Director of Public Prosecutions v Scott Robinson
[2022] VCC 1320
•12 April 2022
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| THE DIRECTOR OF PUBLIC PROSECUTIONS | CR-21-01169 |
| v | |
| SCOTT ALFRED ROBINSON |
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JUDGE: | HIS HONOUR JUDGE DEMPSEY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 1 April 2022 | |
DATE OF SENTENCE: | 12 April 2022 | |
CASE MAY BE CITED AS: | DPP v Scott Robinson | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1320 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – Sentence
Catchwords: Trafficking commercial quantity cannabis (two transactions rolled up - just short of large commercial quantity), mature offender with dated prior convictions, deprivation in childhood, financial distress, no enrichment, part of larger enterprise, plea of guilty but not necessarily frank account of involvement, good to very good prospects, PSD, pending forfeiture of property hardship and worry about family whilst returned to custody, onerous conditions in custody during pandemic, parity
Legislation Cited: s.71AA(1) of the Drugs, Poisons and Controlled Substances Act 1981 (Vic)
Cases Cited:Worboyes [2021] VSCA 169, R v Verdins [2007] VSCA 62, Markovic v The Queen [2010] VSCA 105, Re: Broes, [2020] VSC 128, Markarian v The Queen (2005) 228 CLR 357, R vPidoto & O’Dea (2006) 165 A Crim R 61; [2006] VSCA 185, Gregory (a pseudonym) v The Queen [2017] VSCA 151, [24], Johnson, Damien v The Queen [2022] VSCA 9, Sazimanoska v The Queen [2020] VSCA 66., Nov Sinn v The Queen [2014] VSCA 149, DPP v Herrmann [2021] VSCA 160, Marrah v The Queen[2014] VSCA 119, Barnabas Dahl v The Queen [2020] VSCA 90
Sentence: 3 years 3 months with non parole period of 1 year 9 months.
S.6AAA Sentencing Act declaration 5 years, with non parole period of 3 years 2 months
APPEARANCES: | Counsel | Solicitors |
| For the Department of Public Prosecutions | Mr M. Keks | Office of Public Prosecutions |
| For the Accused | Mr W. Toohey | Vassis and Co |
HIS HONOUR:
Introduction
1Scott Robinson, you have pleaded guilty to one charge of Trafficking in a Commercial Quantity of a Drug of Dependence (Cannabis) Contrary to s.71AA(1) of the Drugs, Poisons and Controlled Substances Act 1981 (Vic). The maximum penalty for that offence is 25 years' imprisonment (Level 2). You also pleaded guilty to a second charge on the indictment of Possession of a Drug of Dependence (Cannabis) Contrary to s.73(1) of the Drugs, Poisons and Controlled Substances Act 1981 (Vic). The maximum penalty for that offence in these circumstances is a fine.
2The Crown case is that, on 19 January 2021, you dealt with two large quantities of Cannabis, in each case assisting with its transportation pursuant to instructions given to you by unknown others. On that morning, you first met Bradley Kilgour in Keilor East, and provided him with eight cardboard boxes containing 134.52 kilograms of cannabis (Charge 1). You then drove to another location and collected seven cardboard boxes containing 111.86 kilograms of cannabis, before being arrested (also part of Charge 1). Later that day, a search warrant was executed at your home in Dallas, and small quantities of cannabis were found (Charge 2).
You and the Co-offender Bradley Kilgour
3You were 50 years old at the time of the offending and employed as a factory worker. You lived in Dallas, Victoria. You owned two vehicles used in connection with this offending – a silver Hyundai van and a grey Kia wagon.
4You offended with Mr Kilgour, who was aged 54 years at the time of this offending, and was self-employed as a truck driver, living in Nerang, Queensland. He was the registered owner of a red Kenworth prime mover and a white Stonestar semi-trailer.
The Offending
5The circumstances of the offending were set out in the written Prosecution Opening of the Plea dated 7 February 2022.[1]
[1]Exhibit A – Summary of Prosecution Opening for the Plea dated 7 February 2022.
Background
6In January 2021, Mr Kilgour drove from Queensland to Victoria in order to collect the cannabis which was provided to him by you on 19 January 2021. In the preceding days, Mr Kilgour communicated with persons, including you, to arrange the collection.
7On 17 January 2021, Mr Kilgour used Ciphr to communicate with a person with the display name “Winx”. At 1:56 pm, “Winx” said: ‘”Tonka, paper is under your rear wheel on your truck drivers' side”. At 4:00 pm, Mr Kilgour replied: “All good got it”. The prosecution says that the term “paper” was a reference to money, which Mr Kilgour later provided to you.
8In the early morning of 18 January 2021, Mr Kilgour departed Queensland driving the prime mover with the semi-trailer attached. The semi-trailer was loaded with
18 plastic chemical storage tanks covered by a tarpaulin. Four of the tanks were empty and the plastic tops had been removed, creating a concealed storage area.9Having driven for hours that day, Mr Kilgour stopped at Yass in New South Wales to stay the night. From 6:10 pm on that day, he had further conversations with “Winx” as set out in the chart,[2] which relevantly outlines the communication between “Tonka” and “Winx” regarding the time and place of his arrival in Melbourne the following day.
[2]Exhibit A – taken directly from [11].
Time “Winx” “Tonka2” (Kilgour) 6:10 pm Yo 6:11 pm Yo all good? 6:12 pm I was going to say message when you pull up what time will you be ready for tomorrow? 6:12 pm Pull up now 6:12 pm Who got for tomorrow 6:13 pm work 6:19 pm What time will you arrive tomorrow it will be Macky I’ll set the group now 6:20 pm 7am 6:27 pm Good stuff 10Mr Kilgour then engaged in a group conversation with four others who were using display names '”Winx'”, '”MrSendit”, “eL Micky Pear$on” and “Macky”. The Prosecution assert (and you accept) that “Macky” was you. The conversation again is repeated in chart form in these written reasons. The conversation effectively outlines the co-ordinated way in which Mr Kilgour was directed to meet you, in Melbourne at 7:00 am that morning.
Time
“eL Micky Pear$on”
“MrSendit”
“Macky” (Robinson)
“Tonka2” (Kilgour)
6:22 pm Copy 6:22 pm Yo 6:23 pm Yo 6:23 pm Ahhheeehheeee 6:25 pm He wants to do morning send it 6:25 pm Hey Macky can we change locations to be safe. Keep these cunts on there toes pls 6:26 pm 7am 6:28 pm Macky there 6:49 pm No worries Micky we can do. 6:51 pm Where are we going to meet 6:56 pm Tonka . Address is Cemetery road & Ely court Keilor East there is a road behind Coles Petrol station . no cameras and no one about. ?? At 7am.ok ?? 6:57 pm Is close to me 7:00 pm 2 kilometres down the road. 7:01 pm All good see at 7am text you when there 7:01 pm Park on left hand side of the road
.Behind petrol station. Then you can drive straight out .
7:02 pm All good mate 7:02 pm I will see you anyway. 11Mr Kilgour departed Yass in the early hours of 19 January 2021. At 6:48 am that day, he arrived at Cemetery Road, Keilor East. He parked the truck and waited in the cabin. He was unaware that he was the object of police surveillance, including being photographed. At 6:56 am, you sent a message to the group conversation, saying: “Here now”.
12At about that time, you arrived in a silver Hyundai van and parked at the front of the truck.
First Quantity Provided to Kilgour
13Mr Kilgour exited the cabin and removed a blue cooler bag from a storage compartment on the side of his truck; that bag appeared to be heavy. He first placed it on the driver’s seat of the truck, then later, gave it to you. The prosecution case is that that bag contained cash and was the “paper” which “Winx” had told you had been left at the truck on 17 January 2021; which must have been for the payment of cannabis. The cooler bag was never recovered by police. The precise quantum of that cash is unknown, though it was safe to infer that it was a substantial amount.
14You then unloaded eight cardboard boxes from your nearby van and helped Mr Kilgour put them into the trailer of his truck. The boxes were loaded into the empty tanks, before covering them with the tarpaulin.[3]
[3]Depositions, photos at p. 201.
15At about 7:03 am, you departed in your van. Mr Kilgour entered the cabin of the truck, which remained parked on Cemetery Road.
Arrest
16At about 7:10 am, police approached Mr Kilgour. He immediately told police that he had picked up some boxes but did not know what was in them.
17Search warrants were executed on the truck and the semi-trailer. Eight cardboard boxes containing cannabis were found in the modified tanks. Other relevant items included:
(a) a black Samsung mobile phone, which was located on the centre console in the cabin of the truck; and
(b) a brown leather wallet containing $1,670.25 in cash, which was also in the cabin.
18After police located the cannabis in the trailer, Mr Kilgour was arrested. At the scene, he provided the password to the black Samsung mobile phone, which allowed police to view and photograph the Ciphr messages that I referred to earlier. He told police that his username was “Tonka2” and the man from whom he had received the boxes was “Macky” (ie, you). He also told police that you had been paid to transport cannabis from Victoria to Queensland. I will return to the significance of his conduct at the scene and in his interview later in these reasons.
19The eight cardboard boxes found in the semi-trailer were subsequently examined. The boxes all contained multiple vacuum-sealed bags, each of which held about 450 grams (or one pound) of dried cannabis. In total, the boxes contained 300 vacuum-sealed bags, holding 134.52 kilograms of cannabis.[4]
[4]Ibid, photos at p. 83 and 142.
20
By preparing for the transportation of the cannabis concealed in the semi-trailer,
Mr Kilgour trafficked in a commercial quantity of that drug. They were destined to be conveyed to Queensland by Mr Kilgour. Given the facts I have just outlined, the Prosecution unsurprisingly asserts that his role in this offending is one of a courier. I accept that this is an accurate appraisal of his role.
21
According to price estimates by the Australian Criminal Intelligence Commission
(the ACIC), the cannabis found in your truck was estimated to be worth $2,690,200 if sold in quantities of one gram, or between $687,493 and $807,057 if sold in quantities of one pound.
22By possession of the money, which was located in his wallet, Mr Kilgour dealt with property reasonably suspected of being proceeds of crime which constituted the summary charge to which he pleaded.
23Mr Kilgour’s criminality was concluded by around 7:03 am and his co-operation with authorities commenced that early. This cannot be said for you.
Collection of Second Quantity of Cannabis
24As described above, you departed Keilor East at 7:03 am. You were not followed by police at that time.
25At 7:18 am, you sent a message to the group chat conversation, saying: “Done Gentleman”. The person with the display name “MrSendit” responded: “Cheers man”.
26As described below, in your interview you said that, after you left Cemetery Road, you drove to a street where you parked the van and left the keys on one of the tyres. When you returned 40 or 45 minutes later, the bag that you had received from Mr Kilgour had been removed and the van had been loaded with seven more cardboard boxes.
27At 9:09 am, you were observed by police approaching your home at Kilmore Crescent, Dallas, by foot. Shortly afterwards, your Hyundai van was observed to be parked in a car park at the corner of Phillip Street and Millewa Crescent in Dallas, containing several cardboard boxes. The Prosecution says that it can be inferred that sometime before 9:09 am you parked the van, which contained the boxes, in the car park and then walked home.
28At about 10:23 am, you returned to the car park in the Kia wagon, and shortly afterwards were approached by police and arrested. Items found in your possession included the keys for the Hyundai van and a black Samsung mobile phone, which was found in the driver’s door well of the wagon. After the keys for the Hyundai van were found, you told police that the van was yours, and that it contained seven boxes of “dope”.
29Search warrants were subsequently executed on your van and your home at
Kilmore Crescent, Dallas.30The van was found to contain seven cardboard boxes containing cannabis, located in the rear compartment.
31The seven boxes were examined. Each contained multiple vacuum-sealed bags, each of which held about 450 grams (or one pound) of dried cannabis. In total, the boxes contained 250 vacuum-sealed bags, holding 111.86 kilograms of cannabis.
32According to price estimates by the Australian Criminal Intelligence Commission, the cannabis found in your van was estimated to be worth $2,237,200 if sold in quantities of one gram or between $571,734 and $671,166 if sold in quantities of one pound.
33The Prosecution says that it can be readily inferred that you took possession of the boxes which were found in your van with the intention of providing them to another person, which is consistent at least with the admissions in your interview. The prosecution case is that, by receiving and so possessing the cannabis, you knowingly trafficked in a commercial quantity of cannabis (part of Charge 1).
34Prior to the search at your home, you told police that there were some small amounts of cannabis in your bedroom. During the search, items located included two plastic bags containing small quantities of cannabis in the wardrobe and a wall unit in the bedroom. By possessing the cannabis, which was found in your bedroom, you possessed a drug of dependence (Charge 2). I note that there is no dispute between the parties that that cannabis was possessed by you for personal use.
35The black Samsung mobile phone which was seized from you had Ciphr communications software installed. You declined to provide the password upon request (claiming you did not know it), and police were unable to access the phone.
36Within several hours of the arrests, the mobile phones seized from Mr Kilgour and you with Ciphr software installed had their contents deleted remotely.
Interview
37You participated in a record of interview with police.[5] You gave the following account:
[5]Ibid, p. 169
(a) When asked how you became involved, you said, “I just got approached and asked if I wanted some extra cash, I said, ‘Yes’, and went from there”: Q18.
(b) The boxes you unloaded into the truck contained marijuana: Q55.
(c) You received a bag in exchange for the marijuana. You did not know what was in the bag, because you did not open it: Q57-59.
(d) You drove to Dallas and waited for “a message” to “get paid”: Q68. You were told that you would be paid a “couple of thousand dollars”: Q69.
(e) After you left the truck, you went to Keilor, parked on the side of the road and “went for a walk”. After 40 or 45 minutes, you came back and there were boxes in the car: Q80-83. The bag that you had picked up from the truck was gone: Q87.
(f) When you went for a walk, you left the key underneath the wheel: Q95.
(g) Asked what
you thought was in the new boxes, you said, “I’d say more of what I’d already got in Dallas”: Q98.(h) Asked what you were supposed to do with them, you said, “Wait for a message or phone call and go and drop them off today” to someone else, “Don’t know who, don’t know where”: Q101-102.
(i) You would receive that message on a separate phone: Q110-111. In respect of that phone, you said, “I just got given it”: Q120. You were given it by the same person who asked you if you wanted the extra cash: Q136.
(j) You left the van at the car park because “I wasn’t gunna sit in the van and wait”, so you went home and got your Kia wagon: Q140. Home was a ten-minute walk away: Q149. You then sat in your car to wait for a message: Q151.
(k) The boxes weighed seven or eight kilograms each: Q184.
(l) The cannabis found at your home belonged to you: Q198.
(m) You denied knowing the names “Macky” or “Tonka”: Q203, 208.
(n) You had “no idea” what the passcode is for the Samsung phone: Q224.
(o) You said, “I’ve done the wrong thing, I’ve stuffed up and that’s all I can say”: Q234.
38I have been asked to treat this interview as one containing full admissions, evidencing a relatively high degree of co-operation. I do not accept that you were entirely frank with authorities (and certainly not when one looks at the degree of co-operation Mr Kilgour displayed). I will deal with this later in my reasons.
Matters Personal to You [6]
[6]Exhibit 1 – Defence Submissions on Plea 30 March 2022; Exhibit 2 – Report of Ms Lechner dated 23 December 2021
39
You are now 52 years of age. You were born in Dubbo, NSW; the youngest of
five children. Your formative years were extremely dysfunctional , characterized by an upbringing in State care during which you were the victim of physical , sexual and emotional abuse. You exhibit symptoms of complex post-traumatic stress disorder (PTSD) and also symptoms of major depressive disorder.
40
You have had no contact with your parents. You were placed in care at age two
(with your sister), after your mother was involved in a motor-car accident that resulted in her blindness. Your father had left. You never returned to their care and do not know if they are alive or not.
41You did not meet your three brothers until you were eight years of age when you were placed together in a family group home. You were later separated and lost contact. This was especially difficult for you.
42You suffered terrible, degrading abuse in care for years. Your time in that miserable environment taught you to repress distressing matters and not seek help. You disclosed some of the matters I have just outlined to your partner for the first time whilst you were in custody.
43For the past 23 years, you have been in a relationship with Cindy, aged 49 years. You have a 19-year-old daughter Kya, and Cindy has an older son, Michael, aged 28 years.
44The harshness of your childhood and adolescence left a mark on you that followed you into adulthood. Your life experience has meant you are very protective of your family and are reluctant to trust people. You learned not to display signs of weakness to others and the perceived importance of not informing on others who may have misbehaved.
Education and Employment
45Your education was fractured and disjointed as you were moved from home to home. You attended a number of primary and high schools. You were not a particularly good student. You had no social difficulties at school. Your last school was Blackburn Technical School which you left at the end of Year 9 in the knowledge that you would otherwise be expelled. You are literate and numerate.
46The State “wiped their hands of you” and sent you to a family in Gembrook by the time you were 15, but you left as you felt like a burden and could not seem to connect with them. You left and lived on the streets and were in and out of Baltara and Turana (not as an offender, but because those places offered accommodation to young people like you). You had bleak times where you considered ending your life.
47By chance and fortune, you met someone who could offer you both a home and employment. Through them, you met Cindy Hearty who has been nothing but a positive influence in your life. She has no prior criminal history. She works in nursery (as does your daughter). She continues to support you. I note her presence today for the Sentence as she was present for the Plea.
48You gained permanent employment in around 1997 or 1998 at the Metro Style factory where you worked for 12 years until it closed. You worked in cold storage for four to five months, then returned to Metro Style (operating under a different name) for a further three to four years. You next worked at the Aquila Shoes warehouse for nearly 10 years. Since being granted bail in April 2021, you have worked as a furniture removalist with Williamson Brothers in Campbellfield. They apparently know of the reason you will go into custody, and notwithstanding that, I am informed that this employer will take you back at the conclusion of your sentence. [7]
[7]Exhibit 3 – Letter from Williamson Bros Removals & Storage dated 11 April 2022
Substance abuse
49You smoked cannabis daily from age 14–15 years, but since you met Cindy in 1999 you largely abstained from drug use. You relapsed into cannabis use a few months before this offending when you met an old friend. That relapse has a part to play in this offending which I shall come to later. You used to drink about six stubbies a day but now only drink three a day.
Forensic History
50You admit a modest number of prior convictions. You have never before trafficked drugs. You were imprisoned in 1996 for three months in Adelaide and one month in 1996 in Melbourne. You received a bond (which you kept) in 1988, and a suspended sentence for theft in 1998, which you honoured. You have not offended in 23 years – that is to say nearly half of your life. Your productive, law-abiding life over the last two decades corresponds with meeting your partner Cindy. The Crown quite properly concede that this criminal history is of limited relevance to this sentencing exercise given the nature of your prior history and its age. I agree.
Mental Health
51Ms Lechner opines that you exhibit symptoms of complex PTSD and depression. You are on Avanza. She notes the neglect, abandonment, rejection, repression of painful memories, and low self-esteem as features of your childhood that persist even now. These are important contextual matters for my consideration. I do not consider that this evidence is of the cogency required to enliven Verdins,[8] but it does address the important sentencing consideration of deprivation, which is relevant here.
[8]R v Verdins [2007] VSCA 62.
The Offending
Your Introduction to and Reason for Offending
52In early 2021, you were working at the Aquilla factory. Ms Hearty was working at a nursery. You still owed $110,000 on your home mortgage and had made little headway into that debt.
53You were already in financial difficulty due to lesser pay during the Covid-19 Pandemic. Your hours had been cut from 38 hours per week to 20 hours per week. You were earning around $950 per week. The mortgage repayments were $750 per month. You owned two cars of modest value. You were concerned about the financial stability of you and your family. I understand that this created self-doubt in you, both as a father and as a provider.
54You attended a friend's home, a friend who you were smoking cannabis with, and indicated that you were struggling. You indicated that your friend asked you if you wanted to earn extra cash and told you that you could earn money by picking up cannabis and dropping it off. It is said you were financially vulnerable at this time. You understood that you were to make around $2,000 for your involvement in this offending.
55The manner in which you were provided with the details of another party, the one who gave you the encrypted phone, are unclear to me. For understandable reasons you have not nominated your workmate from Aquilla, and I am told you are unable to identify the third party. Needless to say, on the plea you did not persist with the nonsense from your interview that you became involved in this offending by simply being approached by a man on the street. [9]
[9]Record of Interview (ROI), Questions 22 – 29
Role and First Transaction
56Your role, it seems, is something akin to a ‘functionary’ and a courier for a brief period of time. I say functionary as (despite there being some initial confusion on the plea as to whether or not you accepted that you actually sent messages to Mr Kilgour) you accept that you arranged the meeting on 19 January 2021 with your co-offender via messages. There is no evidence you did anything other than what was necessary to meet him[10], and I do not treat this activity as suggestive that you had any measure of control or direction over the enterprise generally. I am not prepared to find that the messages elevate your role to one “superior” to Mr Kilgour.
[10]The message on the 18 January at 6:19 pm between Winx and Kilgour suggests that it was Winx who had determined it would be you who met Kilgour, and then the messages that follow include you as Macky
Second Transaction
57After your meeting with Mr Kilgour, though, you were involved in a second transaction within the same episode of offending. That involved accepting a second commercial quantity of cannabis for the purposes of being involved in its movement.
58You assert in both the interview and through your counsel on the Plea that this second quantity was not something you had agreed to in advance. It was said that once the second quantity of cannabis was in your truck you had little choice but to continue to act on your instructions from others in the enterprise and deliver your cargo. You were arrested before that delivery was made and you were not paid. We of course, do not have a copy of the messages you sent from your phone to others as you refused to provide the passcode to your phone.
59All that is known from independent, objective evidence is that you had ended your activity with Mr Kilgour by 7:03 am, sent a message saying “done Gentlemen” at 7:18 am, and by 9:09 am your van was parked near your home with yet more boxes in it, meaning that you had collected them in the two-hour window, then walked home. At 10:23 am you returned to the car park in the loaded van where you were arrested, waiting, apparently, for more messages or collection.
60The events described in the preceding paragraph must have required communication between you and others in this enterprise, but we do not what that communication was. You were not frank in your interview about the fact that you sent messages from that phone.[11] You denied knowing anything about the names Macky or Tonka.[12] I do not accept your claim that you did not know the passcode to the encrypted phone.[13] You used that phone to send and receive messages only hours before your arrest. The phone was a necessary means by which you were to discharge your duties in this enterprise in order to be paid the money that you perceived you needed.
[11]ROI, Question 128
[12]ROI, Questions 207-208
[13]ROI, Question 224
61As the only explanation as to how you were involved in the second transaction (suddenly and unexpectedly you say) comes from your interview in the way I described, I am not able to accept that account to the required standard. I am not in a position to make any real finding about what you knew about the second transaction and when you first knew it. All I can conclude is that for a period of at least a few hours you were prepared to be involved in the movement of yet more cannabis (itself a commercial quantity) from one location to another. That in itself is a serious feature of your overall offending.
Other Observations
62You reported to Ms Lechner, and I accept, that you are disgusted with your behaviour, you told her: “I just wanted some extra money to make life a little easier ... it was so stupid”. Ms Lechner suspects (and I share this suspicion) that you wanted to contribute more to the household in order to bolster your low self-esteem and feel as though you were contributing.
63Though it is accepted that your role was essentially one of a courier, care should be taken when labelling an offender as a “mere courier”. Not all couriers are alike in terms of role and moral culpability, and an offender’s courier status should not be given uniform significance.
64Often it depends on the responsibility taken on by the offender. In your case, I accept that though you were not the architect, and you had no decision making regarding the planning and practical details of this enterprise, you still had some logistical duties to fulfil in order to enable that role to be fulfilled.
65You were nonetheless entrusted with payment and cargo, albeit for a modest fee. Couriers and functionaries of this kind nonetheless play an integral role in the trade of drug trafficking, for without them there can be no movement of drugs from supplier into the broader community, where they cause so much harm.
Post Offence
66You did make admissions to police, though your level of co-operation is not of the magnitude of Mr Kilgour’s. Your admissions are such that the Crown could have proceeded against you by presenting a jury with your interview alone. It is feasible you may have exercised your rights and attempted to put the Crown to their proof by proving your knowledge of the nature of the substance or its weight. It is to your credit that you did do so .
67There have been other consequences for you. Far from making your family’s life more comfortable, you have placed them in a terrible position. Your van (worth around $10,000) was seized and moreover, there was a restraining order put over your family home. That your inevitable imprisonment will be accompanied by your worry about the financial peril you have placed your family in exacerbates that burden which I am about to outline. It will be taken into account accordingly[14] as increasing the punitive burden of custody on you and being relevant to the question of specific deterrence.
[14]Not as exceptional third party hardship in the way that concept is applied in Markovic v The Queen [2010] VSCA 105 per Maxwell P, Nettle, Neave, Redlich and Weinberg JJA.
68I was informed on the Plea that you did offer to assist the authorities last year. Through your solicitor, you arranged to meet police on or about 1 October 2021 at a location in Footscray. It is understood that you told police where you collected the cannabis, but nothing more was heard from the police after that. The Crown indicated later in correspondence with my chambers that “Mr Robinson did make an offer to assist authorities, but investigating police advise they did not consider the offer to have value. The Crown nonetheless accepts that the Court can take that offer into account but would not make any further submissions unless it would assist the Court”. I have declined to hear further submissions, but I can assure you it is a matter that I take into account in the general synthesis when arriving at the appropriate sentence.
Remand
69Following that interview, you were remanded in custody where you remained for 66 days until being bailed on conditions on 25 March 2021. I accept that your conditions on remand were more onerous than usual because it occurred during the Covid-19 Pandemic. I also acknowledge the fact that you will be returned to custody as a prisoner in similar circumstances.[15]
[15]See Lasry J in Re: Broes, [2020] VSC 128 [40], a case concerned with bail, but having obvious application to sentencing.
Resolution
70It appears to me that from April 2021, your lawyers and the Crown were in active discussions as to how to resolve this matter. The matter resolved prior to a case conference before me on 19 November 2021, when you pleaded guilty to this indictment. At that time, I note that you were still disputing the mental element required with respect to the second incident.
Matters of Principle
Commercial Trafficking
71Plainly, trafficking in a commercial quantity of drugs is a serious offence. The maximum penalty available of 25 years' imprisonment, and that alone is evidence of the seriousness with which Parliament views this offence, and provides a yardstick against which this sentence to be imposed should be considered.[16]
[16]Markarian v The Queen (2005) 228 CLR 357, 372.
72Trafficking in drugs is an inherently pernicious trade. Drug offences are a substantial societal evil. Judicial officers have a responsibility to fix sentences which are designed not only to punish but to serve as an effective deterrent. General deterrence, as the dominant purpose for which sentence is to be imposed, has been emphasised by sentences in many Australian jurisdictions. That much is inarguable.
73In this State, there is a quantity based sentencing regime according to weight of the substance (and not the perceived hierarchy of harm)[17] which informs the maximum penalty. A trafficable quantity of cannabis is 250g. A commercial quantity is 25kg (or 100 plants). A large commercial quantity is 250kg. On 19 January of last year, you, Mr Robinson, trafficked 246kg, or just short of large commercial quantity.
[17]R vPidoto & O’Dea (2006) 165 A Crim R 61; [2006] VSCA 185.
74Weight or quantity alone is not the only metric to measure the gravity of the offence. Other factors relevant to an assessment of the gravity of a particular trafficking include an offender’s role in the trafficking, the duration of the offending and the motivation for the offender’s involvement. The quantity trafficked, in particular, is a highly relevant consideration: “Other things being equal, the greater the quantity trafficked the more serious the offence”.[18] I make it clear though, the fact that you trafficked almost twice the amount of cannabis as Mr Kilgour does not mean that you will be sentenced to a term of imprisonment twice the duration of that imposed on him. This exercise is more nuanced than that.
[18] Gregory (a pseudonym) v The Queen [2017] VSCA 151, [24].
75The offending you were involved in, was in my view, quite sophisticated. It involved the co-ordination of multiple parties via encrypted communication, the conveyance of money (and cannabis) from one state to another, and perhaps also locally. The potential value of the drug ranged depending on how it was to be sold, which on any view of it, was immense. That such profit was not realised by others, and the drugs were seized is not of much moment.
76I need not repeat what I said earlier about “couriers”.
77The community has a justifiable expectation that such offending will be treated very seriously. The consequences for engaging in such serious criminality must be such that any like-minded members of the community who are contemplating behaving like this, or in any similar fashion, will pause to consider whether the potential rewards are worth the risk of being caught and being punished.
78By appropriately punishing such conduct, the Court is, on behalf of the community, seeking to denounce it and vindicate the values of that community. Your counsel conceded that general deterrence in cases of this nature carries particular significance in the exercise of the sentencing discretion, though asserted that general deterrence must be appropriately tempered by the particular circumstances of the present case and the matters in mitigation. You are unquestionably a suitable vehicle through which to deter others and it assumes a prominence in the sentence that I am about to impose.
79Charge 1 is a Category 2 offence pursuant to s.5(2H) of the Sentencing Act 1991, meaning the Court must make a custodial order (other than a sentence of imprisonment imposed in addition to making a community correction order) unless certain circumstances exist. The type of circumstances contemplated by the Sentencing Act 1991, do not apply here and your counsel did not argue to the contrary.
Current Sentencing Practices and Comparable Cases
80Comparable cases may provide guidance as to the identification and application of relevant sentencing principles. Analysis of such cases may also yield a range of sentences against which to examine a proposed sentence, however, current sentencing practices are only one factor, and not the controlling factor, in the fixing of a just sentence.
81I was taken to three Court of Appeal cases by counsel for the Director, all of which involved pleas of guilty to trafficking in a commercial quantity of cannabis, that it was said may be comparable to yours. The recitation of the facts in those other matters confirms just how difficult it is to engage in comparative exercises when sentencing, and these cases have not been treated as representing a ceiling beyond which I cannot exceed, or alternatively used in some kind of de facto parity exercise. The cases I was taken to are:
(a) Johnson, Damien v The Queen[19]: The offender pleaded guilty to trafficking in a commercial quantity of cannabis and a related summary charge of dealing with property suspected of being proceeds of crime. The offender was intercepted while driving a truck with 47.52 kilograms of cannabis concealed in a hidden storage section, as well as $6,560 in cash. The sentencing Judge in that instance declined to sentence him on the basis that he was a courier but made no finding as to his role. He had prior convictions for cultivating cannabis. A single Judge of the Court of Appeal refused him leave to appeal against a sentence of imprisonment for five years and six months, with a non-parole period of three years and six months.
(b) Sazimanoska v The Queen[20] in which the offender pleaded guilty to trafficking in a commercial quantity of cannabis. She had assisted her husband, who was the principal in the operation, in the distribution of about 33 kilograms of cannabis over a period of six weeks. She had no prior criminal history at all. The Court of Appeal refused leave to appeal against a sentence of imprisonment of two years and six months, with a non‑parole period of 15 months; and
(c) Nov Sinn v The Queen[21] in which the offender there pleaded guilty to trafficking in a commercial quantity of cannabis. He had assisted his daughter, who was the principal, to cultivate and traffic cannabis at eight different properties, by engaging in menial tasks. A total of 1542 cannabis plants were seized from the properties, that is to say about 15 times a commercial quantity by number of plants. That offender was 70 years old and had no prior convictions. The Court of Appeal said that the sentence originally imposed of imprisonment for five years with a non-parole period of three years and six months was 'within the range reasonably open' but allowed his appeal on the basis of parity and imposed a sentence of four years with a non‑parole period of three years.
[19][2022] VSCA 9
[20][2020] VSCA 66.
[21][2014] VSCA 149.
82The Crown submits that your offending may be somewhat more serious than that of Johnson, given the features of the instant offending, although Johnson had a worse subjective case. The cases of Sazimanoska and Sinn are more factually dissimilar (in role, quantity and duration of offending). Mr Toohey says that the offending in Johnson was more serious than yours, as Johnson was not found to be a courier, the cannabis was hidden in the truck and the accused had priors for cultivation. By contrast, Mr Toohey says your offending is measurable in only hours. He accepted though, as he must, that you trafficked eight times more cannabis than Johnson.
83Nonetheless, the cases may illustrate a sentencing pattern for offending of this kind, which the Crown says is consistent with its submission as to the appropriate disposition in this case; namely a head sentence with a non-parole period is appropriate. Beyond that, the above cases were not of particular utility. I make no criticism of the Crown for drawing them to my attention.
Parity
84Mr Kilgour relevantly pleaded guilty to one charge of Trafficking in a Commercial Quantity of a Drug of Dependence (cannabis) and was sentenced by this Court to imprisonment for two years and eight months (32 months), with a non-parole period of 14 months.[22]
[22] DPP v Kilgour (County Court of Victoria, Judge Dempsey, 15 October 2021).
85Because your offending relates in part to the same factual circumstances as his, the principles of parity apply. The following matters are worthy of consideration in that sense:
(a) Mr Kilgour’s offending related to only one instance of trafficking, concerning 134.52 kilograms of cannabis;
(b) Your offending related to two instances of trafficking, together concerning 246.38 kilograms of cannabis;
(c) Mr Kilgour’s offending involved his possession of the cannabis for a very short period of time before his arrest (though I acknowledge he had driven from Queensland, in a truck with containers modified in a way that were designed to conceal his cargo);
(d)
You actually effected the delivery of the first commercial quantity of cannabis
(to Mr Kilgour) and then;
(e) Having done so, you then proceeded to collect a second quantity for a further delivery, which was itself an additional commercial quantity if measured alone;
(f) He received modest payment that he possessed briefly, whilst you didn’t receive any payment at all;
(g) Mr Kilgour was able to call in aid compelling factors in mitigation, including:
(i)a plea of guilty as early as the committal mention; (you pleaded later at the case conference phase in this Court)
(ii)that he was a person of no prior criminal history at all, but moreover, he could rely on evidence of exemplary character, which I found to be ‘a very significant matter’. Whilst I accept that your prior criminal history is of limited relevance here, it is a point of distinction between yourself and Mr Kilgour; and
(iii)Mr Kilgour gave what I consider to be a “very high degree” of cooperation, including providing police access to his encrypted phone and by making fulsome admissions, which merited a demonstrable discount. You, Mr Robinson, were not entirely frank and cannot rely on that same degree of co-operation (though I note your apparent willingness to meet with police and assist them in identifying where you collected the cannabis from). You are not to be punished for your lack of candour, but it means that you are not entitled to the same reduction in sentence as your co-accused.
86The Crown submits that your offending was more serious than that of Mr Kilgour, your subjective case, that is to say the matters personal to you are less compelling, such that an appropriately disparate sentence is required. Mr Toohey says globally, you and Mr Kilgour are pretty much on a par and there is no reason for me to deal with you more harshly than I dealt with your co-offender. After careful analysis of the above matters in [85], I find there is a sufficient basis to distinguish you from your co-offender and appropriately disparate sentences are warranted.
Plea of Guilty and Remorse
87There is considerable utilitarian value in your plea given the saving to the community and you will receive the benefit of that plea in the sentence I impose. Your plea saved witnesses the time and trouble of giving evidence in contested proceedings, plus saved the resources of the state prosecuting you to trial and saved the unbelievably stretched resources of this Court in hearing that trial.
88I naturally find that your plea is also evidence of remorse. That remorse is manifest from the report of Ms Lechner at page 5, where you yourself say you are “disgusted” by your behaviour, and that conclusion is fortified by conversations that Ms Lechner had with your partner, Cindy.
89There is an additional aspect to your plea that I am required to give significant weight to. To have pleaded guilty as you have during the currency of the Covid-19 pandemic entitles you to an even greater discount in light of its greater utilitarian value at a time when this Court is facing a very significant backlog of trials and intense case listing pressures. This approach is in accordance with the recent observations of the Court of Appeal in a number of recent cases, commencing with Worboyes v The Queen,[23] where the Court said:
[38] Further, and significantly, criminal jury trials in times of the pandemic are far more resource-depleting than in times where the threat of serious infection is not present. One of the aspirations of encouraging utilitarian pleas of guilty must be that scant resources, upon which there is great demand, will be to an extent freed up.
[39] For these reasons, we consider that - all other things being equal - a plea of guilty entered during the currency of the COVID-19 pandemic is worthy of greater weight in mitigation than a similar plea entered at a time when the community and the courts are not afflicted by the pandemic’s effects. A plea of guilty during the pandemic ordinarily should attract a more pronounced amelioration of sentence than at another time. Although a sentencing judge need not quantify the extent of any ‘discount’, he or she must ensure that the plea of guilty results in a perceptible amelioration of sentence.
[23] [2021] VSCA 169.
90Mr Robinson, I intend to give full effect the principles in Worboyes, to ensure the benefit you receive by your plea is indeed perceptible and answers the description of “a pronounced amelioration of sentence”.
Deprivation and Verdins
91I take into account your personal circumstances, which were forcefully and articulately put by Mr Toohey at the Plea. You had overcome significant adversity that had shaped your makeup. It is hard to not have sympathy for your plight or admire your resilience. I cannot ignore that this unfortunate history of yours explains some of your later conduct.
92I consider the matters raised in the report of Ms Lechner to be important contextual matters that explain why you might involve yourself in this offending. As I said earlier, I do not consider that the references to major depressive disorder and PTSD are sufficiently concrete as diagnoses per se.
93The Crown concedes a certain degree of hardship would manifest for you in custody, acknowledging that you would benefit from treatment, but the Crown did not accept that your moral culpability, or general deterrence or specific deterrence was reduced. With respect, I agree with that position.
94I am minded though, to take into account your very difficult childhood and the way it shaped you, not just out of historical curiosity but because of the effects of social disadvantage do not necessarily dissipate or diminish over time. They appear to have had a profound and lasting consequence on your personality and can explain, but not excuse, the present offending. Taking lifelong damage that is the result of childhood exposure to neglect into account when sentencing is in my view, “the mark of a humane society”.[24] It is also relevant in applying the fundamental principles and sentencing purposes.[25]
Rehabilitation and Specific Deterrence
[24]DPP v Herrmann [2021] VSCA 160.
[25]Marrah v The Queen [2014] VSCA 119, [16]; see also Barnabas Dahl v The Queen [2020] VSCA 90.
95I am in no doubt that you have been specifically deterred by your arrest, charging and the humiliation that accompanies that. That you will be a prisoner in such arduous circumstances adds to that in my view. If there was any doubt about you being personally deterred, the financial peril and potential life altering circumstances you have placed your family in fortifies my conclusion.
96Your prospects for reform are of course coupled with the fact that you have been specifically deterred. Your prospects must be seen as good to very good on account of your familial support, general pro-social outlook (bearing in mind you have not offended in two decades and have nothing pending), and employment history. You appear to me to have precious little to reform from, in any event, given the present offending was the product of circumstances in your life, rather than some other causative aspect of your makeup or outlook that requires ongoing intensive supervision and treatment. That is not to say you would not benefit from psychological assistance.
Protection of the Community
97Given the foregoing, I find that that there is little need to further protect the community from you. You have been specifically deterred and your prospects are such that it is difficult to conceive of you offending again.
Rolled Up Count
98Given that Charge 1 is a rolled-up charge, I am required to consider all the circumstances, including that the offending was carried out over a period of time and involved two transactions. While I may consider all the relevant circumstances of a rolled-up charge, the charge is still to be treated as presenting a single formal charge, and the maximum penalty remains the same.
Position on Sentence by the Parties
99It was common ground between the parties that a term of imprisonment with a non-parole period was the only sentence available to me.
100I consider this to be a case where there should be a significant disparity between the head sentence and non-parole period to allow you a meaningful period of supervision upon release. The parties agreed with this assessment. In determining the length of the non-parole period in this case, I have placed particular emphasis on the cumulative effect of the matters relied on in your case in mitigation. These matters in my view compel a conclusion that a significantly disparate non-parole period is justified and appropriate.
Sentence
101After having carefully considered, balanced and weighed the relevant sentencing considerations, I have decided to convict you on each charge and sentence you as follows:
(a)
On Charge 1, you are convicted and sentenced to 3 years and 3 months
(39 months) imprisonment;
(b) On Charge 2, you are convicted and fined $200;
(c) I set a non-parole period of 1 year 9 months (21 months) before you are considered eligible for parole.
Pre-sentence Detention
102Pursuant to s.18 of the Sentencing Act 1991, I declare that you have already served a total 66 days of pre-sentence detention, not including today’s date, in respect of the sentence that I have imposed today. I further order that that declaration and its details be entered in the records of the Court.
Section 6AAA Application
103Pursuant to s.6AAA of the Sentencing Act 1991, I give the following indication, but for your plea of guilty to these charges, Mr Robinson, I would have sentenced you to a total effective sentence of 5 years, with a non-parole period of 3 years and 2 months for these offences.
Ancillary Orders
104Pursuant to s.77(1) of the Confiscation Act 1997, I grant the disposal order sought by the prosecution regarding the cannabis and mobile phone.
105Are there any other orders required?
106MR KEKS: Not from the Crown, Your Honour.
107MR VASSIS: No, Your Honour.
108HIS HONOUR: Take a seat, Mr Robinson. To the custody staff, can I ask this kindness, would Mr Vassis be able to approach Mr Robinson before he is taken down just to discuss the sentence, I'll leave the Bench. Would that be possible?
109OFFICER: No problems, Your Honour.
110HIS HONOUR: And if his partner, Cindy, could at least speak to Mr Robinson from the back row without physical contact I would be particularly grateful. Can I thank you, Mr Keks, for your assistance, and you, Mr Vassis, as well as pass on my considerable gratitude to Mr Toohey in the way the plea was presented.
111MR VASSIS: Yes, Your Honour, I will. Thank you.
112MR KEKS: Thank you, Your Honour.
113HIS HONOUR: Unless there are any further matters, I will adjourn the Court.
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