Director of Public Prosecutions v Scammell
[2025] VCC 181
•27 February 2025
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 24-01129
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DAVID SCAMMELL |
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| JUDGE: | HIS HONOUR JUDGE HIGHAM |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 14 October 2024 |
| DATE OF SENTENCE: | 27 February 2025 |
| CASE MAY BE CITED AS: | DPP v Scammell |
| MEDIUM NEUTRAL CITATION: | [2025] VCC 181 |
REASONS FOR SENTENCE
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| Subject: | CRIMINAL LAW |
| Catchwords: | Sentence – Trafficking drug of dependence – Disposing of two or more firearms – Possess drug of dependence a of guilt. |
| Legislation Cited: | Sentencing Act 1991 (Vic) – Knowingly deal with proceeds of crime – Failing to comply with an order to provide information or assistance - Possessing a silencer - Disposing of ammunition to an unlicenced person – Plea of Guilty |
| Cases Cited: | |
| Sentence: | Total effective sentence of 10 months imprisonment and a |
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms F. Holmes | Office of Public Prosecutions |
| For the Accused | Ms E. Fargher |
HIS HONOUR:
1David Scammell, you have pleaded guilty to:
· 4 charges of trafficking a drug of dependence (Charges 1, 2, 4 & 5) for each of which the maximum penalty is a term of imprisonment of 15 years.
· 1 charge of disposing of two (or more) firearms within a 12-month period without holding a dealer's licence (Charge 3) for which the maximum penalty is a term of imprisonment of 10 years.
· 1 charge of possessing a drug of dependence (Charge 6) for which the maximum penalty is one year imprisonment.
· 1 charge of knowingly dealing with proceeds of crime (Charge 7) for which the maximum penalty is 20 years' imprisonment.
· 1 charge of failing to comply with an order to provide information or assistance (Charge 8) for which the maximum penalty is two years imprisonment.
2You have also pleaded guilty to two related summary charges of:
· Possessing a silencer or prescribed item without a permit (summary Charge 34)
· Disposing of ammunition to an unlicenced person (summary Charge 43).
3Tendered as Exhibit 1 on the Determination Hearing was a Summary of Prosecution Opening which set out the agreed facts of your offending. In brief, the circumstances of your offending were as follows.
4On 17 May 2023 police commenced an investigation into the suspected trafficking of drugs and firearms. Covert operatives conducted surveillance and communicated with you via text message on a phone that you shared with a
co-accused, Mr McLean, and then the undercover officers acted as prospective purchasers of drugs and firearms. You met with the covert operatives on various occasions, supplying both drugs of dependence and firearms at different prices and in different quantities. On the first charged occasion you were on your own and supplied cannabis. On all subsequent occasions you were in the company of various of your co-accused.5Between 23 June 2023 and 30 August 2023, you trafficked: 55.9 grams of Cannabis (Charge 1 and Charge 4; 3.2 grams of Ketamine (Charge 2), and 28 grams of Ketamine (Charge 5), with a respective purity of 53 and 32 per cent.
6Between 4 July 2023 and 8 December 2023, various firearms were supplied by you and your associates (Charge 3) including:
· A fully operational .222 Remington manufactured model 700, bolt action rifle. (Identified as a stolen firearm from an address in Kew.)
· A fully operational 12 gauge, Baikal manufactured shotgun and a .222 long rifle, Lithgow manufactured. (The rifle was identified as stolen.)
· A fully operational .22 calibre long rifle and a Lithgow manufactured bolt action rifle, both meeting the definition of a handgun due to modification. (The Lithgow rifle was identified as stolen.)
· A fully operational 12-gauge Iver Johnson's Arms & Cycle manufactured shotgun, meeting the definition of a handgun due to its modification.
· A fully operational .22 calibre rifle, Sturm Ruger manufactured, semi‑automatic rifle. A silencer was also included in the sale (summary Charge 34).
· A fully operational .303 calibre Birmingham Small Arms Shirley manufactured rifle; and
· Two .410 calibre single shotguns. Five .410 ammunition cartridges were also provided (summary Charge 43).
7A total of $73,500 was provided by covert operatives in relation to their purchase of these firearms.
8On 30 January 2024, a search warrant was executed at your address. Police located:
· A bag containing 0.3 grams of Cannabis (Charge 6)
· $2,291.15 in cash (Charge 7)
· Three mobile phones were also seized for which you did not provide the passcodes (Charge 8). I note your reasons for not providing the passcodes were that you said, 'well they have got all the equipment and capacity, so why should I help them'.
9You were charged and remanded on 30 January 2024 where you have since remained.
10On 9 July 2024 the matter proceeded by way of a straight hand-up brief into this court, and a plea hearing took place on 14 October 2024. On that day I ordered a Justice Plan and an Extended CCO pre-assessment report.
11Exhibit 3DS on the plea was a report from Mr Austin Campbell, psychologist, dated 18 September 2024. For completeness I also received a Disability Overview Report and a Disability Justice Plan both dated 19 December 2024 (Exhibits 8 and 9). The CCO Extended Pre-sentence Report was dated 3 January 2025, I do not exhibit that.
Personal circumstances
12You were born the youngest in a sibship of three boys in June 2000 and you are now aged 24, and you were 23 at the time of this offending.
13You grew up in the outer eastern suburbs of Melbourne. You report a childhood marked by conflict in your parents' relationship, although your physical needs were always met. At times you felt so overwhelmed by that conflict between your parents that you would 'run away' from home. Your parents' relationship ended when you were 14, but they continued to reside together for the benefit of their children, as many parents do. You describe this period as uncomfortable, with you spending more time residing with a friend. You describe a positive relationship with your mother, feeling cared for and supported. She was the primary figure and carer in your life. Your relationship with your father was relatively distant. You intend to reside with your father upon returning to the community.
14As to your formal education, you experienced challenges and were diagnosed with a learning disorder at a young age. You attended four different schools, struggling with behaviour issues upon commencing secondary education. You had difficulty regulating your emotions in response to perceived mistreatment. You have been diagnosed with ADHD and oppositional defiance disorder, as well as an intellectual disability. You have a statement of intellectual disability.
15You attended school until Year 12 and then attended Swinburne TAFE to complete your Victorian Certificate of Applied Learning (VCAL), however you were expelled due to a physical altercation with another student. Post your education, you have had no formal work experience, and you support yourself financially by accessing the Disability Support Pension.
16In your adolescence, to manage your mental health symptoms and reduce your significant emotional dysregulation issues, you were prescribed anti-psychotic and anti-depressant medication, including Seroquel and Venlafaxine (Exhibit 3DS and 4DS). You report a diagnosis of schizophrenia, although this is not confirmed in any of the collateral material in front of me.
17Your mother tragically experienced a stroke in 2022 and now requires ongoing care. This has caused you, understandably, significant distress. Indeed, you did not see your mother for around 12 months due to the impacts of COVID-19 on the health care system and you felt that separation keenly. Your relationship with your father remains distant. However, he remains supportive of you and you intend to reside with your father upon returning to the community.
18You had a positive relationship with your two brothers growing up. Your relationship with your eldest brother is now strained due to your offending behaviour. You however maintain a positive relationship with the other brother.
19Previously, you have had one significant relationship that started when you were 19 and that lasted for three years. You reflected positively upon the relationship and did not recall any significant conflict. The relationship ended one day before your mother experienced a stroke, which compounded the distress that you felt.
20You also spoke of developing antisocial relationships in your adolescence that persisted into adulthood. In these circles, you engaged in substance use and anti-social behaviour, leading to interactions with both police and the justice system.
21As to your substance use, at the age of 13 you began drinking alcohol socially with peers and also began using cannabis. Your use of alcohol escalated during your later adolescence, and you describe periods where you would drink daily, often in response to acute stressors in your life. At around 17, you began using various illicit substances, including MDMA, Cocaine and non-prescribed Xanax which had serious impacts on your mental health and also on your finances. You experimented with methamphetamine, but you did not start regular use.
22You have a relevant criminal history. In 2019 you were sentenced to a 12-month community corrections order (with a community work only condition) for trafficking cannabis. You successfully completed this order, and you reported abstaining from substance use during the order, which improved your mental health and your general functioning. Unfortunately, you relapsed during the COVID-19 pandemic, and you returned to selling illicit substances to fund your own use.
23In March 2024, that is after your arrest in relation to these matters but for offending committed before your arrest on these matters, which included cannabis cultivation, you received a term of five months' imprisonment, which you have served during your current remand.
24Whilst in custody I am told that you have ceased using illicit drugs, you have been medication compliant, and you completed numerous courses and programmes (see Exhibit 7DS).
25Mr Campbell, psychologist (Exhibit 3DS) diagnosed a substance use disorder that:
… appears to be a maladaptive attempt to manage experiences of psychological distress as well as a means of maintaining social relationships with antisocial peers...
26He noted your frank admission to selling drugs to fund your own habit. Concernedly, you sought to minimise responsibility when discussing the weapons charges. You stated that you felt pressured by others, including peers and undercover police officers, to engage in this trade. You also acknowledged carrying weapons at the time and in the past, stating this was encouraged by anti-social peers and made you feel safer while you were engaging in antisocial behaviours.
27Mr Campbell was of the opinion that throughout the period of offending, you were experiencing a substance use disorder, Attention-Deficit/Hyperactive Disorder (ADHD), as well as an unspecified intellectual disability. He noted: -
Mr Scammell’s offending behaviour appears to have been precipitated by his substance use issues, his development and reinforcement of antisocial relationships and his difficulties in establishing a healthy and prosocial lifestyle. Mr Scammell’s disengagement from education appears to have resulted from his emotional regulation issues resulting in him increasing his associations with antisocial individuals and commencing engagement in antisocial/destructive behaviours. His reliance on illicit substances to cope with distress appears to have contributed to him commencing trafficking to ensure his ongoing ability to access and use illicit substances. His possession of weapons appears to have been precipitated by the development of anti-social attitudes through negative peer associations.
Mr Scammell’s current episode of offending appears to have been distally precipitated by his relapse to illicit substance use as a result of a number of acute stressors. This included his mother’s health issues, the loss of his intimate relationship and difficulties establishing a meaningful lifestyle.
28As to your mental health issues, Mr Campbell was of the opinion that:
[His] mental health issues appear to be perpetuated by his overall avoidant coping style, lack of adaptive coping strategies and impacts of his cognitive deficits. Mr Scammell appears to lack the skills necessary to effectively manage experiences of emotional distress in response to acute stressors. This perpetuates his use of illicit substances and alcohol as a means of reducing/avoiding distress. [His] impaired executive functioning skills appear to limit his capacity to engage in adaptive problem-solving, resulting in continued engagement in destructive behaviours.
29He identified that without appropriate treatment and support you would most likely continue to turn to substances in times of stress, and thereby increasing the risk of return to anti-social peers and further offending. Nonetheless, he described your prospects of rehabilitation as:
… positive, evidenced by his engagement in the current assessment, his receptiveness to feedback and his desire to engage with recommended supports.
30Ms Fargher submitted that you had good prospects for rehabilitation – as indicated by your continued family support, your abstinence in a custodial setting, which the court recognises is a choice, and your expressed willingness to engage in treatment. She submitted that a sentence combining a term of imprisonment with a suitably tailored community corrections order would sufficiently address all relevant sentencing purposes and best protect the community.
31Ms Holmes on behalf of the Director conceded that such a disposition was open to the court.
Objective gravity
32Now Mr Scammell, this was serous offending as is clear by the maximum penalties that Parliament has seen fit to impose. The damage that the drug trade inflicts upon the Victorian community is well known. It tears the heart out of the community, with many lives being lost to addiction. Those who deal in this trade, to whatever degree, can expect to receive stern punishment if and when they appear in front of the courts.
33As for the trafficking of firearms, that is a matter of growing concern to the courts. The law serves the community interest in maintaining proper systems for the licensing and the regulation of the possession, use, disposal and registration of firearms. It is designed to protect against the risks that come with the accumulation of weapons illegally and the difficulty then in the detection of those who choose to do so.
34During your interactions with the covert officers, you and your co-accused spoke without hesitation of drugs of dependence and weapons that you could supply. The investigation revealed that the firearms were sourced from others further up the supply chain, but you were present at the point of delivery to the undercover officers. You took a more proactive role in the selling of drugs of dependence and were a more silent presence when the firearms were delivered. However, there could in your mind, be no possible legitimate purpose for the use of the firearms that you made available. They were clearly being sourced for a supposed criminal purpose.
35Your role in the offending involved communicating and meeting with the covert operatives, being present at the various locations where the illicit goods were handed over, and receiving and counting the cash payments made. You denied being the 'muscle' for the operation and maintained (in the CCO assessment report) that your role was merely to count the money. Your precise role remains undefined, but it is clear that you were a trusted member of a criminal enterprise trafficking in those drugs of dependence and firearms.
36Now in sentencing you, Mr Scammell, I must have regard to a range of different factors. I must give effect to the principal of general deterrence, that is to deter others from behaving as you did, and to specific deterrence, that is to deter you from ever repeating such offending.
37I must consider the need to protect the community. I must express the community's denunciation of your conduct. I must take into account the effect of your crimes upon the community. I must have regard to current sentencing practices and the statutory maximum penalties. I must also ensure as far as possible that you are rehabilitated and reintegrated into society. So in short, I have to balance the circumstances of your offending with your personal circumstances. I must also pass no greater sentence than is necessary in all the circumstances of the case as I find them to be.
38I accept that your personal history and your cognitive and intellectual challenges have driven you to substance use in times of stress, which has led you to associate with criminal associates in whose company you find a sense of belonging. The distress you felt as a result of your mother's ill-health may provide some context to this offending but certainly it cannot excuse it.
39Your counsel, Ms Fargher, did not submit that your cognitive and intellectual challenges contributed in any meaningful manner to this offending. The ease with which you could assist in the making of firearms available is an indicator in my view of its gravity.
40Clearly, general and specific deterrence, denunciation, and the protection of the community are important sentencing considerations in this matter. However, having regard to your early plea, the efforts you have made whilst in custody, your relative youth, and the community supports now available to you via your Justice Plan, I am persuaded that your rehabilitation and the interests of the community would be better served by a sentence enabling an earlier release than otherwise would have been the case and a lengthy period of supervision in the community on a community based order.
Sentence
41On Charges 1, 2, 4 and 5, trafficking in various drug of dependence, you are sentenced to an aggregate sentence of four months' imprisonment.
42On Charge 3, that is disposing of two (or more) firearms, you are sentenced to a sentence of 10 months' imprisonment and a 24‑month CCO.
43On Charge 6, that is the possession of Cannabis, you are convicted and discharged.
44On Charge 7, knowingly dealing with proceeds of crime, you are sentenced to a term of imprisonment of three months.
45On Charge 8, failing to comply with an order to provide information or assistance, you are sentenced to a term of imprisonment of 30 days.
46Summary Charge 34 and summary Charge 43, convicted and an aggregate sentence of 30 days.
47On reflection, I am making no order for cumulation.
48That makes a total effective sentence of 10 months and a
24 month CCO.49In regard to pre-sentence detention I declare that you have served
245 days, that's the agreed figure, Ms Fargher?50MS FARGHER: Yes, Your Honour.
51HIS HONOUR: Ms Holmes?
52MS HOLMES: Yes, Your Honour.
53As to the s6AAA declaration that I must make, had you not pleaded guilty you would have been sentenced to a total effective sentence of three years with a non-parole period of two years and two months.
54There are all the mandatory terms that apply to a community corrections order. Ms Fargher, I am going to rely upon you to run, if you have not done so already, to run through those.
55I am going to order that you perform 100 hours of unpaid community work.
56You must be under supervision of the corrections order for the period of 24 months.
57You are to undergo assessment and treatment for drug abuse or dependency, for alcohol abuse or dependency; for assessment and treatment that may include psychological, neuropsychological, psychiatric or treatment in a hospital or residential facility, as directed.
58You must participate in programs that address factors relating to the offending, as directed.
59You must participate in programs or courses consistent with the purposes of treatment and rehabilitation, again as directed.
60You must not associate with Nicholas McLean, Jarrod Tanzin, Ruben Allende, Dean Roberts, and John Ware.
61You must abide by an alcohol exclusion zone. That means you cannot go into or remain into any licensed premises.
62You must also participate in the services specified in the Justice Plan.
63You must comply with all the conditions and treatment as prescribed in your individual Justice Plan.
64Do you consent to being placed on a community corrections order, Mr Scammell?
65OFFENDER: Yeah.
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