Director of Public Prosecutions v Porter (a pseudonym)
[2021] VCC 2171
•16 December 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
DRUG AND ALCOHOL TREATMENT COURT
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| GABRIEL PORTER (A PSEUDONYM) |
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JUDGE: | HIS HONOUR JUDGE D SEXTON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 14 December 2021 | |
DATE OF SENTENCE: | 16 December 2021 | |
CASE MAY BE CITED AS: | DPP v Porter (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 2171 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Trafficking in a Drug of Dependence; Possession of a Drug of
Dependence; Handling Stolen Goods; Drug and Alcohol Treatment
Order
Legislation Cited: County Court Act 1958; Sentencing Act 1991
Cases Cited:Worboyes v The Queen [2021] VSCA 169; R v Verdins & Ors (2007) 16 VR 269
Sentence: Trafficking offence - Drug and Alcohol Treatment Order of 2 years and 3 months.
On all other charges - Total Effective Sentence of 21 days’ imprisonment and $300 fine.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr L. Harrison | Solicitor for the Director of Public Prosecutions |
| For the Accused | Mr P. Bloemen | Leanne Warren & Associates |
HIS HONOUR:
Introduction
1Gabriel Porter,[1] you have pleaded guilty to one charge of trafficking in a drug of dependence, which carries a maximum penalty of 15 years' imprisonment, one charge of possession of a drug of dependence, which in the circumstances of your case carries a maximum penalty of 12 months' imprisonment or 30 penalty units, and one charge of handling stolen goods, which carries a maximum penalty of 15 years' imprisonment.
[1] A pseudonym. Pseudonyms are used in this sentence, in order to protect the anonymity of the offender,
in line with the aims of the Drug and Alcohol Treatment Court (DATC).
2As your offending was committed whilst you were subject to numerous counts of bail, you have also pleaded guilty to a related summary offence of committing an indictable offence whilst on bail, which carries a maximum penalty of 3 months' imprisonment or 30 penalty units.
3You have also admitted your criminal history.
Circumstances of the Offending
4The circumstances of the offending were set out in the Summary of Prosecution Opening dated 31 August 2021, Exhibit 1 at your plea hearing. That document sets out the agreed factual basis for the offending for which you will be sentenced.
5Your offending can be briefly summarised. At the time of your offending, you were 32 years of age. At about 12.31 am on 5 February 2021, police observed you driving a white Holden Statesman with registration plates UTD 054, which were subsequently found to have been stolen, travelling towards them at excessive speed. You were driving, and Ms Bianca Momot was in the front passenger seat. The Statesman made an erratic left turn from Bakers Road in Coburg North into Catherine Street, and came to a stop in a laneway beside a factory in Catherine Street, where you and Ms Momot exited the vehicle and entered the factory through a side door.
6Police subsequently observed you and Ms Momot exiting the factory, with you having facial injuries and a further significant injury to your hand which appeared recent. When police attempted to obtain details of the injuries, you identified yourself as 'Andrew' and gave a brief explanation before locking yourself inside the factory with Ms Momot. It was at this point that police confirmed that the registration plates to which I have referred were in fact stolen.
7Police subsequently forced entry through a partially opened roller-door at the front of the factory, after you and Ms Momot had declined to surrender yourselves. You were found to be lying on the floor. You were conveyed to the Royal Melbourne Hospital for medical treatment.
8Ms Momot then spoke with police and informed them that you had sustained your injuries in a road rage incident on the Western Ring Road off-ramp earlier that evening. She denied having previously attended the factory and left after signing a statement with police.
9Police then commenced searching the factory and noticed drug paraphernalia and two Gatorade bottles containing a viscous liquid in an office area at the rear of the factory. These Gatorade bottles were seized and later found to contain 567.2 grams of mixed GHB and GBL. The substances found in these Gatorade bottles forms the basis of Charge 2 on the Indictment, possession of a drug of dependence. I accept that these substances, and your possession of them, were connected to your own use.
10As police were preparing to leave the factory, they observed a 20‑litre container of methylene chloride, a precursor chemical, on the bench to the right-hand side of the factory, close to the roller doors. The Victoria Police Clandestine Laboratory Squad were contacted to conduct relevant analysis of the substances located.
11During a further search of the factory, 37 exhibits were seized, including various bottles containing various amounts of GBL and GHB. Various precursor chemicals, including sodium hydroxide and caustic soda, were located, together with an induction cooker.
12A total of 2.1 kilograms of GHB and/or GBL was located throughout the factory. GHB can be manufactured from GBL in combination with sodium hydroxide.
13Your fingerprints were located on the base of the tin of methylene chloride, as well as on the side of two caustic soda containers.
14You were subsequently arrested at the Royal Melbourne Hospital and taken to Fawkner Police Station, where you participated in a record of interview. Amongst other things, you stated; that you had been staying at the factory because you had been kicked out of the family home in Keilor due to your drug use, that you had purchased the Statesman vehicle four days earlier with the number plates attached when you picked it up, that you used methylamphetamine and GHB every day, that you had been put at the factory for the last couple of weeks to look after the place so that no one went through it, that a named individual was using the factory to manufacture GHB, that the GHB in the Gatorade bottles was for your own personal use, that you had dumped some of the GHB from the various Gatorade bottles on the floor when police arrived, that you were not sure what the other chemicals were in the factory, but you knew they were used as a cutter for 'Meth', that you would stay in the office while the other individual manufactured the GHB, and that you would be given a portion from the cook by the individual.
15You informed police of the quantities of your drug usage.
16As I have indicated, at the time of your offending you were subject to five counts of bail for matters that have since been finalised.
17You have remained in custody since your arrest on 5 February 2021. All remaining outstanding summary matters were dealt with at the Melbourne Magistrates' Court on 6 December 2021, where you received a total effective sentence of seven months' imprisonment, with 323 days declared as pre-sentence detention. The details of those summary matters were set out in your counsel's written submissions on DATC hearing dated 10 December 2021 at pages three and four. They relate in general terms to drug-related, dishonesty, driving, weapons and bail offending between 6 March 2020 and 26 November 2020. As agreed between the prosecution and defence in this matter, you have now, not including today,
120 days of pre-sentence detention, referable to these matters before me.18In terms of the procedural history of this matter, your matter resolved to a plea of guilty at the committal mention stage in the Magistrates' Court on 9 August 2021, where you were committed to the County Court. Upon the filing on your behalf of a request to access the Drug and Alcohol Treatment Court, the matter was listed for a Directions hearing on 6 September 2021, to consider adjournment into the Drug and Alcohol Treatment Division under s4AAB of the County Court Act 1958. On that day, I determined that you might be eligible for a Drug and Alcohol Treatment Order if convicted and adjourned your case into the Drug and Alcohol Treatment Court for a Determination Hearing.
Personal Circumstances
19You were born in December 1988 and grew up in North Western Melbourne, raised by both of your parents. You have one younger brother, Alex, who is currently studying law at Victoria University. Your father is a supervisor at Australia Post and your mother is a sales assistant at Myer. Your family currently reside in Keilor East, but you grew up in West Footscray and then Maribyrnong and Avondale Heights. I was informed that whilst your family remain supportive of you, and are aware of these proceedings, due to your drug-related behaviour over time, they have not been able to support you in terms of accommodation. In that regard, I note and acknowledge the presence today of your father and your younger brother and confirm the availability of accommodation from today henceforth at the family home in East Keilor.
20You were educated at Footscray Primary School and then Keilor College, subsequently completing your VCE. After completing secondary schooling, you have, it seems, attempted various courses, including criminology and forensic psychology at Griffith University online, mechanical engineering in 2013, and cybersecurity, though as pointed out by the prosecution, there is an absence of any documentary material verifying these matters, perhaps indicative of your chaotic drug fuelled lifestyle over recent years. Whilst at university, you apparently obtained your security licence and, for some time, it seems that you worked in the nightclub scene in Chapel Street where you were apparently witness to many violent incidents.
21You lost your security licence and subsequently your employment as a result of your first prior conviction, the details of which I will shortly outline. You consequently obtained employment in the scaffolding industry, including a period working in this capacity in the Pilbara region in 2016. You were most recently employed as a car salesman in 2019.
22You have a son, Isaiah, from a previous relationship, who is now seven years of age and resides with his mother. You have had no contact with Isaiah for some three years, though I understand your parents retain a degree of contact with him. You harbour long-term goals of resuming a relationship with your son following an extended period of stability in the future.
23I accept that you have a problematic and fairly longstanding history of illicit substance use, which it seems is inextricably linked to your offending history. You apparently commenced illicit substance use at the age of 16, using cannabis. However, at the age of 19 you commenced using ecstasy on weekends after having been introduced to this substance by your work colleagues. By around the age of 20, you also started using methylamphetamine, smoking the substance every one to two days. This was, it seems, in the context of you working in the nightclub industry as I have described, where illicit substances were readily accessible, and their use was normalised. At the age of 22, you commenced using GHB with work colleagues, and this quickly escalated into daily use in combination with methylamphetamine.
24On 17 May 2012, you were sentenced in this Court by his Honour Judge McInerney in relation to theft of petrol and armed robbery which was committed on 5 January 2012. You were sentenced at that time to a total effective sentence of 20 months' imprisonment, with a 10-month non-parole period. It is clear from a perusal of his Honour's sentencing remarks that this offending occurred in the context of excessive use on your part, at the relevant time, of amphetamines, cocaine, crystal meth and ecstasy in the context of the nightclub scene. You have instructed that you were indeed a heavy user at the time, and that the money obtained from that offending was ultimately used to fund your drug addiction.
25To your credit, upon your release from that sentence of imprisonment after
10 months, you completed a period of parole. However, you subsequently relapsed into drug use. There was, it seems, a period of relative stability around 2013 to 2014, when you formed the relationship with your ex-partner to whom you have a son. You worked, as I have said, for a period as a scaffolder in the Pilbara region, where you were both substance-free and regularly drug tested.26You returned to Melbourne when your son was born in August 2014 and, unfortunately, you relapsed into drug abuse. Your relationship ended in 2016 in the context of drug use and resulting relationship discord. A subsequent relationship in 2016 to 2017 was, in your words, bad for you, and you again relapsed into drug use together.
27Your subsequent appearance in the Magistrates' Court on 10 January 2019, involving various dishonesty, driving, weapons and bail offending, resulted in a sentence of imprisonment of 116 days followed by a 12-month Community Correction Order, which to your credit you completed. In 2019, you were apparently residing with your family and had obtained work as a car salesman. However, after some months this employment was terminated in early 2020 in the context of a criminal history check. Feeling frustrated and helpless, your drug use recommenced and significantly increased, leading to your eviction from home.
28According to your counsel, the various summary matters dealt with in the Magistrates' Court recently are reflective of your chaotic and drug using lifestyle. Indeed, your current offending seems to have occurred within the same context.
29As you stated to police in your record of interview, you were using methylamphetamine and GHB every day; one Gatorade bottle of GHB would last you four or five days. You would take seven millilitres per dose and take a dose every two hours. Clearly, you were in the grip of a significant drug addiction at the time of your offending.
30You gave an account of your current offending to Ms Chloe Reese, Case Manager, Drug and Alcohol Treatment Court, in her assessment of you on 21 September 2021.[2] You conveyed that your involvement in the trafficking offending was passive, whereby the main perpetrator of the alleged offending would traffic the substances at the warehouse within your personal vicinity, and that you were present when the transaction occurred. You had noted difficulty recalling the sequence of events that occurred on the commission date of the trafficking offending. However, I note that you appear to have been significantly injured at the time. Moreover, you indicated to Ms Reese that upon the arrival of police at the warehouse, you were experiencing a drug-related overdose in the context of GHB use, and you were conveyed to the Royal Melbourne Hospital.
[2] DATC Case Management Assessment Suitability Report of Chloe Reese dated 27 September 2021,
Exhibit 3.
31You gave a more fulsome account of your drug use history and previous interventions to Mr Harry Howe, Clinical Adviser, Drug and Alcohol Treatment Court, during your assessment with him on 20 September 2021.[3] You reported using both methamphetamine (Ice) and gamma-hydroxybutyrate (GHB) daily and dependently at the time of the offending, reporting smoking 0.5 to 1 gram of Ice and ingesting 80 to 100 millilitres of GHB on a typical day, in addition to sporadic smoking of cannabis. You estimated that you had overdosed on GHB on five or six occasions in the past, including on the day of your arrest. You reported a longstanding difficulty with regard to illicit substance abuse, though reported some periods of abstinence. You have previously undergone alcohol and drug treatment, both through the Court Integrated Services Program (CISP) in December 2020, and earlier in the context of your Community Correction Order in 2019. According to Mr Howe, you would have satisfied diagnostic criteria for the diagnoses of stimulant use disorder and sedative anxiolytic or hypnotic use disorder at the time of the alleged offending.
[3] DATC Clinical Advisor Assessment Report of Harry Howe dated 28 September 2021, Exhibit 4.
32As I have stated, it is to your credit notwithstanding your problematic history that you have navigated your way through a parole order and a Community Correction Order in the past.
Sentencing Factors and Principles
33The Sentencing Act 1991 requires me to take into account various factors when formulating an appropriate sentence in your case.
34I turn now to the gravity of your offending, and your level of culpability.
35By far the most serious offending is the trafficking charge. I note the prosecution acceptance with regard to Charge 2, the possession charge, that the quantity of GHB and GBL seized from the office area of the factory was for your own personal use. The gravity of the offence of trafficking is of course reflected in the maximum penalty applicable of 15 years' imprisonment. The drug offences legislation in Victoria is a quantitative system, and all other things being equal, the greater the amount trafficked, the more serious the offence.
36An amount of 2.1 kilograms of GHB and GBL was seized in this matter, which exceeds the prescribed commercial quantity threshold of 2 kilograms for these substances. In my view, taking into account both the quantity of the drugs, and your level of involvement accepted by the prosecution as being limited to that of security, this offending represents a mid-level example of this trafficking offence. Clearly, your complicit role in the trafficking by manufacture and distribution of GHB was limited to that of security over a three-week period. There is no evidence that you had direct involvement in the manufacturing of the GHB or the distribution of the product, and you had minimal knowledge of the operation which was run by others. There is no evidence to suggest that you received any benefit from your role beyond a quantity of GHB to service your own addiction and a place to stay.
37Accordingly, whilst the trafficking enterprise appears to have been a significant one, your role in it was important, though limited. I accept that your offending was motivated by your addiction. You were clearly aware of the wrongfulness of your conduct, as demonstrated by your attempts to avoid immediate apprehension by police when they arrived at the scene, in pouring out a quantity of the GHB in the office area. However, as your offending appears to have been motivated by your own drug dependency, I accept that your moral culpability is moderate. I note in this case that there is no material before me to warrant any significant reduction in your moral culpability on the basis of the mental impairment principles articulated in the decision of Verdins.[4]
[4] R v Verdins & Ors (2007) 16 VR 269.
38Your counsel appropriately drew to my attention various other mitigatory aspects and factors relevant to sentencing. As accepted by the prosecution, your indication of a plea of guilty to the charges on the indictment at the committal mention stage represents an early plea, warranting a full utilitarian discount being applied to sentencing. The extent of the utilitarian benefit is of course increased due to the extraordinary circumstances generated by the COVID-19 pandemic and the consequences with regard to extraordinary delays in the courts system in Victoria.
39Pursuant to the often-cited decision of Worboyes v R,[5] the courts must encourage those who are guilty to so plead, and such encouragement must come from an ‘actual and palpable’ amelioration of sentence.
[5][2021] VSCA 169 at [35].
40You have served the entirety of your period in custody with regard to this matter, together with the now resolved summary matters, within the context of the
COVID-19 pandemic and its significant impact on the custodial setting. I accept that the current custodial environment is made more difficult due to COVID-19 through its impact upon separation from family, lack of personal visits, reduced freedom of movement, and reduced opportunities to work and engage in meaningful activities and therapeutic endeavours. In addition, all prisoners must live with the ongoing anxiety associated with the consequences of COVID-19 in the custodial setting with the compromised demographic. In those circumstances, a further mitigatory allowance is warranted due to the hardship in the custodial setting as a result of COVID-19.41In written submissions, the prosecution submitted that you had evidenced an absence of remorse regarding your offending behaviour. Reliance was placed upon the sentiments expressed by Ms Reese in her report, where it was indicated that you had limited insight as to the impact your substance use and offending had on yourself and the broader community. Whilst it may be the case that you have some insight issues with regard to your offending and the impact of your drug use and related activities on the broader community, the fact remains that you pleaded guilty early in proceedings.
42Furthermore, in your interview with police, as conceded by the prosecution, you provided an unusually fulsome and detailed account of your offending, naming an individual who was more involved in the offending, and the fact that the trafficking charge is a between dates charge is, it seems, largely as a result of your admissions made in the record of interview. A sentencing discount based upon your cooperation and admissions is warranted.
43Given your criminal history, longstanding drug-related issues, your insight issues with regard to the current offending, and the various matters referred to by
Ms Reese and Mr Howe in their respective reports, together with of course the serious nature of your current offending, it is difficult to find your prospects of rehabilitation as anything other than guarded. However, you have it seems clearly shown your potential in the past. You have at least attempted tertiary studies. You have demonstrated an ability to maintain an intimate relationship, and you have fathered a child. Realistically, in my view, you do not consider it appropriate to commence a meaningful relationship with your son until you have obtained a period of long-term stability.44You have successfully completed a period of parole and a Community Correction Order. You have been in custody and, presumably, drug-free for the vast majority of 2021. You have spent the majority of your time in custody in Fulham Prison, where I was informed you have been in trusted positions such as the cottages. You have been employed as a gardener, and you are currently employed as a food line billet. It seems that you have attempted to use your time in custody productively.
45Whilst there are clearly some issues arising out of the Drug and Alcohol Treatment Court reports, the details of which I shall soon refer to, you have demonstrated, it seems to me, a desire and willingness to engage in intensive rehabilitation with regard to your longstanding drug-related problems. In those circumstances, you are not without rehabilitative hope, in my view, though the challenges which lay ahead of you are significant.
46Any sentence I impose must reflect the important sentencing purposes of denunciation of your serious conduct, the need to deter you from re-offending, the need to deter others from engaging in such serious criminality, and the need to protect the community from you. In addition, any sentence must, to the degree appropriate, facilitate your rehabilitation. In that regard, I note that you are still aged only 32 years.
47Furthermore, if the Court is considering making a Drug and Alcohol Treatment Order, then your rehabilitation and the protection of the community (achieved through your rehabilitation) have greater importance than those other sentencing purposes.[6]
[6]Sentencing Act 1991 s18X(2).
Drug and Alcohol Treatment Order matters
48At the Directions Hearing stage, having determined that you might be eligible for a Drug and Alcohol Treatment Order, I ordered that the Drug and Alcohol Treatment Order assessment reports be obtained. Those reports, from Clinical Advisor,
Harry Howe, and Case Manager, Chloe Reese, were tendered at the Determination Hearing and marked Exhibits 4 and 3 respectively.49In his report, Mr Howe indicated that, in his opinion, you were suitable for a Drug and Alcohol Treatment Order, and that the treatment and supervision component of a Drug and Alcohol Treatment Order would be an appropriate intervention to address your substance use disorder, and that there were no significant concerns regarding your capacity to participate in such an order. Various conditions were recommended.
50In her report, Chloe Reese found you suitable for a Drug and Alcohol Treatment Order with reservations. She noted issues with regard to your attitude concerning your offending, and your reference to previously manipulating clinicians. She noted various inconsistencies of account on your part with regard to your history. She noted that you reported having a large list of acquaintances and drug-using peers, and you did not rule out contacting these acquaintances or peers upon your release. She also noted that you would not guarantee abstinence, and you were not confident that you would pursue a drug-free lifestyle. There were also concerns expressed with regard to high-risk accommodation, and your pejorative comments with regard to other drug users. Nevertheless, Ms Reese found you suitable for a Drug and Alcohol Treatment Order and made various recommendations with regard to conditions.
51Neither party filed a notice of intention to dispute the court ordered assessment reports. I proceed on the basis that no challenge was made to the contents or conclusions of the reports.
52Your counsel submitted that, in all the circumstances, it was appropriate for you to be placed upon a Drug and Alcohol Treatment Order. Your counsel submitted that the comments taken by Ms Reese to be concerning were rather pragmatic and realistic appraisals by you about temptation, and articulations of insight into the things you need to avoid in order to succeed. Whilst you made negative comments with regard to residents of facilities who were drug users, you acknowledged that you, too, were a drug user. Whilst you expressed a preference with regard to accommodation, you appreciated that such ideal accommodation would not be readily accessible to you. Your comments with regard to previous manipulation of counsellors was said to be reflective of frank and candid acknowledgment to drug and alcohol workers of your past behaviour, in the context of your expressed desire to change. It was submitted by your counsel that the various criteria contained in s18Z of the Sentencing Act 1991 were met in your case, such that a Drug and Alcohol Treatment Order should be made.
53The prosecution position with regard to this Determination Hearing was set out in some detail in the Prosecution Submissions dated 6 December 2021, Exhibit 2 at the Determination Hearing. They can be encapsulated through a statement that you may well be eligible for a Drug and Alcohol Treatment Order, but there are real question marks as to your suitability for such an Order given the attitudinal and other matters referred to in Ms Reese’s report. In oral submissions before me, those submissions were realistically tempered it seems, and there was a realistic acceptance that your commentary in the assessment reports reflected your transparency with regards to treatment issues, which can appropriately be dealt with on a Drug and Alcohol Treatment Order.
54The particular purposes of a Drug and Alcohol Treatment Order are set out in s18X(1) of the Sentencing Act 1991. They are:
(a) to facilitate the rehabilitation of the offender by providing a judicially-supervised, therapeutically-oriented, integrated drug or alcohol treatment and supervision regime;
(b) to take account of an offender's drug or alcohol dependency;
(c) to reduce the level of criminal activity associated with drug or alcohol dependency;
(d) to reduce the offender's health risks associated with drug or alcohol dependency.
55On all the material before me, I am satisfied that:
(i)you are dependent on methamphetamine and GHB;[7]
(ii)your dependency contributed to the commission of the offending before me;[8]
(iii)otherwise, it would be appropriate to impose an immediate sentence of imprisonment of no more than four years, having regard to all of the sentencing factors and principles to which I have referred;[9]
(iv)that I am satisfied of all the other eligibility criteria set out in s18Z of the Sentencing Act 1991 with regard to the making of a Drug and Alcohol
Treatment Order; and
(v)in particular, that I am satisfied, in all the circumstances of your case, that it is appropriate to make a Drug and Alcohol Treatment Order.[10]
[7]Sentencing Act 1991 s18Z(1)(c)(i).
[8]Sentencing Act 1991 s18Z(1)(c)(ii).
[9]Sentencing Act 1991 s18Z(1)(d)(ii).
[10]Sentencing Act 1991 s18Z(3)(a).
56In particular, whilst I note the concerns raised by case manager, Chloe Reese, and the submissions made by the prosecution with regard to your attitude and concerns with regard to accommodation, having given this matter careful consideration, I am of the view that now is the appropriate time to make a Drug and Alcohol Treatment Order in your case to provide you with intensive and comprehensive drug-related rehabilitation, testing and monitoring interventions. In my view, some of the perhaps concerning attitudes expressed by you simply highlight the need for a Drug and Alcohol Treatment Order in your case.
57I understand that you agree to the making of the Order and that you agree to comply with the treatment and supervision part of it.
Sentences to be Imposed
58The Drug and Alcohol Treatment Order will apply only to Charge 1 on the indictment, and accordingly, I will deal with the charges out of order.
59On Charge 2 on the indictment, possession of a drug of dependence, I am satisfied that the possession was related to your own use. You are convicted on this charge and fined the sum of $300.
60On Charge 3 on the indictment, handling stolen goods, you are convicted and sentenced to 14 days' imprisonment.
61On the related summary offence of committing an offence whilst on bail, you are convicted and sentenced to seven days' imprisonment, this period to be served cumulatively upon the 14 days imposed on the handling stolen goods charge, making a total effective sentence of 21 days' imprisonment.
62Pursuant to s18 of the Sentencing Act 1991, I declare that you have already served this period of 21 days, and this period is to be deducted from this Sentence, meaning that no further time in custody is to be served in relation to these charges.
63For the sake of clarity, this leaves 99 days pre-sentence detention remaining for consideration with regards to the trafficking Charge.
64I turn now to the most serious charge, trafficking in a drug of dependence, Charge 1 on the indictment. As I indicated at your Determination Hearing and have already stated today, in my view it is appropriate to impose a Drug and Alcohol Treatment Order in relation to this offence.
65A Drug and Alcohol Treatment Order consists of two parts, the treatment and supervision part, and the custodial part. The custodial part of a Drug and Alcohol Treatment Order consists of the sentence of imprisonment that I must impose under s18ZD of the Sentencing Act 1991.
66The custodial part of this order is a term of imprisonment of two years and three months. This period is not to be served unless further ordered.
67In terms of the treatment and supervision part of the Order, all core conditions pursuant to s18ZF of the Sentencing Act 1991 must be attached to it. These core conditions will remain in force for two years and three months, or until further order. The core conditions are as follows. You must not commit, whether in or outside Victoria, another offence punishable on conviction by imprisonment during the time the Order is in force. You must attend the Drug and Alcohol Treatment Court when required by the Court to do so. You must report to the Melbourne Drug Court House or other specified place within two clear working days after the Order is imposed. You must report to and accept visits from a member of the Drug and Alcohol Treatment Court. You must undergo treatment for alcohol and drug dependency as specified in this Order, or by the Drug and Alcohol Treatment Court. You must give notice of any change of address at least two clear working days before the change to a specified Drug and Alcohol Treatment Court officer. You must not leave Victoria without the permission of the Drug and Alcohol Treatment Court. You must obey all lawful instructions from the Drug and Alcohol Treatment Court team.
68Furthermore, in relation to the treatment and supervision part of the Order, the following program conditions will operate for two years or until further order. You must submit to drug and alcohol testing as directed by the Drug and Alcohol Treatment Court team. You must submit to detoxification or other treatment specified in the Order (whether residential in nature) as directed by the Drug and Alcohol Treatment Court team. You must attend vocational, educational, employment or other programs as directed by the Drug and Alcohol Treatment Court team. You must submit to medical, psychiatric or psychological treatment as directed by the Drug and Alcohol Treatment Court team. You must adhere to an alcohol ban. You must not associate with Ms Bianca Momot. You must comply with a curfew, requiring you to remain at an address assessed as suitable by the Drug and Alcohol Treatment Court team, and pursuant to their direction between 9:00 pm and 6:00 am. You must reside at an address assessed as suitable by the Drug and Alcohol Treatment Court team and pursuant to their direction. You must do or not do anything else that the Drug and Alcohol Treatment Court considers necessary or appropriate concerning (i) your drug or alcohol dependency and (ii) the personal factors that the Drug and Alcohol Treatment Court team considers contributed to your criminal behaviour. You must waive all rights of confidentiality of communications between, on the one part, the Drug and Alcohol Treatment Court team and its servants and agents, and, on the other part, all treatment providers and all government agencies, authorities and departments.
69This Drug and Alcohol Treatment Order will remain in force for two years and three months or until further order.
70This Order commences today, 16 December 2021.
71You must attend for your first contact with the Drug and Alcohol Treatment Court team at 2:00 pm today via Zoom or phone, as I have stated, with the Drug and Alcohol Treatment Court team or its delegates as directed.
72I note in relation to this matter that you have served 99 days pre-sentence detention. No declaration is made at this time pursuant to s18 of the
Sentencing Act 1991.73I will make the disposal order with regard to all drugs of dependence and precursor chemicals seized from 2 Catherine Street, Coburg North, this application being made by the prosecution and not being opposed by you.
74Finally, pursuant to s6AAA of the Sentencing Act 1991, had you pleaded not guilty but been found guilty in relation to these offences, I would have imposed a total effective sentence of three years and three months’ imprisonment with a
non-parole period of two years and three months.75Mr Harrison, first turning to you. Any issues or ambiguities with regards to the sentence?
76MR HARRISON: I am unsure at this stage, your Honour. It is the first matter where a Drug and Alcohol Treatment Order has not been largely entered over the majority of the charges.
77HIS HONOUR: Yes.
78MR HARRISON: I cannot see on my first reading there being any issue if anything arises. Steps can be taken.
79HIS HONOUR: Yes. Yes, I understand the point you make. Is there any issue from the prosecution point of view with regards to the pre-sentence detention? There is 120 days available. I have used up 21 of them on the other charges. The 99 days is noted on the record. It is not declared at this stage, because as I understand the procedure in the Drug and Alcohol Treatment Court, it hangs in abeyance so to speak, if there is any contravention proceedings then it can be activated and utilised then.
80MR HARRISON: That is certainly the case, your Honour, for the sentence that your Honour has used, that would appear to be the appropriate course.
81HIS HONOUR: Yes.
82MR HARRISON: And I certainly take no issue with that.
83HIS HONOUR: Alright. Ms Kennedy, any issue from your point of view?
84MS KENNEDY: No, Your Honour.
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