Director of Public Prosecutions v Singh
[2020] VCC 1066
•17 July 2020
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR 18-02003
CR-20-00145
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| RAJEEV SINGH |
---
| JUDGE: | HIS HONOUR JUDGE GEORGIOU |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 27 March & 13 July 2020 |
| DATE OF SENTENCE: | 17 July 2020 |
| CASE MAY BE CITED AS: | DPP v Singh |
| MEDIUM NEUTRAL CITATION: | [2020] VCC 1066 |
REASONS FOR SENTENCE
---Subject: CRIMINAL LAW
Catchwords: First indictment - trafficking in methylamphetamine – 311.6 grams – charge 1 rolled up charge covering eight transactions – charge 2 trafficking in methylamphetamine commercial quantity – 277.3 mixed substance – charge 3 trafficking in methylamphetamine commercial quantity based on offer to sell 500 grams of methylamphetamine – charge 4 failure to comply with an order under s.465AA of the Crimes Act 1958.Second indictment – prohibited person in possession of a firearm x 5 – charges 3 and 5 serious instances of offence - handle stolen goods - summary charge - possession of ammunition whilst not the holder of a license or permit x 2 – commit indictable offence whilst on bail.
Offending motivated by rewards in drugs and money – operated as a ‘broker’ – transactions with covert operatives - drugs and firearms did not make way into community – belated remorse – relatively early plea of guilty – relevant prior convictions - serious drug offender - 714 days pre-sentence detention.
Legislation Cited: s.71AC(1), 71AA Drugs, Poisons and Controlled Substances Act 1981; s.465AA(9), s.88 Crimes Act 1958; s.5(1)Firearms Act 1996, s.6D Sentencing Act
Cases Cited: DPP v Bentley [2020] VCC 474; DPP v Kehl [2019] VCC 1294; Gordon v The Queen [2013] VSCA 343; Berichon v R; Houssein v R [2013] VSCA 319 R v Graham [2007] VSCA 252, Fernando v R [2017] VSCA 208 (2017) A Crim R 26, Arico v R [2018] VSCA 135, Havel Kada v R; Hadil Kada v R [2017] VSCA 2017; R v Verdins (2007) 16 VR 269; Gregory (a pseudonym) v The Queen [2017] VSCA 151.
Sentence: total effective sentence of nine years and nine months with a non-parole period of six years.---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr M. Regan | Office of Public Prosecutions |
| For the Offender | Mr C. Pearson | Vassis & Co |
HIS HONOUR:
1Rajeev Singh, you have pleaded guilty to the following charges on Indictment No.C1811815.1, which I will refer to as the 'first indictment'.
2Charge 1 - at Hallam, Cranbourne North, Berwick, Clyde North and Melbourne between 10 October 2017 and 30 March 2018 you trafficked in a drug of dependence, namely methylamphetamine.
3Charge 2 - at Hallam on 12 April 2018 you trafficked in a drug of dependence, namely methylamphetamine, in a quantity that was not less than the commercial quantity applicable to that drug of dependence.
4Charge 3 – at divers locations in Victoria on 14 April 2018 you trafficked in a drug of dependence, namely methylamphetamine, in a quantity that was not less than the commercial quantity applicable to that drug.
5Charge 4 – at Dandenong on 17 April 2018, being a person who had relevant knowledge of measures applied to protect data held or accessible from data storage devices, namely mobile telephones and a hard drive seized under warrant, and who had been informed by a police officer of an order made under s.465AA of the Crimes Act 1958 dated 16 April 2018, and that failure to comply with the order is an indictable offence punishable by imprisonment, you failed to comply with the order without reasonable excuse.
6Charge 1 is a rolled-up count and relates to eight separate transactions in which you sold a total of 311.6 grams of a mixed substance containing methylamphetamine. Each sale was made to a covert police operative who used the name 'Sammy'. The purity of the methylamphetamine sold varied between 79 per cent and 86 per cent.
7Charge 2 relates to a single transaction occurring on 12 April 2018, when you sold 277.3 grams of a mixed substance containing methylamphetamine at a purity of 78 per cent. The sale was made to a covert police operative who used the name 'Zac'.
8Charge 3 is based on your offer to sell Zac 500 grams of methylamphetamine.
9On Indictment J10995116.1, which I will refer to as the 'second indictment', you pleaded guilty to the following charges:
10Charge 1 – at Footscray on 26 October 2017, being a prohibited person, you had in your possession a firearm. The firearm was a sawn-off 12 gauge shotgun which you then sold to Sammy for $4,000.
11Charge 2 – at Hallam on 20 December 2017, being a prohibited person, you had in your possession a firearm. The firearm was a 30.06 calibre bolt action Sauer centrefire rifle which you then sold to Sammy for $1,700.
12Charge 3 – at Hampton on 28 December 2017, being a prohibited person, you had in your possession a firearm. The firearm was a 9 millimetre Luger calibre submachine gun which you then sold to Sammy for $24,500.
13Charge 4 – at Hallam on 28 December 2017, being a prohibited person, you had in your possession a firearm. The firearm was a 12 gauge double barrel VG Bentley shotgun which you then sold to Sammy for $2,400.
14Charge 5 – at Hampton on 12 April 2018, being a prohibited person, you had in your possession a firearm. The firearm was a .32 automatic calibre handgun which you sold to Zac for $16,000.
15Charge 6 – at Hallam on 17 April 2018 you dishonestly handled stolen goods; namely a registration plate ZH2 986.
16You did not have any relevant licences or authorities under the Firearms Act and associated regulations to handle, possess or sell firearms. You were, in fact, a prohibited person under the Firearms Act throughout the offending period, as you were subject to community correction orders.
17You also pleaded guilty to the following summary charges, which were transferred to this court pursuant to s.145 of the Criminal Procedure Act 2009:
18Charge 14 – on 20 December 2017, possession of cartridge ammunition whilst not the holder of a licence or a permit under the Firearms Act 1996.
19Charge 19 – committing an indictable offence whilst on bail.
20Charge 36 – on 17 April 2018, possession of cartridge ammunition whilst not the holder of a licence or permit under the Firearms Act 1996.
Circumstances of offending
21Exhibit P1 is the Prosecution Opening for Plea, which summarises your offending. The summary was not disputed by your counsel. The summary is lengthy and I will set out in these reasons the more pertinent aspects of that summary.
22On 10 October 2017 you were arrested for unrelated matters and placed in the cells at the Narre Warren Police Station. It was there that you met a police covert operative who introduced himself to you as Sammy.
23You told him that you had been arrested in relation to drug matters and further stated that police had failed to find a ball of methylamphetamine you had in your possession. A ball is equivalent to 3.5 grams of the drug. You said that you had been trafficking in methylamphetamine the last two days.
24You also told Sammy that you were able to sell him a small amount of methylamphetamine once you had both been released from custody. You gave him your mobile phone number.
25You were both released that day and met at a nearby McDonald's restaurant. You then drove Sammy to your home in Alexander Street, Hallam. Whilst you were with Sammy you told him that you had a .308 calibre rifle and a 30-30 calibre rifle and two handguns which were not registered and not kept at your home. You said they were used for hunting but added that there was good money to be made in selling handguns but that they were difficult to obtain.
26You also said that you used to traffick approximately 1 kilogram of methylamphetamine every one to two days and that you will only sell good quality methylamphetamine. You said you had been trafficking for six years and offered Sammy an ounce of methylamphetamine for $4,800. Sammy agreed instead to purchase a 1 gram sample for $200. You told Sammy to use the Wickr app to make future purchases. You sent him an initial Wickr message using the name 'rjlorenzo'. The sale of this sample is the first transaction relevant to Charge 1 on the first indictment. Analysis of the drug showed it was methylamphetamine and weighed 1.2 grams with a purity of approximately 80 per cent.
27On 17 October 2017 Sammy contacted you. You told him that you had sold 16 ounces of methylamphetamine on Wednesday and it was the best methylamphetamine you have had in 12 months. You also said that you sold a further 14 ounces on the following day.
28That same day you and Sammy attended at the Crown Promenade Hotel in Southbank. You told him that you were going to the hotel to buy a quarter of an ounce of methylamphetamine for him as well as half a pound for yourself. You left Sammy in the car and went to the hotel. You returned to the car and showed Sammy a photograph of a large clear plastic bag containing a block of crystalline substance. You said it was a 1 kilogram block of methylamphetamine which was in the room of your supplier, named “Yuki”.[1] You then reached into your satchel and retrieved two small bags each containing a crystal substance which you then sold to Sammy. Analysis showed that it was methylamphetamine weighing a total of 6.8 grams at purities of 83 and 85 per cent. This is the second transaction relevant to Charge 1 on the first indictment.
[1] Variously described as “Yuki” or “Yoki” in the prosecution summary.
29Whilst still in the car you mentioned to Sammy that you had received a call from a person asking you to sell firearms on that person's behalf. You told Sammy that the firearms were new and that you would only sell firearms if you could obtain and sell them quickly. You said that once you viewed a firearm you will take a photo of it and send it to him via Wickr.
30On 23 October 2017 you sent Sammy a Wickr message that had two photographs of a black over and under sawn-off shotgun. You asked whether he was interested in it. After some further messaging you stated that the seller wanted $4,300 for the gun. Sammy offered you $4,000.
31Between 24 and 26 October 2017 you and Sammy exchanged a number of messages negotiating the purchase of 28 grams of methylamphetamine for $4,600.
32On 26 October 2017 you met with Sammy in Footscray. On arrival Sammy saw you with two other males. You got into Sammy's car and he handed you $4,000. You counted the money and then walked to a black Holden and got into the passenger seat. Not long thereafter you returned to Sammy's car in possession of a sawn-off over and under 12 gauge shotgun, which you handed to Sammy. You told him that he could buy a further five firearms the following week. You referred to firearms as 'toys'. Possession of this firearm is the basis of Charge 1 on the second indictment.
33The firearm was a Fabarm Gamma Lux Competition model shotgun bearing a serial number. The barrel had been cut down to 385 millimetres. It was test fired by a police firearms examiner and found to be fully operable.
34Later that same evening you met with Sammy in Hallam. You sold him 28 grams of methylamphetamine for $4,600. Analysis showed that the drug weighed 27.8 grams with a purity of 81 per cent. This is the third transaction relevant to Charge 1 on the first indictment.
35On 31 October 2017 Sammy contacted you on Wickr wanting two ounces of methylamphetamine. You responded that it would be available in the following week. On that day Sammy also sent you a message which read, in part: 'Very happy with toy. Want more if you can'. You responded: 'No worries, bro. Will organise it'.
36On 9 November 2017 Sammy attended your house in Hallam. You told him that the firearms you were intending to sell him had not arrived. You showed Sammy a photograph of a Glock handgun and said that three of those plus two Springfield Armory's would soon be available.
37That day you sold Sammy 56 grams of methylamphetamine at a purity of 81 per cent for $9,200. This is the fourth transaction relevant to Charge 1 on the first indictment.
38On 10 November 2017 you sent a message to Sammy saying that your mate has a new pump action 'shotty'. You sent him four photographs of a pump action shotgun. Four days later Sammy contacted you asking how much for the pump action. You told him that it had been sold. Sammy asked about the Glocks. You responded that they will be available on Saturday. You were not able to give him a price at that time.
39On 15 November 2017 you sent Sammy a message saying you had a new Winchester as well as a 30.06 firearm. You asked whether he would be interested. Sammy asked for a photo and price of the Winchester. You did not respond. On 18 November you and Sammy exchanged messages. You stated that 'those things are here. Beretta 9 millimetre'. You said that there would be around four such guns and that you needed to buy all four guns at a total cost of $30,000. Sammy responded, saying he would have the money by Monday but he only wanted two guns. There were further exchanges and Sammy asked whether you would cover him a $3,800 cash shortfall. You refused to do so. On 20 November you told Sammy that those firearms had been sold but there may be more firearms available for sale.
40On 21 November 2017 you spoke to Sammy and said that you would not be able to get any firearms for another week. Later that day you sent him a message saying, amongst other things, that you saw firearms which could be Glocks or Berettas and that it would cost $25,000 for the two guns.
41The next day you and Sammy attended at an address in Berwick, and later in Hallam, where you sought to sell Sammy two handguns for $28,000. Sammy gave you a deposit of $6,000, as arranged. You left the car and later returned, saying he would have to wait while the supplier went and got the guns. In the end that transaction did not proceed, as the handguns apparently were no longer available. You returned to Sammy his deposit.
42Whilst waiting for the handguns you sent Sammy a Wickr message containing a photograph of an AK-47 firearm. You told him that it was available for $22,500.
43During that trip you gave Sammy a .1 gram sample of methylamphetamine. The drug was analysed and found to have a purity of 83 per cent. You are not charged in relation to this transaction.
44On 27 November 2017 Sammy called you seeking to buy 56 grams of methylamphetamine. Although it was anticipated that the transaction would occur on that day, ultimately it did not.
45On 4 December 2017 Sammy attended at your address, where you discussed the purchase of methylamphetamine. During that conversation you told Sammy that your supplier, Yuki, would shortly be travelling to Korea. Further, that you had a contact named 'Drew' who was a former Comanchero's member living in Berwick, and who had the capacity to supply 1 kilogram of methylamphetamine at a cost of $130,000. You told Sammy that you had originally met Yuki through your friend Jacob and that before she travels overseas Jacob will be obtaining a large amount of methylamphetamine from her to sell. 'Jacob' is a reference to Jacob Bentley.
46On 8 December 2017 there was a further trip to obtain a firearm. Sammy met with you in Berwick hoping to purchase a Glock handgun. You and he drove to addresses in Warragul and Longwarry in an effort to purchase the firearm. The trip was unsuccessful.
47Arrangements had also been made on that day for the sale of methylamphetamine to Sammy. You told him that the methylamphetamine was from Yuki, who was overseas, and that she had left a large amount of the drug with your friend Jake before she left.
48At about 12.20 am on 9 December 2017 you directed Sammy to Linden Tree Way, Cranbourne North. You then left the car and walked off. About 40 minutes later you returned to the car with a plastic bag containing a crystal substance and handed it to Sammy. He gave you $9,000. The substance was analysed and found to be 52.5 grams of methylamphetamine at a purity of 79 per cent. This is transaction five, relevant to Charge 1 on the first indictment.
49Transaction six occurred on 19 December 2017. At approximately 4.08 pm Sammy attended at your house. You got into his car and told him to drive to the location of the previous transaction. You then made a phone call to Jake to confirm that 2 ounces were ready. On arrival you got out of the car and walked towards Paxford Drive. Bentley and his girlfriend, Amy Khel, lived in a nearby apartment.
50You returned to Sammy's car with a bag containing a crystal substance. You gave the bag to Sammy and he gave you $9,000. You then got out of the car and Sammy drove off. That same day you sent Sammy photographs of firearms.
51The crystal substance was analysed and found to be 55.8 grams of methylamphetamine at a purity of 86 per cent.
52On 20 December 2017 you sent to Sammy photographs of firearms including of a 9 millimetre Beretta and a Glock. You said that the Glock could be purchased for $20,000 and the Beretta for $16,000.
53Sammy attended at your house in Hallam to purchase the handguns, however, by 8.30 pm the delivery to you of the handguns had not materialised and instead you offered to sell him a firearm you had available at a safehouse in Noble Park, where you said you stored your firearms.
54You travelled to that house, arriving at about 8.44 pm. You went into the house and came out with another male. You and the male then went into a horse float parked in the front yard and retrieved a gun. You placed the gun in Sammy's boot and together you drove back to your house. Sammy paid you $1,700 for the gun, which was found to be a 30-06 Springfield calibre Sauer model 200 bolt action rifle. It was fully operable. Your possession of this firearm forms the basis of Charge 2 on the second indictment.
55Charge 3 on the second indictment involved your possession of a submachine gun which you sold to Sammy on 28 December 2017. On 26 December 2017 you sent Sammy a Wickr message which contained a photograph of a firearm and you stated: 'Hey bro, I can get this. It's brand new, same as Tec-9. Full auto, $24,500'.
56Sammy met with you at your house and together you drove to an address in Hampton, arriving at approximately 10.45 am. Sammy gave you $15,000 as a deposit on the gun. You left the car and walked to a nearby address. You later returned to the car carrying a black laptop case containing a fully automatic machine gun without a serial number, together with a magazine. You told Sammy the price was $24,500. Sammy gave you the balance of $9,500.
57The gun was later examined and found to be without manufacturer's markings or serial numbers. It came with a 9 millimetre Luger magazine capable of taking 12 cartridges. It was test fired and found to be fully operable and able to fire continuously with one trigger pull until the ammunition was expended. That gun, I was informed, was home-made.
58On that same day, after you and Sammy returned to your house, you approached a male who was parked outside. You obtained from him a shotgun which you then sold to Sammy for $2,400. That gun was a fully operable 12 gauge VG Bentley double barrel shotgun. Your possession of this firearm forms the basis of Charge 4 on the second indictment.
59Between 8 January and 19 January 2018 you sent Sammy a number of messages and photographs of guns for sale. Although Sammy expressed interest in some of the guns he told you he was away and asked whether you could cover their purchase until he returned the following Tuesday. You were not prepared to pay for the guns and nothing further eventuated.
60On 5 February 2018 you sent Sammy a Wickr message with a picture of a handgun. The accompanying text stated it was a new mini-Glock. After some further communication Sammy sent you a message stating that he would take two handguns for $35,000. The next day Sammy attended at your house in anticipation of the purchase. You told him that your friend was in possession of 16 handguns and was on his way from Cranbourne. There was further discussion concerning the availability of other guns. After some time two men arrived at your house empty handed. Excuses were made as to the missing firearms. No gun transaction eventuated.
61Transaction seven of Charge 1 on the first indictment involved the sale of 56 grams of methylamphetamine to Sammy on 6 February 2018. On that occasion you and Sammy drove to Bentley's house in Berwick. You arrived at the area of Linden Tree Way. After some little time you told him you were to drive to another location to get the methylamphetamine.
62That location was in the vicinity of a shopping centre in Clyde North. A short time after your arrival at the location a white BMW, registration number ZF0 493, arrived. That car contained a single female occupant. The female was Amy Kehl, Bentley's girlfriend. You got out of Sammy's car and got into the BMW. You then returned to Sammy's car and produced two bags each containing a crystal substance. You sold them to Sammy for $9,000. You put the money into your satchel and returned to the BMW. You then returned to Sammy's car and the two of you drove back to your house. The crystal substance was analysed and found to be 55.5 grams of methylamphetamine with an approximate purity of 84 per cent.
63On 21 February 2018 you spoke with Sammy and said that you were attempting to obtain handguns. There were further discussions with Sammy about the sale of firearms on 26 February and 3 March 2018. You discussed the sale of Glocks for $18,000 each.
64On 13 March 2018 you met with Sammy and drove to Carrum Downs. At that location you received a phone call which you said was from a male named 'Alex', who was selling a new Glock 45 for $25,000. Nothing eventuated from that trip.
65On 30 March 2018 Sammy attended at your house in the company of Zac. You were introduced to Zac. The three of you then drove to Berwick. You told them that you would be meeting with Jacob's girlfriend, Amy. You arrived at a car park in Cranbourne North. A red Toyota sedan with dark tinted windows parked nearby. You walked to that car and got into the front passenger side. You later returned to Sammy's car and he handed you $9,000. You counted the money and placed it into your satchel. You then returned to the red Toyota and got into the front passenger seat. Minutes later you returned to Sammy's car. You gave him a plastic bag containing methylamphetamine. You suggested that he buy larger quantities and told him you could source half a kilogram of methylamphetamine from your friend Jacob. You said that Jacob was working for Yuki.
66The drugs you supplied to Sammy on this occasion were analysed and found to be 56 grams of methylamphetamine at a purity of 85 per cent. This supply is the eighth transaction of Charge 1 on the first indictment.
67The red Toyota sedan's registration plates bore a registration which was connected to Jacob Bentley.
68On 9 April 2018 you met with Zac at the Fountain Gate Shopping Centre. Zac told you that he was after a price for 500 grams of methylamphetamine. You said you would negotiate a price with your supplier and that you would have to facilitate the sale, as your supplier would charge more if the sale was not conducted through you. After making a telephone call you told Zac that the price for 10 ounces of methylamphetamine would be $37,000.
69On 12 April 2018 you sent Zac a Wickr message telling him you had a firearm for sale. On that day police had in place a surveillance operation to track the activity undertaken by you and Bentley.
70Bentley was followed to your house, arriving at 8.34 am. You came out and spoke to Bentley and an unidentified male before the three of you went inside your house. A few minutes later Zac arrived outside your house. You came out and got into Zac's car. You told him that the methylamphetamine was being transferred into Ziploc bags. At 9.08 am police saw the unidentified male approach the car in which he and Bentley arrived. He retrieved a small bag which Zac could see contained a crystal substance. The male returned to your house. At 9.14 am you came out carrying a white box. You got into Zac's car. The box contained multiple bags each containing a crystal substance. You told Zac that there was a total of 280 grams of methylamphetamine. Zac paid you $37,000. You also told Zac that you were sourcing a better price for half a kilogram of methylamphetamine and boasted about the quality of the drug you were providing. You then left the car, taking the cash with you. The above transaction is the basis of Charge 2 on the first indictment. The substance you supplied was analysed and found to contain 277.3 grams of methylamphetamine mix at a purity of 78 per cent.
71Zac left your house at approximately 9.17 am. Bentley and the other male were seen to leave at 9.59 am. At 10.17 am, by arrangement, Zac returned to your house and you got into his car. You told him to drive to King Street, Hampton, where you would try to obtain two firearms at a good price. You told him that you would seek a $1,000 commission for each firearm.
72Upon arrival Zac gave you $15,000. You left the car and walked towards King Street. After approximately one hour you returned to his car with a black handgun. You told Zac that the gun cost $16,000 and Zac gave you an additional $1,000.
73The gun was later examined and found to be a 9 millimetre P.A.K. Ekol semi-automatic 9 millimetre blank firing pistol that had been modified with a substituted barrel. The handgun was successfully test fired with a .32 automatic cartridge during the police examination. The sale of this firearm forms the basis of Charge 5 on the second indictment.
74During the drive with Zac you discussed the earlier drug sale that day. You told him that the drugs came from an Asian syndicate and that you received $500 and an ounce of methylamphetamine for the 10 ounces Zac had bought.
75On 14 April 2018 you agreed to sell Zac 500 grams of methylamphetamine for $64,000. The transaction was to take place on 17 April 2018. The agreement to sell forms the basis of Charge 3 on the first indictment. The sale did not eventuate as the police concluded their operation.
76At approximately 3.30 am on 17 April 2018 police executed a search warrant at your home. They found a total of 8 grams of methylamphetamine. You have not been charged in relation to that methylamphetamine.
77You were arrested and interviewed by police. You denied any knowledge of the property seized at your house. You answered 'no comment' to the allegations regarding your dealings with Sammy and Zac. You were asked to provide the access information to your electronic devices. You refused to do so.
78You were told that police had a warrant which required you to provide them with the passwords and access to the devices they had seized. You were also told that if you refused to do so you would be committing an offence and would be charged. You maintained your refusal, stating: 'Well, I'll get charged for it'. Your refusal is the basis for Charge 4 on the first indictment.
79During the search at your premises police found a registration plate affixed to a motorbike. Police enquiries revealed that the registration plate had been stolen from premises in Cranbourne North in November 2017. This forms the basis of Charge 6 on the second indictment.
80The prosecution opening contained many references to uncharged acts and conversations where you spoke to Sammy and Zac of your illegal activity concerning drugs and guns. Mr Regan, who appeared on behalf of the Director of Public Prosecutions, relied on those matters to provide context to your dealings with the operatives, to show that it was you who was driving the sales of methylamphetamine and firearms to the operatives, and to rebut any suggestion that you were pressured or coerced in your activity with them, or that it was they who 'ramped up' your dealings in drugs and guns. To be clear, you are not to be punished for any matter not charged.
81With regard to the summary charges the prosecution filed an addendum to the plea opening on 16 July 2020. Charge 14 relates to a single 30-06 calibre live cartridge which you gave to Sammy on 20 December 2017. Charge 36 relates to four 12 gauge shotgun rounds found at your premises on 17 April 2018. Charge 19 relates to offences of trafficking cannabis and methylamphetamine committed in June 2017, and for which you were admitted to bail. The offences before me occurred whilst you were on that bail.
Criminal Record
82You admitted your criminal record. You have a number of relevant prior convictions.
83On 27 February 2017 at the Dandenong Magistrates' Court, you were convicted of three charges of theft of motor vehicle, two charges of failing to answer bail, driving at a speed dangerous, trafficking in methylamphetamine, possession of MDMA, possession of cannabis, possession of a prohibited weapon, possession of methylamphetamine, possession of Trenbolone, retention of stolen goods, possessing an unregistered Category A longarm, storing a firearm in an insecure manner, possessing cartridge ammunition without a licence or permit, possessing a firearm without a serial number and possessing a category A longarm. You were placed on a 12 month Community Correction Order with conditions including treatment for drug addiction.
84On 19 December 2017 you appeared at the Dandenong Magistrates' Court charged with contravening the Order that was imposed on 25 February 2017. The original order was varied and you were placed on a Community Correction Order for 12 months commencing that day. You were also convicted of possession of MDMA, two charges of possession of methylamphetamine, trafficking cannabis, two charges of driving whilst disqualified, using an unregistered vehicle and failing to answer bail. In respect to those matters you were also placed on a Community Correction Order for a period of 12 months with conditions. The offences for which I am to sentence you occurred whilst you were on a community correction order. As I will discuss shortly, one of the offences before me was committed on the very day you were placed on the second orders.
85Mr Pearson, who appeared on your behalf, informed me that you were breached in relation to both Community Correction Orders and sentenced to three months' imprisonment.
Background and Personal Circumstances
86You are now aged 29 and were 27 at the time of your offending. You were born in Fiji. In 2000, at the age of 10, you emigrated to Australia with your parents and older sister. You have a younger sister who was born here. Your family, I am told, are good, responsible members of the community. Both your parents are employed, as is your older sister. Your younger sister is still at school. At the time of your offending you were living at home with your family. Your parents and sisters attended court to support you, as did a number of other relatives. They will continue to support you, I am told, upon your release.
87You completed your VCE at Eumemmerring College without difficulty. On leaving school you commenced an apprenticeship as an electrician. Your employment was terminated in the final year of your apprenticeship, as your employer wished to employ his own son. You then worked for your uncle as a courier for approximately three years. In approximately 2014 you purchased a tip truck and worked in excavation and construction. You bought a second truck and sub-contracted your services to a company based in Hawthorn.
88In 2015 you commenced a relationship with a woman named Naomi. After your relationship commenced you discovered she was a user of methylamphetamine. You started using the drug with her in 2016.
89Mr Pearson informed me that on 28 January 2016 you were shot in the abdomen whilst attempting to purchase drugs. I note that this is different to what you told Sammy, which was that you were out delivering drugs when you were set upon. It is also different to the police summary concerning that incident which was tendered by Mr Regan and which states you were shot when attempting to sell 6 grams of amphetamine to another person. The police summary related to charges you faced at Dandenong Magistrates' Court on
27 February 2017.90Several months after you were shot you were assaulted with a baseball bat by Naomi's former boyfriend and your arm was broken. Mr Pearson also informed me that in August 2016 your best friend died as a result of a drug overdose and that this was also relevant to your increasing drug use.
91A report prepared by Alison Mynard, clinical psychologist, was tendered on your behalf. You told Ms Mynard that as a result of the shooting and the attack upon you by Naomi's ex-boyfriend you became hyper-alert, experienced nightmares every night, did not sleep well and would wake in a state of panic. You said that you did not want to go to work, were depressed, and that over time you lost your trucks and everything you owned.
92You told Ms Mynard that you have not had psychological or psychiatric treatment in the past. You did, however, tell her that you saw a counsellor several years ago but it was not made clear who you saw and for what purpose.
93You also said that following the first few months after the shooting you began going out more, taking risks and not caring so much. You were smoking, you said, about 2 grams of ice every two days.
94Ms Mynard diagnosed you as suffering Post-Traumatic Stress Disorder and Stimulant Use Disorder (in remission whilst in custody).
Defence Submissions
95Mr Pearson informed me that you started using methylamphetamine in 2016 and it was through the persons whom you met in that drug environment that you were able to source drugs and firearms.
96It was submitted that in 2016 you went through a series of traumatic events including the breakdown in your relationship with Naomi, the shooting in January 2016, the attack upon you by Naomi’s former partner and the death of your friend. All of these matters, I was told, led to a decline in your mental health and an increase in your use of methylamphetamine.
97With regard to your offending Mr Pearson described you variously as a ‘broker’ or ‘agent’ or ‘middleman’ in relation to drugs and guns, and that you were resourceful in your ability to obtain both. He submitted that you engaged in the criminal behaviour to provide for your own addiction and to make money. He correctly cautioned that with regard to the firearm charges you do not fall to be sentenced for the more serious offence of trafficking in firearms. Mr Pearson also submitted that your possession of firearms was of short duration, involving you passing the firearm from the seller to the covert operative.
98Mr Pearson referred to the sentences imposed upon others who were also involved in your offending and submitted that there should be some parity with their sentences.
99Jacob Bentley was a co-offender in relation to the sale of 277 grams of methylamphetamine to Zac. He was sentenced by Judge Johns on 21 April 2020 on a number of charges.[2] In relation to the charge in which you are a co-offender Bentley received five years' imprisonment. The prosecution put its case against Bentley on the basis that he was complicit in your transaction with Zac.
[2]DPP v Bentley [2020] VCC 474
100In written submissions dated 23 June 2020 Mr Pearson submitted that your criminal record was not as extensive as that of Bentley, and that Bentley was higher in the drug trafficking hierarchy than you. Mr Regan tendered Bentley's criminal record. His record extends back to 2015 and includes, on 11 February 2016, an aggregate sentence of 210 days for trafficking methylamphetamine, trafficking GHB, possession of a prescription drug and dealing with property suspected of being proceeds of crime. His pre-sentence detention was 210 days and he was also placed on a Community Correction Order for 12 months. That was his only sentence of imprisonment.
101Amy Kehl was sentenced by Judge Dawes on 16 August 2019 for trafficking in methylamphetamine and other charges[3]. She provided you with the methylamphetamine which you in turn supplied to Sammy on 6 February 2018 (that is transaction seven of Charge 1). Kehl was sentenced to 20 months' imprisonment on that charge. Her Honour found that the drugs were stored at the house Kehl shared with Bentley and that she was involved in the offence to ensure her own ongoing supply of methylamphetamine. Ms Kehl had a significant history of criminal offending.
[3]DPP v Kehl [2019] VCC 1294
102I was also informed of two other co-offenders; Sean King and a Mr Tadross.
Mr King was sentenced in this court and Mr Tadross in the Magistrates' Court. It was submitted that they are relevant in respect to some of the firearm charges on indictment two - Mr King to Charges 3 and 5, Mr Tadross to Charge 2.103Mr Pearson submitted that your dealings with police commenced with relatively small amounts of methylamphetamine and a sawn-off 12 gauge shotgun, and that it was the police who gradually talked up the level of dealing in drugs and firearms - that is, it was at the urging of the covert operatives that your level of drug trafficking and possession of firearms increased.
104In oral argument Mr Pearson submitted that police asked you to traffick in increasing quantities of methylamphetamine and that you were able to do that without difficulty, given your contacts. He submitted that on a listening to covert audio recordings the operative played a dominant role during that first meeting in the cells. He said that Sammy represented himself as a drug dealer running drugs from Melbourne to Mildura. That was his cover story. Mr Pearson tendered transcripts he had prepared of some of the recordings.
105As I stated when the plea hearing resumed on 13 July 2020, I found the transcripts to be of limited assistance given they were not a complete transcript of what was discussed. The recordings are not in evidence. I was not asked to listen to them.
106With regard to your possession of the firearms Mr Pearson submitted that there was a higher level of urging by the police for you to obtain guns on their behalf.
107I was referred to the Court of Appeal decision of Kada v R[4] and, in particular, to paragraph 72. Mr Pearson stated that yours is not a case where police had randomly put a covert operative into a police cell, however he submitted your early distribution to Sammy had been at a relatively low level.
[4]Havel Kada v R; Hadil Kada v R [2017] VSCA 2017
108Consistent with Kada Mr Pearson submitted it was a question of working out where on the continuum of entrapment the police conduct lies but conceded that the police conduct perhaps did not mitigate your penalty much at all.
109In written submissions dated 25 March 2020, at paragraph 6 Mr Pearson stated that 'the submission that the escalation of this offending was procured by police is not offered in mitigation, but to set the context to the offending'.
110Mr Pearson said that you were not a 'blameless dupe' but a person who was active in the offending and with the capacity to obtain what was required. He further acknowledged that you were close to the source of supply in relation to the drug trafficking but that in respect of Charge 2 on the first indictment Bentley was closer to the source and therefore higher up the chain of supply.
111Mr Pearson submitted that both guns and drugs were not kept at your house and that you had to cast around for someone to fulfil your orders.
112Mr Pearson relied on the fact that your offending commenced later in life as a result of you becoming addicted to methylamphetamine. He submitted that you have now accepted responsibility for your conduct and offered to plead guilty at a relatively early stage. It was put that you have facilitated the course of justice through your pleas of guilty.
113Mr Pearson submitted that you have good prospects for rehabilitation. You have a supportive family, have demonstrated a capacity for hard work, have provided clean urine assays and have undertaken work and vocational courses in custody. You have not been in any trouble whilst in custody.
Prosecution Submissions
114Mr Regan disputed the submission that the covert operatives encouraged your offending. He submitted your willingness to engage in drug trafficking and possession of guns was apparent from the earliest point in time, when you were in the cells with Sammy.
115Mr Regan relied on the conversation between you and Sammy on 17 October 2017 when you told Sammy that you had received a call from a person the day before asking that you sell firearms on his behalf, that you would only sell them if you could obtain and sell them quickly, and that you had previously bought firearms from that person. It was also you who said that you would take a photo of the firearms for sale and send them to Sammy via Wickr.
116Mr Regan pointed to the many statements you made to the operatives concerning your involvement with drugs and firearms. Whilst the prosecution was not able to establish the truth of those statements it was submitted they nevertheless reflected your aspirations in the criminal enterprises in which you were involved. It was put that you were very much the driver of the discussion as to what could be supplied to Sammy and Zac.
117Mr Regan submitted that your moral culpability was high, as was the objective gravity of your offending. You were careful, he said, to ensure that drugs and firearms were in your possession for as short a period as possible so as to minimize the risk of being caught, and that whilst you may not have owned the stock, you were a skilled criminal intermediary. Mr Regan submitted that like Bentley, you also had direct access to Yuki, said to be a significant supplier of the methylamphetamine to you and Bentley.
118Mr Regan relied on the quantity of methylamphetamine you trafficked to establish the level of your criminality. He pointed to the fact that between
10 October 2017 and 12 April 2018 you sold a mixed quantity of methylamphetamine to the covert operatives totalling 588.9 grams and there was an agreement to sell a further 500 grams to Zac.119In relation to the offer to sell 500 grams to Zac Mr Regan fairly conceded that there was no evidence to support you taking any steps to supply the drug. The police investigation resolved before the transaction could take place. You nevertheless did inform Zac on the day before the transaction was to take place that it was 'all ready to go'. When the search warrants were executed no significant quantity of methylamphetamine was found.
120Mr Regan said it was noteworthy that you were able to source firearms from a number of different persons at different geographical locations. You knew a network of gun suppliers.
Sentencing Considerations
121You have been on remand for 714 days not including today. This is your first time in custody. I have little doubt that your time has been difficult, particularly since restrictions on visits and the ability to engage in courses and work were put in place in response to the COVID-19 pandemic. I accept that these restrictions have added to the burden of imprisonment and have caused additional stress and concern to both you and your family.
122You are in protective custody at the Hopkins Correctional Centre, I am told, as a result of the shooting incident in early 2016. The Hopkins Centre is itself a protection prison and you are not isolated from other prisoners.
Nature and Seriousness of Offending
123I consider your offending in relation to each of the drug trafficking and firearms offences to be serious instances of serious offences.
124You had access to both methylamphetamine and guns and acted as a broker in the supply of those items to covert operatives. You advised Sammy and Zac of their availability, you sent them photographs of guns, you negotiated prices for drugs and guns, you took possession of the drugs and guns before you supplied them, you received the money. You were careful not to keep large quantities of the drug at your house, nor did you keep guns at your house.
125Your moral culpability is high. Whilst Ms Mynard diagnosed you as suffering from Post-Traumatic Stress Disorder and Stimulant Use Disorder it was not put that those conditions mitigated your moral culpability. No reliance was placed on Verdins,[5] nor was it submitted that your own drug use reduced the level of your moral culpability. Rather, Mr Pearson submitted your use of methylamphetamine provided the context to your offending and explained how it was that you were able to source methylamphetamine and guns. Your prior convictions for drug trafficking increases the level of your moral culpability.
[5]R v Verdins (2007) 16 VR 269
126You told Ms Mynard that you would not normally have sourced so many drugs, or any firearms, but because you were asked to find these quantities of drugs and firearms you 'asked around' until you found them.
127Your explanation to Ms Mynard, in my opinion, sought to play down your responsibility for the offending. You sought to lay the blame on the covert operatives for the increasing quantities of drugs you dealt and all the firearms you possessed. I reject that suggestion.
128I have read the approximate 300 pages of statements prepared by covert operatives Sammy and Zac, as I was asked by counsel to do. The statements contain extracts of your conversations and text messages. It was not suggested that the statements are in any way inaccurate. What they state is well reflected in the prosecution opening summary.
129In my opinion it is clear that you were talking up your ability to provide methylamphetamine and firearms from the outset. On 10 October 2017, during your lunch with Sammy, you told him that you had a .308 calibre rifle and a 30-30 calibre rifle and two handguns which were not registered and not kept at your home address. Although you claimed they were used for hunting purposes you added that there was 'good money' to be made in selling handguns but that they were very difficult to obtain. You also said that you used to traffick approximately 1 kilogram of methylamphetamine every one to two days and you offered to sell him an ounce of methylamphetamine for $4,800. It was Sammy who asked instead for a sample of 1 gram. You also introduced Sammy to Wickr for the purpose of future purchases. Significantly, one week later you told him that you had received a phone call from a person asking you to sell firearms on that person's behalf.
130I accept that the police involvement provided you with the opportunity to offend. I do not find that there was any pressure or coercion applied to you. I find that you were more than a ready and willing participant in the illegal activity. You were motivated by the rewards in drugs and money that you thought such illegal activity would bring.
131Your offending was pre-meditated, planned, and you took steps to avoid detection, such as holding onto guns and drugs for as short a period as possible and the use of the Wickr messaging system. Wickr, I was told, is an encrypted messaging system. In one instance you obtained a gun from what you referred to as a ‘safehouse'.
132Your offending also occurred over a significant period of time; namely from
10 October 2017 to the date of your arrest on 17 April 2018.133I have had regard to the fact that the drugs and guns did not find their way into the wider community. I will give some weight in mitigation to this fact, given you were dealing directly with undercover operatives and the guns and drugs would never have been disseminated into the community. However, as Tate and Kyrou JJA said in Kada, ordinarily it is a matter of little weight only.[6]
[6]Kada at [72]
134The sentencing regime for trafficking drugs of dependence is a quantity based regime. Other things being equal, the greater the quantity trafficked the more serious the offence.[7]
[7]Gregory (a pseudonym) v The Queen [2017] VSCA 151 at [24]
135On Charge 1, a 'rolled up' count of eight separate transactions, you trafficked a total of 311.6 grams of a mixture of methylamphetamine. A traffickable quantity of methylamphetamine is 3 grams, thus you trafficked in excess of 103 times that quantity over a period of some five and a half months. This charge carries a maximum penalty of 15 years' imprisonment. I consider this to be a serious instance of trafficking in a drug of dependence.
136Insofar as Mr Pearson relied on the sentence imposed on Amy Kehl, I note that her involvement was put on a more benign basis before Judge Dawes than is suggested here. Her Honour's sentencing reasons, consistent with the summary put to her, state that on 6 February 2018 you collected the methylamphetamine from Bentley and Kehl's house in Cranbourne North and that Kehl was aware that you were to collect the drugs from the house. Her Honour said that the charge against Kehl did not relate to her sourcing or distributing the drugs. There was no suggestion before her Honour that on
6 February Kehl delivered the drug to you at the shopping centre in Clyde North, as submitted and accepted here. I consider that the sentence imposed on Kehl in relation to the charge in which she is a co-offender is of limited use given the different basis upon which she was sentenced. In any event, her charge is but one of eight separate transactions which form part of your Charge 1.137Charge 2 is a charge of trafficking in a commercial quantity of methylamphetamine on 12 April 2018. The mixture you sold to Zac weighed 277.3 grams at a purity of 78 per cent. A commercial quantity of the drug in a mixed form is 250 grams. A commercial quantity of the drug in its pure form is 50 grams. The maximum penalty for trafficking in a commercial quantity of 25 years' imprisonment reflects its seriousness. What you possessed was 1.1 times the commercial quantity of the drug in mixed form. Based on quantity alone this would place it at the lower end of the spectrum of severity for the particular charge.
138In respect to this offence Judge Johns found that Bentley acted as a middle-man and was complicit in the sale to Zac. His Honour found that Bentley sourced the methylamphetamine for you so that you may satisfy your client. Bentley delivered the drug to you. According to His Honour's sentencing reasons, when Bentley was arrested on 17 April nine $100 notes from the $37,000 were located. I am satisfied that you did not benefit from the whole of the purchase price of $37,000 but received only some of that money. The evidence does not show how much by way of money or drug you received.
139His Honour noted that Bentley had been imprisoned in the recent past for similar offending. I have already referred to that sentence. A psychological report tendered on Bentley's behalf showed that he suffered from ADHD from a young age and depression and stress leading up to the offending. He was 26 years at the time of the offending and came from a troubled background.
140I do not consider the roles played by each of you and Bentley to be materially different. I accept that for this particular charge Bentley was closer to the source of supply than you were. I accept also that his criminal history is more serious than yours, however it was you who had developed the relationship with Sammy and Zac, not Bentley, and it was you who was seeking to satisfy your client's request for methylamphetamine. You played an important role in facilitating the movement of the drug to Zac and you did so for reward.
141Despite the differences between you and Bentley in conduct and criminal history I do not consider that they are of such significance as to justify a different sentence to that imposed on Bentley. You both operated as 'middle-men' in the supply of methylamphetamine which, based on what you told the operatives, was sourced from Yuki. You have previously obtained drugs directly from Yuki.
142Charge 3 relates to your offer to sell Zac 500 grams of methylamphetamine on 14 April 2018. This offer represents a significant escalation in the level of drug that you were prepared to traffick and approaches the large commercial quantity of 500 grams of methylamphetamine in its pure form or 750 grams as a mixture.
143I have had regard to what was said by Weinberg and Priest JJA in Arico v The Queen.[8]. Although an offer to sell is a form of the completed offence I should have regard to the fact that it was an offer and not an actual sale that is charged. In your case, however, whilst no supply eventuated the potential for your offer to be fulfilled was real. You had a demonstrated capacity to supply methylamphetamine in relatively large quantities and had access to sources who could provide large amounts of the drug. The total amount of methylamphetamine you supplied in Charges 1 and 2 amounted to 588.9 grams. The offer to sell 500 grams occurred against that background. I will, however, take into account in your favour the fact that it was an offer and that the drugs would not have been disseminated into the community because they were to be sold, unbeknown to you, to a covert police operative.
[8]Arico v R [2018] VSCA 135 at [394] – [395]
144The trafficking in methylamphetamine is regarded as a particularly serious offence. In Fernando v R,[9], a case of trafficking in methylamphetamine, Tate JA said that there should be a greater focus on general deterrence than when another drug is trafficked. This is because of the prevalence of trafficking in methylamphetamine.
[9] [2017] VSCA 208 at [73]; (2017) A Crim R 26
145You should know, Mr Singh, from your own use of methylamphetamine, the devastation and misery that traffickers cause to the lives of those who use and become addicted to drugs. The devastation and misery extends to the families of those addicted and to the community generally.
146With regard to the firearm charges, in R v Graham[10]Redlich JA stated that the offence of being a prohibited person possessing an unregistered firearm is an inherently serious one which is designed to deter those with particular prior convictions from possessing or carrying an illegal firearm.[11].
[10]R v Graham [2007] VSCA 252
[11] Ibid [18]
147In Berichon v R[12], Redlich JA stated:
'The conduct of a prohibited person in possession of an unregistered firearm may be placed in one of two broad categories of seriousness. The first category of cases are those where the conclusion is not open that the possession of the firearm is associated with some ongoing criminal activity. The second category of cases are those where the evidence enables the conclusion that the possession is for the purpose of criminal activity, or a specific criminal purpose, more severe sentences are then usually in order'.
[12]Berichon v R; Houssein v R [2013] VSCA 319 at [26]
148I consider that your possession of the firearms on each charge falls within the second category of cases. You possessed each firearm, as a prohibited person, to broker its sale to a person who himself was involved, on your understanding, in the illicit drug and gun industry. You were not authorised to sell firearms. Your possession of the firearms was for a specific criminal purpose, namely, to broker its sale for financial reward.
149In written submissions Mr Pearson submitted that you possessed the firearms for a short period, for a commercial purpose - namely to obtain money - and without regard to the purpose to which the purchaser was to put the firearm. The fact that you possessed the firearms for a short period only in the circumstances does not mitigate your offending. This was, by design, to reduce the risk of you being caught in possession of a firearm. It is also consistent with you operating as a 'broker'.
150Whilst you may not have known to what end the firearms were to be put you understood that they were likely to have been 'on-sold'. You must also have appreciated, from the nature of the persons with whom you were dealing, that there was a strong likelihood that they would end up in the hands of persons who themselves were obtaining the firearms illegally. At the very least you did not care what became of the firearms you sold. I do, however, accept
Mr Pearson's submission that there is no evidence that the firearms you sold were to be used for any particular criminal purpose, or, if they were, that you were aware of that purpose.151Whilst you are not charged with or to be punished for selling the firearms the reason you possessed each of the firearms elevates the seriousness of your offending.
152In sentencing you I also have regard to the nature of each the firearms you sold. The firearms the subject of Charges 3 and 5 are particularly serious instances of the commission of an inherently serious offence. Charge 3 relates to the submachine gun, charge 5 to the .32 automatic handgun.
153The offence of being a prohibited person in possession of a firearm carries a maximum penalty of 10 years' imprisonment.
154Whilst Mr Pearson submitted that there should be parity with the sentences imposed - at least on Mr King - I do not have sufficient information that would enable me to apply this principle. During the plea hearing Mr Regan handed to me and defence counsel documents relevant to Mr King, and I note that he has been charged with different offences to you. I was not provided with the sentencing reasons of the sentencing judge and I understand that they have not as yet been published. I do not know the basis for Mr King's sentence and therefore do not know whether there should be parity. Parity with Mr Tadross was not pressed in the end.
155You are also charged with handling stolen goods, which carries a maximum penalty of 15 years' imprisonment. No explanation was given for you having the stolen registration plate affixed to your motorcycle.
156The offence of failing to comply with an order to provide information made under s.465AA of the Crimes Act 1958 carries a maximum penalty of five years' imprisonment.
157In committing each of the offences you were in breach of bail and in breach of Community Correction Orders. The first order was imposed on 27 February 2017 and the other orders on 19 December 2017. The fact that you were on bail and on Corrections orders when you offended aggravates the seriousness of your offending. Indeed, on 19 December 2017 - an occasion when you sold Sammy 2 ounces of methylamphetamine and sent him messages regarding the potential sale of firearms - you had, earlier that day, appeared at the Dandenong Magistrates' Court and were placed on a Community Correction Order in relation to drug and firearm offences. You made mention of that fact to Sammy, telling him you were happy with the outcome, yet that very same day, by trafficking in methylamphetamine, you breached the orders that had been imposed hours earlier. Again, on the following day, you sent to Sammy a Wickr message enclosing photographs of a semi-automatic assault rifle and two black handguns that were for sale. Later that evening you possessed and sold him the Sauer rifle. You also gave him a cartridge of ammunition. Your breaches in the circumstances were quite remarkable, showing a blatant disregard for the Court's orders, a condition of which was that you not commit any criminal offence.
158However, I must also keep in mind that breaching a Community Correction Order is itself an offence for which you have already been punished. You are not to be punished here for breaching the order. You have also pleaded guilty to committing an offence whilst on bail and fall to be sentenced for that.
159Your offending whilst on bail and whilst on Corrections orders demonstrated your low regard for the law. This is relevant to my consideration of the need to protect the community, specific deterrence, and your prospects for rehabilitation.
Serious Drug Offender and Totality
160It is accepted that the 'serious offender provisions' of the Sentencing Act 1991 will apply to your case. You will become a 'serious drug offender' when you are sentenced on Charge 2 of the first indictment.
161Pursuant to s.6D of the Sentencing Act I must regard the protection of the community as the principal purpose for which the sentence is to be imposed.
162The prosecution did not submit that I should impose a sentence longer than that which is proportionate, and I do not propose to do so.
163Section 6E of the Act relevantly provides that every term of imprisonment imposed on a serious offender for a relevant offence - which in this case will be Charge 3 on the first indictment - must, unless otherwise directed by the court, be served cumulatively on any sentences of imprisonment imposed on that offender, whether before or at the same time as that term. However, this section does not displace the totality principle, which, in the circumstances of your case, will have a part to play.
164In this respect I have regard to Redlich JA's observations in Gordon v The Queen:[13]
'A sentencing judge must evaluate the overall criminality involved in all of the offences for which the offender is to undergo sentence, ensuring that there is no disproportion between the totality of the criminality and the totality of the effective length of sentences imposed. The judge is also required to ensure that the totality principle is applied in a manner which will not undermine the legislative policy inherent in s.6E of the Sentencing Act. This tension between the policy underlying s.6E and the principle of totality is difficult to reconcile'.
[13] [2013] VSCA 343 at [74]
Deterrence and Denunciation
165I consider that denunciation, general deterrence and specific deterrence are the primary considerations in determining what is the appropriate sentence.
166The sentence to be imposed must deter not only you from further offending, but also others who are minded to offend in the same or similar manner. You and others must understand that if you behave in this way you will be appropriately punished.
167The sentence to be imposed must also manifest the denunciation by the court of the conduct in which you engaged.
168Given the seriousness of your offending your rehabilitation, whilst important, must yield to the other sentencing factors.
Rehabilitation
169With regard to your prospects of rehabilitation Mr Pearson submitted that they are good, however that submission was premised on your ability to stay away from drugs and a negative peer group.
170You have previously been given opportunities to rehabilitate but chose not to take advantage of those opportunities. As earlier mentioned, you re-offended on the very day you were placed on a Corrections order. You also have a number of relevant prior convictions.
171You are clearly an intelligent man with a good family and the opportunity for work upon release. I have regard to the fact that your criminal offending appears to have commenced only in recent years. You are also, I am told, making good use of your time in custody. Your urine assay results have been negative, which is to your credit. Each of these matters augers well for your rehabilitation but I am unable to agree that your prospects are good at this time.
172I have had regard to the reference tendered on your behalf from your friend and relative John Deo. Although he is aware of the charges, he stated that it was not within your character to offend in the way you have and believes that you were influenced by the wrong people. Your prior convictions would suggest otherwise, at least in recent times.
Pleas of Guilty
173Although your case was listed for trial it was agreed by Mr Regan that I should sentence on the basis that you entered your pleas at a relatively early time. This is because your pleas were entered once the more serious charge of trafficking in a large commercial quantity of methylamphetamine was withdrawn. I will sentence on that basis.
174Your pleas of guilty have avoided the necessity of a trial and committal. You have spared the witnesses the ordeal of having to give evidence and have saved the courts and community the cost and time of a trial and committal hearing. They have facilitated the course of justice. You are entitled to a real measure of leniency because of your pleas.
Remorse
175I have difficulty accepting, however, that you are remorseful for your conduct, or that you take full responsibility for your conduct. What you told Ms Mynard concerning your offending – that you would not normally have sourced so much drugs, or any firearms, but because you were asked to you 'asked around' until you found them – paints a different picture to that which appears in the prosecution summary. As mentioned earlier, you sought to cast the blame on the covert operatives. Further, your statement to Ms Mynard that you are sorry for what you did is second-hand evidence which I am not prepared to accept in the circumstances.
176You have recently provided to the court a letter expressing your regret and remorse for your conduct. I am not able to gauge the sincerity of what you wrote, given you did not give evidence. Accordingly, I do not attach much weight to those expressions of remorse. Any remorse you do have is, I consider, belated.
177You have sought in your letter a 'lengthy parole period', stating that it would be the 'determining factor' in you not re-offending. Whilst a parole period should provide you with the incentive to not re-offend and favour your rehabilitation, the determining factor to your not re-offending is you taking responsibility for your own behaviour and addressing those issues which might lead you to re-offend. The non-parole period that you will be required to serve is the minimum period that I consider justice requires you must serve, having regard to all of the circumstances in your case. Whilst I make allowances for your rehabilitation on parole, the non-parole period must nevertheless adequately reflect the gravity of your offending and the sentencing purposes set out in the Sentencing Act.
178I am also required to have regard to current sentencing practice as one of a number of sentencing considerations. I keep in mind that the cases that assist in understanding the current sentencing practice provide a general sentencing yardstick only and you are to be sentenced according to the objective and subjective features of your case.
Sentence
179On Indictment C1811815.1:
On Charge 1 you are convicted and sentenced to three years and six months' imprisonment.
On Charge 2 you are convicted and sentenced to five years' imprisonment.
On Charge 3 you are convicted and sentenced to five years' imprisonment.
On Charge 4 you are convicted and sentenced to 12 months' imprisonment.
180The sentence of five years imposed on Charge 2 will be the base sentence.
181I order that the following periods are to be served cumulatively on the base sentence and on each other: Nine months of the sentence imposed on Charge 1, 18 months of the sentence imposed on Charge 3 and four months of the sentence imposed on Charge 4. This makes a total effective sentence of seven years and seven months on this indictment.
182On Indictment J10995116.1:
On Charge 1 you are convicted and sentenced to 18 months' imprisonment.
On Charge 2 you are convicted and sentenced to 16 months' imprisonment.
On Charge 3 you are convicted and sentenced to two years' imprisonment.
On Charge 4 you are convicted and sentenced to 16 months' imprisonment.
On Charge 5 you are convicted and sentenced to 20 months' imprisonment.
On Charge 6 you are convicted and sentenced to three months' imprisonment.
183The sentence of two years imposed on Charge 3 will be the base sentence.
184I order that the following periods are to be served cumulatively on that base sentence and on each other: Five months of the sentence imposed on Charge 1, four months of the sentence imposed on Charge 2, four months of the sentence imposed on Charge 4, six months of the sentence imposed on Charge 5 and one month of the sentence imposed on Charge 6. This makes a total effective sentence of three years and eight months on this indictment.
185On Summary Charges 14 and 36, which are offences of the same character, you are convicted and fined an aggregate sum of $1,000. On Summary Charge 19 you are convicted and sentenced to one month imprisonment.
186I direct that two years and two months of the sentence imposed on Indictment J10995116.1 be served cumulatively on the sentence of seven years and three months on indictment C1811815.1. This makes a total effective sentence of imprisonment of nine years and nine months. I set a non-parole period of six years.
187Pursuant to s.6F of the Sentencing Act I cause to be entered into the records of the court the fact that you were sentenced on Charge 3 on the first indictment as a serious offender.
188Pursuant to s.18 of the Sentencing Act the period of pre-sentence detention of 714 days, not including today, is to be reckoned as the period of imprisonment already served under the sentence imposed.
189Pursuant to s.6AAA of the Act the period of imprisonment to which you would have been sentenced had it not been for your plea of guilty is 12 years and nine months with a non-parole period of eight years.
190The disposal order, the forfeiture order and the second forfeiture order, they not being opposed, will be made. Pardon me for one moment. Mr Regan, are there any other matters which I need to address?
191MR REGAN: No, Your Honour. We've noted all that.
192HIS HONOUR: Thank you. Mr Pearson, are there any matters arising?
193MR PEARSON: No, there aren't, Your Honour. Other than to say would Your Honour perhaps permit me to speak with Mr Singh before Your Honour closes the link?
194HIS HONOUR: Yes, I was proposing to do that. What we'll do is this,
Mr Pearson – just so that you and your client understand. All staff in this room will vacate the courtroom, the recording machine will be switched off, you can speak to Mr Singh. I think we have the link for another 20 minutes. You can then telephone my associate, she will give you her number, to let her know when you have finished. We will then come back in and switch off the link.195MR PEARSON: Your Honour pleases. Thank you very much.
196HIS HONOUR: Mr Singh, did you hear all of that? Is Mr Singh there? Yes.
197OFFENDER: Yes.
198HIS HONOUR: Mr Singh, I will now give you the opportunity to speak to
Mr Pearson. What you and he discuss will be in private. No one will be in the courtroom, there'll be no recording machine on while that happens.199OFFENDER: Okay, thank you.
200HIS HONOUR: All right, thank you. Please adjourn the court.
---
9
0