Director of Public Prosecutions v Tirris
[2022] VCC 1575
•16 September 2022
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
KOORI COURT DIVISION
CR-22-00507
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| VIRGIL TIRRIS |
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JUDGE: | HIS HONOUR JUDGE JOHNS |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 19 July 2022; 5 August 2022 |
DATE OF SENTENCE: | 16 September 2022 |
CASE MAY BE CITED AS: | DPP v Tirris |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1575 |
REASONS FOR SENTENCE
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Subject: Criminal Law Sentence
Catchwords: Koori Court Jurisdiction – Commercial trafficking – Trafficking multiple substances – Cultivation – Possess proceeds – Aboriginal Community Justice Report – Bugmy factors – Verdins – Aboriginal disadvantage and inter-generational trauma – s 5(2H) Sentencing Act – Substantial and Compelling Reasons that are exceptional and rare found.
Legislation Cited: Aborigines Protection Act 1909 (NSW); Charter of Human Rights and Responsibilities Act 2006 (Vic); Child Welfare Act 1939 (NSW) Sentencing Act 1991 (Vic).
Cases Cited: Bowen v The Queen [2021] VSCA 355; Buckley v The Queen [2022] VSCA 138 Bugmy v The Queen (2013) 249 CLR 571; DPP v Drake [2019] VSCA 293; Fariah v The Queen [2021] VSCA 213; Farmer v The Queen [2020] VSCA 140; R v Fernando (1992) 76 Crim R 58; R v Fuller-Cust (2002) 6 VR 496; R v Gladue [1999] 1 SCR 688; DPP v Herrmann [2012] VSCA 160; Honeysett v The Queen (2018) 56 VR 375; R v Morgan (2010) 24 VR 230; Neal v R (1982) 149 CLR 305; Peers v The Queen [2021] VSCA 264; R v Verdins (2007) 16 VR 269.
Sentence: Three-year Community Corrections Order.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms R. Fleming | Office of Public Prosecutions |
For the Accused | Ms A. Wong | Victorian Aboriginal Legal Service |
HIS HONOUR:
1Virgil Tirris, you have pleaded guilty to one charge of Trafficking in a Drug of Dependence – Commercial Quantity, one charge of Trafficking in a Drug of Dependence, one charge of Cultivation of a Narcotic Plant and one charge of Negligently Dealing with Proceeds of Crime.
2The maximum penalty for Trafficking in a Drug of Dependence – Commercial Quantity is 25 years’ imprisonment; for Trafficking in a Drug of Dependence – 15 years’ imprisonment; for Cultivation of Narcotic Plant – 15 years’ imprisonment; and for Negligently Dealing with Proceeds of Crime – 5 years’ imprisonment.
3You have admitted relevant prior convictions.
4The circumstances of your offending are clearly and succinctly set out in the Summary of Prosecution Opening and form part of these reasons for sentence.
Circumstances of Offending
5The circumstances of your offending are as follows.
6At approximately 7.00 am on 26 October 2021, police executed a search warrant at 119 Nicholson Street, Coburg. You were present at the residence, along with your partner, son, sister and housemate.
7During the search, police observed a strong smell of cannabis at the rear of the residence and located a sophisticated hydroponic cannabis setup in the rear shed. The rear shed area was separated into four rooms, with the door to the fourth room locked. Police requested a key to this room and were initially advised that there was no key, however, you later provided one to police.
8Within the rear shed, police located cannabis being cultivated in pots with a lighting system in three of the rooms.
9In room 1, 24 cannabis plants were located weighing 7.14 kilograms.
10In room 2, 10 cannabis plants were located weighing 10.30 kilograms.
11In room 3, 32 cannabis plants and one leafy stem were located weighing 21.6 grams, as well as an assortment of dried cannabis, most of which had been packaged.
12In room 4, police located:
a)Numerous packages containing cannabis on top of a bench;
b)Four bags containing cannabis in the first drawer of a bench;
c)An Esky on the floor which contained cannabis;
d)15 bags containing cannabis on the top shelf of a cupboard;
e)Three bags containing a white rock substance located inside a book safe with the cover, ‘Les Misérables’, found in the top cabinet; and
f)A handwritten note outlining different types and quality of cannabis, for example “Pinapple(sic) Chunks” is listed under the heading “Premo Buds” and “Purple Haze” listed under the heading “Medium Quality”.
13In total, police seized 66 cannabis plants and one leafy stem with a combined weight of 17.46 kilograms. The plants were at various stages of maturity.
14Within the main house and caravan, police seized the following items:
a)A black Samsung mobile phone located on your bedside table;
b)$11,390 in your bedroom chest of drawers;
c)$17,000 in an RMIT bag on a chair in the study;
d)A yellow Quicksilver branded bag in the study containing numerous labelled snap lock bags with various substances including MDMA and ketamine;
e)A bag of empty capsules and various bags, jars and bottles from the desk in the study containing substances including cocaine, psilocybin, MDMA, alprazolam and ketamine;
f)Three bags of cannabis stored in a small fridge in the guest bedroom;
g)Three bags of cannabis stored in the small fridge inside the caravan situated at the front of the residence;
h)Book safes with handwritten sticky notes detailing names, addresses and delivery instructions; and
i)Various handwritten notes in the study which listed drugs and pricings, tick lists and drop off instructions.
Drug Analysis
15On 1 November 2021, the cannabis was examined, and the total amount of dried cannabis seized by police weighed 6.95 kilograms, of which 5.25 kilograms was pure and 1.7 kilograms was mixed.
16On 4 and 8 November 2021, the informant conveyed the remaining seized drug items to the Victoria Police Forensic Services Centre where they were analysed, and the following quantities were determined:
a)MDMA: 864.7 grams (net), 541 grams (pure)
b)Ketamine: 210 grams (net)
c)Cocaine: 183.3 grams (net)
d)Amphetamine: 3.3 grams (net)
e)Psilocybin: 93.3 grams (net)
f)DMT: 67.5 grams (net)
g)Flualprazolam: 14.6 grams (net)
Mobile Phone
17During the search of the Coburg property, you cooperated and provided the informant with the PIN code to your mobile phone upon their request and provided a key to the locked shed.
18The contents of the mobile phone was later downloaded, with analysis revealing a number of conversations involving the sale of drugs of dependence. Throughout these conversations, you regularly sent a message to multiple contacts, titled “HAPPYDAYZ MENU”. This menu included available products, prices, the days of the week that orders could be placed, as well as the different delivery and pick up options.
19The message noted that discounted rates were available for group orders, that cryptocurrency payments would receive a 3% discount and that there was a 48 hour return policy.
20The extent of your trafficking in this manner was revealed due to your cooperation with the police request to access your phone.
Objective Gravity of Offending
21This is a serious example of the offence of trafficking. It is a serious example of the crime of commercial trafficking given the quantity possessed, notwithstanding that the commercial trafficking is confined to a single day.
22The quantity you possessed for sale on that day is in the high range for commercial trafficking.
23Drugs of dependence cause serious harm in our community. You know that. Not just the harm arising directly from drug abuse or addiction – but serious criminal activity, serious assaults, homicides and family violence to name but a few crimes that are often linked to the scourge of drug trafficking.
24Members of the community who engage in the provision and dissemination of these drugs of dependence in such a sophisticated way, and in such quantities – should expect condign punishment. They should expect to be incarcerated in prison for a considerable time.
25You know that – and of course you knew it at the time of your engagement in trafficking in such a sophisticated way, involving multiple substances.
26It is almost always the case that crimes of commercial drug trafficking attract head sentences and non-parole periods of some length.
27This is also conceded by your Counsel in her fine written outline of submissions. Every day you would have lived with the realistic expectation that when apprehended you would be incarcerated.
28Your culpability for the trafficking that is the subject of Charge 2 is relatively high given the circumstances in which you trafficked between the dates alleged. There was a high level of sophistication involving book safes, codes, messaging services and a developed business approach.
29I accept that your trafficking can be described as ‘retail level.’ It is not ‘subsistence trafficking’ and was relatively lucrative based upon the funds located.
30You funded your own considerably expensive use, I accept that you also have a gambling addiction, but you also clearly lived on the proceeds as well.
31General deterrence and denunciation are very important sentencing factors where crimes such as yours are concerned. They are crimes that are difficult to detect and cause great harm.
32In relation to Charge 1, the maximum penalty is a guide as to the serious level of criminality involved. As I have alluded to, for a commission of the crime of commercial trafficking such as yours any other disposition than a significant jail term has always been the exception rather than the norm.
33Your Counsel acknowledged that you were trafficking as a sole proprietor. I accept this description, although little was said as to the circumstances in which you came to be in possession of such a significant commercial quantity of MDMA.
34Clearly you had developed connections within the criminal hierarchy.
35In relation to Charge 2, the trafficking took place over a month and had some sophisticated features - all the hallmarks of a business in fact.
36The cultivation also contained sophisticated features. 66 plants are a significant quantity – the smell was noticeable upon entry – and I suspect would have been obvious to your sister and partner.
37General deterrence, denunciation and protection of the community carry a lot of weight as factors for my consideration. The proper synthesis of these important sentencing factors has always required the imposition of custodial sentences, save for compelling reasons or exceptional circumstances.
38Section 5(2H) of the Sentencing Act 1991 now sets that sentencing practice in stone. You are to be jailed with a head sentence and a non-parole period unless I find that a special reason exists due to substantial and compelling reasons that are exceptional and rare and that justify a departure from a custodial sentence.
Personal Circumstances
39You are a 32-year-old proud Wiradjuri man currently living in Loch Sport, Gippsland, with your partner Izabella and your 11-month-old son, Antonio.
40Your childhood and teenage years and early adulthood were marked by significant traumatic events or periods of trauma and dysfunction.
41Your parents separated when you were 5 or 6-years-old. Your father was a violent, possessive and controlling man. You were exposed to significant levels of family violence growing up, before the separation and in its aftermath.
42Your father was physically abusive toward your mother and emotionally abusive and neglectful toward you and your siblings.
43After your parents’ separation, the family continued to live under the shadow of family violence, as your father refused to accept the break-up of the marriage. He pursued your mother and you and your siblings, engaging in coercive, threatening and intimidating behaviour. Your mother would take the family into hiding – your father would track you all down and terrorise the family unit.
44You were constantly on the move. One example of violence was when you were living with your mother in a refuge and your father threatened to blow the refuge up. You moved to Toowoomba, and then to Pottsville.
45Even once your father had been granted access - he would often fail to show up – adding to your despair and feelings of being unloved or worthless.
46You have seven siblings. You are the second youngest. Your sister Janeene describes all 7 siblings as suffering the effects of trauma and experiencing PTSD.[1] Your sister Janeene describes your family as being completely and utterly affected by the cycle of domestic violence.
[1]Janeene Tirris, Letter of Support dated 5 July 2022.
47From the ages of 12 to 15 (2001-2004) you lived with your mother and younger sister, Sea, around the Coolangatta area. When you were 15, your mother needed treatment for Hepatitis C. Your older sister Janeene came to look after you and your younger sister.
48Your younger sister was experiencing mental health issues and was eventually placed in Janeene’s custody by the Department. This triggered a mental health episode for your mother.
49Your mother experienced a prolonged period of instability and mental health issues. Your mother relinquished care of you to your sister Janeene, against your wishes and over your protests. Her relinquishment was connected to the Department placing your younger sister into Janeene’s care – your mother said she must be ‘unfit to parent.’
50For reasons that aren’t clear – your mother refused to speak to you for several years. She would not acknowledge you on the street, indeed, if your mother saw you approaching she would cross to the other side of the street.
51These events were well documented by your sister and your mother and were also canvassed in the Aboriginal Community Justice Report (ACJR) which was Exhibit 2 on your Plea.[2]
[2]Rachel Benbow and Shannon McLeod, Aboriginal Community Justice Report for Virgil Tirris (“ACJR”).
52Your mother has written a letter that was tendered to the Court. She attended the sentencing conversation and participated by her presence.
53In her letter she refers to the ‘shocking violence and trauma all her children’ were exposed to during the marriage with your father. Your mother states:
I take 100% responsibility for staying in that situation and exposing my 7 kids to shocking behaviours. I was not innocent, far from it. When he wouldn’t leave I should have left and yet more often than not I stayed. My kids have forgiven me but none have forgotten those years of trauma.
To make matters worse I then abandoned 5 of my 7 kids for years and blamed them, I was extremely spiteful and narcissistic. Again my kids have forgiven me but none have forgotten and nor should they. The worst affected was Virgil. You see he was the child who most loved me, the one who wanted to excel in my eyes. The damage I did to Virgil was truly shocking and it shaped his image of who he was and his self-worth. He felt dreadfully unloved and unimportant.
54The period living with your sister, relocating to Melbourne, entering adulthood and negative influences, marked the commencement of a spiral into depression, anxiety and drug use for you.
55In isolation – the inexplicable abandonment of you by your mother must have had a significant impact upon you. It would have been deeply confusing and traumatising. But it also compounded your vulnerability arising from an already traumatic and anxiety riddled childhood.
56You attended around 14 schools throughout your childhood. You have stated that you constantly had to re-invent yourself. Your mother’s sexuality and your own Aboriginality were sources of torment at the hands of other students.
57At the age of 14 you were diagnosed with chronic fatigue syndrome (CFS). This is a condition often connected with childhood trauma and PTSD, as well as depression and anxiety. Your sister has also written that your mother and 4 siblings have been diagnosed with chronic fatigue syndrome and fibromyalgia.
58I accept the opinion of Dr Oldmeadow in this regard.
59Dr Oldmeadow writes:
The fatigue experienced by Virgil extended back to school years and has also been carefully assessed by sleep specialist, Dr David Cunnington, to whom I had referred him in 2020. Overnight sleep study analysis showed sleep intrusions and disturbance associated with active PTSD symptoms including frequent night-mares…
Virgil’s fatigue is multifactorial in origin with most significance being attached to his constantly interrupted sleep and nightmares, long term depression and anxiety and a probable contribution from CFS.[3]
[3]Dr Michael Oldmeadow, Letter of 21 June 2022, page 2.
60The trauma associated with the disengagement of your mother would be significant enough on its own from a sentencing perspective. It does not sit alone however, but rests in between the significant family violence trauma you were exposed to in early childhood and the subsequent trauma you experienced in relation to sexual violence.
61I won’t go into detail in these reasons as to the extraordinary circumstances and occasions during which you were sexually assaulted.
62I accept that these events took place and that they have had a severe impact upon you. That severe impact is cumulative upon other traumas, psychological infirmities and personal difficulties to which I have already referred.
63I will refer to the first incident herein simply as ‘the Bali incident,’ which occurred when you were 17. You did not tell anyone about this incident until you were 27 but you experienced regular flashbacks and you have reported that your life spiralled out of control thereafter. I accept your self-assessment in this regard.
64This incident is referred to in the report of Gina Cidoni at paragraph [43], at page 12 of the ACJR, and in the detailed Defence Outline of submissions at paragraph [10].
65When you were 21 you were the victim of another sexual assault whilst you were ‘passed out’ on the drug GHB.[4]
[4]Gino Cidoni, Psychological Report of 26 June 2022, at [44]; ACJR at 13; Defence Submissions at [12].
66At 24 or 25 a similar incident occurred.[5] Ms Cidoni reports that you also told her of an incident in which you were the victim of sexual violence whilst in Ireland.
[5]ACJR at 13.
67These incidents are relevant to the extent of the trauma you have experienced in your life and its relationship with your psychological functioning and your vulnerability to substance abuse.
68The incidents and their impact upon you are also relevant to an assessment of your safety in custody, and the hardship of a custodial sentence.
69In particular, the trauma arising from the sexual violence perpetrated against you, and its effects upon you, are relevant to the context of your offending. It is related to your drug use which commenced in earnest when you were 17, escalating from cannabis to methamphetamine and GHB in your early twenties. I accept that the escalation of drug use had a connection to the Bali assault and subsequent matters to which I have alluded.
70You had attempted to rehabilitate from drug abuse in the past – including 4-months at Yitjawaduk Men’s Recovery Program[6] near Shepparton in 2012. I was told that you remained abstinent for 12-months thereafter.
[6]An Aboriginal led rehabilitative program.
71Your attempts to address the underlying trauma associated with your drug use, through counselling with CASA, unfortunately precipitated a relapse and breakdown.
Context of Offending
72You commenced a relationship with Izabella – your partner, and mother of your son – in April 2020. You moved into the Coburg property the subject of the search underpinning the charges before me in October 2020.
73Izabella had urged you to seek counselling to address the underlying trauma issues related to your PTSD, sleep disturbance, depression and anxiety. You and Izabella were planning to start a family and she could see that you needed professional assistance. You were experiencing severe PTSD symptoms including flashbacks and nightmares.
74You attended an appointment with CASA Heidelberg West in November 2020. The counselling sessions caused significant turmoil. The ACJR sums up at p.14:
Unregulated emotional responses to revisiting traumas are not uncommon, especially in early stages of trauma therapy.
75I accept this and it is also the experience of Courts that revisiting trauma can have such an effect.
76Once Izabella became pregnant you felt under more pressure. You were studying, trying to keep the household running, helping Izabella secure a visa, and covertly using substances in increasing quantities to manage the stress and anxiety. You had insufficient funds to meet your methylamphetamine use which quickly spiralled out of control. You tried to abstain, with some success, but after a couple of weeks you would relapse again. After your first CASA appointment you made 5 or 6 further appointments – but on each occasion you cancelled on the day of the appointment as you could not go through with it.
77You were also using cocaine, MDMA, ketamine, cannabis and flualprazolam. I accept the opinion of Ms Cidoni that your drug use was employed as a coping mechanism.
78Your use led to trafficking. I have already made reference to the sophisticated nature of your trafficking, its extent, and the large quantity of MDMA you possessed for sale. I will not address those matters again, it suffices to say that whilst I accept the connection between your trauma history, impaired mental functioning and your vulnerability to drug use, and whilst I accept the connection between your drug use as a coping mechanism and the resort to trafficking, I don’t accept that the breadth, extent and sophistication of your commercial trafficking in MDMA and your trafficking in other substances, and substantial cultivation of cannabis, has a causal connection in this way. I do accept however that your judgement was skewed by your anxious state, MDD, GAD, PTSD and your escalating and expensive drug use. Thus, there is an explanatory nexus.
Post-Offence Response
79I am satisfied that from the moment you were arrested, until the present, you have sought to turn your life around, and you have done so. You and your family are deeply affected by the prospect of losing you to incarceration, and your young son losing his father for a period of time in this way.
80The extent of your response to being apprehended, and your rehabilitation to date, is quite exceptional.
81After your arrest, you spent one day on remand then you were bailed to live with your sister Janeene in Hepburn Springs. You were bailed on strict conditions, including a curfew.
82Whilst on bail, you have engaged with the following services:
· Ngwala Willumbong for AoD counselling;
· CASA in Daylesford; and
· A 3-day On-Country intensive program with Gathering Men in November 2021.
83In January 2022, you moved to Loch Sport with Izabella and Antonio. Whilst in Loch Sport you have engaged with:
· Tanderra (part of the Gippsland and East Gippsland Aboriginal Co-Operative) for AoD counselling. You attend weekly.
· CASA in Bairnsdale. You have attended weekly appointments since May 2022.
· Dardi Munwurro men’s group. You attend the Bairnsdale group each Tuesday and the Morwell group each Thursday.
84It is noteworthy that you have found support predominantly amongst Aboriginal run services. You are deeply connected to your Aboriginality, your ancestry and your culture. It has also been clear to me through your sisters’ participation in the Sentencing Conversation that your family is deeply connected to culture. You have been brought up that way.
85As I have touched upon – your family feels very keenly the transgenerational trauma that flows through the Wiradjuri people, and they lament very much the prospect that you may be incarcerated, and that your son, your siblings, your nieces and nephews, will experience further impact in the wake of such trauma.
86You grew up going to community camps on Stradbroke Island, Fraser Island and Emu Gulley, as well as eating bush tucker, listening to stories, making art, and bonding with other Indigenous children.
87Your progress on bail demonstrates your commitment to rehabilitation but also the value of culturally appropriate supports in addressing the criminogenic and health factors in your case.
88During the Sentencing Conversation, I heard from Daniel Bolger from Dardi Munwurro, who spoke very highly of you and your commitment to change, your engagement and your sincere remorse.
89We also heard from Bill Walsh who writes that you ‘do your utmost to stay connected to country.’[7] Brett Ellenport, Gathering Men, writes that you sought out and attended the On-Country 3-day intensive program, that you ‘engaged openly and honestly’[8] and that you showed ‘extraordinary eagerness to confront his own demons’.[9]
[7]Mr Bill Walsh, Letter of Support dated 12 July 2022.
[8]Mr Brett Ellenport, Letter of Support dated 27 June 2022.
[9]Ibid.
90You also sought on-going one on one mentoring through Brett Ellenport.
91It is stated in the ACJR that, ‘It will be crucial that Virgil remains connected to programs that can support him to heal through a cultural lens.’[10]
[10]Page 20.
92It is also important to keep in mind the observations of Respected Person, Michelle Winters, during the Sentencing Conversation; that culture is not a cure for everything, and that you need professional assistance to address your underlying mental health and trauma related issues, as well as drug rehabilitation.
Connection to Culture
93I accept that your reengagement with community and culture whilst on bail has been a source of comfort and strength for you. As well as attending Aboriginal services for drug counselling, and your participation at Dardi Munwurro men’s group, you have been advised by Elders including Aunty Betty, Uncle Alan Coe and Uncle Cliff Wandin.
94Uncle Alan Coe attended your Koori Court hearing and participated in the Sentencing Conversation in a powerful and meaningful way.
95The ACJR emphasises a need in your case for programs that can support you through a cultural lens: ‘a holistic concept of health that appreciates the trauma and dispossession of colonisation as well as the self-determination of Aboriginal people.’[11]
[11]Page 20.
96The ACJR notes the obligation you feel to pass on culture to your son.
97You also worry about not being available to provide Antonio with cultural guidance as he grows.
98You have been actively trying to pass on Aboriginal culture to your son Antonio. You want your son to have the same connection to community and culture that you experienced growing up – at those times it was available to you. You take him to NAIDOC events and the Indigenous Community Clinic. You also play the didgeridoo to him.
Psychological report
99You were assessed by psychologist Gina Cidoni and in her opinion you have the following clinical diagnoses:
· Post-Traumatic Stress Disorder (PTSD)
· Major Depressive Disorder (MDD)
· Generalised Anxiety Disorder (GAD)
· Stimulant Use Disorder (in remission)
100At [65] –[66], Ms Cidoni writes:
Exposure to severe trauma in his teenage years has led to heightened physiological and psychological stress reactivity, and Major Depressive Disorder (MDD) and this has undermined his capacity to respond functionally to stressors. Generalised Anxiety Disorder is a chronic anxiety condition with links to trauma. It usually involves psychological and physical symptoms including restlessness, a sense of dread, feeling constantly on edge, and overwhelmed, difficulty concentrating, irrational thinking, decreased cognitive performance, and hyperarousal. Tiredness, headaches, excessive sweating, palpitations, and insomnia are physical symptoms.
MDD is incapacitating and can impair attention, memory, information processing and decision-making skills. It lowers cognitive flexibility (the ability to adapt your goals and strategies to changing situations) and executive functioning.
Both MDD and GAD tend to promote a crippling focus upon negative life events and make concentration difficult, where distress tolerance is low and maladaptive thoughts. It was clear that drug use was employed as a coping mechanism.
101As I have stated, I accept these findings and their explanatory connection to the offending before me. Ms Cidoni’s opinion is consistent with the findings of Dr Oldmeadow, to which I have referred previously.
102Ms Cidoni also offered opinion of the effect of your conditions upon your custodial experience, at [72]:
His mental illness can cause undue distress and problems in a prison setting, and this would be more onerous for him than for an individual without his conditions. This experience may escalate self-harm ideation and may promote other maladaptive behaviours that will impact his long-term trajectory.
Participation in Sentencing Conversation
103You and your family participated fully in the Sentencing Conversation. I was able to observe your responses, not only verbal but physical and emotional. You cried at various points. It would not have been an easy process not only being challenged by your Elders, but also hearing your sisters’ emotive and heartfelt contributions.
104The Sentencing Conversation provides a perfect vantage point for the Court to assess your responses to the challenges from the Elders and Respected Persons and others. It provides a vantage point to assess your insight and remorse, and to assess whether these expressions and responses are genuine and how deeply held they are.[12]
[12]Honeysett v The Queen (2018) 56 VR 375 at [54] (“Honeysett”).
105Genuine participation in the Sentencing Conversation has mitigatory effect.[13]
[13]See R v Morgan (2010) 24 VR 230; Honeysett..
106Section 4G of the County Court Act1958 (Vic) provides that this Court can inform itself in any way it sees fit – including reports such as the ACJR – and oral statements or submissions from those participating in the conversation.
107I have included my assessment of the information contained in the ACJR in my overall assessment of what I take from the Sentencing Conversation.
108The Sentencing Conversation in your case was led by Aunty Faye Stewart Muir and Respected Person Michelle Winters.
109Participants included yourself, Uncle Alan Coe, Daniel Bolger and your sisters Janeene and Chrissy. Your mother was present throughout and was clearly emotionally engaged. Other family members and supports were also present.
110I am satisfied as to the following, based upon the matters aired during the Sentencing Conversation and the available materials:
·You have suffered significant trauma in your childhood, teenage years and beyond. Your family has also been deeply traumatised.
·Your family is an Aboriginal family descended from and belonging to the Wiradjuri people. Your family strongly identifies with that heritage and always has. You were brought up in that tradition.
·The impact of trans-generational trauma is a matter for consideration in your case. This is so notwithstanding that your father – the direct source of significant trauma in your life – is not Aboriginal. Historic disadvantage and inter-generational trauma are relevant to your mother’s circumstances and the family dynamics.
·Historic trauma, disadvantage, and discrimination experienced by Wiradjuri people – including the breaking up of families involving the forced removal of children, over-representation in custody, high rates of mental illness and drug and alcohol abuse amongst these populations, are facts which heighten the anxiety you and your family are experiencing at the prospect of you being incarcerated. This is an experience that is unique to First Nations peoples.
·The impact upon your infant son and your relationship with him if you are incarcerated is also uniquely augmented by this history and your strong connection to culture, and the exercise of your cultural right to self-determination.[14]
·Your rehabilitation is best met by having culturally appropriate programs available to you.
·You have re-connected very strongly with your culture whilst on bail.
·You have strong support from all of your family, including your mother.
·Your wife and son are strong motivating factors for you to continue your rehabilitation.
·Your presentation during the sentencing conversation was consistent with reports of you being a quiet, sensitive individual as a youth, and someone who was vulnerable, with low self-esteem. The impact of various traumas upon you was apparent, as it was with some of your family. Your presentation was consistent with the history provided in the ACJR and in Ms Cidoni’s report, and with her opinion.
·You are deeply remorseful for your crimes.
·You have appropriate insight and are genuine in your plans to rehabilitate and address the underlying causes of your drug use.
You have worked hard to rehabilitate thus far.
[14]United Nations Declaration on the Rights of Indigenous Peoples, GA Res 61/295, UN Doc A/RES/61/295 (2 October 2007, adopted 13 September 2007) Arts. 1-6; Charter of Human Rights and Responsibilities Act 2006 (Vic), s 19.
Aboriginal Community Justice Report
111An Aboriginal Community Justice Report was filed with the Court and the parties in this matter. It was Exhibit 2 on your Plea.
112One of the report’s authors was present at your hearing. The report involved many hours of consultation and communication with you and your family. It also involved many hours of research and compilation.
113It is an independent report in the sense that neither party have had access to it, or control of it, prior to it being filed with the Court. It is not an expert report in the sense that it does not contain expert opinion – rather it provides a more in depth and supported means of providing the Court with information about you and the factors that have shaped you.
114The Aboriginal Community Justice Report project is funded by the Australian Research Council and auspiced by the Victorian Aboriginal Legal Service. It is an initiative of The Australasian Institute of Judicial Administration (AIJA), Victorian Aboriginal Legal Service (VALS), the University of Technology Sydney (UTS), and Griffith University. It is an objective of the Victorian Aboriginal Justice Agreement (Phase 4).
115The intention in launching the project is to ‘establish a new model of information provision for the courts, including Koori Court Elders, in order to help tackle the crisis of Aboriginal and/or Torres Strait Islander over-incarceration, and promote individualised, non-discriminatory justice through shedding light on the background and community-cultural circumstances of the individuals.’[15]
[15]Aboriginal Community Justice Reports Pilot Project: Briefing Document for the inaugural meeting of the Project Steering Committee 18 February 2020, p. 2.
Background
116In 2017, the ALRC recommended that State and Territory governments, in partnership with Aboriginal and Torres Strait Islander organisations, ‘develop and implement schemes that would facilitate the preparation of “Indigenous Experience Reports”.’[16]
[16]Pathways to Justice–Inquiry into the Incarceration Rate of Aboriginal and Torres Strait Islander Peoples (ALRC Report 133), Recommendation 6-2.
117In 2018, the Victorian Government and the Aboriginal Justice Caucus committed to piloting Aboriginal Community Justice Reports over the 5-year period of Aboriginal Justice Agreement 4.
118The reports, modelled on Canada’s Gladue reports, include a holistic account of individual circumstances, including as they relate to a person’s community, culture and strengths, as well as making recommendations regarding community-based options.
Canadian Gladue Reports
119In 1996, the Canadian Government amended sentencing laws to require judges to look at all reasonable options available other than jail when sentencing all individuals, but particularly when sentencing First Nations, Inuit and Métis persons.
120In the case of R v Gladue,[17] the court considered that this amendment was intended as a remedy to the overrepresentation of First Nations, Inuit and Métis peoples in Canadian jails – and what flowed from it was the need to find a new way of determining a suitable sentence for First Nations, Inuit and Métis persons by considering the circumstances that brought them before the court.
[17]R v Gladue [1999] 1 SCR 688, (“Gladue”).
121Gladue Reports became an important tool in providing the judiciary with information about the background and circumstances of a First Nations, Inuit or Métis person in order for the judge to properly consider the circumstances of the individual before them for the purposes of crafting a suitable sentence.
122The Canadian Gladue Reports paint a picture of a First Nations, Inuit or Métis person for the judge. They contain information about the background of the individual and the circumstances that brought them before the court, including the effect colonisation has had on them, their family and community. Gladue reports help judges assess the individual’s need for alternative measures in the community and ability to be successful via these measures.
123In this jurisdiction, common law cases such as DPP v Fernando,[18] Bugmy v The Queen (“Bugmy”)[19], DPP v Drake,[20] and DPP v Herrmann,[21] amongst others, have provided a basis for considering disadvantage in an individual’s childhood and adolescence - and in particular early exposure to alcohol, substance abuse, family violence and other trauma - as factors that have shaped the person’s behaviour and responses, and provide insight and explanation for their circumstances and offending. Moral responsibility for criminal offending is assessed in light of these factors.
[18]DPP v Fernando (1992) 76 Crim R 58
[19]Bugmy v The Queen (“Bugmy”) (2013) 249 CLR 571
[20]DPP v Drake [2019] VSCA 293
[21]DPP v Herrmann [2021] VSCA 160
124In any case where an individual’s background of disadvantage or exposure to trauma is relied upon in mitigation, it is necessary to point to material establishing that background.
125ACJRs provide a wider lens that brings perspective on the collective experiences of the individual, family and community. They provide a relevant history of colonisation and its impacts, as well as an outline of contemporary interventions, circumstances, policies and laws and their impacts on Aboriginal communities.
126Exhibit 2 provides me with an evidentiary basis to consider all of the relevant circumstances that have shaped you and your responses through life.
127Exhibit 2 provides a much more detailed and in-depth level of information about your circumstances, your family and community, than is usually provided to a Court. The report also provides a greater opportunity for you and your loved ones to tell your story yourselves - rather than having it told by others.
128In that way it is consistent with, and enhances, the Sentencing Conversation. It is also consistent with recommendations from the Royal Commission Into Aboriginal Deaths In Custody[22] relating to Aboriginal participation and accessibility in the Court process.
[22]Royal Commission into Aboriginal Deaths in Custody (Final Report, April 1991)
129Historical trauma, and the way it has impacted Wiradjuri people, such as you and your family, is also a matter that is covered in Exhibit 2 and I take it into account in your case.
130I have had regard to all of the matters raised in Exhibit 2. I will mention only some of the matters that I have had regard to and accept.
Exhibit 2
131I accept the fact that inherited traumas endure amongst the Wiradjuri descendants today due to the history – not just the early history – but the continuing history which spans early contact, dispossession, massacres, frontier wars and the legacy of trauma stemming from the tragedy of the Stolen Generations; which was a daily tragedy for those affected, and their families, decade after decade.
132I won’t reproduce herein the detail of the Wiradjuri history and experience after the arrival or invasion, of Europeans, that is set out with academic rigour in the report. I will touch on some reference points, very much in brief, in an effort to illustrate the continuing process and impacts of colonisation:
·1813 dispossession commences.
·1823-24 Bathurst Wars and associated massacres.
·1847 Aboriginal Reserves established.
·By late 19th century, railways and towns were established. Wiradjuri congregated on the outskirts of society.
·In the early 20th century, subjugation and control of Wiradjuri people’s lives continued through the Aborigines Protection Act.[23] Policies were introduced aimed at ‘gradually eliminating’ the number of Aboriginal people living on reserves.[24]
·Through the statutory instruments, the NSW administrations controlled Aboriginal people through dispersal and child removal policies, resulting in individual, community and cultural harm as a result of the Stolen Generations.[25]
·The Child Welfare Act1939[26] expanded the official capacity to remove children. Throughout the first part of the 20th century, assimilationist schemes were enthusiastically pursued by Australian governments.[27]
·A 1948 report by well-known anthropologist A.P. Elkin notes that police spent one third of their time dealing with Aboriginal people at Condoblin and that neither of the two reserves in the area were suitable for children.[28]
·It was not until 1956 that Aboriginal people were permitted to live in town. Thirty years prior, the Condoblin council petitioned the Board of Aborigines to remove all Wiradjuri people from the area.[29]
·Cultural assimilation continued to be a force through the 1950s, 1960s and beyond as many Wiradjuri strived to maintain identity. The harmful legacy of dispersal, child removal and institutional traumas have left many survivors deeply psychologically affected. Rates of drug and alcohol abuse, mental illness, and incarceration are high amongst this cohort.
[23]Aborigines Protection Act 1909 (NSW)
[24]Aborigines Protection Board NSW, Annual Report 1920-21 (1921) 5; Exhibit 2 p.8.
[25]ACJR p. 8
[26]Child Welfare Act 1939 (NSW)
[27]ACJR p.8.
[28]A.P. Elkin, General Correspondence, Report, Box 8/2851 31 May 1948.
[29]ACJR p.9.
133I accept that the effects of the intergenerational harms of these historic impacts and policies are still felt deeply in Aboriginal communities today. You are connected to these reference points through the experiences of your family and forbears.
134The stories behind each of these reference points that I have touched upon fills many volumes. It is beyond the scope of these sentencing remarks to do justice to the continuing trauma that has flowed through your community and family over generations.
135I accept that inter-generational trauma is relevant to your circumstances and the criminality before me. It is a factor for consideration in your case in the sense set out below in relation to the application of the Bugmy principle. In your particular case, it is a factor that is difficult to give particular standalone weight to. Rather, it is a matter that I take into account, along with other trauma related factors, in a general way. I accept that structural and systemic racism, and the continuing impacts of colonisation, have shaped your family’s experience and circumstances, but it is a matter that cannot be quantified, and it is to be drawn into the intuitive synthesis together with other related matters.
136I commend the ACJR report writers for their rigorous academic approach to the preparation of the report. It is a very thorough report, that has provided me with a deeper understanding of matters personal to you than is often available through the Plea process. I have referred elsewhere in these Reasons for Sentence to discrete aspects of the ACJR that deal with relevant matters personal to you. I will not reproduce those here.
137I accept the following proposition stated in the Report:
Responding to the harsh impacts of colonisation, the Wiradjuri survive and maintain an enduring connection to country, kin and culture, despite harsh losses faced. Similarly, Virgil’s story is one of survival where he endeavours, as many Aboriginal people do today, to rebuild those connections through a greater understanding of himself and the community.[30]
[30]ACJR p.10.
138The ACJR also provides useful information upon which I rely as to the relevance of your Aboriginality to your rehabilitation. It has been demonstrated thus far in your case. You have reconnected to your culture and you are passing that culture on to your son. I witnessed during the Sentencing Conversation the trauma experienced by you, your siblings and your mother. The trauma of incarceration for Aboriginal males such as yourself, with a young son, is compounded by transgenerational trauma and the experiences of forcible removal of children, dispersal and overrepresentation in custody.
139I also accept that your participation in the ACJR process is to your credit and something I take into account in a similar way to your participation in the Koori Court sentencing conversation.
Bugmy factors and inter-generational trauma
140The Prosecution accept that the Bugmy principle is enlivened in your case due to childhood trauma. The link between childhood trauma and later substance abuse is well established. In your case there has been a confluence of trauma settings and events that have had a cumulative effect upon you. These effects and impacts are also entwined and enhanced by related factors - drug addiction, PTSD, chronic fatigue syndrome, gambling addiction, depression and anxiety.
141The effect of the whole is greater than the sum of its parts. The composite parts cannot be compartmentalised and quantified as to their mitigatory effect. If I can use a culinary analogy, the individual ingredients in a dish lose their identity but combine to create something else. All of the matters to which I have referred; trauma; PTSD; MDD; GAD; drug vulnerability and use, inter-generational trauma, loss of connection to culture, and other factors, created the psychological pressure and circumstances that were unique to you in the lead up to the offending.
142The relationship between your traumatic and dysfunctional upbringing, other trauma experienced in your life, your post-traumatic stress disorder, your drug abuse and your offending in the present case, are centrally relevant to a proper assessment of your subjective culpability for the offending in this case.
143The trauma and related factors to which I have referred herein attract significant mitigation in this case. The context of your Aboriginality, connection to culture and the impacts of inter-generational trauma must also be factored into my assessment of Bugmy mitigation.
144In Bugmy,[31] the High Court described the manner in which factors of disadvantage are relevant to an assessment of an offender's moral culpability in the following terms:
The circumstance that an offender has been raised in a community surrounded by alcohol abuse and violence may mitigate the sentence because his or her moral culpability is likely to be less than the culpability of an offender whose formative years have not been marred in that way…
The experience of growing up in an environment surrounded by alcohol abuse and violence may leave its mark on a person throughout life. Among other things a background of that kind may compromise the person's capacity to mature and to learn from experience. It is a feature of the person's make-up and remains relevant to the determination of the appropriate sentence, notwithstanding the person has a long history of offending…
Because the effects of profound childhood deprivation do not diminish with the passage of time and repeated offending, it is right to speak of giving ‘full weight’ to an offender's deprived background in every sentencing decision.
[31]Bugmy v R [2013] HCA 37 [40], [43] – [44].
145There are more recent, more refined, statements[32] of this concept, for example Kaye J’s remarks in DPP v Heyfron [2019] VSCA 130 at [56] to [59], of which part thereof reads :
The respondent’s values, and his responses, were necessarily shaped by the trauma and dysfunction to which he had been subjected in the course of his formative years. While those matters do not, of course, excuse the respondent’s offending, they were, properly, taken into account by the sentencing judge in the assessment of the respondent’s moral culpability.
[32]See for example DPP v Cody Herrmann [2021] VSCA 160 at [42]-[46].
146Your values, responses and vulnerabilities in life have been shaped by your experiences – all of them – and they are not experiences the like of which the vast majority of society have to contend with. They are also experiences that sit within the context of your Aboriginality, your connection to culture and the historical disadvantage and inter-generational trauma already referred to.
147In a 2020 sentence of mine, DPP v Poole (a pseudonym) [2020] VCC 340 at [83]-[104] I analysed the relationship between immediate circumstances and the wider inter-generational context in greater detail than I propose to do here.
148It is important to keep in mind, at all times, the concept of individualized justice. You are not to be sentenced differently due to the fact that you belong to a particular ethnic group.
149As Brennan J stated in dissent in Neal v R;
The same sentencing principles are to be applied, of course, in every case, irrespective of the identity of a particular offender or his membership of an ethnic or other group. But in imposing sentences courts are bound to take into account in accordance with those principles all material facts, including those facts which exist only by reason of the offender's membership of an ethnic or other group. So much is essential to the even administration of criminal justice[33].
[33]Neal v R (1982) 149 CLR 305 at [13]
150In DPP v Fuller-Cust Eames JA stated;
[78] Sentencing principles are the same for all Victorians. Race is not a basis for discrimination in the sentencing process. Nothing I say in these reasons should be taken as suggesting that Aboriginal offenders should be sentenced more leniently than non-Aboriginal persons on account of their race. The offences committed by the applicant and admitted by him are extremely serious - as I shall discuss. That is not to say, however, that considerations and factors of race may not be taken into account on sentencing where they are relevant….
[79] To ignore matters personal to the applicant, and his history, in which his Aboriginality was a factor, and to ignore his perception of the impact on his life of his Aboriginality, would be to sentence him as someone other than himself. Not only would that offend principles of individual sentencing which apply to all offenders but in this case it would fail to identify the reasons for his offending and, in turn the issues which have to be addressed if rehabilitation efforts are to successfully be adopted so as to ensure that he does not reoffend and, in turn, to ensure the long-term safety of the public.…
[80] To have regard to the facts of the applicant’s Aboriginality would not mean that any factor would necessarily emerge by virtue of his race which was relevant to sentencing, but it would mean that a proper concentration would be given to his antecedents which would render it more likely that any relevant factor for sentencing which did arise from his Aboriginality would be identified, and not be overlooked. Exactly the same approach should be adopted when considering the individual situation of any offender, so that any issue relevant to that offender’s situation which might arise by virtue of the offender’s race or history would not be overlooked by a simplistic assumption that equal treatment of offenders means the differences in their individual circumstances related to their race should be ignored.[34]
[34]R v Fuller-Cust (2002) 6 VR 496.
151Some care needs to be taken in not allowing an understanding of Aboriginal disadvantage generally and its relationship to the past, and to the present high rates of incarceration of Aboriginal people to distort the concept of individualised justice.
152Insofar as individualised justice in sentencing requires an assessment of the personal circumstances of the offender, an appreciation of those circumstances necessarily embraces an understanding of the socio-economic context, cultural context, and in the case of an Aboriginal offender such as yourself, to whom the full effect of Bugmy principle applies, the historical context also.
153In any case in which it is sought to rely on an offender's background of deprivation in mitigation of sentence, it is necessary to point to material tending to establish that background. Where inter-generational trauma is raised – its relevance to the individual’s circumstances must also be established.
154In your case I am satisfied that through the vehicle of the Sentencing Conversation in combination with the detailed ACJR, there is a basis to take into account inter-generational trauma as a contributing factor in my assessment of Bugmy mitigation.
155Your life’s experiences sit within the narrative of inter-generational trauma. Profound trauma and disadvantage is not unique to Aboriginal and Torres Strait Islander communities of course. There are many histories of trauma and inter-generational trauma that come before the Courts. There is, however, a unique quality to the experience of First Nations peoples in this jurisdiction due to the historic, systemic and official factors referred to in the ACJR and elsewhere.
Verdins
156The Prosecution accept that your experience in custody would be harsher than it would for someone without PTSD, Major Depressive Disorder and Generalised Anxiety Disorder.
157They also accept that it would be open for me to be satisfied that your mental health has some bearing on the type of sentence that should be imposed (R v Verdins (“Verdins”) limb 2).[35]
[35]R v Verdins (2007) 16 VR 269.
158Ms Wong in her written submissions on your behalf submitted that principles 2 and 5 of Verdins are enlivened. With respect to principle 2, Ms Wong submitted that cultural supports to address your mental health and drug issues should be considered as part of any sentence. She referred to Ms Cidoni’s recommendations:
·The current therapeutic interventions addressing his substance abuse will negate future risk. However he is vulnerable to relapsing where continued treatment and support are essential.
·From a psychological perspective, he requires therapeutic interventions addressing PTSD, MDD and GAD. These symptoms and his poor coping are related to his drug use and if treated future risk will reduce.
159I accept the connection between your mental state and hardship in custody. I also accept that there are therapeutic interventions available – culturally appropriate ones – that you are now accessing, that you need in order to not only rehabilitate, but to be well and free from the debilitating symptoms you have experienced in the past.
160Principle 2 of Verdins has application based upon the materials before me and the matters that arose during the Sentencing Conversation. By that I mean, it is a matter to consider and weigh along with other sentencing considerations.
161As to hardship in custody I consider than in addition to the impairments set out by Ms Cidoni at [72] and their effect, the hardship of any custodial sentence for you is increased due to the following factors:
·Your history of being a repeated victim of sexual violence and the fear you have of sexual attack if incarcerated.[36]
·The separation from your partner and son and how this will weigh upon you.
·In particular the weight you will feel being unable to connect with your son and provide cultural experience. As I have noted this factor is compounded by the history of separation, dispersal and disconnection from culture that is well documented.
·The shame I accept you feel, particularly if you were to become another statistic of overrepresentation, at being unable to be a role model and support for your family and extended family.
[36]ACJR p.15.
Early Plea
162You have pleaded guilty at the earliest opportunity. You are entitled to a significant discount due to the utilitarian value of your plea. I also accept that your plea is reflective of your remorse and contrition.
Prospects of Rehabilitation
163You have good prospects of rehabilitation – if you continue to apply yourself to the services and supports available to you. You have shown an aptitude for study, and hard work.[37]
[37]ACJR p. 16-17; Nick Andrew, Employer Letter of Support, undated: ‘with the relationship I had formed with Virg, and the qualities I witnessed... I offered him a job in the Daylesford area as a builders labourer, which he took on’; ‘he showed great enthusiasm and desire to do what was required and to do it well’.
Other Sentencing Considerations – The Operation of section 5(2H)
164Charge 1, trafficking in a commercial quantity of drugs, is a category 2 offence which engages the mandatory sentencing provisions under s 5(2H).[38] The provisions compel this Court to impose a custodial sentence and fix a minimum term of imprisonment. They also prohibit this Court from imposing a non-custodial order, even as a feature of a combination sentence.
Exceptions to mandatory sentencing
[38]Sentencing Act 1991 (Vic) (“The Act”)
165The mandatory sentencing provisions include a number of exceptions. Relevantly in this case, defence submit that s5(2H)(e) is engaged, in that ‘there are substantial and compelling circumstances that are exceptional and rare and that justify not [imposing a term of imprisonment].’ The exception contained in s 5(2H)(e) came into its current form in 2018, when the words ‘exceptional and rare’ were added.
166 When making the ‘evaluative judgment’[39] as to whether such circumstances exist, I must regard general deterrence and denunciation of your conduct as having greater importance than the other purposes set out in section 5(1); and must give less weight to your personal circumstances than to other matters such as the nature and gravity of the offence; and must not have regard to—previous good character (other than an absence of previous convictions or findings of guilt); or an early guilty plea; or prospects of rehabilitation.
[39]There is no “…burden on an offender to prove on the balance of probabilities the existence of substantial and compelling circumstances that are exceptional and rare”, see [24] in Fariah.
167I am also required to have regard to Parliament’s intention as expressed in s 5(2I)(a) of the Act – that a custodial order should ordinarily be imposed for a category 2 offence.
168The combined legislative effect of the various provisions has been clearly articulated by the Court of Appeal. The Court observed that in adding the words ‘exceptional’ and ‘rare’, ‘…Parliament intended to make the test “almost impossible to satisfy”’.[40] The Court has also stated that in ‘…nearly every case to which the mandatory sentencing provisions apply, the offender should go to gaol.’[41]
[40]Buckleyv The Queen [2022] VSCA 138 (“Buckley”) at [44], rephrasing DPP v Bowen [2021] VCSCA 355 (“Bowen”) at [11].
[41]Buckley [3].
169Maxwell P, Kaye and Niall JJA in Farmer v The Queen (“Farmer”) found that ‘[o]n any view, it is a very high hurdle that will not often be surmounted’.[42] The hurdle presented by s 5(2H)(e) has been described as a ‘…residual category of limited scope’.[43] Despite this, it is not a test that is insurmountable or impossible to satisfy, by its very definition, and I don’t take the judicial statements that it is a test that is ‘almost impossible to satisfy’ as qualifying the words of the Statute.
[42]Farmer v The Queen (“Farmer”) [2020] VSCA 140 [51].
[43]Farmer [51].
170In Buckley in particular, the Court of Appeal were expressing the view that mandatory minimum sentences are wrong in principle, and used expressive language to emphasise that point. The test remains the test. The language used to describe the draconian nature of the test and the finding that such a test occasions injustice, should not distract from the operation of the section.
171If substantial and compelling reasons that are exceptional and rare exist, that justify the making of a non-custodial order, then the test is met. Obviously only few cases will meet the test.
172I am not ‘effectively compelled’ to imprison, I am compelled to do so - unless the test is met.
173The range of circumstances that are exceptional and rare might vary considerably in the degree of rarity and exceptionality that exist.
174If I were a book collector interested in first editions of Aldous Huxley’s Brave New World, I could expect to pay somewhere between $3000 US dollars and $15,000 for a first edition with an intact dust jacket. The variation in price would be due to the variation in condition of these copies. If I wanted one signed by the author it might cost $25,000 US Dollars.[44] The prices indicate that they are all rare and exceptional, however they can vary as to their rarity within that class.
[44]These prices and descriptions are taken from on-line sellers of rare and collectible books -ABE Books, Alibris and Amazon.
175There are also dozens of available copies on-line that fall into this category – but of course that doesn’t detract from their rarity when compared to the millions of copies, paperback and otherwise, residing on bookshelves, in school libraries, community libraries, bookstores and opportunity shops world-wide.
176As the description of substantial and compelling, exceptional and rare can embrace a range of variation of degrees to which these adjectives are met, the degree to which general deterrence and denunciation is a significant factor will also vary across different cases.
177I consider that the operation of s5(2H)-(2I) has the effect that the greater the need for general deterrence and denunciation there is in a given case the higher the bar is set to meet the test of substantial and compelling circumstances, exceptional and rare.
178The provision requires me to engage in an evaluative process; one on which minds might legitimately and reasonably come to different conclusions.[45]It is not an algorithmic exercise. It is a judgement call. The exercise involves me weighing the various factors to which I have referred, looking at them in combination, the interplay between them, holding them up to the light – pushing them through the exceptional and rare filter or screen.
Circumstances as a combination of factors
[45]Peers [51].
179In determining whether ‘…substantial and compelling circumstances that are exceptional and rare’ exist, I am required to consider the cumulative effect of a number of features.
180In the case of Farmer,[46] the Court of Appeal considered the circumstances of an offender with low self-esteem, impeded physical and social development, generalised anxiety disorder, depression and agoraphobia – all stemming from the physically disfiguring condition of alopecia. The Court held that while each aspect on which the applicant relied could be categorised as common, the ‘…accumulation of detail was exceptional and compelled the conclusion that the mandatory detention provision should not be applied’[47]. It was the combination of physical and psychological features and their direct connection to the offending that satisfied the test.[48]
[46]Farmer v The Queen [2020] VSCA 140 (“Farmer”).
[47][55].
[48][66].
181In Fariah,[49] the Court of Appeal considered the circumstances of an offender born in the context of the Somalian civil war and charged with armed robbery. Among other things, violence, robbery and theft were a pervasive, normalised and highly prevalent aspect of his life. The Court of Appeal found that the applicant’s ‘appalling childhood experiences, coupled with his youth and other factors relied upon’ were sufficient to engage the exception in s 5(2H)(e). Restating the principles outlined in Farmer, the Court found that ‘[c]ircumstances which individually are relatively common may in combination enliven the exception in s 5(2H)(e)’.[50]
[49]Fariah v The Queen [2021] VSCA 213 (“Fariah”).
[50][25].
182The Court also clarified the use of the word, ‘common’. Priest and Beach JJA specified that ‘…the mere fact that some individual circumstances may commonly be encountered by sentencing judges in the County Court will not by that fact alone deprive them of their character as substantial and compelling and exceptional and rare’.[51]
[51][25].
183Despite alopecia and a childhood defined by civil war being highly uncommon circumstances amongst the general public, the Court was rightly concerned with how ‘rare’ and ‘exceptional’ the circumstances were to the extent that they provide ‘substantial’ and ‘compelling’ reasons not to impose a straight sentence of imprisonment. A focus on the rarity of the circumstances, rather than the consequences of those circumstances and the way in which they are compelling, could not have reasonably been intended by Parliament.
184I have also considered the cases of Bowen and Buckley.[52]
[52]Bowen and Buckley, n. 44.
185The case of Buckley involved an 18-year-old convicted of car-jacking. Unchallenged expert evidence found that the applicant was exceptionally immature and vulnerable in prison. Maxwell P and T Forrest JA found that while the matters relied upon ‘…taken in combination might well constitute “substantial and compelling circumstances” justifying a non-custodial order’[53] they ‘…simply could not be described as “exceptional and rare”’.[54]
[53][43].
[54][43].
186In Bowen, the Court of Appeal considered an offender who had pleaded guilty to trafficking in a commercial quantity of a drug of dependence – 2.55 times the commercial quantity.[55] The trafficking charge was based on possession of unenriched substances with the potential to be made into methylamphetamine, however which required further equipment and action to become useable. The materials were acquired before the offender served a significant period of imprisonment, following which he was doing ‘extremely well’ on parole. The offender was diagnosed as autistic – though ‘low’ on the spectrum, had a disrupted emotional development, a lack of secure attachment and poor interpersonal skills.[56] Maxwell P, Priest, McLeish, T Forrest and Walker JJA found that ‘…there was nothing about BB’s circumstances which would have come close to satisfying the extraordinarily stringent requirements of s 5(2H)(e).’[57]
[55][43].
[56][59].
[57][53].
187These cases serve to remind me of the stringent nature of the test. The words of the test makes that abundantly clear. Substantial and compelling, exceptional and rare. Where those descriptors are present the test can be met.
Submissions
188Your Counsel, Ms Wong, relied upon what she described as a powerful combination of factors as satisfying the test:
·A background of extreme disadvantage.
·In the context of inter-generational trauma.
·Repeated traumatic experiences against that background in circumstances where you were poorly equipped to deal with the impact. These matters have had a profound impact upon your life.
·You suffer Post-Traumatic Stress Disorder including flashbacks and sleep disturbance.
·Trauma and mental health provide an explanation for the offending- in that you turned to drug use as a coping mechanism.
·You have made a dramatic change in your life since your arrest and reconnected with community and culture.
·Imprisonment will be more burdensome for you due to a range of factors.
·You have strong family support.
189Ms Wong submits that when these factors are weighed against the nature and gravity of the offence, notwithstanding the serious aspects of the offence which she acknowledges, the test is nevertheless met. Ms Wong stresses the fact that Charge 1 is a single date offence and the sentencing analysis needs to be proportionate to that fact.
190Ms Fleming on behalf of the Prosecution, in an excellent and well balanced written and oral submission on sentence, submitted that the stringent test is not met and that when General Deterrence and Denunciation are given their prominence in the evaluation, as is required, the combined matters fail to reach the high bar of substantial and compelling circumstances that are exceptional and rare and that justify a departure from a custodial sentence.
Decision
191When I consider all of the features of your case that the legislation permits me to consider I find that I am left with the satisfaction that in your case there are substantial and compelling circumstances that are exceptional and rare that justify a departure from the operation of s 5(2H).
192In arriving at that satisfaction I have applied the conditions in subsections 2(HC) and 2(I).
193I have arrived at my evaluative judgement based upon a combination of factors which I consider to be very significant individually, supported by other factors that are less significant individually.
194The combination of the following factors has prominence in my view. It is arguable that each is substantial and compelling, and rare and exceptional, in isolation, but I am at least satisfied that in combination the test is met overall:
(i) Personal factors including trauma, mental health, drugs, family dynamics and inter-generational trauma having an explanatory nexus with offending:
·Bugmy mitigation, embracing early childhood trauma, in particular family violence and separation from your mother;
·Sexual trauma;
·The relationship these traumas have to CFS, PTSD, MDD and GAD;
·The relationship between all of these features and drug addiction;
·The precipitating causal link between addressing the sexual trauma and drug relapse; and
·The context of inter-generational trauma due to Aboriginal experience.
(ii) Hardship in Custody
· Due to PTSD and other factors referred to by Ms Cidoni;
· Due to separation from wife and son, particularly cultural separation; and
· The relevance of your cultural rights, together with the history of Aboriginal disadvantage and overrepresentation in custody but in particular the ongoing trauma of forced child removal policies, dispersal and loss of connection to culture for Wiradjuri people.
(iii) Connection to Culture and Cultural Rights[58]
· You have engaged with culturally designed Aboriginal run services throughout your life. Culture is important to you and you have accessed these services and exercised your rights whilst on bail.
· The exercise of cultural rights has been important for you since childhood.
· I am satisfied that limb 2 of the Verdins principles has application in your case.
[58]UN Declaration on the Rights of Indigenous Peoples Art 1-6; Section 19 Charter of Human Rights and Responsibilities Act 2006.
195There are other matters of significance that in combination have led to my satisfaction that the test is met. These include:
·Your participation in the Sentencing Conversation;
·Your remorse;
·Your participation in the ACJR; and
·Your response to being charged, in particular your engagement with services and commitment to change your life and deal with your drug issues and underlying trauma, whilst on bail and prior to the Plea.
196It was not argued before me that hardship in custody due the matters opined by Ms Cidoni would give rise to s 5(2H)(c)(ii ) being met. I think it is arguable but I make no finding as the parties have not had the opportunity of litigating the point in Court. I also note that the test is higher than the Verdins principle having application.[59]
[59]Peers v The Queen [2021] VSCA 264, [51] (“Peers”).
197In arriving at my satisfaction as to the test having been met I accept that reasonable minds may differ. That is to be expected. Acknowledging that fact in no way shakes my satisfaction.
Sentence
198As I have already indicated there are other matters in mitigation that I take into account having now decided the s 5(2H) question.
199Namely the plea and prospects of rehabilitation.
200You have relevant prior convictions for possession. These matters do not qualify you as a serious drug offender.
201I am satisfied that those prior convictions have an explanatory nexus with drug use and the trauma factors that I have already canvassed at length.
202I have also considered the principle of totality given the nature of the matters before me.
203I had you assessed for a CCO. You were assessed as suitable. I also received a Mental Health Advice and Response Service report.
204Considering these reports, and considering all of the matters I have referred to herein – including the need for general deterrence and denunciation in your case, I am of the view that all sentencing factors can be met in your case by the imposition of an onerous and punitive CCO of some length, which also has several therapeutic conditions attached to it.
205I intend to impose the CCO as an aggregate sentence across all charges on the indictment considering the underlying unity of those matters and connection between them.
206I sentence you as follows:
207On charges 1-4 on Indictment M12231872 you are convicted and placed on a CCO of 3 years duration.
208In addition to the core conditions, the CCO has the following special conditions:
·You must perform 300 hours of unpaid community work over the duration of the order.
·You will be subject to drug and alcohol assessment and treatment.
·Mental health assessment and treatment.
·Supervision.
·50 hours of treatment conditions can be credited towards work hours.
209Pursuant to s 6AAA were it not for your pleas I would have sentenced you to a total effective sentence of 4 ½ years’ imprisonment with a non-parole period of 3 years.
210I make the orders for forfeiture.
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