Director of Public Prosecutions v Quadara
[2017] VCC 366
•4 April 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-16-01095 and
CR-16-02264
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DOMENIC JOSEPH QUADARA |
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JUDGE: | HER HONOUR JUDGE PULLEN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 7 December 2016 and 6 March 2017 | |
DATE OF SENTENCE: | 4 April 2017 | |
CASE MAY BE CITED AS: | DPP v Quadara | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 366 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Ms G. Overend and Mr D. Hannan | Office of Public Prosecutions |
| For the Accused | Mr N. Leslie | Slink & Keating |
HER HONOUR:
1 Domenic Quadara, you have pleaded guilty on Indictment F11493545 to two charges of trafficking in a drug of dependence and one charge of possess a drug of dependence. The maximum penalty applicable to those offences are, trafficking, 15 years’ imprisonment, and possessing cannabis (small quantity), five penalty units.
2 You have also consented to, and pleaded guilty to, three summary charges being transferred to this Court pursuant to s.145 Criminal Procedure Act 2009. They are charges of possessing a prohibited weapon, a Taser, without an exemption (Summary Charge 6) the maximum penalty applicable to that offence two years’ imprisonment or 240 penalty units. You have also pleaded guilty to possessing ammunition whilst not the holder of a licence (Summary Charge 7), which carries a maximum penalty of 40 penalty units, and have also pleaded guilty to one charge of dealing with property, namely $31,005 in cash suspected of being proceeds of crime (Summary Charge 8), with the maximum penalty applicable to that offence two years’ imprisonment or 240 penalty units.
3 These charges arose from events on 29 April 2015.
4 You have also pleaded guilty on Indictment No.G12693769 to one charge of possession of a traffickable quantity of unregistered firearms. The maximum penalty applicable 10 years’ imprisonment, three charges of trafficking in a drug of dependence, the maximum penalty 15 years’ imprisonment on each charge, possession of a tablet press, the maximum penalty five years’ imprisonment and two charges of handle stolen goods, 15 years’ imprisonment.
5 You have also agreed to two further summary charges being heard by me pursuant to s.145 Criminal Procedure Act2009 and have pleaded guilty to dealing with proceeds suspected as being proceeds of crime, that is $26,600 (Summary Charge 2), with a maximum penalty of two years’ imprisonment or 240 penalty units and possession of cartridge ammunition (Summary Charge 9), a maximum of 40 penalty units.
6 Those charges arose from events on 29 November 2016.
7 It is not necessary for me to recount in any great detail the facts of either matter as they are on transcript, having been opened in some detail by the learned prosecutor and consistent with the (Joint) Summary of Prosecution Opening (Exhibit A). I proceed to sentence you on the basis of the facts as summarised by the prosecutor and discussed during the course of your plea hearing. It is sufficient for present purposes to simply say that your offending, in my opinion, is most serious.
8 I turn then to a brief summary relevant to Indictment F11493545 and the three related summary charges.
9 At the time of that offending, you were 25 years of age, and you are 26 at sentence.
10 On 29 April 2015, at approximately 11.55am, police attended 16 Hillview Drive, Carrum Downs, and you were sitting on the front porch of the property.
11 The police advised you they had a warrant to enter and search the property and you gave them access to the property and said no one else was present.
12 The police asked you if there were any drugs inside the house and you said that there was some cannabis and methamphetamine inside in a black Peter Jackson bag in the kitchen. You also said there was a small bag of “ice” under the bin in the kitchen.
13 You were arrested and had in your possession three mobile phones and a wallet containing $1,020.
14 During the search, police removed the cover of a heater return duct in the hallway of the home. Inside they found the black Peter Jackson bag. You said the bag and everything inside was yours and said it contained cash, ice and cannabis.
15 Police searched that bag and located 11 plastic bags with a total of 294.4 grams of a crystallised substance. In the kitchen underneath a bin, they found a small, black bag which contained a number of plastic bags. One of those bags had 0.2 grams of a crystallised substance in it.
16 A total quantity of methylamphetamine in the substances contained in those 12 bags, to which I have just referred, was approximately 253 grams at 82-83% purity (Charge 1).
17 In the black Peter Jackson bag were two plastic bags of powder, and one contained 0.8 grams of powder which contained cocaine in the approximate purity of 21 per cent. The other bag contained 4.3 grams of powder, which contained cocaine in the approximate purity of 22 per cent (Charge 2).
18 In addition, in the bag was 8.4 grams of cannabis (Charge 3), $13,590 in cash and two digital scales.
19 In one of the bedrooms in the top drawer of a cabinet, was a single shotgun ammunition cartridge (Summary Charge 7) and a Taser was located on the kitchen table (Summary Charge 6).
20 A Holden Commodore was parked in the driveway of the premises.
21 In the study police located two receipts dated 28 April 15, the day before the execution of the search warrant, which showed cash deposits of $15,195 and $1,200 for the vehicle. Police seized that car. It was subsequently returned to you in exchange for a bank cheque in the sum of $16,395.
22 The total amount of property suspected of being proceeds of crime is $31,005, comprising $1,020 located on you, with $13,590 in the Peter Jackson bag and the bank cheque for $16,395 (Summary Charge 8).
23 You were taken to Carrum Downs Police Station and interviewed. You remained mute throughout the interview which, of course, was your right.
24 That offending proceeded by way of straight hand-up brief with you entering a plea of guilty on 23 June 2016, after an application for summary jurisdiction was refused.
25 I turn to Indictment G12693769 and a brief summary of that offending. That offending occurred whilst you were on bail for the Indictment F11493545 charges, an aggravating feature of this offending.
26 Police executed another warrant at your home on 29 September 16.
27 You had a set of keys in your possession including a fob key which police believed to be a key for a self-storage facility.
28 Police made enquiries with Arthurs Self Storage, Carrum Downs. You had access to storage shed 274, was leased in your girlfriend’s name. CCTV footage showed you attending that shed.
29 Police executed a search warrant and inside the shed located the items set out in paragraph 22 of Exhibit A, which included six firearms (Charge 1). I was told by your counsel, four were operational.
30 Also in the shed was a Krico semi-automatic .22 calibre firearm, I was told minus the bolt, and a Kimber .325 calibre rifle. Both those firearms were identified as having been stolen in separate burglaries that took place in September and June 2014 (Charge 6). I note the prosecution does not attribute those burglaries to you.
31 Also located in shed 274 were the drugs and related equipment set out in paragraph 24 (Exhibit A), referrable to Charge 2, that is 68.1 grams MDMA, Charge 3 –Xanax (Alprazolan) 3.5kg, and Charge 4 –methamphetamine 54.9 grams.
32 Also in shed 274 was a mains powered pill press (Charge 5).
33 Also in the shed was a safe. A key on your keyring opened that safe and inside was $26,600 (Summary Charge 2). Also two shopping bags each containing firearms ammunition (Summary Charge 9).
34 You were interviewed by police regarding that offending. You acknowledged you paid for the storage shed, tricked your girlfriend into opening the storage unit so you could leave "stuff" without her knowledge. All the "stuff" in the shed was put there by you and you acknowledged you did not have a firearm licence.
35 I return to a brief chronology.
36 Prior to that date, you had been arrested on 29 April 2015 (Indictment F11493545) and remanded in custody until bailed on 7 May 2015. You at that time served nine days in custody for that offending. You were subsequently arrested and charged on 29 September 16 relevant to Indictment G12693769 and as at the plea hearing had been in custody since then, a total of 167 days (9 + 159 days respectively). As previously stated you were on bail for the first set of offences at the time you committed the second set of, in some respects, similar offending.
37 You have pleaded guilty to all the charges before me and you are entitled to have that fact taken into account in your favour, and I do so. The community, by your pleas of guilty, been spared the time and cost of a trial and witnesses have not been required to give evidence on your trial.
38 I take into account in your favour, in relation to both sets of charges that you pleaded guilty to those charges at the earliest opportunity.
39 In the circumstances, I am prepared to accept your pleas of guilty indicate some remorse for your offending. Your subsequent similar offence offending whilst on bail, however, concerns me regarding the extent of your remorse.
40 You do not have any prior Court appearances, however your offending in September 2016 whilst on bail, and the nine days earlier spent in custody following your arrest and remand in April 2015 did not deter you from offending in a similar manner (referrable to trafficking/drugs) in September 2016.
41 Your counsel, Mr Leslie, provided updated written submissions for this plea hearing addressing both Indictments (Exhibit 1).
42 At your original plea hearing on 7 December 2016, a report was placed before me from Mr Patrick Newton, Clinical and Forensic Psychologist, dated 25 May 2016. At the time of his report, his conclusions and assessment was obviously made prior to your subsequent offending. I discussed briefly, at that time, with Mr Leslie Mr Newton’s conclusions, in particular his assessment of your rehabilitation prospects absent your subsequent offending. No doubt that led to a new report being tendered before me from Ms Carla Ferrari, Consultant Psychologist, dated 7 February 2017.
43 In brief, referring to the report of Mr Newton, you reported an extensive history of drug abuse, including commencement of methamphetamine when approximately 21. You also told Mr Newton you had used a range of other drugs, depending on their availability (paragraph 18).
44 At the time of Mr Newton’s report, you said you had previously ceased all illicit drug use prior to 2013, however, upon your father being diagnosed with Leukaemia, together with financial problems you were then experiencing, you relapsed into drug use to “escape [your] problems”. In that context, the initial offending on Indictment F11493545 occurred.
45 At the time of Mr Newton’s report, you said you continued to abuse drugs until you were arrested in April 2015, and thereafter while on remand withdrawing from drugs. You were then subject to the CISP Bail Support Program following release on bail. You said you had undertaken drug counselling on the program and had found that drug rehabilitation helpful. You stated you had remained abstinent since your arrest. It is clear, however, you relapsed at the time of your offending on Indictment G12693769.
46 Mr Newton referred to you having developed positive insight into your drug problem, understanding the risk of drug use, and being able to discuss with Mr Newton a range of strategies to avoid relapse. Unfortunately, as evidenced by your offending relevant to Indictment G12693769, this did not last.
47 You also told Mr Newton counselling had increased your awareness of the broader social consequences of the drug trade and its pernicious effects. Again, I note such awareness not deterring you from re-offending. You told Mr Newton that not only had that awareness led to genuine remorse for your drug-related offending, but had also consolidated your motivation to remain abstinent in the longer term. Unfortunately not in the long term.
48 At the time of that assessment, Mr Newton said you were suffering a combination of mild depressive symptoms and elevated anxiety, diagnosed with Adjustment Disorder with Mixed Anxiety and Depressed Mood, your symptoms primarily reactive in nature.
49 You also told Mr Newton that having stopped using drugs you felt a renewed sense of engagement with life and were keen to become more involved in developing your business. Mr Newton opined in his report (paragraph 42), that provided you continued with your participation in appropriate treatment he would be relatively optimistic about your prospects for rehabilitation. He noted you had demonstrated the benefit you derived from your participation in counselling and educational programs. Those factors, Mr Newton concluded, correlated with a positive outlook and suggested a good prognosis.
50 Unfortunately, as is apparent, after being granted bail on 7 May 2015 and being aware of those charges as they progressed through the court system, initially in the Melbourne Magistrates’ Court and then the County Court, this apparent insight and motivation did not prevent you from offending on 29 September 2016.
51 I turn to the report from Ms Carla Ferrari. The author was aware of both indictments and all related summary offences before the Court. The author, also had other material available to her, including Mr Newton’s report.
52 Further details were provided in her report regarding of your family and personal history. You are the eldest in a sibship of three, and you maintain a close relationship with your two younger sisters.
53 You described your parents' relationship through your childhood and adolescence as unstable, with regular arguments and periods of separation. You reported exposure to substance use, firearms, and witnessing other violence during your early years when your family were living in Sydney.
54 At times you returned to Victoria with your mother to live with your maternal grandparents due to your father’s lifestyle, describing harsh discipline practises when your father was at home, being fearful in relation to his demeanour.
55 Your parents divorced four years ago and have both re-partnered. Your relationship with both had improved over time.
56 You attended at least four primary schools. You describe being easily distracted at school, having difficulty paying attention and regulating your emotions. You completed Year 10, leaving school due to your substance use.
57 You completed a year of a plumbing apprenticeship, then a personal training course and worked doing labouring jobs until you started your own transport company in 2013. That business was successful and profitable until you had to suspend it due to your current circumstances.
58 You told Ms Ferrari you were using your time in prison completing courses and programs to assist your personal development and well-being. Currently you were working in the horticulture section at Marngoneet Correctional Centre.
59 Your partner remained supportive of you, and you described her as a strong and positive influence in your life.
60 You described two previous relationships and escalation of substance abuse in them. Methamphetamine use became part of your relationship with one of your past girlfriends, and also using other substances. During your first relationship, you spiralled into Depression and your use of Speed and MDMA increased.
61 You described a brief episode of care under the CAT Team in December 2012 for drug-induced psychosis, although you did not require in-patient admission.
62 You said you had not received any psychological treatment to address your early life experiences, although said you had participated in drug and alcohol counselling under the CISP Program and through Peninsula Health in Frankston for a period of three months post-release following your initial remand.
63 Ms Ferrari described you as open and honest regarding your use of substances. You described several periods of abstinence, in particular, after the end of your last relationship. You described returning to heavy drug use in 2013, following your father’s illness and financial hardship in your business.
64 Regarding the offending that is before me, you had expressed remorse, embarrassment and disappointment for relapsing into substance use, which led to the commission of both sets of offences.
65 Prior to your offending on Indictment G12693769, you said your transport business had been building steadily and you had extricated yourself from your negative social circle. However, following the theft of a car and truck damage, you described a marked deterioration in your functioning, and again it seems financial problems. You began to again associate with previous drug acquaintances and used methamphetamine again, dealing drugs to make ends meet financially. You said over a period of approximately two months you were using drugs daily.
66 Regarding your use of the storage shed facility, you told Ms Ferrari that during a two-month drug binge you used the shed to hide drugs and associated paraphernalia. You denied having purchased the firearms with any intent to use them maliciously. You said you were not aware any of the goods in your possession were stolen items. Regarding the money in the shed, you said that had been obtained from your business.
67 Mr Leslie sought some instructions from you during the course of the plea hearing and, referable to the report of Ms Ferrari, you acknowledged that unlike her reference in her report, you did acknowledge the parts found in your home match the four firearms in the storage shed. Regarding collecting the items as showpieces or collectors’ items some were also, you said, for the purpose of recreational shooting, although I note in your record of interview you said you did not have a firearms licence (Questions 84-87). I discussed these firearms with Mr Leslie.
68 You told Ms Ferrari that being incarcerated had given you an opportunity to re-evaluate your life and that you had engaged in programs offered at Marngoneet.
69 You expressed concern and remorse for the impact your offending had on your personal and professional relationships.
70 Testing by Ms Ferrari indicated symptoms suggestive of an acute depressive episode within the moderate range, with mid-levels of stress, your anxiety symptoms within the normal range. Those scores were understandable, in her opinion, given your pending court appearance. She urged this be monitored following sentence, to prevent a negative impact on your functioning. The authorities will receive a copy of her report and recommendations to assist with your management.
71 The author concluded you had a recurrent untreated Depressive Disorder and underlying generalised anxiety and post-traumatic stress symptoms as a result of your childhood. Ms Ferrari described your offending as impulsive and opportunistic behaviour. I am not so convinced, in particular, your drug reoffending.
72 Ms Ferrari referred to a number of protective factors relevant to your prognosis for rehabilitation and risk of re-offending. You maintained the support of your current partner, although I note you had her support at the time of your earlier offending but that did not deter you. You have demonstrated good insight and remorse into your offending and indicated your willingness to continue to seek further psychological treatment.
73 Ms Ferrari found no evidence of severe psychological disturbance or psychotic disorder, and this would improve your prognosis.
74 Mr Leslie relied upon his written outline of submissions and the report of Ms Ferrari.
75 In Court to support you during the course of your plea hearing were members of your family; your mother, your grandfather and your partner, who I am told will continue to support you.
76 You are 26 years of age at time of sentence as I have said, and were 25 at the time of the offending in Indictment F11493545, and 26 at the time involved in Indictment G12693769. In that regard, Mr Leslie submitted while you are not "a young offender", you should be regarded as youthful for sentencing purposes, at least with respect to the offending constituted by Indictment F11493545. Such was relevant when determining your rehabilitation prospects. He appropriately conceded, however, that my assessment of your rehabilitation prospects were somewhat marred by your offending referrable to Indictment G12693769 and the related summary charges.
77 Mr Leslie submitted your background did not provide an excuse,m rather the context for your drug use.
78 Mr Leslie conceded there was a presumption that cumulation would apply to the second Indictment offending as such was committed whilst on bail. He conceded he did not rely upon exceptional circumstances.
79 Mr Leslie referred to you having done "quite well" in the 12 to 14 months prior to this offending, and I note that during that time you did not commit offences. It would appear you were able to at least manage, or contain, or abstain from drug use during that time, which is to your credit. However, of course, despite that period of abstinence when faced with financial difficulties and stress, it would seem you again resorted to not only use of drugs, but also trafficking drugs, as was the case in Indictment F11493545.
80 Mr Leslie submitted you were co-operative with police when they came to your home, Indictment F11493545 , and also in relation to Indictment G12693769. That is so.
81 Mr Leslie also submitted a number of aggravating features were not present. No co-accused, in other words, you did not offend in company. Nor was this part of a larger organisation and no violence was involved in your offending.
82 Mr Leslie conceded, however, the need for general deterrence when sentencing you.
83 Mr Leslie referred me to a number of authorities relevant, in particular, to the firearm offences, R v Henderson& Anor[1], Murrell v R[2] McAleer v R[3], Berichon & Ors v R[4] (at paragraph [26]). I have read those authorities.
[1] [2009] VSCA 136
[2] [2014] VSCA 337,
[3] [2015] VSCA 4
[4] [2014] VSCA 319
84 A number of references were placed before me.
85 There was a reference from Father Joseph Giacobbe, who was a priest at the St Augustine’s Church in Yarraville. He described having known your family for many years and had recently discussed this offending with you.
86 He said you were a well-behaved teenager, avoiding antisocial behaviour. When you left school you immediately found work, and he said you were constantly employed until you began your own business two years ago.
87 You told him you did not respond well to pressure and stressful situations, and that it was in that context you offended on this occasion. He appears to be talking about the second Indictment offences. In custody you had undertaken a number of rehabilitation courses, and were in a strong and supporting relationship with your current partner. The author believed that you were remorseful for the problems you had caused by your offending.
88 There was also a reference from your partner, dated 6 February 2017. She will continue to support you. She was disappointed by your offending.
89 There was a reference from Janet Ebery, dated 1 December 2016, a close friend of your mother’s. She found out about your offending through your mother. She thought the separation of your parents had deeply affected you. She said you were sorry for your offending and the embarrassment you had caused your family. You had the support of family and family friends.
90 There was a reference from Trent Williams, dated 6 June 2016. He described you as a person of good moral character, although I have some difficulty with that, given your offending, although I note his reference was written prior to the second Indictment offending. He had known you for over five years. He believed you to be a decent person. You were an integral part of his business, ensuring customers' spas are delivered on time and in a safe manner. You were remorseful for your offending.
91 There was an earlier reference from Andrea Franjkovic, dated 1 June 2016, which was written for the Magistrates’ Court, it would seem.
92 There was a reference from Casey Quadara, dated 8 June 2016, your younger sister, also written prior to your most recent offending.
93 A reference from your father, dated 3 June 2016, addressed to the Magistrates’ Court and pre-dating the second Indictment. He described that at the time of your series of offending, you had just found out your father had been diagnosed with Leukaemia, and had also invested your savings into a small business. At that time, you said you were embarrassed and regretful about your situation. I note, not so embarrassed and regretful to not re-offend.
94 There was an earlier reference from Dale Jamieson, dated 2 June 2016. He describes you as a very smart young man, good with customers.
95 There was also a urine screen test result tendered showing negative for drugs. That sample was provided on 21 October 2016, following the second set of offences.
96 Also before me was a Certificate of Completion of the Coping with Change Program and a Certificate of Completion of the six-hour Managing Cravings Program.
97 There was correspondence from Corrections Victoria confirming that you are currently employed as a billet within the prison and I was also told that, as of the day prior to this plea hearing, you have been accepted into a six-week program to address your Ice addiction.
98 There was also correspondence written by you tendered before me dated 26 February 2017. You said you were disappointed that you allowed drugs back into your life. That when you had been released on bail, you attended drug counselling as part of the CISP Program, and then voluntarily. You had also started a business.
99 You said you found comfort in drugs to deal with the theft of your car, a truck having caught fire, and your financial problems.
100 You regret returning to drug use. You realise you disappointed a number of people, including your family and girlfriend.
101 In custody, you said you had undertaken a number of courses and programs and had been employed in prison. You said you were aware you must deal with the consequences of your offending.
102 Mr Leslie submitted your behaviour in jail would assist an assessment of your rehabilitation, referring to Latina v R[5] at paragraph [22]. These courses and programs are a start, and I urge you to take up any opportunities in custody that will further assist your rehabilitation.
[5] [2015] VSCA 102
103 Mr Leslie also referred to your lack of prior criminal history, albeit acknowledging the weight to be attached to that needed to be moderated in view of your drug offending on the second Indictment and summary matters relevant to that Indictment.
104 Mr Leslie also submitted you were remorseful and that was evidenced by your pleas of guilty, co-operation with police, and before me was a letter written by you further evidencing your remorse for this offending.
105 For completeness, I note Mr Leslie was not relying upon the principles in R v Verdins & Ors[6] and such was an appropriate concession on the material before me.
[6] (2007) 16 VR 269
106 Mr Leslie’s primary submission was that your offending could be appropriately dealt with by a term of imprisonment, together with the imposition of a community correction order.
107 His secondary submission, without abandoning his primary submission, was that if I considered a term of imprisonment to be the only appropriate disposition, then it be a longer period on parole.
108 Mr Hannan, who appeared on behalf of the prosecution, referred me to s.16(3C) Sentencing Act 1991 which dictates the offending relevant to Indictment G12693769, and the second lot of summary charges should be ordered cumulatively unless otherwise ordered by the Court.
109 Mr Hannan submitted yours was serious offending. You were not only a drug addict, but also funding your addiction by trafficking.
110 Mr Hannan referred to the large quantities and high purity involved in the drugs you were selling, and that you had all the accoutrements, scales, bags and phones as part of your trafficking enterprise.
111 Mr Hannan submitted a number of the firearms were not simply for display. I accept, however, there is no evidence before me to suggest you were going to on-sell the weapons.
112 Mr Hannan referred to the rewards for trafficking being great, as were the risks.
113 Mr Hannan submitted that there was a need for general deterrence referrable to the drugs and firearm offences and that the only appropriate disposition would be a term of imprisonment with a non-parole period.
114 The prosecutor submitted a term of imprisonment, together with a Community Correction Order, would be outside the range of appropriate dispositions.
115 Mr Leslie referred to some moneys he suggested had been legitimately obtained by you, when considering the proceeds of crime charge, of $26,000. However, you were unable to say how much were not the proceeds of crime.
116 Turning to the initial primary submission of Mr Leslie and his urging that I impose a term of imprisonment, together with a community correction order, I am of course well aware of the decisions in Boulton & Ors v R[7] and the subsequent pronouncements of the Court of Appeal in particular relevant to those principles. A Community Correction Order has both a punitive and rehabilitative aspect to it, and in Boulton the Court was urged to, "rethink the conventional wisdom about whether prison is really the only option".
[7][2014] VSCA 342
117 Community Correction Orders have been referred to and addressed in a number of cases since, including DPP v Maxfield[8], Alam v The Queen[9], Marocchini v The Queen[10], Hutchison v The Queen[11] and Gul v The Queen[12], of course being mindful as I am, of the different offending in those cases from yours.
[8] [2015] VSCA 95
[9] [2015] VSCA 48
[10] [2015] VSCA 29
[11] [2015] VSCA 115
[12] [2016] VSCA 82
118 I did not however understand Boulton to remove the requirement that a sentencing judge must take into account all of s.5 Sentencing Act 1991, nor did I understand Boulton to mean that sentencing principles stated by the Court of Appeal and other Courts relevant to this type of offending now amounted to nought. Nor did I understand Boulton’s decision to remove the instinctive synthesis when sentencing.
119 I also did not understand Boulton to remove the need for me to be mindful of the maximum penalties applicable to each of your charges, and further, I note Priest JA observed in Hutchison that:
“… it should not be thought that Boulton offers a ‘get out of jail free’ card in situations where a sentence of imprisonment is necessary in a given case to satisfy the various purposes for which a sentence may be imposed.” [17]
120 In my opinion, to impose the primary disposition urged by Mr Leslie would not adequately reflect the gravity of your offending, taking into account all matters personal to you and in mitigation of your sentence.
121 I have concerns regarding your rehabilitation prospects. Ultimately this will depend upon you being able to remain drug free and previous abstinence has not stopped your offending. However, in fixing the appropriate sentence I must seek to maximise your chances of rehabilitation as I find them to be.
122 I must also take into account the need for general deterrence, which is important in a case such as this.
123 I must also take into account the need for specific deterrence when sentencing you. Whilst I note you do not have any prior Court appearances, you did reoffend relevant to Indictment G12693769 whilst on bail for drug trafficking offending.
124 I must also consider the question of protection of members of the community from you and bear in mind the likelihood of your re-offending, and that continues to concern me.
125 I am called upon by the Sentencing Act to manifest the community’s denunciation of your conduct and generally to impose a just punishment.
126 In my opinion, the only appropriate disposition is a term of imprisonment with a non-parole period.
127 When sentencing you, I take into account the principles of totality and proportionality. I am also aware that this is your first time in custody.
128 I accept your depression and anxiety may increase also when in custody, and I urge the authorities to keep the appropriate watch upon your health to ensure, as best they can, it does not deteriorate.
129 I sentence you as follows.
Indictment F11493545
130 On Charge 1, you are convicted and sentenced to 2 years’ imprisonment.
131 On Charge 2, you are convicted and sentenced to 6 months’ imprisonment.
132 On Charge 3, convicted and fined $200.
133 On Summary Charge 6, you are convicted and sentenced to 6 months’ imprisonment
134 On Summary Charge 7, you are convicted and fined $100.
135 And on Summary Charge 8, you are convicted and sentenced to 6 months’ imprisonment.
136 Just on that set of offences, Charge 1 is the base sentence and I direct the following regarding cumulation and concurrency.
137 I direct 1 month of charge 2 be served cumulatively upon Charge 1.
138 I direct that 2 months of Summary Charge 6 be served cumulatively upon Charge 1.
139 I direct that 2 months of Summary charge 8 be served cumulatively upon Charge 1.
140 The orders for cumulation are upon each other and upon the base sentence.
141 That results in a total effective sentence of 2 years and 5 months' imprisonment.
142 I then turn to Indictment G12693769
143 On Charge 1, you are convicted and sentenced to 2 years’ imprisonment.
144 On Charge 2, you are convicted and sentenced to 18 months’ imprisonment.
145 On Charges 3, you are convicted and sentenced to 2 years’ imprisonment.
146 On Charge 4, you are convicted and sentenced to 12 months’ imprisonment.
147 On Charge 5, you are convicted and sentenced to 2 years’ imprisonment.
148 On Charge 6, you are convicted and sentenced to 18 months’ imprisonment.
149 On Charge 7, you are convicted and sentenced to 6 months’ imprisonment.
150 On Summary Charge 2, you are convicted and sentenced to 9 months’ imprisonment.
151 On Summary Charge 9, you are convicted and fined $250.
152 Charge 3 is the base sentence of that indictment and I direct the following in relation to cumulation and concurrency.
153 I direct that 9 months of Charge 1 be served cumulatively on Charge 3.
154 I direct that 6 months of Charge 2 be served cumulatively on Charge 3.
155 I direct that 4 months of Charge 4 be served cumulatively on Charge 3.
156 I direct that 12 months of Charge 5 be served cumulatively on Charge 3.
157 I direct that 6 months of Charge 6 be served cumulatively on Charge 3.
158 I direct that there be no cumulation of Charge 7, it is to be concurrent with the sentence imposed.
159 I direct that 3 months of Summary Charge 2 be served cumulatively on Charge 3.
160 For clarity, those orders for cumulation are upon each other and upon the base sentence.
161 That results in a total effective sentence on that Indictment of 5 years and 4 months, and I direct that 12 months of the sentence imposed on Indictment F11493545 be served cumulatively upon the sentence imposed on Indictment G12693769.
162 That results in a total effective sentence of 6 years and 4 months' imprisonment, and I direct you serve a period of 4 years before you are eligible for parole.
163 Pursuant to s.6AAA Sentencing Act1991, had you been found guilty of all these charges following jury verdict, I would have sentenced you to 9 years’ imprisonment and set a non-parole period of 6 years. So that is all of those charges. Both indictments, all summary charges.
164 Pursuant to s18(4) Sentencing Act1991, I declare you have spent 196 days in custody up to and including yesterday, which is 3 April 2017 by way of pre-sentence detention, and I direct that that be entered into the records of the Court.
165 The prosecution made application for forfeiture orders and these were not opposed by counsel on your behalf, and I make the orders in the terms sought.
166 Now, were there any other orders?
167 MR FOSTER: Your Honour, there's just a - there are three separate orders. There's a disposal order, forfeiture order and forfeiture of firearm order for each indictment.
168 HER HONOUR: Yes, all right.
169 MR FOSTER: And I have copies of those.
170 HER HONOUR: So you're handing those documents up? You've handed them up to Ms Jackson now. Any objection to those orders?
171 MR LESLIE: None.
172 HER HONOUR: No, no objection. All right.
173 MR FOSTER: And 196 days of pre-sentence detention is correct.
174 HER HONOUR: It is correct?
175 MR LESLIE: It's agreed, Your Honour.
176 MR FOSTER: Yes.
177 HER HONOUR: Well done, all right. Excellent, all right. Thank you very much for that.
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