Director of Public Prosecutions v Succar
[2020] VCC 2075
•17 December 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
CR-19-01551
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| PATRICK SUCCAR |
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JUDGE: | Her Honour Judge Leighfield | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 3 December 2020 | |
DATE OF SENTENCE: | 17 December 2020 | |
CASE MAY BE CITED AS: | DPP v Succar | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 2075 | |
REASONS FOR SENTENCE
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Subject: Criminal Law
Catchwords: Trafficking in a drug of dependence in not less than a commercial quantity (cocaine) – trafficking in a drug of dependence (MDA) – possession of drugs of dependence – possession of precursor chemical – possession of schedule 4 poisons – possession of unregistered firearms – possession of unregistered longarm – insecure storage of ammunition – possess property suspected of being proceeds of crime – principal offender - no relevant prior criminal history – guilty plea at earliest opportunity – delay – extensive drug treatment – very good prospects of rehabilitation – impact of COVID-19 – serious offender provisions – need for community protection low – current sentencing practice – impact of uplift in Gregory(a pseudonym) v The Queen [2017] VSCA 151
Legislation Cited: Crimes Act 1958 (Vic), s195; Drugs Poisons and Controlled Substances Act 1981 (Vic), ss36B, 71AA, 71AC, 71D, 73(1); Firearms Act 1996 (Vic), ss6A, 7B, 129A; Sentencing Act 1991 (Vic), ss 5(1), 5(2H), s6D, s6E.
Cases Cited:Arici v The Queen [2018] VCC 1744; Director of Public Prosecutions v Condo [2019] VSCA 181; Fernando v The Queen [2017] VSCA 208; Gregory (a pseudonym) v The Queen [2017] VSCA 151; The Queen v LD [2009] VSCA 311.
Sentence: Total effective sentence of six years imprisonment with a non-parole period of three years and six months; total fines $1250.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr Y. Hardjadibrata | Office of Public Prosecutions |
| For the Accused | Mr C. Mandy SC | Melasecca Kelly & Zayler |
HER HONOUR:
Introduction
1 Patrick Succar, you have pleaded guilty to an indictment containing eleven charges.
2 Charges 1 and 2 are charges of trafficking in a drug of dependence, namely cocaine, in a quantity not less than commercial quantity, contrary to s71AA of the Drugs Poisons and Controlled Substances Act 1981 (Vic) (‘DPCSA’). The maximum penalty for trafficking in not less than a commercial quantity of a drug of dependence is 25 years’ imprisonment. Further, an offence against s71AA of the DPCSA is a Category 2 offence under the Sentencing Act 1991 (Vic) (‘Sentencing Act’). This means that I must impose a custodial sentence, other than a custodial sentence combined with a community corrections order, for each of Charges 1 and 2 unless at least one of the circumstances set out in paragraphs (a) to (e) of s5(2H) of the Sentencing Act exist. It is not suggested on your behalf that any of the circumstances in paragraphs (a) to (e) apply in your case, and it has been conceded by your counsel that a term of imprisonment, lengthier than the period which you have already served on remand, must be imposed.
3 Charge 3 is a charge of trafficking in a drug of dependence, namely 3,4 methylenedioxyamphetamine (‘MDA’) contrary to s71AC(1) of the Drugs Poisons and Controlled Substances Act 1981. The maximum penalty for this offence is 15 years’ imprisonment.
4 Charges 4, 5 and 6 are charges of possession of a drug of dependence, being testosterone, oxandrolone, and an anabolic and/or androgenic steroidal agent respectively, contrary to s73(1) of the Drugs Poisons and Controlled Substances Act. The maximum penalty for possession of a drug of dependence is 30 penalty units, or one year imprisonment, or both, if the court is satisfied on the balance of probabilities that the offence was not committed for any purpose related to trafficking in the drug. In any other case, the maximum penalty is 400 penalty units or 5 years’ imprisonment, or both.
5 Charge 7 is a charge of possession of a precursor chemical, namely benzaldehyde, contrary to s71D of the Drugs Poisons and Controlled Substances Act. The maximum penalty for this offence is 600 penalty units, or five years’ imprisonment, or both.
6 Charges 8 and 9 are charges of possession of an unregistered general category firearm, contrary to s7B(1) of the Firearms Act 1996 (Vic) (‘Firearms Act’). The maximum penalty for possessing an unregistered general category firearm is 600 penalty units or seven years’ imprisonment for a first offence, and 1200 penalty units or 10 years’ imprisonment for a second or subsequent offence.
7 Charge 10 is a charge of possession by a non-prohibited person of an unregistered category A or B longarm, contrary to section 6A(1) of the Firearms Act. The maximum penalty for this offence is 120 penalty units or two years’ imprisonment for a first offence, and 1200 penalty units and ten years’ imprisonment for a second or subsequent offence.
8 Charge 11 is a charge of storing ammunition in an insecure manner, contrary to s129A of the Firearms Act. The maximum penalty for this offence is 240 penalty units or four years’ imprisonment.
9 You also consented to this court hearing, and pleaded guilty to, four related summary offences being one charge of dealing in property, namely $348,600 in cash, suspected of being proceeds of crime contrary to s195 of the Crimes Act 1958 (Vic) (related summary charge 10), and three charges of possessing a Schedule 4 poison, namely clomifene (related summary charge 16), clenbuterol (related summary charge 19) and sildenafil (related summary charge 20), contrary to s36B of the Drugs Poisons and Controlled Substances Act. The maximum penalty for dealing in property suspected of being proceeds of crime is two years’ imprisonment, whilst the maximum penalty for possession of a Schedule 4 poison is ten penalty units.
10 These offences arises from events which occurred on 12 December 2018 and 5 February 2019. At the time you were 28 years of age.
Circumstances of the Offending
11 The full circumstances of the offending are set out in the summary of prosecution opening dated 30 November 2020 which was tendered as Exhibit A on the plea.
12 However, in short compass, on 12 December 2018 you posted a parcel by placing it into an Express Post mail box in Reservoir. The parcel was addressed to a recipient in Rossmore, New South Wales (“the intended recipient”). The sender details were James Borg of 40 Crispe Street, Reservoir, Victoria 3073. Mobile phone numbers were also noted on the parcel for both the sender and the intended recipient.
13 The parcel was intercepted by police prior to delivery after an officer of Australian Border Force X-rayed the parcel and identified that the parcel contained an organic material. Under further examination the material was found to be a compressed white powder substance sealed in a clear vacuum-sealed plastic bag. Analysis of the substance identified that it was 496.6 grams of cocaine mix (with a purity of 85%), or approximately 422.11g of pure cocaine. A commercial quantity of cocaine is 500g of mixture or 250g pure. This constitutes Charge 1 – trafficking in a drug of dependence in not less than a commercial quantity.
14 Between 13 December 2018 and 2 January 2019, you called the Australia Post Customer Service Centre on four occasions using a mobile phone service subscribed in your name. Each of those phone calls was recorded. On each occasion, you enquired about the whereabouts of the parcel which you had posted on 12 December 2018.
15 On 5 February 2019, police executed a search warrant at your home. You were home with your wife at the time. The following items were located by police during the search:
(a) three quantities of cocaine in plastic bags consisting of one bag weighing 601.3g (located in the laundry cupboard), and two bags weighing 57.9g and 2.2 g respectively (both in the kitchen cupboard) for a total weight of 661.4 grams (Charge 2 – trafficking in a drug of dependence in not less than commercial quantity);
(b) five plastic bags containing 478 tablets of MDA weighing 134.7g with a purity of 11% (where a traffickable quantity is 3g) (Charge 3 – trafficking in a drug of dependence). These were located in a bedside drawer in the main bedroom;
(c) three pre-filled syringes, located in the walk-in robe in the main bedroom, containing less than 500g of testosterone ethanate, a derivative of testosterone (where 500g is a traffickable quantity) (Charge 4 – possession of a drug of dependence);
(d) a bottle, located in the walk-in wardrobe in the main bedroom, containing 60 tablets of oxandrolone weighing 5.1g (where 50g is a small quantity) (Charge 5 – possession of a drug of dependence);
(e) a bottle, located in the walk-in wardrobe in the main bedroom, containing 70 capsules of methasterone, an anabolic or androgenic steroidal agent, weighing approximately 17.8g (where a small quantity is 50g) (Charge 6 – possession of a drug of dependence);
(f) a glass bottle containing a yellow liquid which was found to contain 2118.3g of benzaldehyde, a prescribed precursor chemical used in manufacturing methylamphetamine (where the prescribed quantity is 50g) (Charge 7 – possession of a precursor chemical). This was located in the front room and your fingerprint was located on the bottle;
(g) a Browning semi-automatic handgun containing five live rounds of ammunition, located behind the bedhead in the main bedroom (Charge 8 – possession of an unregistered general category handgun);
(h) a .38 calibre revolver located in a backpack in the walk-in wardrobe in the main bedroom (Charge 9 – possession of an unregistered general category handgun);
(i) a Remington Rifle, which had been reported as stolen from a burglary on 27 December 2011 (Charge 10 – non-prohibited person possess category A or B longarm). This was located in the front room;
(j) an ammunition magazine and a box of twenty live 7.62 rounds of cartridge ammunition suitable for the magazine, located in a cupboard under the stairs (Charge 11 – store cartridge ammunition in an insecure manner);
(k) prescription medications in the form of clomifene, clenbuterol and sildenafil, which were in your possession without authorisation or permission (related summary Charges 16, 19 and 20 respectively – possession of a Schedule 4 poison);
(l) two lots of cash totalling $348,600 – $301,600 in a sports bag and $47,000 in a shopping bag, both located in the third bedroom (related summary charge 10 – deal in property suspected of being proceeds of crime); and
(m) various items alleged to be indicia of trafficking including three mobile phones, a heat sealing machine, a roll of plastic bags, a box of scale weights and digital scales containing traces of cocaine.
Interview and Remand
16 You were interviewed by police on 5 February 2019, both during the search of the house and at the police station. Whilst you exercised your right to silence for the majority of the interview, you did make a comment during the search in respect of the rifle – saying that you knew the rifle was in your front lounge, that it had been put there by a mate and that you had just left it there.
17 You were remanded into custody after your arrest on 5 February 2019 and have remained in custody since that time. As a result you have served 681 days of pre-sentence detention.
Prior Criminal History
18 A criminal history has been alleged in this case – however it is largely irrelevant to this proceeding as it relates to a series of driving offences which you committed when you were in your late teens and early twenties and for which you were sentenced between 2009 and 2011.
19 You have no prior history in respect of possession of illicit substances or weapons, and no further driving history post 2011.
Guilty Plea
20 You entered a plea of guilty to the current indictment, and related summary charges, on 16 October 2020. This matter has a significant history having commenced with a filing hearing back on 11 February 2019. You were committed to stand trial on 7 August 2019 after an informant-only contested committal hearing. The matter was then listed for trial on 27 July 2020 but had to be vacated due to COVID-19. You then opted to participate in emergency case management, which involved both an emergency case management conference, and pre-trial argument. The matter finally resolved after rulings had been given on the pre-trial argument.
21 Despite that long history, I am satisfied that your plea is still a plea which has been entered at the earliest available opportunity. There have been ongoing negotiations between the parties to resolve this matter since before the contested committal and you, at all times, have indicated a willingness to accept responsibility for the posting of the package, and the items located at your home. Indeed, on 8 September 2020 you entered pleas of guilty in this court on the previous indictment in respect of what are now charges 2-11. The main obstacle to resolution has been the charge of trafficking in a large commercial quantity of cocaine which was both part of the original charges and alleged on the original trial indictment. The first time a plea resolution was available to you which did not involve a charge of trafficking in a large commercial quantity of cocaine was subsequent to the pre-trial rulings on 21 September 2020. As already noted, you were then arraigned and pleaded guilty on the current indictment on 16 October 2020.
22 As I have already said, whilst your plea has been entered after both a contested committal and pre-trial argument, I still consider it to be a plea which was entered at the earliest opportunity. Your plea has saved the cost and time of a trial being conducted. The value of that plea is also enhanced in the current circumstances of the pandemic which is causing unprecedented disruption to the smooth running of the justice system. Accordingly, I am of the view that your plea both facilitates the course of justice and is of significant utilitarian benefit. I also accept that your guilty plea is indicative of remorse and an acceptance by you of responsibility for your offending.
23 Taking all of the above matters into account, I have given you a substantial discount on your sentence by reason of your plea of guilty.
Personal Circumstances
24 You are now 30 years of age. You were born in Australia, but as a young child your family moved to Lebanon, and remained there until you were approximately 10 or 11 years of age. When you were in Grade 5, your parents decided to return to Australia due to the ongoing instability in Lebanon as a result of the war.
25 On returning to Australia, you completed Grade 6 at St Peter’s Primary School, before moving to St Monica’s College for your secondary schooling. You commenced Year 12 at St Monica’s but, due to your parents undergoing a difficult divorce, you found it difficult to complete the year and instead left school to pursue full time employment. Since that time you have had a solid work history.
26 You initially worked for the BOC gas company for a year before deciding to pursue a career in carpentry. In 2007 you commenced an apprenticeship and ultimately worked for the same employer, initially as an apprentice then as a fully qualified carpenter, for approximately seven years. On the back of that experience, you then started your own successful building business in 2015. It is apparent from the many references before the court that you are considered by previous employers and by those who know you well to be hard working, loyal and a good leader.[1]
[1] See, e.g., Reference from Walid El Ali, dated 22 August 2020 (part of Exhibit 1).
27 When you were in your late teens and working as an apprentice, you met your wife-to-be Rebecca. The two of you shared many of the same interests and spent some time travelling overseas together before you both proposed to her and opened your business in 2015. Rebecca then became not only an integral part of your life but also an integral part of the business – with you focusing on the physical and logistical elements and Rebecca handling the finances.
28 Unfortunately, it was at this point that you started to use cocaine. As you explained in your letter to the court, you started to use cocaine when you started to hang around with a new group of friends. It soon became a weekly routine, then turned into a daily habit even while at work.[2] I am told that by the end of 2017 you were using eight grams of cocaine per week, which started to create a serious cycle of debt. You tried to hide both your habit and your debts from Rebecca which placed you in an increasingly vulnerable position. Ultimately, as you noted in your letter, ‘this escalated to a point of no return’ and lead you to be where you are today.
[2] Exhibit 3.
29 Despite your drug issues and offending, you still have the full support of your wife, family and friends. I received a multitude of references on the plea,[3] with most of the authors of those references also attending the plea hearing via Webex. Overall the references speak of you being a loving and caring person who regularly puts yourself out to help others. Your offending has come as a surprise for all concerned and a common theme within the references is that your offending does not reflect the person that they have known over the years. It is clear that when you are ultimately released from custody you will have a substantial number of people who will be supporting you in your efforts to remain drug free and to return to being a contributing member of the community.
Drug Issues, Delay and Prospects of Rehabilitation
[3] See Exhibit 1.
30 You have now been in custody on remand for almost two years. There is no doubt that this is a substantial period of time to be on remand awaiting determination of the proceeding. You have had the stress of these matters, and in particular the uncertainty as to whether the more serious charge of trafficking in a large commercial quantity of cocaine would be proceeding, for most of that period of time. Importantly, however, you have also utilised that time as best you can whilst in custody and with the restrictions imposed by COVID-19.
31 I was provided with a number of certificates for courses you have undertaken whilst in custody, including two twelve-hour courses relating to drug use and drug relapse prevention, and educational units which you have completed towards both a Certificate II in Cleaning and a Certificate II in Engineering.[4]
[4] Exhibit 5.
32 I was also provided with two reports from psychologist Luke Armstrong – an initial psychological assessment dated 28 November 2019 and a treatment review dated 20 November 2020. In late 2019 you had come to the realisation that the drug courses which you would be able to access in custody would be unlikely to be sufficient to enable long term rehabilitation from your drug issues. You therefore decided to engage an external provider – Mr Armstrong – to assist you in your drug rehabilitation efforts. I note that Mr Armstrong has an extensive history in working in drug and alcohol rehabilitation, and was one of the two developers of the MASC program which is used as the central treatment modality at Odyssey House.
33 Over the past twelve months you have engaged in over 30 hours of treatment with Mr Armstrong, and according to Mr Armstrong, have made significant progress in that time. Mr Armstrong is of the view that whilst previously you would have fulfilled the criterion for Stimulant and Axiolytic Use Disorder, you are now a low risk of drug relapse, and drug-related offending given the following factors:
· your mental health has improved and there is no cause for you to engage in drug abuse as a form of self-medication;
· you now present with insight and competency in the use of strategies to manage mental health difficulties;
· you recognise and acknowledge the consequences of your previous actions not only on yourself but on your family;
· you recognise the dangers and risk of engaging in negative peer relationships and have started to re-engage in positive peer relationships;
· you recognise the importance of ongoing treatment beyond the end of any sentence which might be imposed; and
· your wife is a protective factor – now being equipped with the knowledge to recognise the early warning signs of any relapse on your part.
34 I note that your progress in treatment is also supported by the results of random drug urine screening to which you have been subjected over the past 22 months whilst in custody. I was provided with results of 8 separate drug urine screens which you have produced between 3 June 2019 and 5 October 2020 – all of which are negative for the presence of illicit drugs.[5]
[5] Exhibit 4.
35 I am satisfied, taking into account the treatment you have undertaken, your progress whilst undertaking that treatment, the insight which you have gained into your offending behaviour, your lack of prior history, your strong work ethic and the significant support you have from family and friends that you have very good prospects of rehabilitation.
Additional Hardship in Custody – Impact of COVID-19
36 During the period that you have been in custody, you have been impacted by the COVID-19 pandemic in a number of ways.
37 The situation has caused additional stress for you, your wife and your family in respect of concern for your health in custody, and concern for the health of your wife and family in the community. This was exacerbated by the suspension of face-to-face visits, albeit you were able to maintain phone and video contact with your loved ones. I note that very recently you were able to have a face to face contact with your wife – this was the first face to face contact you have been able to have with her in approximately six months.
38 Further, during COVID you have had limited access to internal programs, education, exercise, employment and church services. You have also been subjected to a series of lockdowns and prison transfers, all of which have added to the burden of your period on remand.
39 I take this added burden of imprisonment into account.
Gravity of the Offending
40 The offences which bring you before the court are serious offences.
41 When determining the respective gravity of each of the trafficking (and possession) offences, the quantity of drug involved is a highly relevant consideration. Generally speaking, the greater the quantity of drug trafficked, the more serious the offence. Similarly, the greater the quality of the drug possessed the more serious the offence. Other important indicators of offence seriousness include role in the offending, the duration of the offending, whether there was any resort to violence or intimidation, and the motivation for involvement in the offending.[6]
[6] See, e.g., Gregory v The Queen [2017] VSCA 151, [24].
42 Insofar as the commercial quantity charges are concerned, a commercial quantity of cocaine is 500g mix or 250g pure; whilst a large commercial quantity is 1kg mix or 750g pure. The cocaine in the parcel subject of Charge 1 was just shy of a commercial quantity for a mixture (496.6g) but due to its high level of purity was 1.68 times the commercial quantity of pure cocaine (422.11g). The quantity of cocaine located at your home (661.4g) (subject of Charge 2) was 1.32 times the commercial quantity for a mixture. It is fair to say that in each case the quantity of cocaine was not at the lowest end of commercial quantity, but neither was it approaching the quantity required for large commercial quantity.
43 On the plea there was some discussion about the role which I should attribute to you in respect of a number of the charges. Mr Mandy put on your behalf that you posted the parcel to your cousin’s house in NSW, at the insistence of others who you cannot name – with the intention being that they would collect the parcel from your cousin’s home. Further it was submitted on your behalf that some of the items in your home were there because you had been asked to store them for others.
44 Mr Mandy said that your instructions were supported by a number of factors including the location of certain items such as the benzaldehyde and rifle together in the front room, your continuation of full time work in your business which was inconsistent with you operating a drug business; the lack of any text messages or other correspondence showing that you were actively dealing in any of the substances located in your home; and the content of the text message which had been excluded from trial on pre-trial argument.
45 Mr Mandy noted that you accept that the smaller amounts of cocaine, deal bags and scales were all yours, as well as the loaded gun behind your bed, which you say you kept there because you were in fear. Mr Mandy submitted that this latter factor also supported your contention that you were acting at the behest of others. I note that despite putting your instructions in regard to these matters, Mr Mandy conceded that even if I was satisfied of these factors, it could not be put that you were under duress in respect of your possession of these items and that there is little to reduce your moral culpability for the offending.
46 Prosecuting Counsel submitted that it is the prosecution position that you were the sole offender in respect of all of the charges. He further submitted, correctly, that in order for the Court to take into account in your favour that you were sending the cocaine, and possessing other items on behalf of others, then you would need to prove those aspects on the balance of probabilities. Ultimately on consideration of the evidence before the Court, and despite the matters put by Mr Mandy, I am not able to come to those conclusions to the requisite standard. I intend to sentence you as a principal offender, and on the basis that you had the cocaine in your possession for the purpose of sale rather than being a courier or simply holding it on behalf of others. However, despite that being the case, I still consider your offending on the commercial quantity trafficking charges to fall in the lower mid-range of this kind of offence taking into account the quantity of cocaine trafficked on each occasion, the limited duration of the offending given both the single date nature of each of the offences and the limited period of time which passed between each offence, the lack of any aggravating features such as accompanying violent or intimidatory conduct, and the fact that the offending appears to have been conducted in the context of your own significant addiction to cocaine rather than being committed solely for financial gain.
47 In respect of charge 3, at the time of the search warrant being executed you were in possession of a trafficable quantity of MDA, which was 26.94% of a commercial quantity mix, but at a low purity. The same considerations apply to assessment of your role in respect of this charge, as applied in respect of Charges 1 and 2. Accordingly I view this charge as falling in the low to mid-range of this type of offending. I have similarly formed the view that given the quantity of benzaldehyde in your possession, Charge 7 also falls in the low to mid-range of offending for possession of a precursor chemical.
48 Turning now to possession of the other drugs located at your home (Charges 4-6), it was submitted on your behalf that each of those items was in your possession for personal use – a position which was not conceded by the prosecution. Accordingly, pursuant to section s73 of the Drugs Poisons and Controlled Substances Act, I must determine whether I am satisfied on the balance of probabilities that you did not possess those substances for any purpose related to trafficking. As was no doubt apparent from my remarks during the plea hearing, I am so satisfied, taking into account that the quantity of each of the drugs on Charges 4, 5 and 6 are less than the trafficable quantity applicable to each drug (and on Charges 5 and 6 were also substantially less than the small quantity applicable to those drug being six per cent and 35 per cent of a small quantity respectively); the nature of the drugs being steroids; the way in which they were packaged; where they were found – being the bedroom; and the lack of any evidence of trafficking in those substances. I consider the possession of both these drugs, and the Schedule 4 poisons the subject of the related summary charges, to be at the low end of possession offences – especially when considered in light of your lack of prior convictions for possession of drugs of any kind. Taking into consideration all of the circumstances in this case, I am of the view that each of these offences can be dealt with by way of a fine – and intend to impose aggregate fines in respect of each type of substance – that is drugs and Schedule 4 poisons.
49 Turning now to the offences under the Firearms Act, it is of considerable concern that you had three firearms in your home at the time of the execution of the search warrant. Of even greater concern is the fact that one of those weapons – which you do concede was yours – was located in your bedroom in a spot easily accessible by you, and was loaded. It does not lessen the seriousness of this offence that you had the firearm due to being in fear of others. Irrespective of the reasons for your possession of that firearm, the fact remains that it was easily accessible and loaded.
50 Finally, in respect of the related summary offence of possession of property suspected of being proceeds of crime, I note that the amount of cash located was significant and that this increases the seriousness of this offence.
Serious Offender Provisions, Totality and Protection of the Community
51 There is no dispute that the serious offender provisions of the Sentencing Act apply in your case. You fall to be sentenced as a ‘serious drug offender’ on Charge 2.
52 Pursuant to s6D of the Sentencing Act 1991, when sentencing you on Charge 2, I must regard the protection of the community as the principal purpose for which the sentence is to be imposed. Section 6D(b) provides that I may, in order to achieve that purpose, impose a sentence longer than that which is proportionate to the gravity of the offence considered in light of its objective circumstances. The prosecution did not submit that it was necessary to impose a disproportionate sentence in your case, and I do not propose to do so.
53 Section 6E of the Act relevantly provides that every term of imprisonment imposed on a serious offender for a relevant offence – which in this case is Charge 2 – must, unless otherwise directed by the court, be served cumulatively on any sentences of imprisonment imposed on you, whether before or at the same time as that term. I propose to otherwise direct in this case.
54 I note that it was submitted by Mr Hardjadibrata and conceded by Mr Mandy that there should be some cumulation as between Charge 1 and 2, due to the separate nature of those offences and also pursuant to the serious offender provisions. I agree with that submission. However, despite the fact that you fall to be sentenced as a serious offender on Charge 2, I take the view that each of Charge 1 and Charge 2 are equally serious and cannot be distinguished in sentencing. In my view the greater quantity of the substance by reference to commercial quantity in Charge 1, balances out with the need to sentence you on Charge 2 as a serious offender. Accordingly, I intend to impose the same sentence on each of Charges 1 and 2, but with some cumulation between them.
Sentencing Purposes
55 Pursuant to s5(1) of the Sentencing Act, the only purposes for which sentence can be imposed are just punishment, deterrence – both general and specific, rehabilitation, denunciation and protection of the community.
56 I am required on Charge 2 to regard community protection as the principle purpose for which sentence is imposed. However, as was explained by the Court in The Queen v LD [2009] VSCA 311, at [25]-[27], the intent of this provision is to ensure that any prison term imposed will be of sufficient length to protect the community against the risk which the offender presents. Thus where the risk of re-offending is assessed as low the protection of the community will weigh less heavily as a consideration than if the risk had been assessed as high.
57 In your particular circumstances, I am of the view that limited weight needs to be given to both the purposes of community protection and specific deterrence given your insight into your offending, engagement and progress with treatment, and Mr Anderson’s assessment of you now being a low risk of re-offending. However, given the seriousness nature of the offending, general deterrence, denunciation and just punishment are still significant sentencing considerations in this case. The sentence imposed on you must deter not only you from further offending, but importantly it must also deter others who are minded to offend in the same or similar manner. Would-be offenders must understand that if they behave in this manner they will be appropriately punished. The sentence imposed must also manifest the denunciation by the court of the conduct in which you engaged.
58 I also note that rehabilitation is an important consideration in sentencing you – especially given that I regard your prospects of rehabilitation as being very good. However, rehabilitation as a sentencing purpose carries less weight than it might otherwise due to the seriousness of the offending and the weight which must be given to general deterrence and denunciation in the sentencing synthesis.
Current Sentencing Practice and Comparable Cases
59 Your counsel referred me to the Sentencing Snapshot for sentences imposed on offenders for trafficking in a commercial quantity of cocaine – noting that the range of sentences reflected in that snapshot includes people with prior convictions, convictions after trial and more serious offending than yours – but also conceding that the statistics must be treated with caution.
60 Prosecuting counsel also submitted that the statistics should be viewed with great caution in ascertaining current sentencing practice, not only because they provide no information about any relevant circumstances that lead to the imposition of sentence but also, in this case, because they take into account cases which have been determined both pre and post the decision of the Court of Appeal in Gregory (a pseudonym) v The Queen [2017] VSCA 151.
61 In Gregory, the Court acknowledged that there is a wide variation in the seriousness of commercial quantity trafficking offences and in the culpability of traffickers.[7] Those at the most serious end would have one or more of the following features present – the quantity of drugs involved approaching the large commercial quantity threshold; the offender being in charge of the trafficking business; the business being conducted for a substantial period; and/or the offender having relevant prior convictions.[8] The Court held that current sentencing practice for those cases of commercial quantity that fall into the upper category of the offence is plainly inadequate, and that sentences for commercial quantity trafficking need to be decompressed by increasing sentences in the upper category.[9]
[7] At [97].
[8] Ibid, [98].
[9] Ibid, [100].
62 However, as noted in subsequent cases such as Fernando v The Queen [2017] VSCA 208, in order to achieve the required relativity between the sentences being imposed in respect of offences falling into different categories of seriousness, 'the uplift will have an increasingly diminished effect as one moves from the upper to the middle and lower categories of seriousness.'[10] It is also important for me to keep in mind that current sentencing practice (and the uplift to current sentencing practice called for in Gregory) is not a controlling factor when sentencing, but rather is one of the many factors which I must consider in the sentencing synthesis.[11]
[10] At [62].
[11] See e.g., Director of Public Prosecutions v Condo [2019] VSAC 181, [20].
63 I was referred by prosecuting counsel to two cases decided after Gregory – Director of Public Prosecutions v Condo [2019] VSCA 181 and Arici v The Queen [2018] VCC 1744 – which prosecuting counsel submitted would provide useful yardsticks in sentencing you.
64 I have read and had regard to each of those cases. Each of those cases turn, as they must, on their own facts and the Court’s intuitive synthesis of those facts in light of the applicable sentencing principles. As such, they are of assistance as examples of the application of the relevant sentencing principles applicable in the area, and can be used as yardsticks that may be able to illustrate (although not define) the possible range of sentences available. However, ultimately, whilst I have had regard to previous sentences imposed and the issue of comparative sentencing and current sentencing practices more broadly, and in light of the decision in Gregory, I have sentenced you in this case on the basis of the application of the principles to the specific facts of you and your case
Sentencing submissions
65 Ultimately, Mr Mandy conceded on your behalf that a sentence of imprisonment with sometime yet to serve is inevitable in this case. He also conceded that there should be some modest cumulation as between the counts of trafficking in not less than a commercial quantity to reflect the separate criminality. However he submitted that I must ensure that I pay regard to the principle of totality, and ensure that the sentence reflects the strong mitigating factors in this case including your early pleas of guilty, delay, prospects of rehabilitation, lack of prior convictions and strong family support. He also submitted that I should impose a minimum term which would allow for the potential for you to spend a lengthy period of time under supervision in the community on parole.
66 Mr Hardjadibrata for the prosecution submitted that the gravity of your offending is such that only a significant sentence of imprisonment with a non-parole period is appropriate in all of the circumstances of the case. He submitted that there should be some cumulation between the two charge of trafficking in not less than a commercial quantity having regard to your status as a serious offender on that charge.
Sentence
67 I agree with both counsel that there must be a measure of cumulation as between Charges 1 and 2. I am also of the view that given the separate nature of the offending in respect of Charges 3 and 7, and the seriousness of Charge 8, that Charges 3, 7 and 8 also require some limited cumulation, taking into account the principle of totality.
68 The head sentence in this case must reflect the overall seriousness of your offending and reflect the weight to be given to general deterrence and denunciation in the sentencing synthesis, whilst also being an appropriate term if you are required to serve every day of that sentence. However, I agree with Mr Mandy that the combination of your lack of prior convictions, insight into your offending, extremely good prospects of rehabilitation and low risk of re-offending should be given significant weight in setting the non-parole period in this case, and allow for the possibility of you having a lengthy period of time in the community under supervision.
69 Now I cannot actually see Mr Succar on the screen. Mr Succar, if you could just say something, just so we can get you up on the screen at this point.
70 OFFENDER: I can hear Your Honour.
71 HER HONOUR: Okay, great, there we go, I can see you now.
72 Mr Succar, on Charge 1, you are convicted and sentenced to four years’ imprisonment.
73 On Charge 2, you are convicted and sentenced to four years’ imprisonment.
74 On Charge 3, you are convicted and sentenced to 12 months’ imprisonment.
75 On Charges 4, 5 and 6, you are convicted and fined an aggregate sum of $750.
76 On Charge 7, you are convicted and sentenced to 6 months’ imprisonment.
77 On Charge 8, you are convicted and sentenced to 12 months’ imprisonment.
78 On Charge 9, you are convicted and sentenced to 10 months’ imprisonment.
79 On Charge 10, you are convicted and sentenced to six months’ imprisonment.
80 On Charge 11, you are convicted and sentenced to one month imprisonment.
81 On related summary Charges of 16, 19 and 20, you are convicted and fined an aggregate sum of $500.
82 On related summary Charge 10, you are convicted and sentenced to three months’ imprisonment.
83 I direct that one year and six months of the sentence on Charge 2, two months of the sentence on Charge 3, one month of the sentence on Charge 7, and three months of the sentence on Charge 8 be served cumulatively on the sentence imposed on Charge 1 and each other.
84 That makes a total effective sentence of six years.
85 I order that you serve a minimum of three years and six months' imprisonment before becoming eligible for parole.
86 The period of 681 days of pre-sentence detention, not including today’s date, is hereby declared as having already been served in respect of this sentence and I order that such declaration and its details be entered in the records of the court.
87 On Charge 2, I direct that the fact that you have been sentenced as a serious offender on that charge be entered into the records of the court.
s6AAA Declaration
88 Pursuant to s6AAA of the Sentencing Act 1991, I indicate that had you pleaded not guilty to the charges for which you received a term of imprisonment today and been convicted of them, you would have been sentenced to a total effective sentence of 10 years’ imprisonment with a non-parole period of 7 years.
Ancillary Orders
89 Pursuant to s 78(1) of the Confiscation Act 1997 (Vic), I make a disposal order in respect of the following items:
(a) express post package containing cocaine;
(b) blue bag containing heat sealer and plastic rolls;
(c) clear Tupperware container containing cocaine;
(d) one creatine supplement powder container with sandwich bag containing blocks of cocaine and three deal bags of cocaine, numerous deal bags, wooden spoon and digital scales;
(e) one bottle of tablets labelled KALMA;
(f) hard white substance in vacuum sealed bag;
(g) small weights for digital scale in blue box;
(h) black box containing five resealable bags with MDA;
(i) two Victorian driver licences in the names of Edward Marbo and Angelo Hargreaves;
(j) 10 Clomid tablets, 27 sildenafil tablets, 460ml of clenbuterol, 50 oxandrolone tablets;
(k) Forty bottles of tablets labelled KALMA; and
(l) 2 litre bottle labelled Beechworth Apple Juice.
90 Pursuant to s33(1) of the Confiscation Act 1997 (Vic), I make a forfeiture order in respect of the following items:
(a) black Nike bag and $301,600 cash (AUD) contained within;
(b) $47,000 cash (AUD mixed combination);
(c) $360 cash (seized from wallet);
(d) Blackberry mobile phone;
(e) Apple iPhone X; and
(f) Samsung mobile phone.
91 Pursuant to s151 of the Firearms Act 1996 (Vic), I make a forfeiture order in respect of the following items:
(a) Remington longarm rifle (model 700LH);
(b) magazine suitable for an AK47 assault rifle and a box of 20 live rounds of 7.62mm ammunition suitable for an AK47 rifle;
(c) Browning handgun and magazine containing five rounds of ammunition;
(d) five rounds of 7.62 calibre ammunition; and
(e) .38 calibre silver coloured revolver handgun.
Other Matters
92 Counsel, are there any other matters that either of you wish to raise at this stage in respect of either the sentence or reasons for sentence?
93 MR HARDJADIBRATA: Not from me, Your Honour.
94 HER HONOUR: Okay, thanks Mr Hardjadibrata. Mr Mandy?
95 MR MANDY: Not from me, Your Honour, no thank you.
96 HER HONOUR: There is no other additional orders sought that I have not already covered?
97 MR MANDY: I don't think Your Honour, no.
98 HER HONOUR: I take it Mr Mandy - - -
99 MR HARDJADIBRATA: No - - -
100 HER HONOUR: Sorry Mr Hardjadibrata.
101 MR HARDJADIBRATA: Sorry not – from my end either, Your Honour. No further orders sought.
102 HER HONOUR: Mr Mandy, I take it, given the length of time that Mr Succar's already been in custody and given what I have been told on the plea, there is no need for any custody management issues to be noted.
103 MR MANDY: That's correct, Your Honour, yes.
104 HER HONOUR: All right, thank you. So Mr Succar, the end result of all of that and probably the most important thing that you are interested in, is that there's a total effective sentence of six years' imprisonment and there is a minimum period of three years and six months' before you're eligible for parole, taking away from that then the 681 days of pre-sentence detention and there is also a total amount of fines in the amount of $1250 which I imagine you will be able to call in whilst you are in custody if you wish to do so. They will be referred to Fines Victoria for management, but there is a process by which you could call them whilst you are in custody if you wish to do so.
105 OFFENDER: Thank you, Your Honour.
106 HER HONOUR: All right, thank you. All right, if there is nothing further, then I will adjourn the court.
107 MR MANDY: Your Honour, may I have an opportunity to talk to Mr Succar when Your Honour leaves the Bench.
108 HER HONOUR: Of course, Mr Mandy. We can arrange that for you.
109 MR MANDY: Okay. Thank Your Honour.
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