Multiaxial Inventory (MCMI-IV) which is a standardised 195-item self-report questionnaire that assesses:
the presence of clinical syndromes in the context of personality traits or disorders and assists in conceptualising these emotional and behavioural patterns on a spectrum of adaptive to maladaptive levels of functioning.
40Ms Cidoni opined, your MCMI-IV profile produced ‘concerning results’ and reflected feelings of alienation, isolation and estrangement. Your answers to the questionnaire showed you feel depressed, sad, pessimistic, withdrawn and lethargic, and that you have low self-esteem and experience oversensitivity. Your responses indicated you feel like you are expending a great amount of energy without much practical gain.
41Ms Cidoni reported your symptoms include: impulsiveness, disorganisation, poor time management and planning skills, problems prioritising tasks, difficulty multi-tasking, restlessness, excessive activity, a low tolerance for frustration, and periods of elevated mood and accelerated speech contrasted with low periods.
42Ms Cidoni opined that based on your results you have a tendency for being unreliable and irresponsible under stress. Moreover, you lack insight into the behaviour of yourself and others, which causes you to act recklessly. Ms Cidoni believes you exhibited remorse for your actions, and I will discuss whether this can amount to genuine contrition below. You also tend to appear self-confident, despite experiencing feelings of insecurity and inadequacy.
43Your counsel did not submit any Verdins principles[22] are engaged in your case. The prosecutor agreed with this submission. I am also of that opinion.
Substance use
[22] R v Verdins (2007) 16 VR 269, 276 [32] (Maxwell P, Buchanan and Vincent JJA).
44At age 15 you began using cannabis daily, which, you told Ms Cidoni, made you feel more content to be at home. When at nightclubs, you occasionally used ecstasy and MDMA.
45From age 30, you became a heavy user of methamphetamines. You were able to decrease your usage to once a month, although you would indulge for two days and then attempt to abstain for a month each time. In 2021, your use of methamphetamines escalated, and you were smoking approximately 1g a day. This level of usage continued up until your remand in relation to the present charges.
46As I have previously stated, after five months on remand, you were bailed to Odyssey House. You spent four months there before leaving. Ms Cidoni wrote that your substance use did continue after you left Odyssey House, but it was not as high as previous levels.
47Ms Cidoni opined that testing, which revealed an elevated drug use scale, aligns with your honesty about your drug abuse and the problems this has caused you. She is of the opinion you remain very vulnerable to relapsing into drug abuse following your release into the community. I agree with her opinion.
Prior criminal history
48You have an extensive prior criminal history which commences in 1997 and extends through to 2021.[23] In the past, you have received sentences of imprisonment on five occasions, and you have been subject to six community-based dispositions in Victoria, five of which you have contravened.[24]
[23] See Criminal Record dated 11 November 2022.
[24] See Extended Pre-Sentence Assessment – Outcome Report dated 30 August 2023, page 2 (Ex C1).
49Your criminal record includes dishonesty and property offences, tracing back to your first recorded conviction in December 1997, which related to charges of burglary, theft, arson and go equipped to steal. You were also charged with intentionally damaging property in 2021.
50Particularly relevant to the present offending, you have previously been convicted of drug-related offences, both in Victoria and New South Wales. Most concerning is your appearance in the Broken Hill District Court on 12 October 2016, where you were sentenced to imprisonment for 2 years and 6 months with a non-parole period of 1 year, 4 months and 20 days. It appears the non-parole period was equivalent to time served by you in custody at the time of sentence. You were released on parole on the day of sentence under supervision to participate in ‘drug addiction counselling as directed’ and ‘psychological counselling as directed’.
51Moreover, in November 2020, you were sentenced to six months’ imprisonment for drug trafficking (methylamphetamine), possession (1,4-butanediol) and dealing with property suspected to be proceeds of crime. In 2021, you were convicted and sentenced in the Melbourne Magistrates’ Court in relation to a charge of possession of methylamphetamine.
52In the past, you have been subject to six community-based dispositions. In 2017 you were sentenced to a Community Corrections Order (‘CCO’) with treatment conditions aimed at your drug use, as well as the relevant offending behaviour programs. Due to a breach, your order was varied in February 2018 and further varied by application in April 2018, to allow treatment hours to be applied as part of your community work hours. In October 2018, you were placed on yet another CCO to run concurrently with the previous order. On 2 November 2018, you were given another opportunity to complete a CCO, which also ran concurrently with the two previous orders. You eventually contravened all three CCOs and the orders were cancelled on 19 June 2019.
Subsequent offending
53Since committing the present offences, you have committed a large number of other offences. These include, significantly, trafficking ecstasy, trafficking and possessing 1, 4 Butanediol and possessing and using cannabis. You have also been convicted of some dishonesty offences and a large number of driving offences, including, driving whilst disqualified (three charges), careless driving and fail or refuse to undergo oral fluid tests (two charges). You have also been convicted of committing indictable offences whilst on bail (five charges) and failing to comply with bail conditions (two charges).[25]
[25] See Victoria Police, Leap Criminal Record dated 7 July 2023 (Ex P3).
54Since committing the present offences, you have received an aggregate fine of $500 with conviction and a number of CCOs. Since 7 June 2023, you have been subject to an 18- month Magistrates’ Court CCO for most of the offences referred to above, including trafficking drug of dependence, following a short period on Court Integrated Services Program (CISP). This order is currently subject to contravention proceedings, alleging non-compliance.
55While subsequent convictions and findings of guilt cannot be taken into account in the same way as prior convictions can be, they bear upon my assessment of your character and shed light on your risk of recidivism. This is relevant to the weight I give to specific deterrence and protection of the community in sentencing you for the present offences. Subsequent offending is also relevant to my assessment of your prospects of rehabilitation.[26]
[26] See R v Rumpf [1988] VR 466, 475 (McGarvie J, Young CJ and Murray J agreeing); Alexandros v Birchell (2000) 31 MVR 307, 310–311 [15], [18] (Smith J); DPP v Rongonui (2007) 17 VR 571, 580 [37] (Maxwell P); Bellizia v The Queen [2016] VSCA 21 [75], [77]– [78] (Santamaria JA).
56Clearly, your past inability to comply with the obligations of numerous CCOs is very concerning and does not bode well for your prospects of rehabilitation.
Mitigating circumstances
Guilty plea and custodial hardship
57You pleaded guilty to the present charges on 8 March 2023 following the committal mention on 22 November 2022. I accept your pleas are entered at the earliest forensically reasonable opportunity. The prosecution accepts these are early pleas.
58Your pleas have utilitarian benefit, particularly in the COVID-19 environment.[27] They also indicate your acceptance of responsibility for your offending conduct and a willingness to facilitate the course of justice.
[27] Worboyes v The Queen (2021) 96 MVR 344, 356–7 [22], [34]–[39], [2021] VSCA 169 (Priest, Kaye and T Forrest JJA); Chenhall v The Queen [2021] VSCA 175 [29]–[30], [33]–[35] (Priest, Kaye and T Forrest JJA); Tran v The Queen [2021] VSCA 278 [59] (Kaye and T Forrest JJA); Rossi v The Queen [2021] VSCA 296 [13]–[16], [19] (Priest and T Forrest JJA).
59You have been remanded in custody for 253 days up to, but not including, today. Much of that time has been spent in COVID-19 conditions. This means the time you have already spent in custody has been more onerous on you than it otherwise would have been.[28] I accept you will experience a greater level of custodial hardship as a result of COVID‑19 restrictions, which apply to all prisoners in this State for the foreseeable future.
[28] See e.g., The Queen v Madex [2020] VSC 145 [52] (Incerti J); R v Kelso [2020] NSWDC 157 [45] (Norrish QC DCJ); Brown (aka Davis) v The Queen [2020] VSCA 60 [48] (Priest and Weinberg JJA); Astbury v The Queen (No 2) [2020] VSCA 158 [33] (Kaye, Niall and Weinberg JJA).
60Your counsel submitted, you have experienced difficulties communicating with your mother whist in custody. This has taken its toll on you. I accept the burden of custody is greater for you by reason of your separation from your mother at this difficult time for her and your inability to provide her with care in her home. I accept your mother continues to provide the strongest motivator for you to rehabilitate yourself.
Remorse
61I accept you are undoubtedly regretful for the situation in which you find yourself and the effect this has had on you. However, I must decide whether you demonstrate true contrition and remorse for your offending conduct.
62According to Barbaro v The Queen,[29] an offender must satisfy to the court that there is ‘genuine penitence and contrition and a desire to atone’.[30] True remorse is a question of fact and is determined on the balance of probabilities.[31] In many cases the most compelling evidence of remorse comes from offender’s testimony.[32]
[29] (2012) 226 A Crim R 354 (‘Barbaro’).
[30] Barbaro 365 [38].
[31] R v Cooper (1998) 103 A Crim R 51, 55; R v Gillick [2000] VSCA 127 [20].
[32] Barbaro 365–66 [38], [40]; Bonacci v The Queen (2012) 224 A Crim R 194, 202 [44].
63In CD v The Queen,[33] Harper JA quoted his earlier observations in Phillips v The Queen[34] where his Honour said:
[Genuine remorse] indicates realistic prospects of rehabilitation and a reduced need for specific deterrence. An offender who pleads guilty because he or she has an accurate appreciation of the wrongfulness of his or her offending, and of its impact upon its victim or victims, and who desires to do what reasonably can be done to repair the damage and to clear his or her conscience, is someone to whom mercy – in the form of a very substantial reduction in what would otherwise be an appropriate sentence – is very likely due.[35]
[33] [2013] VSCA 95 [36] (‘CD’).
[34] (2012) 37 VR 594, 621 [101].
[35] Ibid [97]–[101].
64I have had regard to the letter you wrote to the Court[36] which I consider expresses your genuine and heart-felt emotions. You write you are remorseful for the decisions you have made in life. You believe you are at a turning point and acknowledge you must commit to ‘being straight’ if you are to lead a useful law-abiding life in the future. You recognise that, upon your release from custody, you must remove yourself from negative peers and instead spend time with positive life influences, especially your mother, whom you would like to make feel proud of her son. You also express a desire to start your own business and work towards living a ‘happy and normal life’. On the basis of these sentiments, I find you are genuinely remorseful for your offending conduct.
[36] Dated 22 September 2023 (Ex D11).
Rehabilitation
65Your counsel submitted you have made attempts at rehabilitation and should be given the opportunity to further address your drug and alcohol abuse.
66Ms Cidoni noted in her report that you struggle to maintain your abstinence from drugs and that your risk of reoffending will remain high unless you are able to manage your addiction. I accept Ms Cidoni’s opinion that you should be offered the opportunity to enter long-term drug treatment.
67You spent 115 days in Odyssey House, during which I am told you developed ‘significant insight’ into the decisions that have led to your offending. Although four months is not a significant period of time, as your counsel conceded, I accept that the primary reason you left Odyssey House prematurely was to care for your elderly and ill mother.
68Your counsel relied on Akoka v The Queen (‘Akoka’)[37] to submit that the time you spent at Odyssey House can be regarded in a similar, but not the same, manner to pre-sentence detention.
[37] [2017] VSCA 214 (‘Akoka’) (Warren CJ, Kyrou JA and Redlich JA).
69The Court of Appeal in Akoka held that greater emphasis should be given to the ‘punitive element of residency in a rehabilitation facility such as Odyssey House’.[38] Residing in a rehabilitation facility may assist an offender in overcoming their drug dependency and developing strategies to reduce their risk of reoffending, benefitting not only the individual but also the wider community.[39]
[38] Ibid [106].
[39] Ibid.
70The Court of Appeal remarked that residency at Odyssey House involves ‘significant restrictions on the liberty of those undertaking the treatment offered by that facility’,[40] however evidence is required ‘to establish that it is appropriate for the Court to give credit for such residency’.[41]
[40] Ibid [107].
[41] Ibid.
71Importantly, although residency at a rehabilitation facility has punitive elements, I cannot view it as equivalent to pre-sentence detention, which strictly involves time spent in custody. For the same reason, time spent at a drug rehabilitation facility is different from Renzella time.[42]
[42] R v Renzella [1997] 2 VR 88, 94–98 (Winneke P, Charles and Callaway JJA).
72No evidence was placed before me regarding the specific conditions you faced while residing at Odyssey House. However, your counsel submitted that you were unable to leave Odyssey House and were subject to strict rules about how you could conduct yourself at the facility. I accept this was the case. Accordingly, I will take the 115 days in you spent in Odyssey House into account in a broad way in sentencing you for the present offences.
73So far as your other attempts at rehabilitation are concerned, at the first plea hearing your counsel tendered a letter from Jasmin Friend, a member of the Alcohol and Other Drug Team at Bass Coast Health, dated 14 June 2023.[43] Prior to this matter coming before me, you were referred to Bass Coast Health under CISP and a comprehensive assessment was completed. You were then referred to Ms Friend for a course of extended counselling. You have undertaken two such sessions, which focussed on stages of change, identifying treatment goals and relapse prevention education using cognitive behaviour therapy. According to Ms Friend you were transparent and engaged throughout these sessions.
[43] Ex D4.
74You have used your time whilst on remand very profitably. Today your counsel provided me with five statements of results showing your successful completion of eight tertiary subjects credited towards three separate certificate qualifications[44] together with a letter and a number of certificates[45] attesting to your successful completion of eight modules of the Atlas Remand Program. Your engagement in this large number of educational and rehabilitative programs whilst on remand is very impressive and augurs well for your prospects of rehabilitation.
[44] Ex D12.
[45] Ex D13.
75Moreover, a negative random drug screen tendered at the plea hearing demonstrates you were drug free at the time of testing on 16 August 2023.[46] You have engaged with the ReStart Program, delivered by the Australian Community Support Organisation (‘ASCO’).
[46] Ex D9.
76It is also to your credit that you have been working full-time whilst on remand; initially in the bakery at Port Philip Prison and more recently in the kitchen as the head chef, cooking for both staff and other prisoners, at Marngoneet Correctional Centre, where you are presently incarcerated. Moreover, there have been no ‘reportable incidents’ during the period you have been on remand.[47]
[47] See Extended Pre-Sentence Assessment – Outcome Report dated 30 August 2023, page 2 (Ex C1).
77According to a letter from Ricky Wakelin, your Forensic Case Worker at ACSO, the ReStart program is able to support you after your release from custody for three months post-release.[48]
[48] Letter dated 22 September 2023 (EX D11).
78Recently you have been moved to Marngoneet Prison where you feel happy and trusted by others.
79I am encouraged by the progress you have made towards your ultimate rehabilitation whilst you have been in custody. I also accept there is a risk of you becoming institutionalised.
80I had you assessed for suitability for a CCO and received an Extended Pre-Sentence Assessment – Outcome Report, dated 30 August 2023.[49] A Level of Service/Risk, Need Responsivity was completed as part of that assessment. You were assessed as having a high risk of re-offending. You scored ‘very high’ in pro-criminal attitude/orientation and pro-criminal associates and ‘high’ in criminal history. You also scored ‘very high’ in education/employment and ‘high’ in both alcohol/drug problem and lack of pro-social leisure/recreation activities.[50]
[49] Ex C1.
[50] See Extended Pre-Sentence Assessment – Outcome Report dated 30 August 2023, page 3 (Ex C1).
81Overall, despite the impressive progress you have made whilst on remand, I assess your prospects of rehabilitation as being somewhat guarded. Much will depend upon your ability to control your drug habit and develop positive coping strategies following your release from custody.
82It will be necessary for you to dissociate from your former criminal lifestyle and associates and develop a more productive and healthier attitude and life-style. Your mother is a strong protective factor in this regard. It is also encouraging that the CCO assessment officer considers you ‘demonstrated good insight as to his negative peers that are on Phillip Island, reporting that “…I’m aware my peers down there (Phillip Island) aren’t positive”.’[51]
[51] Ibid, page 5.
Application of sentencing principles
83I have had regard to current sentencing practice in relation to these offences as informed by the decisions of the High Court of Australia in R v Kilic[52] and DPP (Vic) v Dalgliesh (a Pseudonym)[53] and the Victorian Court of Appeal decisions in DPP v Zhuang[54] and DPP (Cth) v Thomas.[55] In particular, I have had regard to the so-called comparable cases referred to my by the prosecutor,[56] and your counsel.[57]
[52] (2016) 259 CLR 256, 266–268 [21]–[25] (Bell, Gageler, Keane, Nettle and Gordon JJ).
[53] (2017) 262 CLR 428,444–447 [47]–[58] (Kiefel CJ, Bell and Keane JJ), 452–455 [78]–[85] (Gageler and Gordon JJ).
[54] (2015) 250 A Crim R 282, 292 [30]–[31] (Redlich, Priest and Beach JJA).
[55] (2016) 53 VR 546, 606–609 [173]–[183] (Redlich, Santamaria and McLeish JJA). See also Williams (a pseudonym) v The Queen [2021] VSCA 35 [21]–[25] (Priest and Kyrou JJA); Russo v The Queen [2021] VSCA 244 [53]–[56] (Emerton JA, Priest JA agreeing).
[56] Hoang v The Queen [2013] VSCA 287 and Haddara v The Queen [2015] VSCA 158,
[57] See ‘Annexure A – Comparative Sentences’ to Plea Submissions on Behalf of the Accused, dated 3 March 2023 (corrected) (Ex D1).
84While current sentencing practice is relevant to the sentences I impose on you, it is only one of a number of sentencing considerations I must take into account in imposing just sentences in your case.[58]
[58] See DPP (Vic) v Dalgliesh (a Pseudonym) (2017) 262 CLR 428.
85Moreover, it is difficult to gauge more than a general yardstick from so-called ‘comparable cases’, given the wide range of offending conduct that can constitute these offences and the myriad of personal circumstances pertaining to individual offenders. Nonetheless, to the extent I have been able to gain assistance from comparable cases, I have sought to do so in your case.
86The basic purposes for which a court may impose a sentence are just punishment, denunciation, deterrence, both specific and general, protection of the community and rehabilitation. In sentencing you, I must have regard to a range of factors including the seriousness of the offences, your culpability for them and your personal circumstances.
87I am required to balance the interests of the community in denouncing your criminal conduct with the interests of the community in seeking to ensure that, so far as possible, you are rehabilitated and reintegrated into society.
88Clearly denunciation, general deterrence and just punishment must be given significant weight in sentencing you for these offences. Moreover, I consider weight also needs to be given to specific deterrence and protection of the community, given the nature of your offending conduct, your extensive prior criminal history and subsequent offending.
89As I observed earlier, I assess your prospects for rehabilitation as being somewhat guarded, however, if you engage in services aimed at treating your substance use and mental health, those prospects may be more encouraging.
90None of the present charges are part of the standard sentencing scheme, nor are they category 1 or category 2 offences as defined by the Sentencing Act 1991.
91You counsel submitted a sentence involving your further incarceration together with a CCO was the appropriate disposition. The prosecutor submitted such a disposition was not open in your case and the only appropriate sentence was the imposition of a term of imprisonment with a non-parole period.
92The parsimony principle requires I not impose sentences that involve your confinement unless I consider the purpose or purposes for which these sentences are imposed cannot be achieved by sentences that do not involve your confinement.[59] Clearly, your offending in relation to Charge 1 requires the imposition of a sentence of imprisonment. Your counsel appropriately conceded this was the case.
[59] See Sentencing Act (‘SA’) s 5(4).
93As the Victorian Court of Appeal observed in Boulton v The Queen:[60]
It follows from what we have said that a CCO may be suitable even in cases of relatively serious offences which might previously have attracted a medium term of imprisonment (such as, for example, aggravated burglary, intentionally causing serious injury, some forms of sexual offences involving minors, some kinds of rape and some categories of homicide). The sentencing judge may find that, in view of the objective gravity of the conduct and the personal circumstances of the offender, a properly-conditioned CCO of lengthy duration is capable of satisfying the requirements of proportionality, parsimony and just punishment, while affording the best prospects for rehabilitation.[61]
[60] (2014) 46 VR 308.
[61] Ibid 338 [131] (Maxwell P, Nettle, Neave, Redlich and Osborn JJA).
94As I mentioned earlier, I had you assessed for suitability for a CCO and received an Extended Pre-Sentence Assessment – Outcome Report, dated 30 August 2023.[62] You have been assessed as suitable for a CCO ‘with reservation’. A number of conditions were recommended to be included in the CCO, which I accept.
[62] Ex C1.
95After balancing all relevant sentencing considerations in your case, I consider that you may be turning a corner in your life and that a relatively lenient sentence on Charge 1, imposed at this stage in your life, may lead to your eventual reformation.[63] I consider a combination sentence involving a term of imprisonment, which will involve some further incarceration, together with a CCO is the appropriate disposition in relation to Charge 1. Charge 2 on the indictment and the related summary charges can be appropriately dealt with by way of a CCO only, which will be the same CCO as I will impose in relation to Charge 1.[64]
[63] See R v Osenkowski (1982) 30 SASR 212, 212–13 (King CJ, White J agreeing) approved in Markovic v The Queen (2010) 30 VR 589, 590 [1] (Maxwell P, Nettle, Neave, Redlich and Weinberg JJA).
[64] See SA s 40.
Mr Parker
On Charge 1 (Trafficking in a drug of dependence) you are convicted and sentenced be imprisoned for 18 months together with a CCO commencing on your release from custody and lasting for three years, with the treatment and rehabilitation conditions I will elaborate shortly.
I declare 253 days (not including this day) as the period of pre-sentence detention to be reckoned as already served under this sentence and I direct the fact that declaration was made, and its details, be noted in the records of the Court.
On Charge 2 (Possession of a drug of dependence), Summary Charge 4 (commit an indictable offence whilst on bail), Summary Charge 5 (dealing with property suspected of being the proceeds of crime) and Summary Charge 8 (possessing a Schedule 4 poison, namely, sotalol hydrochloride) you are convicted and sentenced to a CCO commencing on your release from custody and lasting for three years, with the following treatment and rehabilitation conditions:
Under SA s 48C, 500 hours of unpaid community work.
Under SA s 48CA, 150 hours of treatment and rehabilitation are to be counted as hours of unpaid community work.
Under SA s 48D(3)(a), drug treatment.
Under SA s 48D(3)(d), mental health treatment.
Under SA s 48D(3)(f), offending behaviour programs.
Under SA s 48E, supervision.
Under SA s 48K, judicial monitoring. The first JM hearing is to be held on 8 October 2024 at 9:30 am by video link from the Community Corrections Centre you are allocated to.
Under SA s 48, a residual condition that you remain abstinent from illicit drugs of dependance except with the authority of a registered medical practitioner.
In accordance with s 6AAA of the Sentencing Act 1991, I declare that but for your pleas of guilty, I would have sentenced you to four years’ imprisonment with a minimum non-parole period of three years.
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