Director of Public Prosecutions v Schembri
[2018] VCC 2269
•20 December 2018
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-18-01021
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| PAUL SCHEMBRI |
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JUDGE: | HER HONOUR JUDGE MARICH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 14 September 2018, 8 October 2018, 14 December 2018 | |
DATE OF SENTENCE: | 20 December 2018 | |
CASE MAY BE CITED AS: | DPP v Schembri | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 2269 | |
REASONS FOR SENTENCE
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Catchwords:
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms H. Bate Ms L. McDonnell | Office of Public Prosecutions |
| For the Accused | Mr A.J. Patton | Balmer & Associates |
HER HONOUR:
1 Paul Schembri, you have pleaded guilty to an indictment containing the following charges:
· Charge 1: one count that between 1/1/15 and 31/12/15 you used identification information contrary to s192B(1) of the Crimes Act 1958 (Vic) with intent to use that information to commit an indictable offence, which carries a maximum penalty of 5 years’ imprisonment;
· Charges 2-13: 12 counts that on 11/10/17 you possessed identification information, contrary to s192C(1) of the Crimes Act 1958 (Vic), with intent to use that information to facilitate the commission of an indictable offence, which carries a maximum penalty of 3 years’ imprisonment;
· Charge 14: One count of trafficking in a drug of dependence (MDMA), in not less than a commercial quantity, contrary to s71AA of the Drugs, Poisons and Controlled Substances Act 1981 (Vic) (“the Drugs Act”), which carries a maximum penalty of 25 years’ imprisonment – though I will return to this topic, the amount referable to the charge is 619.4g;
· Charge 15: one count of trafficking in a drug of dependence (amphetamine and 4‑methylmethcathinone), contrary to s71AC of the Drugs, Poisons and Controlled Substances Act 1981, which carries a maximum penalty of 15 years’ imprisonment (the amount referable to the charge is 47.8g amphetamine, and 17.2g (4-MMC); and
· Charge 16: one count of possess a drug of dependence (Dibutylone, Ketamine, Diazepam, Cocaine, Methylamphetamine and 1,4-Butanediol) with a maximum penalty of 30 penalty units or 1 year’s imprisonment or both (where the purpose related to trafficking can be excluded by the Court on the balance of probabilities), or 400 penalty units or 5 years’ imprisonment (or both) in any other case.
2 A number of related summary matters were uplifted into the hearing of the plea in mitigation of penalty and you pleaded guilty to those charges which were as follows:
· Charge 15: deal with the proceeds of crime, specifically a black Samsung mobile phone, $550 in cash, a black Asus laptop, $2000 in cash and a USB stick. Maximum penalty is two years imprisonment.
· Charge 23: fail to comply with a direction to provide information or assistance and is necessary to access a computer and/or data storage device under s.465AAA(2) of the Crimes Act with a maximum penalty of two years imprisonment, and
· Charge 44: possession of a number of Schedule 4 poisons, i.e. 650 tablets of Tadalafil, Sildenafil, Endone, Armodafinil, Tamoxifen, Letrozole, Cabergoline, Doxycycline, Ketasma, Salbutamol and Amoxicillin, which carries a maximum penalty of ten penalty units.
3 The circumstances in which you came to commit the offences are set out in the summary of prosecution opening upon plea dated 17 August 2018 which was read into evidence at your hearing (Exhibit A). I have had regard to that opening when determining the appropriate sentences in your case.
4 In addition to making oral submissions your counsel relied on two written outlines of submissions in mitigation of penalty, the first dated 13 September 2018 (Exhibit 4), and the second dated 5 October 2018 (Exhibit 5), tendered at the last hearing of the plea. Your counsel also tendered a bundle of documents including a Notification to Prisoner of Assay Results on two occasions, certificate of completion of a number of courses and statement of results from Box Hill Institute (Exhibit 2), and a report from Carla Lechner, forensic psychologist, dated 14 August 2018 (Exhibit 3). I have had regard to those submissions and each of those documents in formulating my reasons for sentence.
Circumstances of the offending.
5
At the time of the offending you resided in leased residential premises located at Unit 5, 300 Como Parade, West Parkdale with your de facto partner
Jade Brown.
6
On 22 January 2016, you and Ms Brown attended the Fortress Self Storage facility located at 320 Lower Dandenong Road, Mordialloc.
Ms Brown signed a lease agreement with Fortress Self Storage and pursuant to that agreement, she was assigned storage unit 745, which was leased for a period of four months. The lease agreement was later extended to
31 December 2017.
7 The manager of Fortress Self Storage showed Ms Brown and you through the site at the time of signing the lease.
8 Storage unit 745 is 1.5 metres in width and depth. The walls and roof are aluminium and it is secured by an aluminium metal door with a metal latch. To open the unit a padlock must be removed to activate the metal latch.
9 You later attended Fortress Self Storage on over 200 occasions, all for short periods of time. During the initial four-month lease period from 22 January 2016 there were 47 separate attendances.
10 There are a number of colour CCTV cameras at Fortress Self Storage which are motion sensor activated. When a customer enters a passcode, which unlocks the security door or gate, data is added onto an electronic activity report.
11
External CCTV shows you attending Fortress Self Storage on
20 September 2017, 22 September 2017 and 3 October 2017. Internal CCTV then captures you inside the building for short periods of time, often carrying items to and from your car.
12 At 9.05 am on 11 October 2017, which is the date of all of the charges on the indictment, save and except for charge 1, of using identification information, which is a between-dates offence dated between 1 January to 31 December 2015, Sergeant Peta Young from the Caulfield Divisional Response Unit executed a search warrant under the Drugs Poisons and Controlled Substances Act at Fortress Self Storage, Mordialloc, in the company of other police officers. The site manager led police to storage unit 745 which was secured by a padlock. One of the police officers used bolt cutters to damage the padlock that was affixed to the exterior of the metal door, which allowed access to the storage unit.
13 A search was conducted and a variety of drugs was located including quantities of a brown crystal substance, MDMA; white powder, cocaine; and a clear crystal substance, methylamphetamine.
14 Over 650 tablets of numerous types of prescription medications were also located including Tadalafil, Sildenafil, Endone, Armodafinil, Tamoxifen, Letrozole, Cabergoline, Doxycycline, Ketasma, Salbutamol and Amoxicillin. Each of the substances is classified as a Schedule 4 poison pursuant to the Drugs Act. This is the offending on related summary charge 44, a rolled up charge of possess poison.
15 Police also located:
(a)numerous padded envelopes containing quantities of brown crystal substances, MDMA, which were prepared to be posted;
(b)scales;
(c)a large quantity of small resealable bags and vacuum sealing materials; and
(d)other items consistent with the preparation and sale of drugs of dependence.
16 This information was provided to me as context only as the date of each of the charges is limited to the date specified.
Charges 2 to 13, possession of identification information
17 On 11 October 2017 police located:
(a)a number of high quality counterfeit Victorian and interstate driver’s licences bearing your photograph in the names of Shaun Walker (Charge 2), Edward Barnes (Charge 3), James Spencer (Charge 4), Timothy Collins (Charge 5) and Maxwell Keldie (Charge 7).
(b)a quantity of legitimate debit cards in the names of Maxwell Keldie (Charge 7), Sam Jones (Charge 9), Shaun Walker (Charge 2), Daniel Taylor (Charge 10) and Aaron Neil (Charge 11);
(c)a quantity of high-quality counterfeit Medicare cards in the names of James Spencer (Charge 4), Shaun Walker (Charge 2), Edward Barnes (Charge 3), Clarke Pender (Charge 8), Sam Jones (Charge 9) and Timothy Collins (Charge 5);
(d)a quantity of counterfeit and legitimate documents relating to utilities, banks and Australia Post accounts in the names of Shaun Walker (Charge 2), Edward Barnes (Charge 3), Sam Jones (Charge 9), S Jacobs (Charge 12), and G Jones (Charge 13).
18 Charge 6 is excluded from this list and I will return to the facts referable to this charge in due course.
19 The Crown asserted that you possessed a number of documents relating to single identities so that you were in a position to produce 100 points of identification in the course of offending, though I note that aside from charge 1 there is no charge relating to the use of these documents.
Arrest
20 On 11 October 2017 police arrested you at the Southland shopping centre in Cheltenham.
21 A number of items were seized from you including:
(a)a set of keys;
(b)a black-coloured Samsung mobile phone; and
(c)$550 cash.
22 The items identified in (b) and (c) constitute part of the related summary offence, the rolled up charge of charge 15, possession of property suspected to be proceeds of crime. The set of keys referred to in (a) were found to contain a key to the padlock securing storage unit 745 at Fortress Self Storage.
Search warrant 5/300 Como Parade, West Parkdale (your home)
23 You were conveyed to your residential address at 5/300 Como Parade, West Parkdale and your premises were searched by police pursuant to warrant.
24 Police seized the following items:
(a)a black Asus laptop computer operating on a table in the living room and $2,000 cash (this is the continuation of related summary offence – rolled‑up charge – Charge 15 – possession of property suspected to be proceeds of crime);
(b)a wallet containing a counterfeit Victorian driver’s licence bearing your photograph and the name of Jack Clark, and a counterfeit Medicare card in the name of Jack Clark (Charge 6);
(c)an original receipt for the rental of PO Box 17 at Chelsea Australia Post from 5 May 2017 to 31 March 2018 addressed to Jack Clark;
(d)Australia Post PO Box keys.
25
Whilst the search was being conducted police officer Senior Constable
Thomas Schmidt directed your attention to the second page of the search warrant relating to the direction pursuant to s 465AAA(2) of the Crimes Act Victoria and asked you for the password to your computer. You stated, "No comment." Senior Constable Schmidt then stated, "Do you understand that it is a further offence not to provide that password?" You again stated, "No comment." This is related summary offence charge 23, fail to comply with direction to provide information or assistance to access computer.
Interview and remand.
26 You were interviewed by police at the Moorabbin Police Station, and answered “no comment” to all questions, save for accepting that you had been arrested at Southland Shopping Centre, and admitting to having a set of keys in your possession which police had seized and used to unlock the door of your residential address in Parkdale.
27 You were charged, and remanded into custody.
Further investigation.
28 In relation to the offending the subject of Charges 2 to 13, I note that each of these offences alleges possession of identification information on a specific date, namely 11 October 2017. The Summary of Prosecution Opening referred to a body of contextual information as to the potential use of identifying documents prior to the charge dates. Prosecution counsel, when asked, informed me that this information was provided in order for the court to gain a complete picture as to the significance of the possession of identification information and the charge date. In view of the isolation of the date of each of charges 2 to 13, I do not take into account for the purposes of sentence any of the following information which may disclose involvement in any other uncharged offending prior to the dates of charge.
29 I will summarise in brief. From 11 June 2015, you leased four different Australia Post PO Box accounts under the names of Shaun Walker, Edward Barnes, Sam Jones and Jack Clark, in different suburbs. At the time of your arrest in October 2017 you held four active ING Direct bank accounts in the names of the following four false identities: Maxwell Keldie, Aaron Neale, Daniel Taylor and Sam Jones.
30 There is also an active Citibank account in the name of Shaun Walker, which was opened on 14 May 2015. Citibank supplied to police a copy of a document demonstrating that on that date a Victorian driver's licence and Medicare card in the name of Sean Walker was certified as true copies by an Australia Post employee. This document was then used to satisfy the identity verification requirements for a Citibank Bank plus debit account which was applied for online on 27 April 2015 (Charge 1, using identification information with intent to use that information to commit an indictable offence).
31 Statements obtained for the Citibank account detail that $122,712 was debited from the account between 18 May 2015 and 31 October 2017. Certificates provided by VicRoads confirmed that the Victorian driver's licence in the name of Shaun Walker was false. Medicare has confirmed that the Medicare card number in the name of Shaun Walker is also false.
32
On 23 October 2017 Senior Constable Schmidt executed a search warrant at a Chelsea address and located an international package awaiting collection by Jack Clark. Contained within the package was a brown crystal substance, MDMA. Police later executed a search warrant at Australia Post in Dingley Village and located international and domestic packages awaiting collection by
Edward Barnes.
33 On 4 December 2017 Senior Constable Schmidt executed a search warrant at ING Direct Bank in Melbourne. In relation to the four ING Direct Bank accounts and the four identities used by you I was provided with the following detail:
(a)Maxwell Keldie: $32,174.23 was deposited into the Orange Everyday account between November 2012 and January 2014, and the balance of the account on 22 January 2014 was $282.93;
(b)Sam Jones: $25,008 was deposited into the Orange Everyday account between January 2014 and May 2015, and the balance of the account on 14 May 2015 was $6;
(c)Aaron Neil: $81,084.86 was deposited into the Orange Everyday account between January 2014 and May 2015. I was told that the balance of the account as at 23 September 2013 (sic) was 681.13; and
(d)Daniel Taylor: The account had no deposits or withdrawals.
34 You have consented to the making of a pecuniary penalty order in this matter in the sum of $122,590 which is the subject to which I will return.
The Drugs Act offences, charges 14, 15 and 16.
35 The substances and a number of other items seized were conveyed to Victoria Police Forensic Services Centre.
36 On 9 March 2018, a Certificate of Analysis was provided and the following items were identified as having been seized:
(a)619.4 grams of MDMA (Charge 14 – traffick in drug of dependence – MDMA – commercial quantity, which carries a maximum penalty of 25 years’ imprisonment;
(b)47.8 grams of Amphetamine and 17.2 grams of 4-Methylmethcathinone (Charge 15 – traffick in a drug of dependence – Amphetamine and 4-MMC (rolled-up charge), which carries a maximum penalty of 15 years’ imprisonment;
(c)106 grams of Dibutylone, 2.5 grams of Methylamphetamine, 1.7 grams of Cocaine, 0.9 grams of 1,4-Butanediol, 1.4 grams of Ketamine and Diazepam (Charge 16 – possession of a drug of dependence – Dibutylone, Ketamine, Diazepam, Cocaine, Methylamphetamine and 1,4-Butanediol (rolled-up charge, which carries a maximum penalty of 30 penalty units or 1 year imprisonment, or both (where the purpose related to trafficking can be excluded by the Court on the balance of probabilities), or 400 penalty units or 5 years’ imprisonment, or both, in any other case.
37 The Crown submitted that I ought to be satisfied on the balance of probabilities that the offender possessed the drugs subject to the latter charge for a purpose related to trafficking, having regard to all the circumstances which as I have mentioned affected the maximum penalty available for the offence, and I will return to the topic.
Search warrant - 100 William Street, Melbourne.
38 On 24 October 2017, a search warrant pursuant to the Drugs Act was executed at Guardian Vaults located at 100 William Street, Melbourne. A search of safety deposit box 8028 revealed that the only items stored within the safety deposit box was a single USB drive.
39
Records obtained from Guardian Vaults indicate that the safety deposit boxes leased by you and Liz Brown on
1 November 2013. Records indicate that you returned with Ms Brown on
23 November 2013, and then you returned alone on 2 December 2013. No other access records are available regarding entry to the vault after this date.
40 Payment records indicate that the account for the safety deposit box was paid and active at the time of your arrest. The seized bank records from Citibank and ING Direct evidence links between you and Cryptocurrency payments. It is suspected that the USB contains the proceeds of crime (related summary offence rolled up charge - charge 15 - possession of property suspected to be proceeds of crime).
41 The USB was conveyed to Victoria Police E-Crime Squad on 27 November 2017. Data was observable on the USB, however, it was encrypted and unable to be read.
Plea of guilty.
42 You were arrested on 11 October 2017, charged and remanded into custody. On 14 May 2018, on the morning of a submissions only contested committal in the Melbourne Magistrates Court you indicated your intention to plead guilty and no witnesses were called.
43 I accept and take into account that you pleaded guilty at an early opportunity and as submitted by your counsel, that that plea has utilitarian value as well as reflecting your remorse for the offending. I attach mitigatory weight to both your plea and its timing and to your remorse for the offending, which is a topic which I will address in considerable further detail.
Personal circumstances.
44
I now turn to your personal circumstances. In this regard I have read and considered a report of Carla Lechner, clinical psychologist, dated
14 August 2018. Additionally, your counsel detailed your personal circumstances and background and counsel also addressed your personal circumstances in the course of the plea.
45 You are now 27 years of age and were 26 at the time of offending in the offences in Charges 2 to 16 on the indictment, and were 23 to 24 years of age at the time of committing the offending the subject of Charge 1.
46 You are the second of five children born to Donald and Bernadette Schembri, and have an older sister Emily, a younger brother Anthony and younger sisters Katia and Christina. You spent your childhood residing in Box Hill. Your parents separated when you were about nine years old and you moved to Mornington. Your father worked multiple jobs to support the family, both prior and subsequent to the separation.
47 After her separation from your father, your mother was left in charge of the five children, and I have been told that you all experienced a dysfunctional upbringing under your mother's care. She suffered from an addiction to alcohol and other anti-social issues and she was abusive towards all of the children, particularly you. You have had no contact with your mother for the past eight or more years.
48 Your sister, Emily, is in a marketing role for an electrical company. Your brother Anthony is working at the State Trustees Office. Your sister, Katia, works as a freelance marketer and your sister, Christina, works at McDonald's. They are all hard workers of good character. Your father currently manages a petrol station in Mentone. You have spoken to your family regularly via telephone since you have been remanded into custody and are also fortunate to receive regular visits from such fine people. Your family are aware of the offending but remain supportive, and have come to court on a number of occasions, and those matters and their support are supportive of your rehabilitation prospects once you are eventually released from custody.
49 You were educated at St Clare's Primary School in Box Hill until year 4 and then transferred to St McCartin’s in Mornington. You then undertook your high schooling at Mt Eliza Secondary College and described yourself as an above average student with no social or behavioural problems.
50 During secondary school you obtained part time employment at Hungry Jacks, and later Nando's, and assisted the family financially. You obtained an ENTER score of 75, and enrolled in a Bachelor of Business / Bachelor of Commerce degree at Monash University, Frankston, completing that double degree with an accounting major. Whilst you studied your degree you continued to work part time at Nando's Mornington and Kmart. I was told by your counsel and I accept unhesitatingly that at aged 21 you had moved past your dysfunctional and difficult childhood and had an extremely bright future.
51
After completing university you commenced your own business in vitamins supply, promoting a “brain-boosting” multi vitamin. This was an online business that ran for about four years, however, you told
Ms Lechner that it was not overly successful.
52 In 2009, you first began using the drug ice, and your consumption of this drug continued and escalated until the time of your arrest in October 2017 at which time you were using daily, up to 1.5 to 1.7 grams a day.
53 In 2011, aged 20, you began a relationship with Jade Brown. You are now engaged though have placed plans to be married on hold. Ms Brown is now a fully qualified veterinary nurse.
54
You experienced the loss of one of your closest friends while you were in
year 12. Your friend died of leukaemia, after a period of remission, and you were deeply affected by your grief. In 2016, two of your maternal uncles, and your maternal grandfather, passed away in quick succession. Their passing was also deeply distressing to you.
Remand.
55 I note that your time on remand has been productive and I accept and take into account two negative drug screens; on 24 July, and 8 August 2018. Your counsel has informed me via email that there have been no subsequent dirty urine screens.
56 I also accept and take into account your completion of courses whilst in prison, including the completion of a release related harm reduction course, a Certificate II in Kitchen Operations, a Certificate II in Cleaning Operations, and an alcohol and other drug services long program (24 hours) which resulted in high ratings on your attendance, communication and commitment to the program. Your counsel has informed me that you have also recently completed a White Ticket Construction Induction Course, and that you have enrolled in a distance education program.
57 As I have previously mentioned, I note the fulsome support that you obtained from family and friends during your time in custody. You are well regarded by them.
Psychological report.
58 Ms Lechner employed psychometric testing techniques in her evaluation of your psychological presentation. She noted that your score on the Beck Depression Inventory fell into the moderate range, being consistent with a diagnosis of Clinical Depression. You also registered in the moderate range on the Beck Anxiety Inventory. She noted that you presented with symptoms of a Stimulant Use Disorder (DSM-5), which was an early remission in a controlled environment. She noted that you candidly admitted that you will need treatment as you will find it difficult to remain abstinent from drugs in the community.
59 Ms Lechner observed that you presented as emotionally immature. She stated that whilst you have the cognitive ability to reflect on the impact that your behaviour has had on both yourself and others, your drug use leads to egocentric and short term thinking. She noted that you respond to negative feelings by increasing your drug use. She observed that you have suffered a number of family losses in recent times, and are still smarting from the lack of a relationship with your mother, and her apparent lack of effort in repairing your bond.
60 Ms Lechner observed that you acknowledged your role in these offences and you were open and honest about selling drugs to support your habit, she said. You expressed shame to her for your actions.
Prior criminal history and character, remorse.
61 I note that you have no prior criminal record and this is your first period on remand.
62 I have read and considered the significant number of references that were provided to me on your behalf. Your good friend, Chris Park, in his reference noted he will continue to support you in any way he can. He described you as one of the most honest and reliable people he had ever met. Your older sister, Emily, referred to your financial support of the family when you were growing up and the difficult circumstances that each of you had experienced at home with your mother. She noted that you had expressed how sorry you were that you had done this to your family and to your fiancée Jade. She described you as being the rock of the family for emotional support. Your younger sister, Katia, described you as always having been a kind, generous and extremely polite person. She noted that you not only felt remorse but a great deal of shame and embarrassment about the crimes you have pleaded to. She detailed how hard working you were when they were growing up and how generous you were with sharing your wage with the family. She also described your remorse. Your brother, Anthony, described the difficulties that you experienced growing up and also described how loving and supportive you were in standing up for him to your mother when, at age 15, he was evicted by your mother after she found out that he was gay. He said that you were the only one to stand up to her at home. He also attested to your remorse.
63 Blake Sey described you as one of the kindest people he had ever met, stating that you are always willing to go above and beyond for others, putting your fiancée, friends and family first. He described you as incredibly thoughtful, especially when it comes to surprising people.
64 Your fiancée Ms Brown described your regret for your actions and your remorse for what you have put your family and her through. She believes that the counselling and drug rehabilitation you have received to date has made a marked difference to your attitude and to her you have made visible positive gains from the assistance already.
65 Given all of these matters I consider your good character prior to the offending to attract mitigatory weight and that your plea of guilty is accompanied by remorse, to which I have given significant mitigatory weight, in addition to its utilitarian benefit.
Pecuniary Penalty Order.
66 The prosecution in this case applied for a Pecuniary Penalty Order. You consented to the making of that order in the sum of $122,590, and in doing so acknowledged that the sum was a benefit derived by you in consequence of your commission of a Schedule 2 offence, ie trafficking in a drug of dependence in a commercial quantity (MDMA). It was agreed between the parties that, though s 5 (2A) of the Sentencing Act precludes me from taking the making of that order into account in mitigation of penalty, I may have regard to the fact that in the circumstances of this case your lack of assets, your relatively young age and the threat of enforcement action upon your release will weigh heavily upon you while you serve your sentence. I do take that into account in mitigation of sentence.
Objective gravity of the offence.
67 You fall to be sentenced for your trafficking in a commercial quantity of MDMA, count 14 (count 14), and your rolled up trafficking in amphetamine and 4-MMC, (count 15), on a single day. The trafficking is properly characterised as possession for the purpose of sale on the day of your arrest.
68 The commercial quantity of MDMA is 100 grams pure and 500 grams in an admixture. I have not been informed of the purity of the MDMA and I infer it is an admixture. You possessed an amount of 619.4 grams which substantially exceeds the commercial quantity of the admixture of 500 grams.
69 You possessed 47.8 grams of amphetamine and 17.2 grams of 4-MMC for the purpose of the sale, and whilst these are so called “simple” quantities, for the purposes of the Drugs Act the amounts are significant and in combination with count 14 involve possession for sale on the day of your charge, very significant amounts of numerous different drugs. The quantities and their combination clearly exemplify potential for trade. Furthermore, you were the one with access to and control of the unit and it is not suggested in this case in relation to role that you were acting as the delegate to a true “manager” of this operation.
70
Further, there is simple possession of the six illicit drugs of dependence in charge 16. Though I am told that you are a user of drugs of dependence, in particular ice, the proximity of those drugs to the other drugs in more substantial quantities, and the other indicia of trade lead to the conclusion that I am unpersuaded as to the purpose of possession in
charge 16 as being for personal use or other purposes unrelated to trafficking and therefore the slightly enhanced maximum penalty applies.
71 Your possession of so many indicia of identification contextualises your willingness to engage in deception to avoid detection in respect of future and potential acts of sale. This is another trace of sophistication in your methods of potential sale.
72 It was contended on your behalf that your commission of the offence of failing to provide your password when requested by police was influenced by your desire to speak to a solicitor to obtain legal advice prior to any acts of cooperation and I note that explanation.
73 Lastly, there is a distinct odour to the information still being unable to be read from the USB stick owing to its encryption as to your methods of sale.
74 I consider your offending to be serious in its potential given that these matters and the indicia of sophistication which contribute to police experiencing difficulties with detection and investigation such as have been encountered in your case, given the data on the laptop and the USB stick, whatever your motivation for not cooperating.
75 Though you were a drug addict at the time of the offending, the offending on this scale had a financial motivation as its primary driver. Your counsel submitted, and I accept on the plea, that at first instance you were drawn to the allure of the trappings of a certain lifestyle and it was too much to resist, and you have now spent your time on remand reflecting upon your poor choices. You have lost nearly everything except the support of your family and friends and your good work ethic.
Relevant sentencing principles and current sentencing practices.
76 I take into account the purposes for which sentence must be imposed, and the need for deterrence, particularly general and also specific. It is absolutely indisputable that trafficking in a drug of dependence, particularly in a commercial quantity are serious and concerning offences which have the potential to cause great devastation to the community. Mr Schembri, you yourself have experienced the devastation of a young life frustrated by addiction to drugs, and, in turn, the effects that it can cause such as in your case, the potential frustration of family relationships and certainly the loss of liberty owing to decisions motivated by greed but which you would never have otherwise made if you were not heavily involved in the drug milieu. The sentences I will impose will punish you and denounce your behaviour.
77 I turn to the issue of your prospects of rehabilitation. I consider that your good character and work history, the strong salutary effect of your first sentence of imprisonment, and your enduring support of family and friends, are all supportive of your prospects of rehabilitation. On the other hand, as noted by Ms Lechner, your offending has occurred in the context of an escalating ice addiction. You have been abstinent from drugs of course whilst on remand but, as you would well know, the effects of addiction do not cease overnight. You will need support to achieve your goal. Should you manage to abstain from drugs in the future, your prospects for rehabilitation are good.
78 I find that notwithstanding the need for your confinement for an extended period, subject to the attitude of the Adult Parole Board, that you should be heavily supervised for an extended period upon your eventual release. I have read and considered carefully the past cases referred to by your counsel. Current sentencing practices are a factor to be taken into account, however as Dalgleish [(2017) 91 ALJR 1063, [64] to [68]] makes clear, they are not a controlling factor and an offender pleading guilty has no legitimate expectation that he will be sentenced consistently with current sentencing practices rather than being sentenced justly according to law, Shawcross v The Queen (2018) VSCA 295, [65].
79 Though I have imposed an appropriate measure of cumulation to reflect each separate offence, I am mindful of the totality principle of sentencing and of course the need to avoid a crushing total effective sentence.
Sentence
80 On charge 14, the count of trafficking in a drug of dependence, MDMA in not less than a commercial quantity, you are convicted and sentenced to five years and nine months imprisonment. This is the base sentence.
81 On charge 15, trafficking in a drug of dependence, amphetamine and 4-methyl methcathinone, you are convicted and sentenced to three years imprisonment, six months of which is to be served accumulatively upon the base sentence and other sentences.
82 On charge 16, one count of possess a drug of dependence and I have previously listed those drugs, 12 months' imprisonment, two months accumulative upon the base sentence and other sentences.
83 On charge 1, which is use identification information with intent to use that information to commit an indictable offence, 18 months' imprisonment, three months accumulative upon the base and other sentences.
84 On Charges 2 to 13, 12 counts that on 11 October 2017 you possessed identification information with intent to use that information to facilitate the commission of an indictable offence, I intend to impose an aggregate (which was not opposed by either counsel), and the aggregate sentence will be two years and six months imprisonment, six months accumulative upon the base sentence and other sentences.
The related summary offences.
85 Charge 15, deal with proceeds of crime, nine months imprisonment, two months accumulative upon the base and other sentences. On charge 23, 12 months' imprisonment, two months accumulative upon the base and other sentences and on charge 44, a $600 fine.
86 The total effective sentence is therefore seven years and six months imprisonment and I will impose a minimum of five years imprisonment before parole eligibility.
Pre-sentence detention
87 I declare 435 days pre-sentence detention excluding today.
Section 6AAA declaration
88 I declare that had you pleaded not guilty to these charges and been found guilty of them, I would have sentenced you to nine years imprisonment with a non-parole period of six years and nine months.
Ancillary orders
89 I make the pecuniary penalty order in the sum of $122,590, with your consent.
90 I make the order under s.464ZF(2) that you provide the taking of a scraping from your mouth and, if you refuse to provide the taking of a scraping from your mouth, police are authorised to take a blood sample for the purpose of collection of your DNA given that the seriousness of the circumstances warrant the order, and that the order is by consent.
91 I make a disposal order for the 99 matters in the schedule to the disposal order dated today, 20 December 2018, and I make a forfeiture order for the four matters listed in the schedule to the forfeiture order dated today, 20 December 2018.
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