Director of Public Prosecutions v Tomazic
[2020] VCC 766
•3 June 2020
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR-19-02429
Indictment No. J12285002
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| Steven TOMAZIC |
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| JUDGE: | HIS HONOUR JUDGE TINNEY |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 29 May 2020 |
| DATE OF SENTENCE: | 3 June 2020 |
| CASE MAY BE CITED AS: | DPP v TOMAZIC |
| MEDIUM NEUTRAL CITATION: | [2020] VCC 766 |
REASONS FOR SENTENCE
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Subject: trafficking in ecstasy, ketamine and cocaine; (between dates simplicter charges over a 12-month period), possession of methylamphetamine and cannabis (also between dates). Summary offences; fail to correctly store ammunition; deal with property suspected of being proceeds of crime. 27 years old now. 24 and 25 at time of offending. No relevant criminal history. Evidence of rehabilitation.
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr A. Sprague | Office of Public Prosecutions |
For the Accused | Mr L. Hartnett (at Plea) Mr J. Dalziel (at Sentence) | Ellinghaus & Lindner |
HIS HONOUR:
1Steven Tomazic, on Friday of last week, you pleaded guilty to trafficking in ecstasy, ketamine and cocaine, as well as possession of methylamphetamine and cannabis. You also pleaded guilty to two summary offences being charges of fail to correctly store ammunition and dealing with property suspected of being the proceeds of crime. Paragraph 4 of the prosecution summary lists the proceeds of crime offence as one of recklessly dealing with the proceeds of crime but that is obviously in error. As the summary and the charge sheet itself make clear, you are charged under section 195, not s 194 ss 3 of the Crimes Act 1958.
2The maximum penalty for the trafficking charges is 15 years' imprisonment. They are plainly the most serious charges before me. The other maximums are correctly set out in the opening.
3You were born on 21 October 1992 and are 27 years of age, but you were 24 and 25 at the time of this offending, so still a young man. You have one previous Children’s Court appearance for some driving matters which have no relevance at all to my task, so I put that matter aside altogether. There is no subsequent offending but there were two driving matters that have been dealt with subsequently. In fact, they both occurred in the currency of these between dates charges. Again, they are of no relevance to my sentencing task.
Mr Hartnett relied upon them as confirming that you had drugs in your system on those two occasions when you were driving back in January and June of 2018 and I accept that submission.
4The matter was opened to me by the prosecutor, Mr Sprague, last Friday.
5He opened in accordance with a written summary dated 18 May 2020 which was marked as Exhibit A on the plea. Mr Hartnett, who appeared for you, told me that it was an agreed summary.
6In those circumstances, I am not going to set out the full details of your offending in my reasons which will be quite long enough as it is. It is a very lengthy summary and I will not stray beyond the agreed facts.
7It is plain that you were not the target of this Victoria Police Clandestine Laboratory Unit operation. A number of men were targeted by that operation known as Operation Hacksaw, and as often happens in such a targeted operation where phone intercepts are in place, the investigation led to other offenders. Jessica Legg came up on the intercepts speaking with one of the targets. Her phone was then itself lawfully intercepted and you came up on that intercept. Amongst other things, the intercepts disclosed that you were trafficking in ecstasy to Legg and others, as well as purchasing ice for your own use. They were mostly coded conversations. You were guarded during many of the calls and told her to contact you on Wickr, which is an encrypted instant messaging application.
8A warrant was executed on the premises where you lived with your family on
8 August 2018 and you had a large range of drugs and paraphernalia. Paragraph 16 sets out what was relevant to the charges. It includes scales, deal bags, a tablet encapsulator unit, over $15,000 cash, some ammunition and of course a large variety of drugs: 304.2 grams mixed weight of ecstasy, 104.4 grams of ketamine, again in mixed weight, and 57.4 grams mixed weight of cocaine. The ecstasy was a combination of powdered/crystalline substance as well as some tablets. There was also some cannabis. That is the subject of Charge 5 and is probably the least of your problems. Charge 4 relates to methylamphetamine and was based on admissions made by you in the interview, as well as the intercepts which disclosed you were buying small amounts of ice from Legg.
9It is accepted by the prosecution that the lesser penalty provision applies to the two drug possession charges and I will act on that concession. Those charges are also between dates charges spanning a year. I will scarcely mention them again.
10The trafficking charges encompass the quantities of the three drugs (that is, ecstasy, ketamine and cocaine) that were seized upon arrest as well as your admissions that you had been trafficking those drugs for about 12 months.
That was supported to some extent by some of the intercept material.
Your interview was something of a mixed bag with a number of occasions where you made no comment, as was your right. Upon the resumption of the interview following a suspension of the taping, you did make more complete and direct admissions to trafficking and for the period which has been selected as the between dates period for all the charges.
11There is a chronology of the procedural listings which I will not set out in any detail in my reasons. The matter was uplifted into the committal stream.
The first committal was not reached in July 2019. At that stage, the Crown said that they would accept a guilty plea on the same terms as ultimately covered by the charges I am now dealing with. You entered a plea at the second committal hearing on 2 December 2019, but prior to any witnesses being called. You were committed to this Court.
12You had, as at the date of the plea, spent no time in custody. I remanded you into custody at the end of the plea, last Friday.
13The various traffickable quantities for the drugs the subject of the trafficking charges are set out in a table at paragraph 17 of the opening. So too are the commercial quantity thresholds that are set out within the Drugs, Poisons and Controlled Substances Act. For each drug, the traffickable quantity was 3 grams. Commercial quantity was in each case 500 grams mixed or 100 grams pure for ecstasy and ketamine, but 250 grams pure for cocaine. The table sets out the multiples of the traffickable quantity represented by the seized drugs. The only drug where purity was ascertained was the ecstasy.
14It is plain from that analysis that the seized quantity of ecstasy alone fell above the commercial quantity threshold by way of pure measure. That of course was only a portion of the ecstasy that you trafficked and it is impossible to accurately quantify the other instances that were not the subject of the seizure. Importantly, though, you do not fall to be sentenced by me for commercial quantity trafficking in relation to any of those three trafficking charges. I am dealing with you for the lesser crime which has a lesser penalty and I must not lose sight of that fact. However it is a quantitative based regime, so the quantity of drug trafficked is always a matter of some importance.
15This was undoubtedly serous offending.
In Mitigation
16Mr Hartnett conducted a thorough plea on your behalf.
17His written submissions on the plea dated 20 May were marked as Exhibit 1. He took me to your background and made submissions as to matters of importance in your personal background, including the incident when you were burned at the age of 12 and the impact of that event on your life. He spoke of your descent into drug use and the reasons for that. He emphasized the complete absence of any relevant past or subsequent offending. He placed before the Court a large range of written materials including two reports from a treating psychologist Mr Chris Cunningham, two reports from Ms Carla Lechner, a report from an orthopaedic surgeon Mr Gard, a report from a psychiatrist
Dr Sharma and a letter from Eastern Health as to some inpatient drug treatment that you had obtained. Further, he relied upon letters from a range of people including your mother, brother, brother’s partner, your aunt and a friend,
Mr Wilson. In addition, a further medical report was received after the plea. That was a report from your general practitioner, Dr Tadi, that I have marked as Exhibit 8.
18I am certainly not going to wade my way through these voluminous materials in my reasons. I have read and reread all of it again since the plea. Indeed, I have re-read it again last night and again this morning. It will be apparent from my reasons that I have taken all this material into account.
19Mr Hartnett made some submissions as to the offending and your motivation. He made submissions as to the sentencing purposes which he said were of importance and those that he said were not of importance.
20He relied mainly upon;
·The guilty plea and stage of that plea;
·The presence of remorse;
·Your co-operation with the police and admissions which you made on interview, which actually founded some aspects of the case against you;
·Your excellent prospects of rehabilitation, as evidenced by the steps you had taken in the delay;
·An increased burden in custody arising from the COVID 19 virus;
·An increased burden based on the 5th limb of the case of Verdins that you heard discussed;
·The mitigatory weight to be given to your drug addiction in the unusual setting of this case;
21Whilst he accepted that this was serious offending, he submitted that you ought not be sent to prison. That such an outcome would be disastrous for you and would disengage you from the efforts you had undertaken to rehabilitate.
He submitted that you had made genuine efforts over a decent period to rehabilitate and that prison may well undo all of that good work. He argued that in all the circumstances, a stand-alone community corrections order was open here, that such an outcome was capable of achieving all the purposes of sentencing and had the advantage of fostering your ongoing rehabilitation in the community and hence, without the negative influences which exist in prisons.
Prosecution
22The prosecutor challenged the availability of such a stand-alone order and submitted on behalf of the Director of Public Prosecutions of this State that a prison term was required in this case. The prosecution submitted that it would, though, fall within my discretion to impose a combination type order. Some detailed sentencing submissions were filed and marked as part of Exhibit A.
I won’t set them all out. Much of the content was uncontroversial and dealt with matters of well-established sentencing principle. They argued that this was mid-range offending and that general deterrence and denunciation assumed real importance here. The quantities were of significance and in relation to the ecstasy, it was sizeable, falling at what they said was the high end of a simplicter charge.
23They were all between dates trafficking charges, and the prosecution argued it was persistent trafficking and there was no question of some low-level role being discharged. It was your business with profit in mind and was not consistent purely with supporting your own drug use. They conceded, though, that the plea was a relatively early one, that you had no relevant history and had taken some meaningful steps to rehabilitate. They did not challenge some allowance based on the Verdins limb 5 argument and argued that drug addiction could provide only scant excuse, at best provide only slight mitigation, if any. Though submitting that there was some basis for optimism in terms of your ongoing rehabilitation as evidenced by the steps that you had taken, they argued that your prospects really would hinge on continued abstinence, and you have had a long term issue with substances. They accepted that the COVID-19 virus and the response to it by the authorities would increase your prison burden. The prosecutor took me to a couple of cases which he argued were broadly comparable.
24Well, they were the submissions of the parties, including as to disposition. Ultimately, though, it is for me to determine what the appropriate sentence is.
I am not bound by submissions made by your counsel or by the prosecutor.
I remanded you into custody last Friday as it was plain that I must imprison you. The issue was for how long and whether it would be open to impose a combination-type order. For reasons which I will explain, I do not believe that such an order is open in the circumstances of this case.
Background
25I will turn to your background, though, before dealing with the matters in mitigation. Your personal history is detailed in the written submissions as well as in some of the written materials placed before me, for instance the report of Ms Lechner. Your mother, brother and aunt also provide some detail. There is no need for me to repeat your background in these reasons, and that is because I have no reason to doubt what I have been told about you. I accept that personal background. You were 24 and 25 years of age at the time of this offending, so still a young man. You are 27 years of age now and live with your mother and grandmother, as you did at the time of the offending. There is nothing in your background that jumps out at me in terms of disadvantage or deprivation. It was not a perfect background but I am not sure that such a thing really exists. Certainly, I do not see too many perfect backgrounds sitting here as a Judge in these courts. Some backgrounds are better than yours, a good many are worse, if not a lot worse. You had a mother and father, and whatever has occurred in the past, I note that both attended Court to provide support to you. Your parents separated when you were very young and it seems from your mother's letter that it was a pretty unpleasant separation, at least in her eyes. But you were only three at the time, and perhaps some of the unpleasantness escaped you or you were at least shielded from it. After your parents separated, you remained with your mother and older brother and were, and still are, very close to them. You were less close to your father as you grew up, it would seem.
26I have letters from your mother and brother, and they are very strong supporters and I infer they always have been. I am not sure if you necessarily know this, but they are joining this hearing by way of the WebEx, both your mother and your brother, and your brother's partner, Natalie, and indeed, your father,
I believe. Your mother’s letter gives me a strong sense of some of the issues which have caused you strife in your life. There were some medical issues when you were far younger that led to some instances of bullying at school. However, by far the biggest event in your developmental years was a nasty accident that you had with petrol when you were 12 or so. Just as you were entering adolescence, you sustained very serious burns indeed. It is plain that this was a very traumatic event with a traumatic aftermath. The argument is that it has to a degree shaped your life. I do not doubt your mother’s view on that score. She knows you better than anyone and speaks of the impact of that event.
27You were in a very bad way. You spent months in hospital and more than
18 months undergoing various physical treatments. Far less concern was paid to your emotional or psychological response than to the physical issues, and your mother blames herself but really, she should not. It was a very different age.
28You had to wear a body suit, you could not engage in sports and other activities and you were teased at school. You had shown promise as a footballer and that was no longer available to you. It really was the worst start to secondary schooling for you, and it got worse. Your grandfather with whom you were very close was diagnosed with cancer sometime soon after your accident. He died some 18 months later after a very lengthy battle. So this was a pretty grim period for a youngster such as you, a young teenager.
29You were schooled to halfway through year 10 and left then to seek employment.
30You did a few different jobs before joining the family excavation business.
You held down a steady job with that company, BJB Excavations, for nine or so years and there is a strong reference from your brother who works alongside you and from your aunt who is involved in the company. You had a back injury in late 2017 and went off work in May 2018. There is the report from the orthopaedic surgeon relating to the disc injury and commenting on your inability to continue on at that stage in what was, after all, a heavy job. Likewise, as I have said, there is a report from your GP Dr Tadi who has been seeing you since May 2018. You went off on WorkCover and told the police that was from May 2018. So you were not working from May to August 2018, and August is the warrant execution date and hence the end date of the trafficking. You were still, though, being paid but at a lesser rate. The fact is, though, the trafficking predates both the injury and going off on WorkCover. So unlike many who traffick, you had a job or at least an income. Until my remand of you, you were back at work and had been for a lengthy time, since October 2018 I believe. You have reflected on the need for a career change as it is very heavy work that you engaged in. You fear that a criminal conviction will limit your choices. That may be so, but obviously I have no choice but to convict you.
31You had been in a long-term relationship which I understand broke down in 2017 or 2018, it is not clear which, and your father, who has had some serious mental health issues, attempted suicide in this same period and you were very much caught up in the fallout from that. So there had been a few negative things occurring in your life, but I am not satisfied on the balance of probabilities that any are directly connected up to your decision to start trafficking in drugs.
32Drugs have been problematic for a large time in your life. You told Ms Lechner that you started using cannabis at the age of 13, shortly after you had been burned. Ice followed at 15. Also ecstasy, cocaine LSD and GHB. You were none too keen on heroin as it made you feel sick. You feel that you used drugs to escape your problems, and those problems started, of course, with the accident that I have described. Well, I am afraid it is all too common for people to use drugs to escape things in their life. You have attended some 14 sessions with Mr Cunningham, who provides two very useful reports to the court. Treatment for you was way overdue and has had some real benefits, though there is still much more to do. You also did a brief portion of inpatient treatment for drug issues earlier this year. I have already mentioned the absence of any relevant criminal history. Nothing before, nothing since. I will treat you as a first offender, and of course, you now call in aid your past good behaviour.
33Regrettably, you still are using drugs but less frequently than in the past.
34A large number of family and friends attended at the plea last week, including your mother, father, grandmother, your brother and his partner and some friends as well. You very evidently have strong family support and the written material makes very plain to me that you are far more than the just person who has committed these serious offences. There is very evidently much more to you than that as the various authors speak of your many qualities, as well as your efforts to buckle down and make some real and meaningful changes in your life since your arrest.
35Since being charged, you have tried to avoid your former peers and associates, many of whom use drugs.
36Of course, this court case has been a source of much stress for you. How could it not be? Both Ms Lechner and Mr Cunningham comment on that.
37It was suggested by your counsel that this trafficking was to fund your own drug use. You told Ms Lechner that you were selling small quantities to support your own addiction. Your counsel placed great store on that account in his written submissions but really had to retreat from that submission in the course of the plea. Mr Hartnett has been around long enough to know that it just cannot be so. You were trafficking at a level well above that. You admit trafficking for around a year. The amounts you possessed for sale on the day of the arrest were sizeable enough. You had over 300 grams mixed weight of ecstasy -
so over 10 ounces, for those who are still dealing in imperial measurements. You had ounces of ketamine and cocaine, worth a large enough amount of money. You told the police that you only used ice and cannabis. You described paying $6,000 an ounce for the cocaine and paying $6,000 for the total quantity of the ketamine. You had scales and deal bags and a tablet maker. You had over $15,000 cash suspected of being the proceeds of crime and Mr Hartnett did not even try to suggest that there was some lawful source for that money. None of this was suggestive of any small-time activity. You may well have been a drug user, it seems very likely that you were, but these crimes were pitched at a level well above trafficking to support your own habit. I am not satisfied on the balance of probabilities of your account provided upon interview with the police or to Ms Lechner or your counsel. I will come back to discuss this aspect later in these reasons.
38However, before doing so, let me comment on just a couple of the matters in Mr Hartnett’s written outline and oral presentation of the case. So much of the written outline and the plea focussed on your prospects of rehabilitation.
Of course, his role as your advocate is to advance your position, and there is material touching upon your rehabilitative efforts, so I am not critical of him for honing in on that material. Nor do I downplay the importance of rehabilitation, especially for a first offender, but it is not the only purpose of sentencing. If it were, sentencing would be far easier than it is. Sentencing someone like you would be far easier. The extent of the weight given to rehabilitation will always to a degree be influenced by the nature and seriousness of the crime or crimes. Sometimes, even a youthful first offender has to be sent to prison - not because there is any joy in doing so, but because the serious nature of their crime dictates such a response. That is because there are other sentencing purposes that must be considered, and not just a singular focus on the rehabilitation of the offender.
39There is scarcely in the written submissions an acknowledgement of the need to give any weight at all to specific deterrence, and plainly, there is such a need. The trafficking related to between-dates serious offending and not committed purely to support your own habit. General deterrence is also of real significance in this sort of case. Though Mr Hartnett’s focus on your rehabilitation was understandable, my job is not to focus purely on your rehabilitation. It is but one of the purposes of sentencing, albeit an important one, and there are many other purposes which must be given weight for the crime of trafficking when committed at this level.
40Secondly, at paragraph 34 of his outline, there was a quite unusual submission made to me about the high cost of gaol and how public money might be better spent on things such as education, job training subsidies for employment, especially apprentices, on mental health and drug and alcohol rehabilitation. My concern as a sentencing judge is not to work out where funds might be spent, or for that matter, better spent. Prisons exist, and they need to, and Judges must sometimes send people to prison. I am not the treasurer or a politician concerned as to budget. Nor a philosopher engaged in some philosophical debate. I am a judge. My task is to impose an appropriate sentence, and if the sentence is one of imprisonment, so be it. It is not part of my job to worry about funding in that exercise. I don’t need to be reminded that it is a disposition of last resort. That is the law. But I am not concerned with budgetary considerations. They are just totally irrelevant to my task. So too the discussion on the plea about the philosophical considerations of general deterrence and whether really it is a useful or valid purpose more generally.
It is. I am told it is, both in the Sentencing Act itself and also in the case law, and it is no part of my role to wish it away or to rethink in such a fundamental area. As a Judge, what I must do is apply the legislation and the law.
41I turn then to some of the other matters that have been raised in mitigation.
Guilty plea
42You have pleaded guilty and in the circumstances, I will treat it as a very early plea. There had been the commercial quantity charge. That was a more serious charge. The matter was booked in for a contested committal, but the committal did not proceed in July 2019 as, regrettably, there was no Magistrate. At that stage in July, you were advised that the prosecution was prepared to withdraw the commercial quantity charge and to accept pleas to the charges which ultimately you have pleaded guilty to. The contested committal, however, was relisted in December 2019. Before any witnesses were called, you pleaded guilty on that day. You have admitted your guilt, and in doing so, you have taken responsibility for your crimes. You have facilitated the course of justice.
The community has been saved the time, cost and effort associated with a committal and a trial. Witnesses have been spared the need to give evidence at each. I take into account your early guilty plea, and it must lead to a reduction of sentence. That is the law. Reference was made to a decision of Justice Dixon in the case of Bourke [2020] VSC 130. With respect, that principle was a novel one and I am far from convinced by it, but ultimately, that is neither here nor there. That Judge made those statements in the setting of a case that settled in the midst of the disrupted operations of the court. In that case, there were a number of significant preliminary matters to be argued prior to empanelment of a jury, and the case settled in mid-March. That is a very different setting to your case. Your case settled last year and happened to be listed for the plea in May of this year. You pleaded guilty in December 2019. The pandemic had no role to play at all in your decision to plead guilty, nor any significance at that stage at all, nor any significance in May 2020 other than the increased prison burden which I will soon deal with. There is, in my view, no sensible basis to increase the utilitarian benefit in this case, which is already sizeable.
Doran discount
43I have not mentioned your level of co-operation with police. You did co-operate with the police and you did make admissions. Not everyone does that - you did. Some of those admissions were damaging. As I said earlier, your interview was a pretty strange affair. You were in a tricky position, of course. The police had executed the warrant and found what they found. You did not really know what they ‘had on you’ and for most of the first portion of the interview, you selectively answered questions, as was your right. You made admissions to ownership of the drugs and some admissions to trafficking in ecstasy, but you 'no commented' in relation to trafficking in ketamine and cocaine. You made no comment as to the bagging up of the ketamine in a number of individual bags. You made no comment as to the scales and the use of Wickr and matters of financial reward. It was your right to do all those things, to answer in that way, but it is a bit hard then to suggest that it was a free flowing and exhaustive confession of your guilt. It really was not. The police at one point told you they had telephone intercepts with Legg, and the interview was suspended. Once back, you were more expansive and that was the point in time where you provided the estimate of duration. I take into account in a general way your cooperation. You also for instance provided passwords to your devices. So there is a decent level of cooperation here that is to be taken into account by me in mitigation of sentence.
44Additionally, though, I do take into account the admissions that you made which were over and above the information available to the police. You counsel went to this area by saying that I had to give full weight to the R v Doran [2005] VSCA 271 (“Doran”) discount. I doubted that submission and raised with him the facts of that case of Doran, and other cases, such as JBM v The Queen [2013] VSCA 69 (“JBM”) and Sharman (a pseudonym) v The Queen [2017] VSCA 241 (“Sharman”). He was not suggesting that you were vaguely in the same setting as Doran, and plainly you were not. You had been arrested. You were being interviewed and were selectively answering questions and 'no commenting’ to many. You did not really know what the police had by way of evidence, and then they started to let on to you what they did have, with the mention of Legg and then the mention of the intercept. The tape was suspended and you then made stronger admissions when it was resumed.
45The police, and hence the prosecution, had ample evidence independent of any admissions to charge you with a number of serious criminal offences, including offences of trafficking. That was as a result of the sheer quantity of the drugs and the various paraphernalia such as bags and the way the drugs were bagged, the scales, the cash, the tablet encapsulator, not to mention the intercept materials. It is true, though, that you then added to that inventory by making some telling admissions to trafficking. You provided some detail as to the duration of your offending, and that has been selected as the between dates period for all five charges on the indictment. Undoubtedly, you did provide some information that the police were unaware of. However, plainly, you did not provide all of the evidence necessary to convict you of the majority of your crimes.
46That case, the case to which I have referred of Doran, suggests that that sort of detailed admissions of matters not known to the police can be demonstrative of sincere or genuine remorse, indicative of good rehabilitation prospects, and lessen the need for specific deterrence. It is always going to depend on the particular circumstances of the particular case. I do not want to be seen to be suggesting that the Doran type discount is only available in the setting of some voluntary attendance upon a police station. Plainly, that is not the position, and that has been made clear in other cases such as JBM and Sharman.
But you are far removed from the factual setting in cases such as Doran and JBM. In Doran, information was voluntarily provided of otherwise unknown crimes by a man who had already been interviewed. He then rang up the investigating member a month or so later to advise him of the other crimes that he in fact had committed. In JBM, police obviously had suspicions and were interviewing the accused about those suspicions, but the offending was known only really from a theoretical perspective given that the three-year-old complainant could never have given a cogent account of the sexual acts that had been committed. The accused was interviewed and provided all of the detail. But for that, there could have been no case against him. Well, your case is obviously very different.
47It is always a matter of degree, but I do accept that your admissions are worthy of a discount over and above the discount given routinely for mere co-operation. I apply the Doran line of authority to my task in that regard. It seems likely to me that without your admissions, the between dates period for all the charges would have been significantly pared down or confined. I suppose it is even possible that a decision may have been taken to charge on the basis of possession for sale on the arrest date with no between-dates period alleged. The same may have been considered in relation to the possession. I note of course, though, that there was some intercept material that supported some aspects of the between-dates period. Though the police had a decent enough case against you, you gave them more than they had and those admissions that you made, they frame the date range on the indictment. It is a bit hard to draw from your providing that information the existence of sincere and complete remorse given the selective answering in the interview, and when your account of trafficking to support your addiction cannot be anything like the full explanation for your conduct. But the police had come knocking very early in the morning. You were probably shocked and in a tricky position, and no doubt you were panicking to a degree. The fact is your preparedness to make the admissions is something I can still take into account in the Doran fashion when I come to assess issues of remorse, prospects of rehabilitation and the need to deter you.
Remorse
48I turn now to the issue of remorse. You have pleaded guilty and have done so at an early stage. That is often indicative of some remorse. You made the admissions I have spoken about and co-operated with the police. There are expressions of remorse in many of the written materials placed before me, including in the most recently filed report from your G.P. So there is mention of remorse or shame in the various reports as well as in many of the letters.
49People speak of what you have said and what they have observed. As against that though, there are some accounts that you have given of this being small scale trafficking to support your own addiction. Well I do not accept that was the position at all. There is still an aspect - and that is all it is, an aspect - of downplaying your crimes.
50You have no relevant prior history, and I do not have any sense that you are revelling in the offending. You have plainly taken some very decent steps already to better your prospects into the future, and I am satisfied you feel some shame for what you have done. I believe you are remorseful and I will take that into account in mitigation.
Increased burden
51I accept that the COVID 19 virus and the response to it by those running the prisons does increase the burden upon a prisoner. It causes anxiety and stress. I am sending you to prison. That is stressful enough for a first timer such as you, and that is before even factoring in any additional stress. I am prepared to accept that the virus and the response to it by those who run the prisons will increase your burden to some extent. It is terribly difficult to know precisely how it would impact upon you into the future. There are some lockdowns and visits have been suspended across the board. There have been some suspensions, also, of courses and programs. I cannot know how long those things will persist, and of course, any wider disruption across the prison would likely be the subject of some consideration for emergency management days. I do know, though, that new prisoners have a period of 14 days' isolation. Beyond that period, there are no prospects in the short term of any in-person visits for any prisoner. That is a very tough setting for one such as you, entering a prison for the first time ever. It is a bit bleak to contemplate. I accept, then, that there is an increased custodial burden in this case, and I take it into account in your favour.
Verdins
52Your counsel raised the case of R v Verdins [2007] VSCA 102 (“Verdins”). He said that only one limb from that case applied, being the 5th limb. I accept the submission made as to the application of the 5th limb of Verdins. I am not going to set out chapter and verse the reports that have placed before me. You have a raft of issues as you embark upon this sentence. You have a major depressive disorder and anxiety, as well as the features of the post-traumatic stress disorder spoken of in the reports. It is true that some of the anxiety is reactive to this Court case. Still, I accept that there is an increased custodial burden in this case by virtue of the conditions you labour under and I give that some weight. Mr Hartnett specifically disavowed any reliance on any of the other principles, including the 6th limb from that case. He conceded that the evidence did not support any finding that there was a serious risk of imprisonment having a significant adverse effect on your mental health, and undoubtedly that concession was correct.
Delay
53No written submission was directed to the aspect of delay, but it was mentioned briefly in passing on Friday. You were charged in 2018, the case was correctly uplifted to the committal stream, and you exercised your rights to take the matter to a contested committal. There was a hiccup in relation to the first committal listing when no Magistrate was available in July last year, then it settled late last year in December, and here we are in June. There has not been any inordinate delay at all in this case. However, I accept that it is no pleasant business trying to live your life whilst having the matter hanging over your head. It cannot have been easy for you, or your family for that matter. You have done your best to better your position. You had returned to work and you have obtained much treatment and counselling. This court case must have been looming as a dark storm cloud over your head for quite some time. It is a stressful business awaiting the day of reckoning, as you have been, and I take that into account. Importantly, in the currency of that delay, whilst still having some issues with drugs, you have stayed out of trouble and you made real efforts with counselling and that all assists me in making judgments as to your prosects of rehabilitation.
Evidence of drug addiction
54Your counsel pointed to the circumstances which led to your becoming addicted to drugs and the connection your drug addiction had to this offending. He argued there was some reduction in your culpability owing to your drug addiction.
55I am obliged to take into account your background - after all, I am sentencing you - and I do in so as far the law permits me to.
56So many people who commit crimes do so either under the influence of drugs or to support some addiction to drugs. It is however a very rare case indeed where drug addiction can operate in a mitigatory fashion.
57Your mother in her recent letter speaks of the dire impact upon you of the accident where you were so badly burnt. Undoubtedly, it was a serious event and had sizeable impact upon you both then and later. Maybe it did have a role, even a sizeable role to play in drug use at such a young age. It is always hard to know. The fact is, though, that you seemingly thrived in some other areas of your life. You left school and went into the work force and seemingly did very well. Drugs remained an issue as they had been from those early days, and the materials placed before me suggest that there was an aspect of your using them to deal with some of the issues which were unresolved from that nasty incident. Drugs had become your norm, and at a very young age. Your counsel then points to your addiction and says that there is a reduction in your culpability as a result of that addiction when you committed these serious crimes.
The trouble is, of course, you were committing serious crimes and your addiction to drugs could only have had a relatively minor role to play, if any, in that decision, in my view. Your addiction does not fully explain the trafficking, not by a long shot
58You were in paid employment or in receipt of WorkCover payments.
59You were selling drugs for profit. Your counsel posed a question: 'Well, would you have committed these crimes had there not been that serious event when you were 12 and all those unresolved issues arising from that event?
60The answer is, we will never know. Ms Legg was one of your peers at school, and she was trafficking in drugs. It is almost impossible to follow the thread of someone’s life and work out why they are where they are or where they would be had there been some change in their life at some point or some different fork in the road taken by that person.
61Lots of people use drugs and they presumably all have some reason for doing so. Enough people traffick in drugs and they virtually all do so for reward. Sometimes it is done in a miserable hand to mouth existence with a bare or minimal covering of the cost of their own addiction. That is not your setting at all. You had employment (or at least a wage when on WorkCover), you had a home to live in, as well as, pretty evidently, a family who loved and supported you. You chose to traffick and you knew how serious your acts were. You were making money, not just supporting your addiction, so there cannot be much if any reduction in your culpability. It is a rare case indeed, as I have said, for addiction to drugs to be greatly if at all mitigatory. It can usually only provide a context. Now these offences, though, were committed by a person who was addicted to drugs. I am prepared to make that finding. As I have said, normally that would be of no mitigatory value at all and would provide really only some explanation or context.
62Here, your drug use commenced at a very young age, and in the setting that has been described to me. I believe you can, in a way, be distinguished from an older and better equipped person who has made what is sometimes described as a free and rational choice to use drugs. The case law suggests that an older person has an understanding as to the predictable consequences of that choice and is therefore making a free and informed choice. I must say, I have often enough wondered about that assumption. Actually I wonder how many adults who start using drugs really can predict how low they may fall.
63The fact is, though, that you were very young when you started to use drugs and you were doing so in a way, I think, to escape or block out the disturbing or distressing events which had occurred in your early life. I believe I can in fact give some limited weight to the McKee Brooks [2003] VSCA 16 submission made on your behalf by Mr Hartnett. It is, though, so limited because your offending is only in a quite modest way connected up to your addiction. There can be, though, some modest reduction in your culpability. But that is all it is - modest.
Rehabilitation
64Let me turn to your rehabilitation. As to your prospects of rehabilitation, well,
I have much material before me. I have your co-operation with the police. I have the extent of your admissions. I have your early guilty plea. I have a wealth of evidence as to the sort of person you have been in the past, as well as your response since being charged. I have your mother and brother’s very powerful letters. I have your efforts over many years at work. I have the other strong references from your aunt, from your brother's partner, and from your friend. I have against that, of course, serious offending over a sizeable period - but in a point in your life where there were undoubtedly some issues. The offending cannot be explained by your back injury or by your addiction. You were offending prior to being injured or going off on WorkCover. But there is that injury,
the breakdown of your relationship, and more generally, the significant issues which have actually been bubbling along throughout your life by way of the untreated PTSD and depression arising from the accident when you were about 12. There was some minimal treatment. There was the detoxification and counselling when you were 17 or 18, but nothing coming close to adequate treatment of those issues. For the first time now, you have engaged in targeted counselling and treatment, and that has shown some real benefits as
Mr Cunningham’s reports make so plain to me. It has been long overdue. There is much work ahead for you, but you have made some very decent efforts already.
65You have still had issues with drugs, but in a way I would actually rather hear someone say that than come along and say what they may think the court wants to hear - that is, that there have been no problems. Your preparedness to admit those issues is actually not a negative, though I am not sure I would go as far as your counsel does and say it is a wonderful indicator. Frankly, I would rather you were not using drugs at all, and with objective evidence over a number of months to support that fact. A long-term addiction to drugs, as in your case, always casts a bit of a shadow over the future prospects of rehabilitation and the task of trying to forecast them.
66You have an excellent employment record in what must be a very hard industry. So plainly, you are no shirker. There are a lot of people who sit down in the dock of this court who have never had a job in their life, or have never done a decent day's work. You fall in a totally different category. You just need to put in more effort in terms of drug rehabilitation and treatment. No doubt your rehabilitative prospects will to a large degree be determined by your ability to abstain from drugs. That has been a massive issue over the last decade. I do not accept the submission that your prospects are as good as one could possibly hope for. I am not downplaying your efforts. You have done well. But we as Judges sitting in these courts - we see some people who present with incredible transformations. It does not happen often, but we see it. We see often enough very significant periods of inpatient treatment and negative urine screens produced to the court that display a sizeable period of complete abstinence. We have people who seek out admission to impatient treatment almost as soon as they leave the police station. You would have been in a stronger position, in your own life, for that matter, and before this court had you undertaken a more significant period of inpatient or outpatient treatment than the few weeks earlier this year. But having said that, some effort is better than none, and you were dealing with many other issues in terms of the other counselling which you were undertaking. You are still using drugs, or were prior to my remand of you. It would be better had you seen your way clear of drug use with several months of clean urine tests. That is not the setting that I am dealing with.
67You have no prior criminal history of any relevance at all, and nothing subsequent either, and as I have said a number of times, you are still a young man. Plainly, you have a very strong family support, but you always have.
There are many protective factors in place, but they did not stop you from committing what were undoubtedly serious offences over a significant period.
68You have had the case over your head for a decent period and you have complied with your bail obligations. You have been charged and brought to court and now, of course, you sit in a prison. That process and the sentence that I now must impose will to a degree serve to deter you. I am prepared to find that you have favourable prospects of rehabilitation. I think they are actually good if not very good, but they will depend on your continued abstinence from drugs and ongoing treatment. With the right attitude and with all the family support that you have, and with continued abstinence from drugs, those prospects will of course rise to be excellent. I believe that with all those things falling into place, you would have a low risk of offending in this way again. But it is not a matter of them just falling into place. You still have much work ahead, but I believe you have it in you to succeed and to overcome what is obviously a very large setback of your own making.
The Offences
69I have already spoken as to the seriousness of the offending earlier in these reasons and the sentencing purposes which must be taken into account. I will not repeat all that I have said. When mentioning offence seriousness, I am of course not referring to the possession of drug charges or the ammunition offence. There is nothing sinister in relation to the ammunition. Sometimes there is in the context of a trafficking charge, but not here. You have previously been a hunter and the ammunition was the remnants of that past hobby.
The possession of drug charges attract the lower penalty provisions in this case, and that is because I am satisfied on the balance of probabilities that the possession is in no way connected to trafficking in those two substances.
So those two offences and the ammunition storage charge really are the least of your problems.
70The trafficking offences, however, are serious, with Charge 1 plainly the most serious of the three. Mr Hartnett accepts that is the position. We are not dealing with some isolated misstep. We are not dealing with anything that is spontaneous here. You were not some silly teenager making some foolish youthful decision, or someone unawake to the consequences of what you were doing. You were a mature man. The trafficking was obviously planned, deliberate and serious offending. It is all laid on a between-dates basis over a year. In that year, you were conducting a form of business. It involved not just the drugs that you were found with, though they are serious enough. They are the known quantities. It is of course impossible to quantify the past sales. You were asked questions in the interview about that, as to how long the drugs you were found with would be with you for, and you said “a couple of weeks until they were sold” (see Question 477).
71However, I am not going to extrapolate from that answer and try to construct some estimate of the other quantities trafficked. That is neither useful nor possible, actually. However, the trafficking in each instance relates to more than was found on the execution of the warrant, and those quantities were large enough in their own right and were possessed for sale.
72There is no suggestion that you are some small cog in a larger network or fall low down in some hierarchy. This was your business. You had spent many thousands of dollars buying the drugs. You had many ecstasy tablets as well as the powder. All up, over 300 grams mixed weight. You had scales and a tablet encapsulator. I am not going to repeat all the quantities of the drugs.
They are set out in the table. The ecstasy was of a quantity actually over the commercial quantity by way of pure weight, though again I make it plain that
I must not sentence you for trafficking in a commercial quantity. But when I reflect on the between-dates nature of the trafficking, it is inescapable that in terms of quantity, the trafficking in the ecstasy is at a high level in terms of a simplicter trafficking charge. That must be so, given the commercial quantity threshold and what you possessed for sale on the day.
73Mr Hartnett submits that there is no evidence of violence or threats, and of course, that is true. He says that you were not the target, and you were not.
It is not mitigatory, though, that you were not the target. You came up on the intercept and what is then apparent is that it had been possible for you to traffick for a sizeable period without coming to police notice. It was a matter of chance that you were caught, and when you were caught, it was apparent that you were a long way removed from being a street level trafficker. You had over $15,000 in cash. You had these various quantities of drugs. Plainly, it was not trafficking to support your own addiction, though I do accept that some of the proceeds would have been directed to fund your own habit. Obviously, the quantities of ketamine and cocaine were less than the ecstasy, but they are also laid as between-dates trafficking charges.
74Those who traffick in drugs always do so with the expectation of some financial or other reward. Financial gain was the driver here. I am satisfied of that beyond reasonable doubt. It is serious conduct to traffick in drugs at any level. Quantity is always of some real importance, as this is a quantitative-based regime,
and sometimes the quantity of a drug is the only point of distinction between various offenders
75Whilst I am not to consider the particular harmful qualities of the drug trafficked, it is well known that drugs have had a disastrous impact upon so many in our community. You of all people must know that. Your own counsel, when submitting that prison was expensive and funds could be better spent on other things, mentioned spending money on drug rehabilitation. The reason there is such a need for drug rehabilitation is because of the availability of drugs in our community. They are available and people for a variety of reasons use them. Well, you were trafficking them, and not at a low level.
76Those who traffick in drugs are always taking a calculated risk, it seems to me. It is a risk that is taken on because of the lure of what seems like easy enough money. You were running a business and you knew of the risks. I am not, by the way, suggesting it was some massive business or that you were 'Mr Big' in the community. Of course you were not. I am after all dealing with you for non-commercial quantity trafficking, but it undoubtedly was a profit making business, and I am satisfied of that beyond reasonable doubt.
77I am also satisfied beyond reasonable doubt that you knew there were risks, and one of those risks was being caught. You were, after all, speaking in code. You were doing that for a reason. You were wanting to deal with Legg on an encrypted application - again, for a reason. There is a level of sophistication and the obvious ability to sail under the radar as you did until, unluckily for you, some other criminals came to be targeted, which led to Legg and then to you. This was serious offending and you knew what was at stake. You took the risk and plainly, you should not have.
Purposes
78I have to consider a number of purposes of sentencing. I must pay regard to your prospects of rehabilitation. You are not out of the woods, but I view those prospects favourably, as I hope I have made plain. You have put in a lot of work and I cannot just ignore that.
79I am required to punish you for your crimes. That is an important purpose of sentencing in this sort of case. I must do that, though, justly and proportionately.
80I must also denounce your conduct. Again, that is an important sentencing purpose in this sort of case.
81I must pay appropriate weight to specific deterrence. That purpose relates to the need to deter you from offending in the future. I cannot accept your counsel’s submission that there is no need to give that purpose any weight at all. That submission is impossible to accept, given the nature of your crimes. This was between-dates serious offending. Still, there can be some moderation of that purpose, and that is owing to my favourable views as to your prospects of rehabilitation. Whilst I cannot ignore this purpose, I would plainly give it much greater weight if, for instance, you had some relevant criminal history or if you had far less favourable prospects of rehabilitation. But that is not the position. I believe, for the same reasons, the weight given to community protection can also to a degree be moderated - but still, it is a relevant consideration. I cannot ignore that purpose, given the extent of the trafficking, the quantities involved and the between-dates nature of the charges.
82General deterrence is a highly relevant purpose of sentencing in this case. As I say, I am not to engage in some philosophical debate about that principle. Drugs have changed our community forever. They have come at a great cost to our community, and those who traffic drugs for profit, as you did, are undoubtedly engaged in a pretty evil trade. This Court must send a clear message to others in the community who may think it is worth considering trafficking in drugs. Drug trafficking is pernicious. It attacks the very fabric of society – Zarghami [2020] VSCA 74.
83The Courts must convey the message loud and clear through the sentences imposed that traffickers, when brought before the court, will be actually dealt with in a serious fashion. It is that message which will hopefully neutralise the lure of what might seem to be easy monetary gain, and the message is that the so called easy money may come with a very significant downside. That downside is the risk of arrest, punishment and imprisonment. Perhaps that message may cause likeminded people to actually rethink their involvement, as you plainly should have.
84Again, though, I think there can be some moderation of this purpose. It is still an important purpose here, but there have been real efforts at rehabilitation and I believe I can give that purpose, rehabilitation, more focus than sometimes would be the position. It should not be forgotten, but often enough is, that someone who is rehabilitated will pose no future risk to the community. General deterrence is still, though, an important purpose in this case.
85You are a work in progress. Ms Lechner and Mr Cunningham have concerns as to the impact of prison upon your ongoing treatment and your rehabilitation. I am anxious, I must say, as to my role in interrupting your ongoing rehabilitation, but the nature of your crimes simply leaves me with no choice. There are many other sentencing purposes that are in play here.
86I must have regard to the maximum penalty in each of the charges.
87I must pay regard to current sentencing practices, though that is not a single controlling factor. I have looked at the relevant Sentencing Advisory Council Sentencing Snapshot, which is No. 218 of 2018, as well as overviews of cases from the new Judicial College of Victoria sentencing manual.
88I have also looked at the two cases that I was referred to by the prosecutor, he cases of Tran [2018] VSCA 107 and Tiong [2016] VSCA 257.
89I have read those cases. They are in some ways comparable, but as is usually the position, they are not on all fours, nor did the prosecutor suggest they were. There are differences in each direction, actually; some in your favour, some not. Differences in personal circumstances, some in your favour, some not. Differences in offence seriousness and matters in mitigation; again, some in your favour and some not. The fact that those offenders received the dispositions they received says nothing at all about what I must do in your case, or for that matter, what another judge may have permissibly done in their cases. There is no such thing as one correct sentence.
90What I am doing is exercising a sentencing discretion in your case, not theirs. I am sentencing you for your crimes, and no amount of looking at other cases or statistics will provide the answer to me.
91Other cases are not precedents and statistics have inherent limitations.
92I take into account all of the submissions that have been made by Mr Hartnett, and indeed, I also take into account the submissions made by the prosecutor. I take into account all of the many written materials placed before me. I said I would not, and I have not descended to great detail in terms of the reports of Ms Lechner or Mr Cunningham, but I have obviously relied heavily of those reports to make the various findings that I have already announced. Nor have I seen the need to descend to describe the particular words in the references. They are very strong references indeed, as I hope I have made clear. You are in fact very lucky. You have a lot of support.
93Prison is always a disposition of last resort. Your counsel argued for a standalone community corrections order. He argued that the various purposes of sentencing could be achieved by such an order. He argued that such a disposition could achieve all the purposes of sentencing in this case, and that that being so, you should not be sent to prison. To do so would be disastrous in terms of your ongoing rehabilitation. That last resort had not been reached here, he argued.
94If I thought that such a disposition as a standalone community corrections order achieved the various purposes of sentencing, then the law would require me to impose it. That is simply a reflection of the fact that prison is, as a matter of law, always a matter of last resort. As a judge, I can only confine a person if the lesser alternative not involving confinement would not achieve the various purposes of sentencing.
95Secondly if I must imprison you, it can be for no greater time than is required to achieve the purposes of sentencing.
96Your counsel referred me off to Boulton’s case. I am well familiar with that case having been referred to it in the majority of pleas conducted before me in the many years since the decision was published. That case does not and never did suggest that every offender for every crime must or should receive a community corrections order.
97There are some crimes that are just too serious for a stand-alone community corrections order, or even a CCO imposed in combination with a term of imprisonment.
98I have no doubt that a standalone community corrections order would not achieve the various purposes of sentencing in this case. It would not give adequate weight to denunciation, punishment, community protection and general and specific deterrence. I have no option but to imprison you.
99Nor do I believe that it is open to release you onto a combination-type order. You have served no time in custody at all to this point, other than the handful of days since I remanded you last week.
100I do not believe that a suitably conditioned community correction order is open to me here. I do not believe that such a disposition, a community corrections order in combination with a term of imprisonment, would pay adequate weight to the various sentencing purposes I mentioned a short time ago, including but not limited to general deterrence.
Totality
101I have taken a last look at the orders I intend to make made to guard against a crushing outcome and to ensure that the total effect of my sentences is actually consistent or commensurate with your overall criminality here. Plainly, there must be some cumulation as between the trafficking charges, and I take up the statements made in one of the cases I was referred to - see the case of Tiong , at paragraph 37, where the court cited the case of McNaughton [2014] VSCA 174. You did not just traffick in a single drug. You trafficked in a variety of drugs and that was the nature of your business such as it was. There must be separate recognition in the sentencing process of the separate drugs that you trafficked. I cannot just roll the sentences in together, but I will significantly moderate the extent of cumulation. The ecstasy charge will attract the base sentence, as it is clearly the most serious of the charges.
102I will provide for the possibility of your early release by fixing a non-parole period. Indeed, am bound to fix a non-parole period given the head sentence which I will be imposing. I take the various mitigatory matters into account when selecting the various sentences and the extent of cumulation, as well as when fixing the non-parole period. I am going to fix a quite low non-parole period, at least relative to the head sentence, and that will recognise your favourable prospects of rehabilitation.
103Now I cannot speculate as to whether you will be released on parole. I must proceed on the assumption that you will serve every day of the head sentence that I will soon pronounce. In fact, I am not even allowed to take into account the possibility of your early release on parole.
104The Adult Parole Board will make that decision as to whether you can be released. It will be really between you and them. It has nothing to do with me at all, but I will arm them with the ability to at least consider your early release.
I will also provide my reasons to them, and they will see my remarks dealing with the efforts you have taken to rehabilitate yourself and the work that lies ahead. They will see my favourable impressions of your future prospects and the fact of much family support in place here. I will also provide them with the expert reports which will disclose that you are someone who is likely to reward such opportunities as they bestow upon you with a genuine effort.
105There are a number of ancillary orders that I have been asked to make.
Forfeiture/disposal
106I will make the various ancillary orders requested of me. They are not opposed. The first of those is the forfeiture order brought under the provisions of the Confiscations Act, s.33, in relation to the cash the subject of the summary offence to which you pleaded guilty to. There is no issue in terms of the making of that order. I have signed that order. I direct that upon convicting you of the relevant Schedule 1 offence, that I order pursuant to s.33 that the property referred to, being the $15,450 cash, be forfeited to the relevant person.
107Secondly, there is a disposal order in relation to the drugs and various paraphernalia or exhibits. Again, there is no opposition to the making of this order. Pursuant to the provisions of s.78 of the Confiscation Act 1997, I direct that the property referred to in the schedule be forfeited and be held in the manner contemplated by the order, which I have signed.
108Finally, there is a forfeiture order relating to ammunition that is brought pursuant to the provisions of the Firearms Act 1996. Again, there is no opposition to the making of this order. I am satisfied the pre-conditions to the making of the order exist.
I order, pursuant to the provisions of s.151 of the Firearms Act, that the ammunition be forfeited to the relevant person, and those various orders have been signed.
Sentence
109I will have you remain seated there, please, and I will now pass sentence.
I am sorry it has taken so long to get to this point. I needed to explain to you and to others why I am doing what I am doing.
110On Charge 1, which is the charge of trafficking in ecstasy, you are convicted and sentenced to 2 years 4 months' imprisonment. That will be the base sentence.
111On Charge 2, trafficking in ketamine, you are convicted and sentenced to
18 months' imprisonment.
112On Charge 3, trafficking in cocaine, you are convicted and sentenced to 16 months' imprisonment.
113I move now, then, to Charge 4 and Charge 5. They are the changes of possession of a drug of dependence.
114Well, of course, you are in prison. You are going to be serving a prison term. The easiest thing for me to do on the possession of drug charges is to impose a small term of imprisonment and run it concurrently with the other sentences. That would probably also be convenient for you, actually. But would I entertain that sort of disposition, absent the sentences imposed on the trafficking?
The answer is that I would not, and that provides the answer as to whether
I should do so here. Though they are between-dates charges, the possession of drug charges relate to possession for your own use. Prison is a disposition of last resort. That does not change, just because I am sending you to prison on other matters. I do not even believe that a prison term is warranted in relation to Charge 4 and Charge 5.
115They are plainly offences of the same or a similar character. See section 51 of the Sentencing Act 1991. I believe it is both open and appropriate to impose an aggregate fine in relation to those two charges. On those two charges, so Charge 4 and Charge 5, I convict and fine you the aggregate sum of $1,200.
Summary offences
116I move now to the related summary offences. On the summary charge of failing to store the ammunition correctly, that is Charge 8, I convict and fine you the sum of $300.
117On the summary charge of possession of property believed to be the proceeds of crime (Charge 9), which of course relates to a sizable amount of cash,
I convict and sentence you to 4 months' imprisonment.
Cumulation
118The base sentence is the 2 years 4 months imposed on Charge 1.
119I make the following orders, then, for cumulation. I direct that;
·3 months of the sentence imposed on Charge 2;
·2 months of the sentence imposed on Charge 3; and
·1 month of the sentence imposed on the summary proceeds of crime offence
will be served cumulatively upon the base sentence and upon each other.
Total effective sentence
120What that results in, therefore, is a total effective sentence of 2 years and
10 months, or 34 months imprisonment.
121I fix a period of 14 months, during which you will not be eligible for release on parole.
Section 18 pre-sentence detention
122You have already served 5 days of this sentence by way of pre-sentence detention, and that declaration will be entered into the records of the court.
Section 6AAA
123I have taken into account your guilty plea. If you had pleaded not guilty and been found guilty of these offences, I would have convicted and sentenced you to a term of 4 years' 4 months imprisonment. I would have fixed a non-parole period of 2 years 9 months imprisonment.
124Let me just see if there are any other matters. Mr Sprague, Mr Dalziel, are there any other matters I need to deal with at all?
125COUNSEL: No, Your Honour.
126
HIS HONOUR: All right. And presumably, someone will be conferring with
Mr Tomazic, either you or Mr Hartnett will be in touch with him to discuss this outcome.
127MR DALZIEL: Yes, we have to arrange a telephone call because lawyers are not allowed to visit either, but we will.
128HIS HONOUR: All right. Mr Tomazic, people will be in touch. Your lawyers will be in touch with you to discuss this sentence, but in the circumstances, I have said all that I need to. So I can make no assumptions about whether you will be released on parole or not, but what you obviously need to do is to maximise your prospects of that by doing everything that is asked of you in a custodial setting, which I have no doubt you will do because you have performed as well as you have in the lead-in to going into custody. So anyway, that will be between you and the Adult Parole Board.
129Well, that completes my sentencing exercise. I will now disconnect the various links.
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