Director of Public Prosecutions v Tan
[2023] VCC 854
•30 May 2023
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-21-01408
CR-22-00757
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MARTIN TAN |
---
JUDGE: | HIS HONOUR JUDGE TIWANA | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 9 September 2022, 27 February 2023 | |
DATE OF SENTENCE: | 30 May 2023 | |
CASE MAY BE CITED AS: | DPP v Tan | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 854 | |
REASONS FOR SENTENCE
---
Subject:Criminal Law – Sentence
Catchwords: Trafficking in a drug of dependence (commercial quantity) – Handling stolen goods – Possession of a drug of dependence – Knowingly dealing with proceeds of crime – Two separate indictments – Serious drug offender provisions– Relevant criminal history – Offending on second indictment committed whilst on bail – Offending committed to support a significant drug addiction as well as financial gain – Diagnosed with a severe and recurring Depressive Disorder – Principle five of Verdins enlivened – Guilty pleas – Guarded prospects of rehabilitation
Legislation Cited: Crimes Act 1958; Drugs, Poisons and Controlled Substances Act 1981; Control of Weapons Act 1990; Bail Act 1977; Sentencing Act 1991
Cases Cited:R v Verdins (2007) 16 VR 269; Haddara v The Queen (2016) 260 A Crim R 306; Gordon v The Queen [2013] VSCA 343; Worboyes v The Queen (2021) 96 MVR 344; Vincent v The Queen [2021] VSCA 99; DPP v Dalgleish (2017) 262 CLR 428.
Sentence: Total effective sentence of 8 years and 6 months’ imprisonment with a non-parole period of 5 years and 9 months.
---
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr E. Dober (9 Sep 2022) Ms E. Hill (27 Feb 2023 & 30 May 2023) | Office of Public Prosecutions |
| For the Accused | Mr J. Stavris with Ms A. Yianoulatos (9 Sep 2022 & 27 Feb 2023) Mr K. Tng (30 May 2023) | Lim & Tng Lawyers |
HIS HONOUR:
Introduction
1 Martin Tan, you have pleaded guilty to a number of charges on two separate indictments. On Indictment No. L10783123, you have pleaded guilty to the following three charges:
(a)Charge 1 - trafficking in a drug of dependence, namely diacetylmorphine (heroin), in a quantity not less than the commercial quantity, contrary to s 71AA of the Drugs, Poisons and Controlled Substances Act 1981.
(b)Charge 2 - trafficking in a drug of dependence, namely methylamphetamine, in a quantity not less than the commercial quantity, contrary to s 71AA of the Drugs, Poisons and Controlled Substances Act.
(c)Charge 3 - handling stolen goods pursuant to s 88 of the Crimes Act 1958.
2 The offending subject to this Indictment occurred on a single day, 28 March 2020. Charges 1 and 2 carry a maximum penalty of 25 years’ imprisonment. Charge 3 carries a maximum penalty of 15 years’ imprisonment.
3 On Indictment No. M11523334, you have pleaded guilty to the following 10 charges:
(a)Charge 1 - trafficking in a drug of dependence, namely methylamphetamine, in a quantity not less than the commercial quantity, contrary to s 71AA of the Drugs, Poisons and Controlled Substances Act.
(b)Charge 2 - trafficking in a drug of dependence, namely cocaine, contrary to s 71AC of the Drugs, Poisons and Controlled Substances Act.
(c)Charge 3 - trafficking in a drug of dependence, namely 3,4-methylenedioxy-N-methylamphetamine (MDMA) and 3,4 methylenedioxy-amphetamine (MDA), contrary to s 71AC of the Drugs, Poisons and Controlled Substances Act.
(d)Charge 4 - possess a drug of dependence, namely diacetylmorphine, contrary to s 73 of the Drugs, Poisons and Controlled Substances Act.
(e)Charge 5 - possess a drug of dependence, namely testosterone and nandrolone, contrary to s 73 of the Drugs, Poisons and Controlled Substances Act.
(f)Charge 6 - possess a drug of dependence, namely diazepam, contrary to s 73 of the Drugs, Poisons and Controlled Substances Act.
(g)Charge 7 - possess a drug of dependence, namely 1,4 butanediol, contrary to s 73 of the Drugs, Poisons and Controlled Substances Act.
(h)Charge 8 - knowingly dealing with proceeds of crime, namely $9,370 in cash, contrary to s 194(2) of the Crimes Act.
(i)Charge 9 - knowingly dealing with proceeds of crime, namely $128,950 in cash, contrary to s 194(2) of the Crimes Act.
(j)Charge 10 - knowingly dealing with proceeds of crime, namely 22 gold bullion bars and gold jewellery, contrary to s 194(2) of the Crimes Act.
4 The offending in respect of Charge 1 on this Indictment occurred over a seven month period between 6 December 2020 and 21 July 2021. The offending subject to Charge 2 occurred on 12 June 2021 and the remaining offending subject to Charges 3 through to 10 occurred on 21 July 2021.
5 Charge 1 carries a maximum penalty of 25 years’ imprisonment. Charges 2 and 3 carry a maximum penalty of 15 years’ imprisonment. Charges 4, 5, 6 and 7 carry a maximum penalty of 5 years’ imprisonment or 400 penalty units.[1] Charges 8, 9 and 10 carry a maximum penalty of 15 years’ imprisonment.
[1]Defence conceded that in the circumstances of this case, this maximum penalty was applicable.
6 Trafficking in a drug of dependence in a commercial quantity is a Category 2 offence. This means I am required to sentence you to a custodial order unless one of the circumstances set out in s 5(2H)(a) to (e) of the Sentencing Act1991 is established. No reliance was placed on any of these exceptions.
7 You also consented to this Court hearing and pleaded guilty to the following three related summary charges:[2]
(i)An offence of dealing with property suspected of being the proceeds of crime, pursuant to s 195 of the Crimes Act (Charge 7). This offence carries a maximum penalty of 2 years’ imprisonment.
(ii)An offence of possessing an imitation firearm without an exemption or an approval contrary to s 5AB(1) of the Control of Weapons Act 1990 (Charge 8). This offence carries a maximum penalty of 2 years’ imprisonment or 240 penalty units.
(iii)Committing an indictable offence whilst on bail contrary to s 30B of the Bail Act 1977 (Charge 18). This offence carries a maximum penalty of 3 months’ imprisonment or 30 penalty units
[2]7(i) and (ii) relate to Indictment No L10783123. 7(iii) relates to Indictment No. M11523334.
Circumstances of the offending
8 The circumstances of your offending are set out in an agreed Summary of Prosecution Opening dated 13 August 2022.[3]
[3]Exhibit A.
Indictment No. L10783123
9 On 25 March 2020, you booked an apartment in Docklands through Airbnb using your name. The booking was for one adult guest to stay between 25 March to 29 March 2020.
10 At 6:30 pm on 25 March 2020, you attended the reception desk to collect keys to your apartment and provided your Victorian Proof of Age card as proof of identity.
11 Over the next few days, the building security manager observed disruptive behaviour at your apartment with persons coming and going at all hours.
12 On 27 March 2020, close to midnight, the building manager arranged for police to attend and evict you. Police attended the apartment in the early hours of 28 March 2020. They knocked on the door but received no response. Senior Constable (‘SC’) McMahon checked the front door and found it to be unlocked. He entered the apartment and saw three males standing or sitting around a dining table. SC McMahon observed a number of items on the dining table, including a small white rock substance.
13 A shoulder bag which you were wearing at the time was searched and found to contain $2,154 cash, 0.02 grams of methylamphetamine with 88 per cent purity, a set of keys with a single round mini-pistol keyring (Summary charge of possess imitation firearm), and assorted cards in the names of various individuals.
14 Police conducted a search of the apartment and located the following items:
(a)three sets of digital scales;
(b)a plastic and a wooden box containing drug paraphernalia;[4]
(c)six mobile phones;
(d)a counterfeit drivers licence with an image that looked like you, but with the name ‘Jayce Maniarpillai’;
(e)a Bank of Melbourne statement in the name of Bozhang Li (Charge 3 - Handling stolen goods);
(f)a Commonwealth Bank card and letter in the name of Vu Doc (Charge 3 - Handling stolen goods);
[4]This included zip-lock bags and a scale.
15 You were arrested and conveyed to Richmond Police Station. You exercised your right to remain silent.
16 Due to your eviction, the police assisted with removing your property from the apartment. This included removing a black Polaroid boom box Bluetooth speaker located on the dining table. Whilst removing the speaker, the end cap of the speaker fell off and revealed the following items:
(a)one zip-lock bag containing 2.3 grams of methylamphetamine (56 per cent purity);
(b)one zip-lock bag containing 1.8 grams of methylamphetamine (87 per cent purity);
(c)one zip-lock bag containing 27.8 grams of heroin (80 per cent purity);
(d)two zip-lock bags containing a total of 91.6 grams of heroin (75 per cent purity);
(e)one zip-lock bag containing 53.6 grams of heroin (74 per cent purity);
(f)one zip-lock bag containing 123.2 grams of methylamphetamine (75 per cent purity);
(g)one zip-lock bag containing 27.5 grams of methylamphetamine (86 per cent purity);
(h)foil containing 1.7 grams of heroin (76 per cent purity);
(i)one black bag containing 125.8 grams of heroin (72 per cent purity); and
(j)$8,830 Australian bank notes.
17 In total, the following was found within the Bluetooth speaker:
Drug
Pure
Mixed
Diacetylmorphine (heroin)
222.472 grams
300.5 grams
Methylamphetamine
118.904 grams
154.8 grams
18 A commercial quantity of either heroin or methylamphetamine applicable in your case is 50 grams pure or 250 grams mixed (Charges 1 and 2 – Trafficking in a commercial quantity).
19 The total amount of cash found on you and in the Bluetooth speaker was $10,984 Australian dollars (Summary charge of dealing with property suspected of being proceeds of crime).
20 Following your police interview at Richmond Police Station you were remanded in custody. You remained in custody until 12 May 2020 when you were granted bail by the Magistrates’ Court. A condition of your bail included residence at a drug rehabilitative facility.
Indictment No. M11523334
21 The offending subject to Indictment No. M11523334 was committed by you while you were on bail.
22 In December 2020, police seized and analysed a mobile phone belonging to Larkin. The messages on his phone identified that you were his primary drug supplier and used the alias “Tripper” and “Tai”. You were using two primary drug runners to supply Larkin. The messages revealed Larkin making a payment of $1,000 to you.[5]
[5]Some of the messages are set out in paragraph 25 of the Summary of Prosecution Opening.
23 On 21 July 2021, police attended your residence in South Melbourne. You were present during the execution of the warrant. Police observed drug paraphernalia and small quantities of substances throughout the house. They seized a branded watch and a mobile phone that were in your possession.
24 Police further searched the premises and located the following:
(a)a large bundle containing a crystal substance. This was subsequently analysed and found to be 820.5 grams mixed substance containing MDA and MDMA at a purity of less than 0.7 per cent (Charge 3 - Traffick drug of dependence).
(b)two zip seal plastic bags which upon analysis were found to contain a total of 2.5 grams of heroin (Charge 4 - Possess drug of dependence).
(c)a series of zip seal bags containing a crystalline substance and several vials inside a ‘Nintendo DS’ Box in a bedroom wardrobe. The vials were later analysed and found to contain 13 grams testosterone and 6.1 grams nandrolone (Charge 5 - Possess drug of dependence).
(d)a sealed blister packet labelled ‘Valium’ on the bedroom coffee table which contained less than 2 grams diazepam (Charge 6 - Possess drug of dependence).
(e)a plastic bottle containing a liquid which was subsequently analysed and found to contain 29.1 grams 1,4 Butanediol (Charge 7 - Possess drug of dependence).
(f)a total of $9,370 cash distributed throughout the house (Charge 8 – Knowingly deal with proceeds of crime).
25 You were taken to the Box Hill Police Station. In your police interview, you exercised your right to silence. You were remanded in custody where you have remained.
26 Your mobile phone revealed a series of text messages where you offered to sell drugs using the alias “Tai Tripperz” with your photograph. The following text exchange took place between you and Larkin:
(a)on 7 December 2020, you offered to sell 168 grams of methylamphetamine to Larkin. During this conversation you both discussed the quality of different types of methylamphetamine and you arranged delivery of 168 grams to Larkin;
(b)on 9 December 2020, you offered to supply 28 grams to Larkin;
(c)on 10 December 2020, you and Larkin discussed the supply of methylamphetamine in the context of a supplier changeover. You offered to supply 112 grams to Larkin for a total of $18,000;
(d)on 11 December 2020, you discussed the supply of 84 grams of methylamphetamine to Larkin which he confirmed he received;
(e)on 12 December 2020, you offered to provide 28 grams to Larkin;
(f)on 16 December 2020, you and Larkin discussed cash flow issues relating to selling drugs and you agreed to supply 250 grams of methylamphetamine to Larkin.
27 The total amount of methylamphetamine trafficked to Larkin was 670 grams. There were further messages between you and others consistent with further trafficking in methylamphetamine. During the execution of the search warrant, police located 12 capsules with white powder, containing methylamphetamine. Charge 1 relates to a continuing trafficking operation between December 2020 and the execution of the search warrant. (Charge 1 – Trafficking drug of dependence in a commercial quantity)
28 On 12 June 2021, you sent text messages to a contact agreeing to supply one ounce of cocaine. After discussing the extent to which it would be mixed with another substance, you agreed to a price of $5,000 (Charge 2 – Trafficking drug of dependence).
29 On 21 July 2021, police executed a further search warrant at your sister and her husband’s address. Police found $128,950 inside a safe in the staircase (Charge 9 - Knowingly deal with proceeds of crime). Police also located 22 gold bullion bars and gold jewellery inside the safe (Charge 10 - Knowingly deal with proceeds of crime). The safe and its contents belonged to you. While not in the prosecution opening, it is agreed that the value of the gold bars and jewellery subject to Charge 10 was $122,230.[6]
[6]Email sent by prosecution at 9.52am on 23 May 2023 confirming agreed valuation.
Personal circumstances
30 I turn to your personal circumstances. They are set out in the Amended Outline of Defence Submissions for Plea dated 13 February 2023.[7] They are also set out in two psychological reports tendered on your plea:
· Psychological report prepared by Mr Jeffrey Cummins dated 30 March 2022.[8]
· Psychological report prepared by Mr Tim Watson-Munro dated 9 December 2022.[9]
[7]Exhibit 4.
[8]Exhibit 2.
[9]Exhibit 5.
31 Your parents were born in China where they got married and later migrated to Cambodia. They escaped the Khmer Rouge regime to a refugee camp in Thailand where you were born. You arrived in Australia with your parents and two older sisters around 1983[10] and settled in Melbourne. Whilst you have a limited memory due to your young age, you have some traumatic memories of people in the camp being subjected to violence and dying due to violence, malnutrition and diseases.
[10]Mr Watson-Munro’s psychological report (exhibit 5) states the family moved to Australia in 1985. Mr Cummins in his psychological report, (exhibit 2) and Ms Pia Rios in her reference (exhibit 3) states the family moved in 1983.
32 Your father worked for BHP as a machine operator and your mother as a packer in a factory. They are now retired. Your father is in his 80’s and has been diagnosed with bone cancer.
33 You described your father as a strict disciplinarian who would beat you with planks of wood and whip you with a cane during your childhood and teenage years.
34 You attended three different schools in Melbourne and completed Year 11. Whilst you were a good student, in order to fit in with your peers, you began abusing heroin at the age of 15. By the age of 17, regrettably, heroin had become an integral part of your daily life. At the height of your addiction in the 2000s, you were injecting five grams of heroin each day. You began using methamphetamine intravenously at the age of 23 in 2003. On average you were injecting two to three grams of methamphetamine daily. In addition to heroin and methamphetamine, you have also used cocaine on some occasions.
35 At the age of 17, your parents sent you to Thailand in an attempt to disassociate you from your peers and detoxify. Upon your return to Australia around 2000, you relapsed into drug use.
36 You have attempted to engage in employment, including hairdressing and running a computer business. You started a computer business in 2001 which was quite successful. However, your daily abuse of heroin and methamphetamine led you to spend the profits to fund your addiction leaving no income to pay for the business expenses. This led to the business shutting down in 2004.
37 After a period of homelessness, you met your partner and got married in 2010. Your continuing drug addiction and offending led to the marriage ending in 2018.
38 In 2019, you completed a Diploma in Hairdressing and commenced your own hairdressing business which you operated from your apartment in Melbourne. However, due to the impact of COVID-19, you were unable to maintain this business.
Criminal history
39 You are now 43 years of age. You have a lengthy criminal history spanning two decades between 23 October 1997 and 15 May 2018.
40 Your criminal history reveals a total disregard of drug laws. You have been regularly convicted and sentenced in respect of possessing and using drugs, including heroin, cocaine and amphetamine. You also have five prior convictions for trafficking heroin, methylamphetamine and amphetamine. You have one prior matter for cultivating cannabis.
41 Your prior history also includes a number of offences of dealing with property suspected to be proceeds of crime and failing to answer bail. You have committed a number of dishonesty offences, including handling stolen goods.
42 On 1 August 2005, this Court sentenced you to 2 years’ imprisonment with a non-parole period of 225 days for offences of trafficking heroin, two offences of possessing a drug of dependence, prohibited person possessing a firearm, two offences of possessing a prohibited weapon without exemption or approval, possessing ammunition without licence, and dealing with property suspected to be proceeds of crime.
43 On 23 April 2007, you were convicted and sentenced to 3 months’ imprisonment to be served by way of an Intensive Correction Order, in respect of an offence of trafficking methylamphetamine and possess heroin. You breached the order and were directed to serve the unexpired portion of 42 days.
44 On 4 December 2008, you were sentenced to a term of 2 years and 4 months’ imprisonment with a non-parole period of 11 months for offences including trafficking heroin, trafficking amphetamine, possessing and using heroin, possessing ecstasy, two offences of dealing with property suspected to be proceeds of crime, failing to answer bail, dishonestly receiving stolen goods, being a prohibited person possessing a firearm, and assault in company.
45 Your last prior appearance on 15 May 2018 resulted in a sentence of 18 months’ imprisonment for two offences of theft of a motor vehicle, three offences of committing an indictable offence whilst on bail, failing to answer bail, and resisting a police officer. On the same occasion, you also received a financial penalty for possessing a variety of drugs, including three offences of possessing heroin, an offence of possessing amphetamine, methylamphetamine, and 1,4-butanediol.
Objective gravity
46 I am sentencing you for three separate offences of trafficking in a commercial quantity. The maximum penalty makes it plain how seriously this offending is regarded by Parliament. I regard each of these three offences as serious.
47 While the weight of drugs involved in trafficking is a very significant matter, it is one of many factors to be taken into account.[11]
[11]See e.g. Vincent v The Queen [2021] VSCA 99 at [45].
48 In respect of Indictment No. L10783123, Charge 1 involved you being in possession of 222.47 grams of heroin for the purpose of trafficking. This is over four times the pure threshold for a commercial quantity. Charge 2 involved you being in possession of 118.90 grams of methylamphetamine, which is over two times the pure threshold for a commercial quantity. The trafficking, namely an intention to sell, was limited to a single day.
49 The offending subject to Indictment No. M11523334 was committed by you while subject to bail. The fact that you were charged and on bail for two serious offences of trafficking in a commercial quantity did not deter you one bit. You were granted bail on 12 May 2020 to give you an opportunity to treat your drug addiction at a residential rehabilitation facility. You continued to traffick in a commercial quantity of methylamphetamine. This offending wasn’t limited to one day, but occurred over a period of some seven months. You were a resident at a drug rehabilitation facility for a number of these seven months. It involved you utilising drug runners on your behalf. You trafficked 670 grams of methylamphetamine, a quantity well over two times the mixed quantity.
50 Whilst I accept that you have had a significant addiction to heroin and methylamphetamine, as quite properly conceded by your counsel, the trafficking was committed by you not only to feed your addiction, but also for financial gain.
51 I regard your moral culpability as high. Other than principle five, no reliance was placed on any of the other Verdins[12] principles. As outlined, you have a relevant prior history involving trafficking in drugs of dependence including heroin and methylamphetamine. Whilst your offending occurred in the context of a significant drug addiction, there was nevertheless a commercial element in making money. I accept your offending is to be distinguished from someone who doesn’t use drugs and is motivated purely by profit.
[12]R v Verdins (2007) 16 VR 269 (‘Verdins’)
52 Any sentence must give prominence to general deterrence. An unequivocal message must be sent to those who may be minded to traffick in drugs, that they face the prospect of long prison sentences. Trafficking in methylamphetamine is prevalent requiring a greater emphasis on general deterrence.[13]
[13]Haddara v The Queen (2016) 260 A Crim R 306, 324 [69].
53 Your relevant prior history demonstrating a disdain for drug laws requires the sentencing process to also deter you from re-offending.
54 The court must also give effect to the denunciation of the conduct you engaged in. The community must be protected from the deleterious effect of drug trafficking. Addiction to heroin, methylamphetamine and other drugs causes untold misery to those who abuse them and the broader community. Your own history makes that plain. Your addiction has impacted negatively on many facets of your life. It has impacted your education, your ability to maintain employment, your relationships with your loved ones, including a marriage resulting in divorce. It has impacted your mental health, left you homeless for a period of time, and has resulted in you spending many years in prison.
55 While the focus of the plea hearing was on the commercial trafficking offending, that does not mean the remaining charges are not serious. In particular, I regard the possession of the significant cash (Charge 9) and the gold bars and jewellery in the safe (Charge 10) as serious examples of an offence of knowingly dealing with proceeds of crime. It was conceded on your behalf that the cash and the gold were the proceeds of drug dealing. You had attempted to distance yourself from the property by keeping them in a safe at your sister’s house. This offending was also committed on bail and you have a relevant history of dealing with property suspected to be proceeds of crime. I do not take into account any past dealing demonstrated by the proceeds of crime charges when sentencing you in respect of the trafficking charges. However, it is plain that significant profits can be made from this pernicious trade.
Serious Drug Offender
56 There is no dispute that I am required to sentence you as a serious drug offender in respect of Charge 2 on Indictment No. L10783123, and Charge 1 on Indictment No. M11523334.
57 Pursuant to s 6D of the Sentencing Act, I must regard the protection of the community as the principle purpose for which the sentence on those charges is to be imposed. It has not been suggested, and neither is it necessary, to impose a disproportionate sentence.
58 I must not undermine the legislative policy in s 6E of the Sentencing Act directing cumulation in respect of those offences for which you are to be sentenced as a serious drug offender. However, the totality principle remains important.[14]
[14]Gordon v The Queen [2013] VSCA 343 at [74].
59 In addition, in respect of the offending on Indictment M11523334, the presumption of concurrency doesn’t apply as it was committed on bail.[15]
[15]Section 16(1A)(e) Sentencing Act 1991.
Rehabilitation
60 I am unable to express optimism over your rehabilitative prospects. Your extensive criminal history and continued offending in circumstances where you were granted bail to give you an opportunity to seek treatment at a residential rehabilitation facility, do not bode well.
61 I note that you told Mr Cummins:
Well I realised I just have to stop getting back into the drugs. I’m now motivated to start a family. I’ve never felt this way before. I’m now over jail. I’ve never felt this way before either.
62 I have had regard to your sister’s reference. You are extremely fortunate to have her unwavering support. You have maintained contact with her through phone calls and have expressed your desire to her to steer clear of any future drug use.
63 Your sentiments to Mr Cummins and your sister are of course welcomed, but as you know, there is a long road ahead and your words need to be re-enforced by positive actions by you. You will no doubt remain clean of illicit substances while you serve your sentence. If you are granted parole, you will have access to support and treatment to maintain abstinence in the community. Ultimately, your rehabilitation is tied with your ability to remain free of all illicit substances.
Matters in mitigation
64 Your pleas of guilty entitle you to a sentencing discount. The pleas in respect of Indictment No. L10783123 were entered on 19 January 2022 in this Court. The case had proceeded to a contested committal. In respect of Indictment No. M11523334, your pleas of guilty were indicated at an early stage on 9 May 2022, at a committal mention hearing in the Magistrates’ Court. By pleading guilty, you have facilitated the course of justice and have taken responsibility for your actions. You have also saved the community the time and cost of a trial. The utilitarian benefit of your pleas is heightened in the current environment when this Court is facing a considerable backlog of trials.[16]
[16]Worboyes v The Queen (2021) 96 MVR 344.
65 I am willing to accept that your pleas of guilty indicate a degree of remorse. However, any remorse is limited. Despite being granted bail and an opportunity to address your addiction in a residential rehabilitation facility, you continued to offend and traffick drugs of dependence over a period of months until you were arrested again in July 2021. The offending subject of Indictment No. M11523334, occurred whilst you were undergoing treatment and residing for a number of the offending months in a residential rehabilitation facility.
66 Mr Watson-Munro has diagnosed you with a severe and recurring Depressive Disorder.[17] You are currently prescribed anti-depressant medication and Suboxone.
[17]Mr Cummins opines that you were suffering a Major Depressive Disorder at the time of your arrest and continue to suffer symptoms of a Major Depressive Disorder with features of traumatisation and anxiety.
67 You describe being very emotional, crying while watching television. You are struggling to sleep, managing only two hours of uninterrupted sleep per night. You experience low levels of energy and drive and remain socially isolated. You are feeling agitated and irritable. Mr Watson-Munro notes that your depressive symptoms are escalating as sentencing approaches. In accordance with principle five of Verdins, I accept that the sentence you are serving will weigh more heavily on you than it would on a person in normal health.
68 Your father as noted earlier, is in his 80’s and in poor health. You told Mr Watson-Munro that you have an ongoing and intense fear that your father may die while you are in custody. I accept that the anguish you experience over your absence from your family at a time when your father is unwell will make your time in custody additionally burdensome.
69 I take into account that your time in custody has also been more onerous on account of restrictions due to Covid. You have endured lockdowns, reduced access to courses, and were not allowed any personal visits.
Sentencing submissions
70 I was referred by your counsel to five sentencing decisions of this Court. I have read those cases but have found them generally unhelpful as sentencing comparators. One of the cases related to Commonwealth offending.[18] Two of them related to trafficking a large commercial quantity.[19] One involved low level isolated trafficking of butanediol in a quantity somewhat above the commercial threshold.[20] In one of the cases, the offender had no relevant prior history and had demonstrated positive rehabilitation.[21] Your offending includes three offences of trafficking in a commercial quantity. One of those offences was committed whilst you were on bail for the other two trafficking charges. Your offending also engages the serious offender provisions.[22]
[18]DPP v Tran [2020] VCC 1748.
[19]DPP v Campbell [2020] VCC 1920; DPP v Wiggett [2021] VCC 157.
[20]DPP v Alexopoulos & Anor [2021] VCC 1801.
[21]DPP v Vurdu-Tsotras [2020] VCC 1441.
[22]The serious offender provisions were engaged in DPP v Wiggett [2021] VCC 157.
71 The prosecution did not refer me to any comparable decisions. I was not referred to any Court of Appeal decisions by either party.
72 Of course, current sentencing practices are not determinative; they are no more or less important than any of the other sentencing factors which the court is required to consider.[23] Each case ultimately turns on its own particular facts and circumstances.
[23]DPP v Dalgleish (2017) 262 CLR 428.
Sentence
73 Having considered all relevant matters and circumstances, I sentence you as follows.
74 On Indictment No. L10783123:
· On Charge 1 you are convicted and sentenced to 5 years and 6 months’ imprisonment.
· On Charge 2 you are convicted and sentenced to 5 years’ imprisonment.
· On Charge 3 you are convicted and sentenced to 7 days’ imprisonment.
75 On Summary Charge 7, you are convicted and sentenced to 3 months’ imprisonment. On Summary Charge 8, you are convicted and sentenced to 3 months’ imprisonment.
76 The sentence on Charge 1 will be the base sentence. 12 months of the sentence imposed on Charge 2 will be served cumulatively upon the base sentence. The sentence in respect of Charge 3 and the two Summary Charges will run concurrently with the base sentence. This makes a total effective sentence of 6 years and 6 months’ imprisonment on this indictment.
77 On Indictment No. M11523334:
· On Charge 1 you are convicted and sentenced to 5 years and 9 months’ imprisonment.
· On Charge 2 you are convicted and sentenced to 15 months’ imprisonment.
· On Charge 3 you are convicted and sentenced to 10 months’ imprisonment.
· On Charge 4 you are convicted and sentenced to 7 months’ imprisonment.
· On Charge 5 you are convicted and sentenced to 5 months’ imprisonment.
· On Charge 6 you are convicted and sentenced to 4 months’ imprisonment.
· On Charge 7 you are convicted and sentenced to 5 months’ imprisonment.
· On Charge 8 you are convicted and sentenced to 6 months’ imprisonment.
· On Charge 9 you are convicted and sentenced to 15 months’ imprisonment.
· On Charge 10 you are convicted and sentenced to 15 months’ imprisonment.
78 On Summary Charge 18 you are convicted and sentenced to 14 days’ imprisonment.
79 The sentence on Charge 1 will be the base sentence. Three months of the sentence on Charge 2; two months of the sentence on Charge 3; two months of the sentence on Charge 9 and two months of the sentence on Charge 10 will be served cumulatively upon the base sentence and on each other. The remaining sentences will run concurrently with the base sentence. This makes a total effective sentence of 6 years and 6 months’ imprisonment on this indictment.
80 I direct that 2 years of the sentence on Indictment No. M11523334 be served cumulatively upon the sentence of 6 years and 6 months on Indictment No. L10783123. This makes a total effective sentence of 8 years and 6 months’ imprisonment. I set a non-parole period of 5 years and 9 months.
Serious drug offender
81 Pursuant to s 6F of the Sentencing Act, you are sentenced as a serious drug offender in respect of Charge 2 on Indictment No. L10783123 and Charge 1 on Indictment No. M11523334 and I order that this fact be entered into the records of the Court.
Pre-sentence detention
82 Pursuant to s 18 of the Sentencing Act, the period of 724 days of pre-sentence detention is declared as having already been served in respect of this sentence, and I order that such declaration and its details be entered in the Court’s records.
Section 6AAA declaration
83 Pursuant to s 6AAA of the Sentencing Act, I indicate that had you pleaded not guilty and been convicted, I would have sentenced you to a term of 11 years’ imprisonment with a non-parole period of 8 years.
Other orders
84 I grant the forfeiture and disposal orders sought.
0
13
0