Director of Public Prosecutions v Sousa (a pseudonym)
[2023] VCC 358
•9 March 2023
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MIGUEL SOUSA (A PSEUDONYM) |
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JUDGE: | HIS HONOUR JUDGE D. SEXTON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 14 December 2022; 1 March 2023 | |
DATE OF SENTENCE: | 9 March 2023 | |
CASE MAY BE CITED AS: | DPP v Sousa (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 358 | |
RULING & REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Trafficking in a Drug of Dependence – Commercial Quantity; Trafficking in a Drug of Dependence; Possession of a Drug of Dependence; Possession of an Unregistered Category E Handgun; Possession of Counterfeit Money
Legislation Cited: Sentencing Act 1991; Control of Weapons Act 1990
Cases Cited:Berichon v The Queen [2013] 40 VR 490; Worboyesv The Queen [2021] VSCA 169.
Sentence:Drug and Alcohol Treatment Order
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr M. Brennan | Solicitor for the Office of Public Prosecutions |
| For the Accused | Mr D. Sala (Plea) Mr Biddulph (Sentence) | Galbally Parker Criminal Lawyers |
HIS HONOUR:
Introduction
1Miguel Sousa,[1] on 14 December 2022 and 1 March 2023, you appeared before me at a determination hearing in the Drug and Alcohol Treatment Court, with regards to an indictment containing seven charges – one charge of trafficking in a drug of dependence in a commercial quantity, which carries a maximum penalty of 25 years’ imprisonment; three charges of trafficking in a drug of dependence, which carries a maximum penalty of 15 years’ imprisonment; one charge of possession of drugs of dependence, which carries a maximum penalty of five years’ imprisonment (if I am satisfied that the possession was for a trafficable purpose); one charge of possession of an unregistered Category E handgun, which carries a maximum penalty of 14 years’ imprisonment; and one Commonwealth charge of possession of counterfeit money, which carries a maximum penalty of five years’ imprisonment.
[1] A pseudonym.
2In addition to the charges on the indictment, your determination hearing involved a number of related summary offences – being a non-prohibited person in possession of imitation firearms, which carries a maximum penalty of two years’ imprisonment; two charges of possessing a prohibited weapon without exemption, which carries a maximum penalty of two years’ imprisonment; two charges of dealing with property suspected of being proceeds of crime, which carries a maximum penalty of two years’ imprisonment; failing to store cartridge ammunition correctly, which carries a maximum penalty of 12 months’ imprisonment; one charge of possess Schedule 8 poison, which carries a maximum penalty of 10 penalty units; and one charge of possession of a Schedule 4 poison, which carries a maximum penalty of 10 penalty units.
3At the commencement of the determination hearing on 14 December 2022, you were arraigned with regards to both the indictment and related summary offences
and pleaded guilty to all charges.
Circumstances of The Offending
4The circumstances of your offending were set out in the summary of prosecution opening dated 1 September 2022, Exhibit 1, at your determination hearing.
5Your offending can be briefly summarised. As a result of an unrelated police investigation, a search warrant was executed at Freshwater Boulevard in Lyndhurst, a property where you were then residing, on 22 December 2021 at 8:19am. At the time of the execution of the warrant, you were located outside the premises. During the search of the premises, police observed drugs of dependence and scales on a bench through the window of a locked room adjacent to the entertainment area in the rear of the garage. You complied with a police request to unlock the door, utilising a key fob and key code to unlock the digital door lock. You were placed under arrest and searched with police locating an EFTPOS card in the name of another, one of the items forming the basis of related Summary Charge 40.
6Upon obtaining a further search warrant, police searched the premises and a number of items were located. A samurai sword, part of the items forming the basis of related Summary Offence 6 was located in the master bedroom beside the bed. In the secure room in the garage, police located 10 imitation firearms, forming the basis of related Summary Offence 5, non-prohibited person possessing imitation firearms. Those imitation firearms were described at paragraph 10 of the summary of prosecution opening, and included machine guns, imitation handguns, and gel blasters. Police also located a Ramset modified handgun, Charge 6 on the indictment; six 0.22 calibre rounds, forming the basis of related Summary Offence 49, failing to store cartridge ammunition correctly; two extendable batons, forming the basis of related Summary Offence 13; $6,000 of counterfeit Australian currency, forming the basis of Charge 7 on the indictment; possession of counterfeit money; 14 x 500 millilitre bottles containing a viscous liquid; 22 resealable bags of methylamphetamine related to Charge 1 on the indictment; 13 resealable bags of cocaine relating to Charge 2 on the indictment; four resealable bags containing Ketamine, Charge 2 on the indictment; one resealable bag containing five white tablets containing dexamphetamine, part of Charge 2 on the indictment; one container of loose white powder of pseudoephedrine, which forms the basis of related summary offence 88, possession of a Schedule 4 poison, four resealable bags and a further resealable bag containing smaller bags containing ecstasy related to Charge 3 on the indictment; Australian currency in the amounts of $22,900 and $13,050, related to related Summary Offence 36; various personal identification cards, relevant to related Summary Offence 40; two black daggers, part of related Summary Offence 6; various prescription drugs; numerous bags containing cannabis, relevant to Charge 4 on the indictment; a resealable bag with a grey crystal substance inside, part of Charge 3 on the indictment, and various other accoutrements relevant to the sale of illicit drugs. On the coffee table located in the converted entertainment area in the garage, police located a black ‘tick’ book and a water bottle containing a viscous liquid, part of Charge 1 on the indictment.
7Upon arrival at the Frankston police station, police conducted further examination of some of the exhibits, namely the black box which contained blister packets containing various prescription drugs and a shoe box. The items identified were set out at paragraph 13 of the summary of prosecution opening. They included a number of oxycodone tablets, part of Charge 5 on the indictment; two pharmacy bottles and one resealable bag of dexamphetamine, part of Charge 2 on the indictment; five pharmacy bottles containing etizolam tablets related to Summary Offence 87; and various other tablets relevant to Charge 5 on the indictment. Further identification and bank cards were also located, part of related Summary Offence 40.
8That same day, you were arrested and transported to the Frankston police station where you participated in an interview, answering ‘no comment’ with regards to these allegations.
9The items located at the address where you were then living were subsequently analysed. In terms of the drugs seized, police identified approximately 6.8 kilograms of 1,4‑butanediol; 184.2 grams of methylamphetamines, 141 grams pure; 69.1 grams of cocaine; 160 grams of MDMA; 23.1 grams of Ketamine; 35 grams of amphetamine; 0.9 grams of MDA; and 1970.8 grams of cannabis.
10In relation to the Ramset handgun, Charge 6 on the indictment, with the modifications made, it was essentially functioning as a .22 long rifle calibre single shot handgun.
11Having been remanded in custody on the day of your arrest, 22 December 2021, you were granted bail on 8 February 2022, having spent 48 days in custody. You have been on bail since 8 February 2022.
12Your matter resolved to a plea of guilty at the committal mention stage, and as conceded by the prosecution, your plea should be regarded as an early plea of guilty.
Entry into the Drug and Alcohol Treatment Court
13Upon being referred into the Drug and Alcohol Treatment Court on 4 October 2022, assessment reports were commissioned, namely the Drug and Alcohol Treatment Court Clinical Advisor Assessment Report of Mr Harry Howe, dated 21 November 2022, Exhibit 3 at your determination hearing and Drug and Alcohol Treatment Court Case Management Assessment Report of Ms Santi Griffin‑Achmad, dated 11 November 2022, Exhibit 4 at your determination hearing. Both of those assessment reports indicate your suitability for a Drug and Alcohol Treatment Order. In coming to my decision with regards to the determination hearing, I have of course carefully considered those assessment reports and the conclusions of the authors, who are experts within this jurisdiction, together with the other material tendered at your determination hearing – submissions, documents from both your counsel and counsel for the prosecution, together with psychological reports from Ms Heidi Lecluse dated 5 September 2022 and 14 December 2022, Exhibits B and C at your determination hearing; a letter from Laura Rogers from Taskforce dated 5 September 2022, Exhibit D at your determination hearing; and a neuropsychological assessment report from clinical psychologist Kerrin Danswan from Cognitive Assessments Australia dated 28 February 2023, Exhibit E at your determination hearing.
Personal Circumstances
14Turning briefly now to your personal circumstances, you are now 42 years of age. You were born in Germany to Italian and Portuguese parents, and you were schooled in both Germany and then later in Italy. You have a younger brother. Your parents were apparently Jehovah’s Witnesses, and you were raised in a strict setting. You have described being sent to live with your grandparents in Portugal after you were caught with hashish and the police informed your parents. Your grandparents were apparently even more devout Jehovah’s Witnesses than your parents, and you have recalled this strict environment as a particularly difficult period in your life. You met your partner Portugal and the two of you came to live in Australia in 2001. You have been together now for in excess of 20 years, and you have two children, a son aged 11 and a daughter aged 14. Your younger brother resides in Australia and your parents now reside in Italy. You were apparently close with your family until you were charged with these offences, and you have since largely avoided contact with your family due to feelings of guilt, shame and anger.
15You were apparently educated to mid-secondary level in Europe, encountering some difficulties. You began employment whilst living in Portugal as an apprentice mechanic but left this job after some six months. You subsequently worked in various capacities, in the hotel hospitality area, for example, working for three years in a Spanish hotel. Upon your move to Australia with your wife in 2001, you initially found it difficult to find employment, before ultimately moving into security work for some three years. You then worked for a bank for eight years before taking parental leave, and you then began buying land, developing properties, and selling them for profit. You have reported making good money in the area of property development until the construction industry began experiencing difficulties in 2018.
16In terms of your substance use history, you have reported drinking alcohol from the age of 13 and this remained in the realm of social and recreational drinking, until the period 2018 to 2020, when you began to drink much more regularly and to excess. Around the age of 15, you began experimenting with cannabis. You also started experimenting with amphetamines in your mid to late teens sporadically. You have used cocaine since your late teens and according to your counsel, this has become a mainstay of your life in the last two years and one of the addictions that led to your current legal predicament. I note in your evidence before me on 1 March 2023, you indicated that you were no longer using this substance. You also have a history of benzodiazepine use and, concerningly, heroin and methamphetamines. In relation to methamphetamines, you apparently did not start using this until your forties. You have indicated that this particular substance was highly relevant with regards to your offending. In evidence before me on 1 March 2023, you indicated that you still smoke ice daily, in a quantity of approximately half a gram per day.
Context of the Offending
17Through your counsel you indicated that just before the Covid-19 pandemic hit in early 2020, you had commenced a new business installing LED lighting. In evidence before me on 14 December 2022, you indicated that you had started bringing the LED light supplies in from China and you were wholesaling them to builders and electricians. Once the pandemic hit in early 2020, you were left with a lot of stock and a lot of cancelled orders, and a lot of bills to pay. You described your emotional state at that time as helpless, destroyed and angry. Finding yourself in financial peril, you indicated that you started taking more drugs to make you feel better about yourself, which in itself led to more problems, more debt and more drug taking. According to your counsel you began to pay for your addiction and difficulties through trafficking, which brought you into contact and association more and more with those individuals steeped in the world of drug supply. In your assessment with DATC Case Manager, Santi Griffin‑Achmad, you described a combination of factors leading to your offending, including marital problems, the Covid situation, and financial problems. You reported an increase in your use of methylamphetamine and cocaine to a daily use in an effort to cope with these stressors.
Determination Hearing Considerations
18The criteria for the making of a Drug and Alcohol Treatment Order are set out in s18Z of the Sentencing Act 1991 (‘the Act’). I am satisfied that you have pleaded guilty to an offence that is within the jurisdiction of the County Court and punishable on conviction by imprisonment. I am satisfied that your offending does not fall within the various exclusionary offences set out in s18Z, and I am satisfied that you are not otherwise subject to the various exclusionary orders also contained within that section.
19Pursuant to s18Z(1)(c), I may make a Drug and Alcohol Treatment Order if satisfied on the balance of probabilities that:
(i) you are dependent on drugs or alcohol ('the dependency criteria); and
(ii) your dependency contributed to the commission of the offence ('the contribution criteria').
20Furthermore, and in addition, pursuant to s18Z(1)(d)(ii), I may make a Drug and Alcohol Treatment Order if I consider that otherwise, it would be appropriate to impose a sentence of imprisonment of no more than 4 years ('the 4 year criteria').
21Of final relevance to this determination hearing, pursuant to s18Z(3)(a), I must not make a Drug and Alcohol Treatment Order unless I am satisfied in all the circumstances that it is appropriate to do so ('the residual discretion').
22I will now deal with each of these matters in turn.
The Dependency Criteria
23Having considered all of the relevant material and the submissions of counsel, I am satisfied that the dependency criteria is met in your case. You have reported a considerable history of substance use and abuse from your early teens. Furthermore, you provided a detailed substance use history to Clinical Advisor Harry Howe from the Drug and Alcohol Treatment Court. In particular, you reported to Mr Howe that prior to your arrest, you were smoking close to 1 gram of methylamphetamine daily and snorting up to 1 ½ grams of cocaine daily. You were also frequently using benzodiazepines, up to 20 tablets, and alcohol, up to 22 standard drinks, during what has been described as ‘benders’. As at the date of Mr Howe’s assessment on 18 November 2022, you were smoking up to ½ gram of methamphetamine daily, snorting up to 1 gram of cocaine daily, ingesting four Valium tablets on two to three days per week, and ingesting one to two standard drinks of alcohol weekly. Importantly, according to Mr Howe, you would have satisfied the diagnostic criteria for a diagnosis of stimulant use disorder, severe in nature, at the time of the offending. The prosecution in this matter have conceded the dependency criteria in your case.
Contribution Criteria
24In written and oral submissions, the prosecution raised concerns with regards to the contribution criteria. Reliance was placed on some concerning matters raised by you in your assessment with Case Manager Santi Griffin‑Achmad with regards to the circumstances in which you offended. It was submitted that the level of contribution of the drug dependency is unclear on the materials, and given the various quantities of cash located and the overall circumstances of the offending, the offending was committed for financial gain. The prosecution submitted that your drug dependency was only the personal background against which your offending occurred and did not contribute to the offending as required by the Act. In contrast, your counsel submitted that given your history of drug addiction, your offending was intrinsically and almost indivisibly, connected to your drug use and that your addiction has obviously contributed to your offending, if not being the sole and dominant reason for it.
25Having carefully considered the matter, I am satisfied on the balance of probabilities that your drug dependency contributed to the commission of your offending, and therefore, that the contribution criteria is satisfied in your case. In order to be satisfied of the contribution criteria, consistent with the wording of s18Z(1)(c)(ii) of the Sentencing Act 1991, I need only be satisfied that your drug dependency contributed to your offending – beyond that, there is no qualitative assessment with regards to the level of contribution. According to the unchallenged opinion of Mr Harry Howe, at the time of your offending, you would have been in the grips of a severe stimulant use disorder. It seems clear from the sentiments expressed by Case Manager Santi Griffin‑Achmad that you have explained your involvement in the offending to her in the context of your increased drug consumption in the context of external stressors. Furthermore, it seems clear from the assessment with neuropsychologist Mr Kerrin Danswan, that you connected your own drug use to your offending behaviour. From an assessment of all of the materials, I am satisfied on balance that your drug dependency was intrinsically connected to this serious offending such that the contribution criteria is met.
26Whilst I note some concerning commentary from you to Ms Griffin‑Achmad with regards to the circumstances of your offending, including references to coercion by others, references to you describing your offending as a business, and you being 'allured' by people talking in numbers, and finally your references to your connection with an unnamed Outlaw Motorcycle Gang, having regard to the diagnoses by Ms Danswan of Autism Spectrum Disorder and Attention Deficit Hyperactivity Disorder, as I indicated in argument with counsel on 1 March 2023, in my view, such a narrative or commentary on your part must be treated with caution. In particular, given some of your test results with regards to camouflaging behaviours connected to the autism diagnosis and the opinions expressed by psychologist Heidi Lecluse with regards to individuals with ADHD and ASD, it is my view that one must treat with caution the veracity of the sentiments expressed by you to Ms Griffin‑Achmad. There is no evidence before me of the involvement of others, the activities of Outlaw Motorcycle Gangs, or your meaningful connection with such entities. Further, you come before me at the age of 42 with a complete absence of any criminal history. In these circumstances, I could not exclude that your comments were the product of bravado, exaggeration or some other non-contextual expression.
The Four-Year Criteria
27In order to make a Drug and Alcohol Treatment Order, I must be satisfied that otherwise it would be appropriate to impose a sentence of imprisonment of no more than four years. This determination is impacted by s18X(2) of the Sentencing Act 1991, which indicates that if I am considering making a Drug and Alcohol Treatment Order, I must regard your rehabilitation and the protection of the community from you, achieved through your rehabilitation, as having greater importance than the other purposes set out in s5(1) of the Act. This essentially prioritises the facilitation of your rehabilitation over other sentencing purposes such as specific and general deterrence. This is a matter of some significance in my view, given the nature of your offending, which would ordinarily elevate the importance of general deterrence and denunciation.
28Clearly, your offending must be seen as serious indeed. I agree with the prosecution that your offending sits at the mid to high range of offending that would ordinarily be suitable for a Drug and Alcohol Treatment Order. The trafficking charges in particular are serious, in particular Charge 1, trafficking in a commercial quantity, reflected through the statutory maximum penalty of 25 years’ imprisonment. Given the quantities found at your property, together with the other accoutrements of trafficking, and the quantities of cash, I am of the view that this was a fairly significant trafficking enterprise on your part, and there is no evidence of other operators in this trafficking enterprise.
29Likewise, the firearms offences are extremely concerning and serious. The inherent dangers associated with the possession by you of these items, and the need for any penalty to denounce your serious conduct, deter other likeminded individuals, and ultimately protect the community, is self-evident. However, pursuant to the principles articulated in the decision of Berichon,[2] there is no evidentiary basis upon which I could find that the possession by you of the firearms, is associated with some ongoing criminal activity, which would otherwise warrant a more severe sentence than that which will ultimately be imposed.
[2]Berichon v The Queen [2013] 40 VR 490 at 496.
30Your moral culpability for your offending must be seen as significant. Your counsel did not seek to reduce your culpability by virtue of the mental impairment principles, and your drug addiction in no way mitigates your culpability in this case.
31There are in your case, however, a number of significant mitigatory factors which very much impact upon the four year criteria. As I earlier indicated, you entered your plea at an early stage in proceedings, and in the context of a plea entered during the Covid-19 pandemic with its unprecedented impacts upon the administration of justice in this state, highlighted by the extraordinary backlogs being experienced by this court, there is an enhanced utilitarian benefit to your plea of guilty, warranting a significant discount on sentencing.[3]
[3] Worboyesv The Queen [2021] VSCA 169.
32At the age of 42, significantly you have no prior convictions and are otherwise therefore a person of good character, with strong family support. Your partner has remained supportive of you throughout your criminal matters, and has been present at your court hearings. You gave evidence before me on 14 December 2022 and again on 1 March 2023, and on both occasions, I was impressed by the seriousness with which you are taking this matter, and your commitment to rehabilitation and family reunification. Given your absence of prior criminal history and your prosocial attitude, I am satisfied that specific deterrence does not have a significant role to play in this case.
33Since being granted bail in relation to this matter, I am satisfied that you have demonstrated at least reasonable prospects of rehabilitation. In August 2022 you voluntarily engaged with the Taskforce community agency with regards to an alcohol and drug assessment and support. This engagement ended apparently following the service making a notification to DFFH regarding your substance use, resulting in you having to leave the family home. I have no doubt that the restrictions on your ability to meaningfully interact with your young children, has constituted a significant burden for you, though perhaps further highlighting the gravity of your predicament. You have nevertheless maintained contact with psychologist Heidi Lecluse in 2022 with regards to ongoing treatment. You have started your own enterprise, buying and selling collector cards such as Pokemon cards, baseball NFL and NBA. Importantly, you have remained offence free. As I have indicated, I was impressed with your prosocial attitude in evidence before me, and I am satisfied that you are very motivated to pursue your ongoing rehabilitation.
34In evidence before me, you said:
“I just want to go back to the guy that I was … I just want to kick these habits, these drugs, and I just want to go back to being who I was in terms of my family and making money, paying my bills and just spending time with them”.
35You have indicated that you are going to live with a long term friend in the Prahran area, and that he is not a drug user, and is supportive of you.
36In all the circumstances and having regard in particular to s18X(2) of the Sentencing Act 1991, I have concluded that it would otherwise be appropriate to impose a sentence of imprisonment of no more than four years. Accordingly, the four year criteria is established.
Residual Discretion
37The prosecution in this matter raised concerns with regards to your suitability for a Drug and Alcohol Treatment Order, given some concerning aspects of your narrative to case manager Santi Griffin‑Achmad, the details of which I have already outlined. For the reasons I have explained, particularly in relation to the recent neuropsychological report from Ms Danswan, and the resulting diagnoses attendant upon her assessment of you, my earlier concerns with regard to your narrative have been assuaged. Given those matters, together with all of the circumstances of this case, I am satisfied that you are a suitable candidate for a Drug and Alcohol Treatment Order.
Sentence to be Imposed
38Mr Sousa will you please stand. I will firstly deal with the charges in relation to which I will not impose a Drug and Alcohol Treatment Order.
39In relation to Charge 7 on the indictment, possession of counterfeit money, you are convicted and sentenced to 48 days’ imprisonment. Pursuant to s18(4) of the Sentencing Act 1991, I declare a period of 48 days has been served by way of pre‑sentence detention.
40In relation to related Summary Charge 49, failing to store ammunition, you are convicted and fined $500.
41In relation to related Summary Charge 87, possession of a Schedule 8 poison, namely Etizolam, you are convicted and fined $200.
42In relation to related Summary Charge 88, possession of a Schedule 4 poison, namely pseudoephedrine, you are convicted and fined $200.
43In relation to Charges 1 to 6 on the indictment, and related Summary Charges 5, 6, 13, 36 and 40, you are convicted and placed upon a Drug and Alcohol Treatment Order.
44A Drug and Alcohol Treatment Order consists of two parts: the treatment and supervision part, and the custodial part. The custodial part of a Drug and Alcohol Treatment Order consists of the sentence of imprisonment I must impose under s18ZD of the Sentencing Act 1991.
45The custodial part of this order is a term of imprisonment of three years and six months. This period is not to be served unless further order.
46For the sake of clarity, the custodial part of this order is comprised as follows:
·On Charge 1 on the indictment, trafficking in a commercial quantity of a drug of dependence, two years and six months’ imprisonment. This is the base sentence.
·On Charges 2, 3 and 4 on the indictment, trafficking in a drug of dependence, an aggregate sentence of 12 months’ imprisonment.
·On Charge 5 on the indictment, possession of drugs of dependence, eight months’ imprisonment.
·On Charge 6 on the indictment, possession of an unregistered handgun, 12 months’ imprisonment.
·On related Summary Charge 5, non-prohibited person possessing imitation firearms, 12 months’ imprisonment.
·On related Summary Charge 6, possession of a prohibited weapon, six months’ imprisonment.
·On related Summary Charge 13, possession of prohibited weapon, four months’ imprisonment.
·On related Summary Charge 36, deal with property suspected of being proceeds of crime, nine months’ imprisonment.
·On related Summary Charge 40, deal with property suspected of being proceeds of crime, eight months’ imprisonment.
·I order that four months on Charge 3 on the indictment, one month on Charge 5 on the indictment, three months on Charge 6 on the indictment, three months on related Summary Charge 5, and one month on related Summary Charge 36 be cumulative upon each other and upon the base sentence imposed with regard to Charge 1 on the indictment, making a total effective sentence of three years and six months’ imprisonment, the custodial part of this Drug and Alcohol Treatment Order.
47In terms of the treatment and supervision part of the order, all core conditions pursuant to s.18ZF of the Sentencing Act 1991 must be attached to it. These core conditions will remain in place for three years and six months, or until further order. The core conditions of the order are as follows:
(i) You must not commit, whether in or outside Victoria, another offence punishable on conviction by imprisonment during the time the order is in force;
(ii) You must attend the Drug and Alcohol Treatment Court when required by the court to do so;
(iii) You must report to Melbourne Drug Court House or other specified place within two clear working days after the order is imposed;
(iv) You must report to and accept visits from a member of the Drug and Alcohol Treatment Court;
(v) You must undergo treatment for alcohol and drug dependency as specified in this order or by the Drug and Alcohol Treatment Court;
(vi) You must give notice of any change of address at least two clear working days before the change, to a specified Drug and Alcohol Treatment Court officer;
(vii) You must not leave Victoria without the permission of the Drug and Alcohol Treatment Court; and
(viii) You must obey all lawful instructions from the Drug and Alcohol Treatment Court team.
48As I have indicated, these core conditions will remain in force for 42 months, three years and six months, or until further order.
49Furthermore, in relation to the treatment and supervision part of the order, the following program conditions will operate for a period of two years or until further order:
(i) You must submit to drug and alcohol testing as directed by the Drug and Alcohol Treatment Court team;
(ii) You must submit to detoxification or other treatment as directed by the Drug and Alcohol Treatment Court team;
(iii) You must attend vocational educational employment or other programs as directed by the Drug and Alcohol Treatment Court team;
(iv) You must adhere to an alcohol ban;
(v) You must comply with a nightly curfew between the hours of 9.00 pm and 6.00 am;
(vi) You must reside at [omitted] Prahran, 3181;
(vii) You must do or not do anything else that the Drug and Alcohol Treatment Court considers necessary or appropriate concerning your drug or alcohol dependency or the personal factors of the Drug and Alcohol Treatment Court considers contributed to your criminal behaviour; and
(viii) You must waive all rights of confidentiality of communications between the Drug and Alcohol Treatment Court and all treatment providers and government agencies, authorities and departments.
50This order commences today, 9 March 2023. It will remain in force for three years and six months or until further order.
51I will make the three forfeiture orders and one disposal order sought by the prosecution in this case, the making of these orders not being opposed by you. Mr Brennan can you clarify, there is no forfeiture order in relation to the vast array of imitation weapons. Any reason for that?
52MR BRENNAN: I might confirm that whether they're under automatic forfeiture or - - -
53HIS HONOUR: Yes.
54MR BRENNAN: - - - on the basis of the charge. I'll confirm that and liaise with your chambers.
55HIS HONOUR: Yes. Any application can subsequently be made, I just noticed the voluminous forfeiture order relates to the drugs, there is nothing in relation to the imitation weaponry, it just covers - - -
56MR BRENNAN: Yes.
57HIS HONOUR: - - - the Ramset.
58MR BRENNAN: My instructor is able to confirm - - -
59HIS HONOUR: Yes.
60MR BRENNAN: - - - that it is under the Control of Weapons Act 1990.
61HIS HONOUR: It is automatic?
62MR BRENNAN: Automatic, yes.
63HIS HONOUR: Thank you.
64MR BRENNAN: Thank you.
65HIS HONOUR: Pursuant to s.6AAA of the Sentencing Act 1991, I declare that had you pleaded not guilty to these charges, but been found guilty at trial, I would have imposed a total effective sentence of five years and six months’ imprisonment with a non‑parole period of four years.
66
Turning to counsel, any issues with regards to the order? It obviously is a fairly complicated one given the number of charges and the interplay between the state and federal. I have imposed a separate custodial term with regards to the counterfeit charge. It cannot be made the subject of a DATO. I have utilised all of the PSD for that and so there is no PSD left with regards to the DATO which in any event, would not be made the subject of a PSD order in any event. So
Mr Brennan, I do not know if you have been following me closely with regards to all of the charges. Any issues that you can see?
67MR BRENNAN: No, Your Honour.
68HIS HONOUR: Yes.
69MR BRENNAN: No issues I see.
70HIS HONOUR: Thank you.
71MR BIDDULPH: Your Honour can I just confirm, the orders for cumulation were Charge 1, two years and six months was the base sentence?
72HIS HONOUR: Four months - so the base sentence is Charge 1, two years and six months. And then there is four months cumulative with regards to Charge 3, one month on Charge 5, three months on Charge 6 and then three months on related Summary Charge 5 and one month on related Summary Charge 36, cumulative on each other and on the base sentence with regards to Charge 1. Adds up to three years and six months.
73MR BIDDULPH: So there was no cumulation in relation to related Summary Charge 36? I might have misheard Your Honour that's all.
74HIS HONOUR: One month on Charge 36, related Summary Charge 36.
75MR BIDDULPH: So it's my understanding that adds up to 13 months.
76HIS HONOUR: Four, five, six, seven, eight, nine, ten, eleven, twelve. I have got twelve. We will start again. Four months on Charge 3. One month on Charge 5. Three months on Charge 6. Three months on related Summary Charge 5 and one month on related Summary Charge 36.
77MR BIDDULPH: Sorry, Your Honour, I thought it was related Summary Charge 6 and 36.
78HIS HONOUR: No, just 36.
79MR BIDDULPH: Thank you, Your Honour.
80HIS HONOUR: That is all right. All right, so there being no issues with regards to the order that is being made, I will have a copy of that order go down for signing by Mr Sousa. Mr Biddulph you can accompany your client down to the dock to go through the order with your client, to make sure he understands it is in accordance with what I have read out. Once he has signed it, I will countersign it. Thank you.
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