Director of Public Prosecutions v Topal
[2019] VCC 430
•1 April 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Indictment No. F13913286
Case No. CR-17-01149
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ABDULLAH TOPAL |
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JUDGE: | HER HONOUR JUDGE CANNON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 4 March 2019 | |
DATE OF SENTENCE: | 1 April 2019 | |
CASE MAY BE CITED AS: | DPP v Topal | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 430 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – Plea of guilty – Traffick drug of dependence (cocaine) – Sentenced on basis of trafficking simpliciter - Member of organised trafficking syndicate – Role in syndicate as delivery driver although that role beyond “mere courier” – Co-offenders – Parity – History of drug abuse – Predisposition to anxiety and depressive symptoms – Good prospects of rehabilitation
Cases Cited:Gregory (a Pseudonym) v The Queen [2017] VSCA 151; Taleb v R [2014] VSCA 96; Green v R; Quinn v R [2011] 244 CLR 462; Bernath & Ors v The Queen [2014] VSCA 195; R v Williams [2001] VSCA 130; DPP v Dalgleish (a pseudonym) (2017) 349 ALR 37; (2017) 91 ALJR 1063 and [2017] HCA 41 (11 October 2017) BC201708449.
Sentence: Convicted and sentenced to 3 years’ imprisonment with a non-parole period of 12 months’ imprisonment – Pre-sentence detention of 24 days declared as having already been served – s.6AAA Sentencing Act 1991 declaration – Ancillary Disposal, Forfeiture and Forensic Sample Orders made
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr S. Milesi | Solicitor for Public Prosecutions |
| For the Accused | Mr D. Saunders | Valos Black Solicitors |
HER HONOUR:
1 Abdullah Topal, you have pleaded guilty to trafficking in a drug of dependence, namely cocaine, between 20 July 2015 and 24 November 2015.
2 Trafficking in a drug of dependence has a maximum penalty of 15 years’ imprisonment.
3 The maximum penalty is one of the matters I must take into account when sentencing you, as it reflects the seriousness with which Parliament regards this offence.
4 I was told that between 20 July and 24 November 2015, you trafficked in a total of 819.5 grams of cocaine mixed with another substance. You trafficked 795.75 grams in 1,061 separate sale transactions, and on 24 November 2015, you had in your possession for sale a further 23.8 grams.
5 In an agreed plea opening, I was told that you were a member of a cocaine trafficking syndicate. The other members of the syndicate were Julian Gallin, Christopher Carron and Kelvin Wong. I have previously sentenced Mr Wong for his offending in relation to this matter.
6 Gallin established and managed the syndicate drug trafficking business, while Carron’s role was to prepare and package the cocaine into individual snap lock bags, ready for distribution. Your role and Wong’s role were to deliver cocaine to customers, although on occasion Mr Wong would also man the phones to coordinate drug deliveries. I understand that Mr Carron had this role on occasion as well.
7 During the offending period, you used a 2012 Volkswagen sedan to deliver the cocaine, and the syndicate used premises in Tennyson Street, St Kilda, where the cocaine was prepared and packaged for delivery.
8 You had PIN code access to the drug house so that you were free to come and go as you wished.
9 The syndicate used a system to arrange the ordering, purchasing and delivery of cocaine as follows:
(a)Gallin had a customer list.
(b)A customer from the list would order a quantity of cocaine by sending a text message saying that they wanted to catch up or meet for a drink, or similar. The text message would be sent to the business phone (at first the business mobile number ended in 995).
(c)The business phone was usually monitored by Gallin, but was sometimes monitored by either Carron or Wong. It was never monitored by you.
(d)The person monitoring the business phone would confirm receipt of the order by sending a text message from the business phone to the customer saying “My guy is coming to see you – he’ll contact you”.
(e)The customer would usually send a text message to the business phone giving an address for delivery of the cocaine.
(f)The order would then be relayed to you or Wong by a text message from the business phone to your phone or to Wong’s, depending on who was on delivery duty.
(h)You or Wong would confirm receipt of the particular order by sending a text message to the business phone.
(i)The person monitoring the business phone would then confirm that the cocaine would be delivered by sending a text message from the business phone to the customer’s phone.
(j)You or Wong would then drive to the address provided and deliver the cocaine, receiving payment.
(k)Police intercepted calls and text messages to and from the business phone, your phone and Wong’s phone, pursuant to legally obtained warrants.
(l)The syndicate’s drug trafficking business operated seven days a week.
(m)You and Wong worked delivering cocaine to customers according to a roster. Both of you worked Fridays to Sundays and would work alternating shifts, Monday to Thursday. The rostering system was flexible. Sometimes you and Wong would swap shifts with each other. I was taken to the details of a series of text messages on 11 August 2015 in demonstration of the operation of the roster system.
10 I should indicate that the factual basis on which I sentence you is the entirety of the prosecution opening- I do not intend to repeat all the details of various transactions and text messages, but they are part of the basis upon which I sentence you- the prosecution opening has been tendered as an exhibit in this plea hearing.
11 Further, the syndicate had a specific referral process whereby existing customers vouched for new customers.
12 The number of the business phone was changed on 4 September 2015, as was your phone number. Your number was changed again on 6 October 2015, and on 18 November 2015 the business phone number was changed. Your number was changed again on 20 November 2015. No doubt, all of these changes in phone numbers was in a bid to avoid detection by police.
13 In the prosecution opening at paragraph 18 (page 4), an example of the referral process was set out, whereby a pre-existing customer vouched for a prospective new customer to Gallin. Gallin subsequently sent a message to your phone, incorporating the name of the pre-existing customer and the new one. A delivery to the new customer was then arranged and conducted by you.
14 On 17 August 2015, police began monitoring a listening device which had been installed at the drug house, pursuant to a legally obtained warrant. On 21 August 2015, they monitored the premises through an optical device which had also been installed by virtue of a legally obtained warrant.
15 Police observed the following process in relation to preparation, packaging and delivery of cocaine to customers:
(a)Carron and Gallin would prepare the cocaine on the dining room table.
(b)They would mix the cocaine with a cutting agent such as Creatine, then put the mixture into individual deal bags.
(c)The completed deal bags were then stored either in the kitchen- in the range hood or in the coffee machine filter.
(d)You would collect the deals that you were to deliver from the supply in the coffee machine filter, whereas Wong would collect his deals for delivery from the range hood.
16 On 20 and 21 August 2015, police conducted surveillance on you, which showed that your movements coincided with orders made by customers to the business phone. On this particular occasion, Wong was monitoring the business phone. I was provided with details of 19 transactions which took place over this period, all of which followed the same pattern, to which I have previously referred.
17 As I said, I do not propose to detail each of these or other transactions contained in the opening but the complete prosecution opening which was tendered at the plea hearing is the factual basis upon which I sentence you.
18 On 3 September 2015, police covertly executed a search warrant at the premises and took small samples of the product found in deal bags in the coffee machine and range hood. The samples obtained all tested positive for cocaine, but police could not ascertain the purity because the quantity seized was too minute.
19 On 3 September 2015, police conducted further surveillance. Again, they found that your movements coincided with orders made to customers on the business phone. On this occasion, Gallin was monitoring the business phone. Again I was provided with the details of six transactions following the same pattern of ordering and delivery as has been previously mentioned.
20 On 22 October 2015, police covertly executed a search warrant at Tennyson Street. They identified two different types of Snap Lock bags ─ one which had a black scorpion motif on it, while the other had a blue stars motif. The Snap Lock bags were hidden within the coffee machine and range hood. In the coffee machine, police found the following:
(a)one bag containing ten small Snap Lock bags with the blue stars motif containing cocaine, each weighing less than 1 gram;
(b)one bag containing one small Snap Lock bag with black scorpion motif containing cocaine, weighing less than 1 gram;
(c)one bag containing ten small Snap Lock bags with black scorpion motif containing cocaine, weighing approximately 11 grams in total;
(d)one bag containing seven small Snap Lock bags with blue stars motif containing cocaine, weighing about 6 grams in total;
(e)one bag containing ten small Snap Lock bags with black scorpion motif containing cocaine, weighing about 9 grams in total;
(f)one bag containing nine small Snap Lock bags with black scorpion motif containing cocaine, weighing about 8 grams in total.
Police obtained samples from one small Snap Lock bag with blue stars motif containing white powder and one small Snap Lock bag with black scorpion motif containing white powder.
21 On this occasion, each sample tested positive for cocaine ─ one sample indicated 48 per cent purity whilst the other sample indicated 30 per cent purity.
22 On 24 November 2015, police executed a search warrant at the drug house. When police entered, Gallin and Carron were sitting at the dining room table. Gallin was using the business phone and Carron was preparing and packaging a quantity of cocaine into deal bags for distribution.
23 During the search, police found and seized, amongst other things, a number of small plastic deal bags containing cocaine mixed with another substance. The contents of the deal bags were later analysed, as follows:
(a)In a plastic bag inside a plastic container on the kitchen table were 24 deal bags weighing a total of 18.4 grams and indicating a purity of 34 per cent. The average weight per deal bag was 0.76 grams.
(b)In a plastic bag inside another plastic container on the kitchen table were 17 deal bags weighing a total of 13 grams and indicating a purity of 43 per cent. Each of these deal bags weighed 0.76 grams.
24 As I said, I was told that in relation to these particular items, the evidence is put by way of context only, so you are not to be sentenced in respect of these particular items.
25 Police also found the following in the coffee machine, which was the place from which you accessed your deliveries:
(a)Nine deal bags weighing a total of 7 grams with 48 per cent purity ─ the weight of individual bags being 0.77 grams.
(b)Twelve deal bags found in two plastic bags in the coffee machine, with a total weight of 9.3 grams and indicating a purity of 29 per cent. Each of these deal bags weighed 0.77 grams.
(c)Four deal bags weighing a total of 3 grams and indicating a purity of 24 per cent. Each of these deal bags weighed 0.75 grams.
(d)Six deal bags weighing a total of 4.5 grams and indicating a purity of 31 per cent. Each of these deal bags weighed 0.75 grams.
26 On 24 November 2015, police seized the business phone and your phone. They later extracted and analysed stored communications in the phones.
27 The prosecution said that it could be inferred from what had been found at the premises in the coffee machine that the average weight of each deal delivered by you to customers was 0.75 grams.
28 Telephone intercepts and stored communications from the business phone and your phone showed that you made 1,061 deliveries between 20 July 2015 and 5 October 2015, such that it can be inferred that each delivery involved a minimum of one deal bag and that each deal bag contained 0.75 grams of cocaine mixed with another substance- This then amounts to a total quantity delivered of 795.75 grams. In addition, there were 31 deal bags, with a total weight of 23.8 grams, which were found in the coffee machine on 24 November 2015, which were, effectively, in your possession for sale. Therefore, you trafficked a total of 819.5 grams of a mixture of cocaine and another substance, which is more than 1.6 times the applicable commercial quantity of 500 grams which is the threshold quantity. To place this in further perspective, I was told by the learned prosecutor that the threshold for a large commercial quantity is 1,000 grams.
29 There was a standard and premium product which you sold - the purity of the product overall ranged from 24 per cent to 48 per cent.
30 I was told that you were not charged with trafficking in a commercial quantity because the prosecution could not prove that you were aware that you would be trafficking a commercial quantity at the time that you commenced working in the syndicate. However, you did know at the outset that you were working in a highly organised syndicate with a large number of customers and that it was likely you would be making many deliveries per week. Further, as was sensibly conceded by Mr Saunders on your behalf, as the days went on, you must have become aware as to the scale of what you were doing and that the cumulative effect was that you were delivering a commercial quantity of cocaine. However, I make it clear that I sentence you on the basis of trafficking simpliciter, albeit that this is a most serious example of that offence.
31 The prosecution said that the level of sophistication of the syndicate and your role in it was demonstrated by the following facts:
(a)You worked regular eight hour shifts.
(b)You worked weekdays and weekends.
(c)You alternated shifts with Wong.
(d)Your deals were stored separately in a coffee machine.
(e)You had PIN code access to the drug house and you were free to enter it at any time.
(f)The syndicate had an extensive customer list.
(g)The syndicate had an efficient SMS system for taking orders and organising deliveries.
32 I would add to this list, that you were clearly entrusted with collecting the moneys from the customers you were delivering to, and apparently returning it, as I understand it, to Gallin, who was the manager of the operation.
33 You were arrested on 24 November 2015 and remained in custody for 24 days, being granted bail on 17 December 2015.
34 Mr Topal, your offending is most serious and is deserving of a punishment which is just in all of the circumstances, and your conduct must be denounced.
35 You chose to become involved in a sophisticated drug syndicate. You were a trusted member of it, as the evidence clearly reveals - you were free to come and go from the drug house, where significant quantities of cocaine were being prepared for delivery by you and Mr Wong.
36 You worked tirelessly in this business on a rostered basis and it is readily apparent that you were familiar with the way things worked in terms of the delivery communications. The enterprise ran like a ‘well-oiled machine’ and you were an essential part of this, delivering 1,061 times during the months that you were involved.
37 The total quantity of cocaine which you trafficked was most significant - more than 1.6 times the threshold for commercial quantity and not too far shy of the threshold for large commercial quantity. While I make it clear that I am not sentencing you for a more serious offence, the quantity of the drug that you trafficked is a relevant matter in sentencing you, as is the frequency of your involvement in this activity over the months that you were involved. You repeatedly engaged in deliberative unconscionable conduct, apparently to feed your own cocaine habit, although there is some suggestion from what you told Ms Ashton, psychologist, that you also had financial reasons. At page 8 of her report dated 15 November 2015, she said:
Mr Topal sold drugs to fund his addiction and save money as he believed this would allow him to attract a woman to marry. Mr Topal’s drug trafficking behaviour appeared to be perpetuated by an increase in tolerance and sustained addiction to a large quantity of cocaine.’
38 Despite Mr Saunders’ submission that your sole payment for your delivery work was your own supply of cocaine, it seems to me that you cannot save money if you are not being paid any. While I was told that you worked in a security role on a casual basis during the period of offending, it seems to me that you were effectively telling Ms Ashton that you were being paid money for your trafficking work, over and above being fed cocaine. However, I also note
Ms Ferrari’s evidence at the plea hearing that you were attempting to fund drug and child support debts, such that I accept that you were not funding a lavish lifestyle, although I also find that you were engaging in the conduct in order to make money, save money to make yourself more appealing to women, as well as to feed your own habit, which had apparently escalated due to high levels of stress which you had been experiencing. This aspect is relevant to my assessment of your moral culpability, which I find is high -although, if your sole motivation was making money and funding a lavish lifestyle, whilst not being dependent on cocaine yourself, your moral culpability would have been a good deal higher.
39 Your role was that of a delivery driver but you were not a ‘mere courier’ who was just doing what you were told on a ‘need to know’ basis - as I said, you were well familiar with the way that the business operated and you were trusted to play your part, which is what you did. You were no ‘Dracula in charge of the blood bank’, Mr Topal- you had free access to the drug house where large quantities of cocaine was stored and you worked your roster as required - even telling Gallin on one occasion that it was your day off and when you were next due to work. It is also evident from the prosecution opening-(transaction 19, p.19) that you had regular hours, with Wong telling a late night customer, ‘We finish at 12.’, but thereafter, he manages to get you to do one more delivery. As part of your role, you were also entrusted with being paid by the various customers and bringing the funds back to Mr Gallin or whoever the treasurer was.
40 In your favour, you have no prior or subsequent convictions which is a matter in your favour, and is relevant to your prospects of rehabilitation.
41 By way of background, I was told, largely through the evidence and report from Ms Ferrari, psychologist, that you are the youngest of three children and are from a Turkish background, although you were born in Melbourne. You were 36 years old at the time of the offending and you are now 39.
42 When interviewed by Ms Ferrari, psychologist, on 29 August 2018, you told her that you had a very close relationship with your mother but that your father, who was very hardworking, was emotionally absent. Your father had always made it clear that you needed to carry on the family name and assume responsibility for the family once you reached a particular age, and placed a great deal of emphasis on academic and career success.
43 You described having a love/hate relationship with your father, as you were growing up. He was a well-respected member of the Turkish community both here and in Turkey. Your parents owned a kebab shop and restaurant and were often busy attending to these businesses. They were very hard working people.
44 In 2005, when you were twenty-six years old, your father died from bowel cancer after being diagnosed only three months before. This placed a great deal of pressure on you as you felt the need to support your mother and ensure she was appropriately cared for. You live with her and you have always played the part of a dutiful son. According to your report to Ms Ferrari, you have obliged everyone else’s demands at the cost of your own.
45 However, you also told Ms Ferrari that your parents had a strong relationship, which was loving and respectful. You did not experience any violence or trauma in the course of your childhood. In fact, you said that you and your older sisters were very spoilt in a material sense; however, you also told her that all you and your sisters really wanted was your father’s attention and approval, which you did not receive.
46 When your father died, the family business only closed for one day for the funeral and after that, the business reopened, leaving very little time for anyone to grieve. You found it very difficult to manage the various expectations of you as the only other male in the family. You explained to Ms Ferrari that your sense of responsibility and the expectation of you was that you continue to support the family through the difficult time following your father’s death, to present as stoic, and to maintain the lifestyle to which all of your family members were accustomed.
47 In terms of your education, you were quite intelligent but told
Ms Ferrari that you were lazy and did not put effort into your studies. You did not have to study a great deal to achieve good grades and you were awarded dux of your school in Year 12, although you did not rate this as of much significance, as your school did not perform well overall.
48 You said that you felt like an outsider at school, which was partly to do with familial expectation that you would work after hours and holidays in the family business rather than enjoy social activities with other people at school. Ms Ferrari said in her report that your social interactions were confined to school, and that any outside interaction was with members of the Turkish community or extended family.
49 After finishing secondary school, you wished to join the Defence Force but your father disapproved of this career path so you did not pursue this. Instead, you obtained a scholarship from La Trobe University for a Bachelor of Computer Science; however, you opted to study a double degree in science-engineering at the University of Melbourne, as you considered this to be a more prestigious university.
50 In your third year of the degree, you were sent by your father overseas to manage a business venture on his behalf. The trip was meant to be brief but extended to four months and you therefore missed an entire semester of university. This resulted in you being dropped from the course for non-attendance and you were failed, as you had not completed any assessment pieces. You then abandoned your studies to look after the family business, in keeping with your father’s wishes. You completed a number of online business courses to help with this.
51 In 2016, you commenced a Bachelor of Behavioural Studies which you are completing part time online via Swinburne University. You have said that you wish to persevere with this degree and pursue a career working with youths who are at risk, given your own difficulties.
52 You have always been employed within the family business and since your father died, you have taken on managerial responsibility to run the kebab shop. You sold the restaurant in 2012 but the kebab shop in Carlton performs well. You feel immense pressure and responsibility in supporting your family and ensuring the business continues to provide for them.
53 You have worked within the security industry for a couple of years in conjunction with running the kebab shop, working two jobs after obtaining your security licence in 2013.
54 You have had one serious adult relationship, but according to you, this was not a stable one, and was based on mutual drug use.
55 You were about twenty-five when you met this person, spending six months together before the relationship faltered on and off for the next two years. A few years after this, you had a brief casual relationship, which resulted in your girlfriend becoming pregnant. She informed you that the baby was not yours.
56 However, when the child was one, the mother’s lawyers requested a paternity test which resulted in you being confirmed as the biological father. You had never met your child, who is now thirteen years old, and you signed over your parental rights to enable the new partner of your former girlfriend to adopt your child.
57 You have had no other significant relationships since. Your parents had wanted you to marry and settle down in your early twenties but you were not ready to do so at this time and refused to enter into an arranged marriage.
58 You told Ms Ferrari that you had a longstanding history of underlying anxiety which was never treated. You said that you had experienced depressive symptoms intermittently since 2014. Ms Ferrari noted that you had been prescribed Temazepam by your general practitioner to take as required in order to help with anxiety and sleep.
59 You had never engaged in any counselling or psychological intervention until you came into contact with the law. You have been engaged with a psychologist, Ms Siegel, since 2016 and have attended over fifty sessions of therapy with her. Initially, you saw her on a weekly basis, but this has reduced to every month or so in the past six months, as, at the time of the plea hearing, you had improved significantly. You had experienced an hiatus in respect of treatment with her, due to some registration details that she had overlooked. This meant that she was unable to see clients for a time.
60 You have no history of psychiatric admissions or any self-harm or suicide attempts. There is no formal history of mental illness in your family and you have no significant medical problems, although you have some shoulder issues, due to frequent spontaneous dislocations, and you also suffer from an increased heart rate.
61 In terms of your drug history, you did not use these until you reached the age of twenty-one when you were introduced to them by your sister.
62 You used ecstasy, cocaine and ketamine recreationally from this time – you imbibed such drugs when attending nightclubs, saying that it gave you a sense of social inclusion and popularity which you had not previously experienced.
63 Once your father died, you turned to substance use in order to cope with your grief. You told Ms Ferrari that that there was a three to six month period of bingeing on substances to cope with the loss of your father and this was the time when your drug use significantly escalated. You told Ms Ferrari that your drug use at this time numbed your emotions and also reduced your social anxiety, which enabled you to connect with other people.
64 Since this time, you have turned to substance use when you are experiencing increased levels of stress. Ms Ferrari has said that these increased levels of stress which led to increased drug use, occurred for a second time in the period leading up to your offending, due to “psychosocial stressors” that you were experiencing in relation to your son; however, apart from these two periods, you have apparently not engaged in any persistent drug use. Therefore, it appears that you have the capacity to control your drug use at times when you are not experiencing high levels of stress.
65 At the time of the offending for which I now sentence you, you were reportedly using between 15 to 20 grams of cocaine per week and according to your report to Ms Ferrari, you were engaging in the offending conduct in order to fund your own habit.
66 Ms Ferrari stated in her report that you completed a six-week CBT focussed program called “Torque Forensic Rehabilitation” through the Uniting Church and found this useful, and also attended to having urine screens conducted for a three to six-month period, of your own volition. You attended three sessions of counselling through the Uniting Church but as you did not develop a good rapport with the clinician, you moved on to attend six to eight sessions of the STAR Program through Vincent Care Victoria. You found this program more beneficial.
67 According to Ms Ferrari’s report, since completing these drug courses and working with Ms Siegal, you described developing enhanced emotional intelligence and consequential thinking.
68 Although a matter for me, Ms Ferrari was of the view that you expressed “genuine remorse” for your actions and did not attempt to excuse or justify your behaviour in any way. She commented that you displayed an awareness of how serious your actions were and the implications of your behaviour on yourself and others.
69 You told Ms Ferrari that at the time of your offending, you were in debt, due to unpaid child support that your ex-partner was claiming. You attempted to change the agreement with the child support agency, as you were unemployed at the time and therefore unable to pay maintenance at the rate that you had been previously paying. You were unemployed at the time as you had been made redundant, and according to your report to Ms Ferrari, you became frustrated with the child support agency as they refused to liaise with your ex-partner in order to change the child maintenance order, having not had any contact with her for over a decade and no contact details. Although you had never met your son, nor had you ever applied for access to him, you accepted that you had an obligation to pay child maintenance, albeit that you sought to apparently reduce these payments when you became redundant – I assume this is in relation to your work as a security guard.
70 I understand you were also in debt to drug dealers as you were, according to the report of Ms Ferrari, using drugs in order to manage working two jobs prior to being made redundant.
71 In 2014, you began receiving correspondence from your ex-partner’s solicitors asking that you allow her new husband to legally adopt your son. You were emotionally torn by this request, notwithstanding that you had not ever met your child. You struggled with the decision and began using substances at an increased rate in order to cope with your feelings about the matter; however, you agreed that the adoption go ahead, as you considered it to be in the best interests of your child. You did not request access to your child, which would have been an option for you as part of the adoption proceedings.
72 I was told that it was about the time that these events were occurring that you first became involved in the offending in a bid to repay your debts and fund your increasing habit which was a form of self-medication. You told Ms Ferrari that you were using between 15 to 20 grams of cocaine per week.
73 According to your report to Ms Ferrari, you took your co-offenders at face value and assumed that they would support you if any one of you were to get into trouble, but you had since realised that this was not the case. At the time of your offending, you apparently did not consider the potential consequences of your actions, notwithstanding that you knew that your behaviour was unlawful and wrong. You told Ms Ferrari that you felt ashamed of yourself and of what you were doing and withdrew from your friends and family as you were concerned that they would find out and judge you.
74 You noticed that the more drugs you were using, the worse that your mental state became; however, you said that you continued using drugs, as they allowed you to block your emotions and reduce your social anxiety and that your drug use was a way of ingratiating yourself with your peers. In particular, you told Ms Ferrari that it allowed you to communicate more effectively with the opposite sex and that you felt popular, believing that women only spoke with you because you could access drugs for them. You have since realised that such relationships were of a superficial nature and undesirable.
75 Ms Ferrari found that you were at low risk of re-offending; that you were an individual predisposed to experiencing generalised anxiety and depressive symptoms as a result of your upbringing, as you had been burdened with “overwhelming expectations by your family”. She also said that there was potentially an undiagnosed ADHD from childhood which was likely to have contributed to your sense of failure and underachievement, despite your intelligence. She found that there was no evidence of significant mood disturbance, although there was evidence of severe anxiety and stress. She said that at the time of the offending, you appeared to be experiencing a severe deterioration in your mental state, and attempted to moderate this through substance use which led to your involvement in trafficking, in order to fund your own escalating habit and developing tolerance. She found no evidence of any mania or psychotic disorder nor any entrenched personality disorder which was relevant to your chances of re-offending; however, Ms Ferrari found that you displayed some dependent traits which made you more vulnerable to exploitation or being influenced by others. In Ms Ferrari’s view, you showed a high level of insight and judgment which was demonstrated, she said, by your compliance with conditions of bail and engagement in professional counselling which assisted you to understand your addiction, triggers and relapse prevention strategies. She said that you would benefit from further evaluation to establish whether you actually suffered from ADHD, and noted that you had already commenced such a process. She recommended that you re-engage with a psychologist to ensure that you maintain the positive steps you had taken in rehabilitation thus far.
76 Ms Ferrari also made some remarks about the likelihood of your mental state deteriorating if you were to be placed in a custodial setting. She enlarged on these at the plea hearing when she gave evidence.
77 Ms Ferrari’s evidence-in-chief at the plea hearing was largely a repetition of her report. When cross-examined by Mr Milesi, she said that at the time that you were offending, you had an escalating cocaine habit of between 15 and 20 grams per week, but also had a considerable debt due to your escalating habit and child support obligation. She understood that you engaged in the offending both to help repay your debts and feed your cocaine habit, but said that in her view, your major motivation was to self-medicate with cocaine. She said that her personality testing of you indicated high traits of dependent personality which translated to you being easily influenced and compliant with others opinions in order to avoid conflict.
78 Ms Ferrari said that you had given a history of suffering symptoms of anxiety during your school years but acknowledged that you had only ever sought or obtained treatment for your symptoms, and those which she found were in keeping with possible ADHD, once your offending had come to light.
79 Ms Ferrari said that your sessions with Ms Siegal had resulted in you developing coping mechanisms in respect of your anxiety and that you had reported to her that your levels of depression and anxiety had reduced. Ms Ferrari accepted that the strategies that you had developed through your extensive counselling with Ms Siegal would help you in a custodial setting and moderate your symptoms but that prison would still have a distressing effect upon you.
80 She agreed that her diagnosis in relation to your substance abuse was on the basis of self-report, in circumstances where your offending had occurred three years before she interviewed you. She said that you had an addiction which you could control at times where you were not experiencing high levels of stress, and accepted that you could have dealt with high levels of stress in the past in a proper clinical way or by changing your lifestyle.
81 When re-examined by Mr Saunders, Ms Ferarri said that cocaine was a drug which was psychologically addictive rather than physically addictive such that those addicted did not experience symptoms of physical withdrawal.
82 Ms Ashton, psychologist, met with you on 9 December 2015 and followed up on 14 December 2015 by phone, ahead of a bail application hearing on 17 December 2015. Therefore, she spoke with you and assessed you at a time which was much closer to your offending than Ms Ferrari.
83 You gave an account to her of your upbringing and the pressures that you felt over the years, which was consistent with what you had told Ms Ferrari.
84 You told Ms Ashton that you had worked in your family’s kebab shop until 2012, at which time it was sold. You then went through a period of unemployment and completed a number of certificates, including computing, and a security course. You commenced work as a security guard and warehouse manager in 2013.
85 In terms of your drug use, you told Ms Ashton that this commenced when you were 20 years old and you had been introduced to drugs by your older sister. You said that this was at a time when you and your sister were living above the kebab shop and you would use drugs with your sister approximately four times a week, going out to clubs and then bringing friends back to your place to take drugs. You told her that you enjoyed the social confidence and popularity which you gained from such drug use. You said that you had always found it difficult to socialise and make friends, and that your drug use resulted in you feeling important and loved.
86 In those days, you would take ecstasy and occasionally, Ketamine. You tried other drugs but did not like their effect. You told Ms Ashton that you used the proceeds from the kebab shop to buy drugs.
87 In 2003, you started using cocaine, and would use about 1 gram per week. When your father passed away in 2005, you started drinking alcohol to excess and you increased your cocaine use. At some point, you slowed down in your consumption and, by 2010, your cocaine use had reduced to 1 gram per week. You told Ms Ashton that your friends were growing up and you did not have as many people to party with and, therefore, there were not as many occasions to use the drug. You then started using cocaine on your own, but reported that, in 2012, your cocaine use was very occasional and that this remained the case for about one and a half years.
88 You went on to explain that your cocaine use escalated sharply upon being asked to consent to your child’s adoption. You felt that you should be married and more successful and generally felt depressed at this time. As you found it difficult to fund your increased cocaine use, you commenced to sell it about six months before your arrest. You said that before being incarcerated, your use had peaked at 15 grams per week, reporting that you were using this amount because you had access to large quantities and wanted to “run away from the reality of life”. (Page 4)
89 You reported no significant medical history, apart from the problem with your shoulder. You did not report a history of mental illness, apart from feeling depressed in 2014.
90 You were psychologically tested and Ms Ashton found that you had a diagnosis of stimulant use disorder (severe).
91 In relation to one assessment of your mental health, your self-report responses indicated a mild level of depression and, upon application of another assessment tool, a low level of anxiety. Another assessment indicated that there was possible presence of impression management. In respect of another psychological test however, you were found to have slight elevations on a number of clinical scales, including avoidant, dependent, antisocial and self-defeating personality characteristics. Your score in relation to this particular test also indicated elevations on a number of clinical syndromes, including anxiety, dysthymia, drug dependence and alcohol dependence.
92 Ms Ashton was of the view that your substance use disorder significantly contributed to you engaging in the offending.
93 I have also considered a psychological report prepared by
Ms Jordana Siegel dated 25 August 2018.
94 In her report dated 25 August 2018, she confirmed that she had been seeing you over the past two and a half years.
95 She had first seen you in January 2016, in the week following your release on bail.
96 Ms Siegel referred to the number of conditions associated with your bail, including the requirement that you attend a six week Uniting Church group-based cognitive behavioural rehabilitation program, which was commenced about three weeks after your release from custody.
97 You self-referred to Ms Siegel after reporting difficulty with your stress levels arising from the criminal charges that you were facing, as well as the potential outcome of these.
98 During session two of your treatment with Ms Siegel, she administered a test which resulted in scores which were consistent with you experiencing mild depression, severe anxiety and moderate levels of stress. However, when the tests were administered again during her tenth session with you, each of the levels of these conditions was normal. She remarked that the results obtained were consistent with you feeling overwhelmed by the uncertainty of the outcome of your court hearing and how your family would manage in dealing with the various potential outcomes.
99 It appears that Ms Siegel found that you were suffering a generalised anxiety disorder. She remarked in the course of her report that you had reported significant reduction of anxious and stress-based symptoms and an absence of depressive symptoms. She noted that your confidence and coping mechanisms had markedly increased, as you managed and tolerated ongoing and previously distressing experiences effectively. She said:
“This has been supported by contextual assessment, self-reported progress towards attaining treatment goals and improved (sic) in emotional and behavioural functioning and intermittent evidence-based assessments.” (Page 9)
100 Ms Siegel said that you had experienced a breakthrough in challenging your maladaptive schemas after the fifth treatment session. She said that this had come after open communication and discussion with your immediate family “associated with identification of underlying factors and personal responses that led to (your) previous drug use, the ensuing charges, and ongoing sources of anxiety”. (Page 12)
101 She said that you were able to demonstrate your readiness to engage in situations and events that “directly confronted (your) previously held belief systems and associated negative emotions”.
102 In general, Ms Siegel noted that from this point onwards you engaged more effectively in sessions and homework required of you. She remarked that your number of sessions had far exceeded the number of Medicare rebated sessions, with you paying for the additional sessions. She said that you had taken on-board the various strategies and therapeutic techniques that had been proffered, and had been able to progress significantly. She referred to the various things you had been able to achieve, including employment and recommencing university studies, and having developed an ongoing capacity to effectively manage a range of long and short-term stressors. She said that you had displayed:
“… developed coping mechanisms to manage (your) thoughts, experience, reaction and response to the numerous events that have surfaced over the last two (and a half) years. This is in the absence of any substance use, dependency or behaviour designed to avoid any associated emotional experience.”(p.12)
103 She said that you had continued to show comprehensive growth in your capacity for considered responses and reactions to stress, and the development of increased empathy and self-awareness. In short, she spoke in glowing terms of your development and progress over the period of which she was speaking- And I note that she continued to treat you, albeit that there was an hiatus in relation to that due to difficulties with registration, which also caused difficulties in obtaining a more updated report.
104 Having considered all of the material in respect of your mental state, I accept and make allowance for the fact that you have suffered from depression and anxiety, which is an ongoing issue for you, albeit that your symptoms have reduced and you have developed some coping strategies in relation to these. However, I make some allowance in your favour for the fact that because of your impairment of mental function in these ways, any period served in gaol will be more onerous for you than for someone not so afflicted. I have also allowed for the likelihood that any period in gaol is likely to negatively impact on your mental health, and also that this would be your first time in prison.
105 In sentencing you, I have considered the various character references tendered on your behalf, which indicate that you are of otherwise good character. I have also considered the certificates in relation to your studies, which show that you are a student who is capable of obtaining impressive results.
106 Moreover, you have no prior convictions, which is another matter in your favour and goes to my assessment of your prospects of rehabilitation and the weight which needs to be given to specific deterrence and protection of the community.
107 You entered a plea of guilty to the charge now before me following a contested committal hearing and at a stage when the matter was in the reserve list for trial in this Court. However, I understand that you first offered to plead guilty to trafficking simpliciter during the course of the committal hearing in circumstances where you were facing a charge of trafficking in a large commercial quantity. Your plea offer was ultimately accepted by the Crown at the time that the matter was in the reserve list for trial.
108 Therefore, in the circumstances, I allow for a discount which is not insignificant in the circumstances as, in taking the course that you did, you saved the witnesses the time and trouble of giving evidence at trial and you also saved the community the time and expense of contested proceedings in this Court. Moreover, had the Crown accepted your offer at the earlier stage, there would have been a degree of these savings at the committal stage also.
109 Insofar as remorse is concerned, this is a somewhat complex matter in view of the fact that you offended repeatedly over a number of months and only offered to plead guilty to anything during the course of a contested committal hearing. On the other hand, it appears that you have had to develop a sense of responsibility and insight by becoming drug-free and engaging extensively in appropriate therapy. In the end, I accept that you have developed a sense of remorse and insight into the seriousness of your offending, which is a protective factor in considering whether you are likely to re-offend.
110 Although you have struggled with drug addiction issues, I also accept that you are in remission and have been so for a significant period. The material which has been tendered on your behalf indicates that you have not only been able to overcome your addiction problems, but have developed strategies by virtue of extensive counselling and undergoing programs in order to do so.
111 I accept that there are the following matters in favour of your prospects for rehabilitation:
(a) you have no prior convictions;
(b) at the time of the offending you were addicted to cocaine, but you have managed to overcome this addiction for a lengthy period;
(c) you have stable ongoing employment;
(d) you have secure accommodation within the family home and the ongoing support of your family who I note are here again today;
(e) you have the capacity to improve your life, as is apparent from your ongoing tertiary study and your new-found work ethic;
(f) you have taken responsibility for your offending and have shown remorse and insight in relation to it.
112 In all of the circumstances, I find that you have very good prospects for rehabilitation and I need only place minimal weight on specific deterrence and protection of the community.
113 However, I must place strong weight on general deterrence in a bid to deter others from offending in the way that you have. As has been said very often in these courts, drugs are a scourge on our community, causing misery to all of those who encounter them- not only those who become addicted to them, but their friends and family as well as the broader community oftentimes because of the criminal offending which often goes with the territory.
PARITY
114 A central issue in your case concerns the application of the principle of parity.
115 I was provided with a chart by the Prosecution which set out the charges relating to your co-offenders, their respective sentences and some details in respect of their roles and offending.
116 The details of your co-offenders are as follows:
117 On 3 April 2017, I sentenced Mr Wong in respect of one charge of trafficking in a large commercial quantity of cocaine - the quantity being 2.907 kg of cocaine, and the summary offence of dealing with property suspected of being proceeds of crime, being $9,295.00. His offending occurred between 21 May and
23 November 2015. Therefore, the duration of his offending was lengthier than yours and he was charged with an offence that carried a maximum penalty of life imprisonment. His role was mostly similar to yours – mainly, he was a trusted delivery driver, but on occasion, he also manned the business phone, in contrast to you. I sentenced him to a total effective sentence of 7 years imprisonment with a non-parole period of 4 years. The sentence of 6 months for the summary matter was directed to be served wholly concurrently with the sentence for the principal charge.
118 On 30 October 2017, Her Honour Judge Campton sentenced Vladamir Djordjic to a total effective sentence of 19 years 6 months' imprisonment with a non-parole period of 14 years 6 months for trafficking in a large commercial quantity of cocaine, being 1.5 kg, possessing an unregistered handgun and trafficking in large commercial quantities of methyl amphetamine, being 2 kg, and cocaine being 1.94 kg. I understand that there were two charges trafficking large commercial quantities, with the last two mentioned drugs being rolled into one charge. He was also dealt with for knowingly dealing with proceeds of crime, being $5.6 million, and possession of prohibited weapons. His offending in respect of the first mentioned matter endured between 25 August 2015 and 1 November 2015, so, roughly 2 months, and the last mentioned trafficking large commercial quantity charge was said to have endured for one day. Mr Djordjik supplied drugs to the syndicate and was operating at a commercial level. Therefore, his role was significantly superior to yours or any of your co-offenders for that matter, and he faced, amongst other charges, two charges of trafficking in a large commercial quantity of drugs, one of which was a rolled up charge, encompassing two different drugs.
119 Gallin and Carron were dealt with by Her Honour Judge Gaynor on 10 September 2018.
120 Gallin was sentenced to a total effective sentence of 9 years 6 months' imprisonment with a non-parole period of 5 years for trafficking in a large commercial quantity of cocaine, being 3.735 kg, for which he received 9 years’ imprisonment, and dealing with property suspected of being proceeds of crime, being $60,000, for which he received 12 months' imprisonment. (Six months was ordered to be served cumulatively with the other sentence.)
121 Gallin offended between 21 May 2015 and 24 November 2015, so over a period of about 6 months. His role was described as being the manager of the syndicate. He took orders and arranged the purchase of large quantities of drugs. He arranged for Carron to prepare bags of drugs and for you and Wong to make deliveries.
122 Her Honour sentenced Carron to a Community Corrections Order for five years with a number of conditions including 600 hours unpaid community work in respect of the charge of trafficking in a commercial quantity of cocaine, where the quantity alleged was 900 grams. I was told that he was originally charged with trafficking in a large commercial quantity but he pleaded guilty to the lesser offence after committal, upon a negotiated quantity of 900 grams was agreed upon. His role, as described in the chart, was to prepare drugs into deal size bags at the drug house, although, I note that in the agreed opening before me and indeed as referred to from time to time in Her Honour Judge Gaynor’s sentencing remarks, he also monitored the phone on occasion, as did Mr Wong. He offended between 18 August 2015 to 24 November 2015, so over a period of a little more than three months.
123 I was told that no appeals have been lodged by any of your co-offenders or by the DPP in respect of any of the sentences imposed, save that Mr Djordjik did appeal, unsuccessfully, to the Court of Appeal, in respect of his sentence.
124 In her very carefully crafted sentencing reasons, Her Honour Judge Gaynor noted that Mr Gallin pleaded guilty at the beginning of the contested committal hearing and Mr Carron pleaded guilty at the end of it. She also noted that Mr Carron was remanded in custody between 24 November and 16 December 2015 and was then released on bail. She also took into account that part of the time that he spent on remand at the MRC was endured during the prison riots such that Carron was subjected to 23 hour lockdown.
125 Having noted my sentence in respect of Mr Wong, Her Honour went on to deal with the personal circumstances of each of the offenders before her.
126 In dealing with Mr Gallin, she said that, although his family was affluent, his home life was extremely unhappy and that he was subjected to a good deal of emotional and physical abuse, especially at the hands of his father. He had a difficult time at school, and was subjected to bullying because he was quite large and of Greek background. He left school in Year 10 and pursued his obsession with boxing, martial arts and body image. He was introduced to steroids and used these for years, with his use eventually spiralling out of control. He was extremely successful as a boxer as an amateur then professional. When he was 25, he became seriously ill and was devastated to learn that he could no longer pursue his boxing career. In 2012, he collapsed and was hospitalised as a result of steroid abuse. His long-term partner separated from him after learning of his addiction, although they kept in touch.
127 He had had worked in various other fields including security work, and pizza delivery. He had commenced a carpentry pre-apprenticeship in 2013 which he did not complete.
128 He had one prior conviction for recklessly causing injury and Her Honour found that this did not have any relevance to the matter before her. He had held a managerial job for a security company in 2015, and had also become involved in large scale betting on horses which was successful and he became part owner of eight horses. Nevertheless, his separation from his partner led him to feel that he had no reason to live - it was in this context that he was introduced to cocaine and rapidly developed a habit which cost about $10,000 per week. His earnings were outweighed by the cost of his drug addiction and he soon became indebted to his supplier. He joined the drug syndicate, which was already operating, and according to Gallin, was headed by Djordjik. He did so in order to pay his drug debt and access cheap cocaine. Initially, he was a courier and he then went on to take on the managerial role that he had when arrested. However, the level of his indebtedness was such that he was still in debt at the time of his arrest.
129 During his remand, which was his first experience of gaol, he underwent withdrawal from cocaine, which, for him was extremely difficult, then was visited by a rehabilitation consultant from a private firm to assess the most appropriate rehabilitation avenue. When bailed, he entered a residential rehabilitation facility, and went on to another after several months. Her Honour Judge Gaynor detailed the extensive efforts that Mr Gallin had made in respect of his rehabilitation, and referred to his numerous supervised drug screens over a period of more than two years where his drug screens had been clear. He had also mentored other drug users.
130 In 2014 he had reunited with his former partner and was the father of two young children. Strong character material was tendered on his behalf, and there was also evidence of him being part of a new business to import reconstituted stone from China. He was described as having a strong work ethic by one of his partners in the business.
131 Since returning to custody, he had enrolled in a Bachelor of Law and Business degree through Open University. Her Honour accepted that Gallin’s rehabilitation had been transformative and that he had strong protective factors in support of his rehabilitation into the future. She also accepted that he had successfully dealt with his drug addictions such that she found that his prospects of rehabilitation were ‘extremely positive.’ However, Her Honour said that his offending was too serious to attract anything other than a lengthy term of imprisonment, which, was something that was accepted by all parties.
132 Her Honour found that, overall, Mr Gallin’s role was superior to that of Mr Wong, that he was in a position of considerable authority in the syndicate which ought be reflected in her sentence.
133 Her Honour then referred to the circumstances in respect of Djordjic’s offending and sentence, concluding that his position was distinguishable from Gallins, as Djordjic was at a higher level in the hierarchy, being a wholesaler of illegally imported drugs. Her Honour factored in delay as a mitigating feature and also found that Gallin’s drug addiction arose from underlying trauma he had suffered, but which he had now thoroughly addressed.
134 Her Honour imposed sentence on Gallin so as to particularly reflect the gravity of the offending in the head sentence but imposed a minimum term that she said would be less than it would otherwise be because of the ‘unusually strong mitigating factors’ in Gallin’s case.
135 In comparing Gallin to Mr Wong’s situation, Her Honour noted that Mr Wong had been a longstanding member of the syndicate who had, to some extent, assumed a level of trust, which enabled him to operate within the syndicate in a role which was greater than that of a mere courier, referring to my sentencing remarks in this regard. She also accepted that Mr Gallin was heavily addicted to cocaine, and participated in the syndicate primarily to support his habit, as opposed to Mr Wong, who engaged in cocaine use only for recreational purposes and was involved in the syndicate for commercial gain.
136 Her Honour accepted that Gallin had engaged in extensive rehabilitation over a considerable period, which was a mitigatory factor not available in respect of Mr Wong. However, Her Honour found that while there was a disparity between Gallin’s role and that of Mr Wong, it was not as great as might usually be the case as between a managing role and that of a courier. Her Honour found that, nevertheless, Gallin had engaged in the criminal activity in a position of considerable authority, and that any sentence she imposed ought be reflective of that fact. She said that Gallin engaged:
“... as a manager of a successful, well established syndicate responsible for the distribution into the community of a large quantity of a damaging drug.”
137 Her Honour accepted that the gravity of Gallin’s conduct was high, and that any sentence she imposed must also reflect the gravity with which such offending is regarded as indicated by the maximum penalty involved.
138 Her Honour went on to refer to the Court of Appeal decision of Gregory (a Pseudonym) v The Queen [2017] VSCA 151, where it was made clear that sentencing in this area had been inadequate and needed to be uplifted. Her Honour also accepted that Gallin’s plea of guilty was a genuine expression of remorse in light of the remarkable rehabilitative progress he had made.
139 Her Honour moved on to the circumstances of Mr Carron. Like
Mr Gallin, Carron had grown up in affluent circumstances. His parents’ marriage was problematic. He had a distant relationship with his father, who worked long hours and was away from the family home a good deal. Carron’s mother struggled with a number of mental disorders and was subsequently diagnosed with bipolar disorder and a borderline personality disorder. Like Gallin, Carron had attended a number of privileged secondary schools. Carron’s sister, who was a registered psychologist, provided a letter indicating that their mother had been inconsistent and sometimes emotionally abusive, which led to her and Carron becoming very close to each other and looking out for each other.
140 When in Year 8 Carron’s parents separated and he stayed with his mother, however, the financial situation became difficult. His father remarried and had three more children from the new relationship. Her Honour noted that:
“Most importantly, following that separation [Carron’s] mother’s mental health condition deteriorated drastically. She began drinking heavily, became increasingly suicidal and was ultimately admitted to a psychiatric hospital where she stayed for a month.”
141 According to Carron’s sister, this was the start of a period during which Carron’s mother made recurrent suicide attempts, requiring hospitalisation. Essentially, Carron and his sister were left to take on the responsibilities of the household as teenagers. Carron or his sister would come home to find their mother having attempted suicide by various means, requiring them to call an ambulance or her psychiatrist. They would then visit their mother in hospital, as they were her only supports. Carron had to deal with this situation on his own for a period of nine months in his last year of school, as his sister was overseas at the time.
142 Carron completed VCE but his marks were insufficient to enter university. He went on to complete a course at TAFE, and obtained employment in a stockbroking firm. He studied part-time at RMIT whilst working for this firm, and managed to complete a degree in economics and finance, ultimately completing a Masters of Applied Finance. He was promoted in his field and obtained full-time employment as a stockbroker when he was twenty-four.
143 He attended evening classes for his Masters’ degree, and, in order to help address his concentration difficulties which he suffered as a result of ADHD, he began taking dexamphetamines to help him concentrate. He also took cocaine to help with long work and study hours. He was able to access cocaine with ease, because he worked in an industry where it was readily available.
144 Following his offending, it appears that Carron consulted the same drug rehabilitation firm as Mr Gallin.
145 Her Honour noted that Carron commenced ingesting cocaine when he was nineteen, but this escalated to daily use by the time he was twenty-four, when he consumed between 4 and 8 grams per week. He also used dexamphetamines daily between the ages of twenty-five and twenty-eight.
146 Carron wrote a letter to the court where he described working 12 to 14‑hour days and described his lifestyle during this period. He said that his boss (stockbroking) would take him out to socialise three to four times a week, and after 18 months he was offered a job at the firm in Melbourne, where he continued to work long hours; he also took over the management of his mother’s financial affairs, which had become dire.
147 He said that as he worked longer hours, his addiction grew to the point where his monthly salary would be spent within 2–3 weeks and he would have to withdraw funds via a margin loan against shares that he held in order to bridge the gap each month. He said that when the stock market turned sharply negative over the year 2015, he was no longer able to borrow funds, and was also under significant pressure from his mother’s portfolio, which was her only source of income, and which, again, went close to disappearing.
148 Her Honour noted that Carron had known Gallin since he was fifteen, and Gallin was his cocaine supplier in Melbourne. Gallin invited Carron to take up a role in the syndicate, which he did in order to have greater access to cocaine at a cheaper rate. Gallin had written a letter to the court taking responsibility for introducing Carron to the syndicate, describing him as a successful stockbroker and one of his closest friends. He said that he manipulated Carron’s addiction and involved him in his crime.
149 Carron was also remanded in custody at the Melbourne Remand Centre and was subjected to the 23‑hour lockdown that occurred following the riots. He underwent withdrawal whilst in custody, and described being threatened by other inmates.
150 He was bailed on 16 December 2015 on strict conditions which involved him embarking upon rehabilitation measures. He remained in residential rehabilitation for six months, which was intensive and involved him being unable to leave the premises unless accompanied by a staff member. He was then transferred to an advanced program, and took part in this for a further three months. He was required to undertake drug screens, all of which were negative. Like Gallin, he attended Narcotics Anonymous and made excellent progress in terms of his drug rehabilitation.
151 Her Honour went on to detail the various reports and matters in support of Carron’s rehabilitation insofar as his drug rehabilitation was concerned. He was diagnosed as suffering from ADHD, which was a condition which in particular would make incarceration a more stressful experience than for someone not so afflicted. Her Honour noted that in the last three weeks of his residential rehabilitation, his father suffered a massive heart attack, and his bail conditions were varied so as to enable him to assist with the running of his father’s business. Carron had since reconnected with his father, whose second marriage had ended at the time of Carron’s arrest. He had been involved in his father’s business ever since, and had managed his father’s assets and investments so as to maximise his father’s income.
152 Like Mr Gallin, Carron had started up a business himself, which was a clothing company, promoting the message of keeping good and positive company. The business had turned a profit for the last nine months. He had also become involved with Parkville Youth Justice Centre, whereby his business awarded gifts of clothing from his company “as a reminder to stay on a positive path when they leave”. He had gifted items worth more than $10,000 to the program.
153 Her Honour noted that Carron had been involved in a relationship with a person who is now his fiancée, and that he, his fiancée, and mother, had attended counselling on a number of occasions in order to deal with the various issues underlying Carron’s drug use.
154 Like Mr Gallin, a “raft of references from family and friends” was tendered in support of Carron’s remorse and rehabilitation.
155 I accept that in your case, the same has been done.
156 Her Honour was satisfied that, like Mr Gallin, Carron had undergone a lengthy, intensive and successful rehabilitation over a long period, and that, like Mr Gallin, his prospects of rehabilitation were “extremely positive”, and that the principle of community protection had a lesser role to play in Carron’s case.
157 Her Honour noted that the prosecution submission was that Carron’s offending was a serious example of the crime he had committed, and that the amount of cocaine involved was at the upper end of the statutory definition for trafficking in a commercial quantity. The prosecution submitted that the only appropriate penalty was a term of imprisonment. The prosecution submitted that Carron’s role was superior to that of Mr Wong, and that despite Carron’s impressive rehabilitation, which was acknowledged by the prosecution, a non-custodial disposition such as a Community Corrections Order was out of the range. The prosecution relied on Gregory (a Pseudonym) v The Queen.
158 Her Honour then referred to the submissions of counsel for Carron before making her findings in relation to the question of parity and other matters. Insofar as parity was concerned, Her Honour said the following:
“It is my view that the disparity claimed between Mr Wong and you, Mr Carron, is not as extreme as that submitted by the prosecution. Your role was confined, at first blush, to an activity recognised as being superior to that of mere courier, that is, your preparation of drugs for sale and your occasional managing of the phone. In my view however it is quite clear that Mr Wong’s role was not that of a mere courier; that he was able, as Her Honour Judge Cannon stated, to easily step into a managerial role when required and in fact did so. Moreover he was dealt with by Her Honour for a charge of trafficking in a large commercial quantity whereas this court is dealing with you on the lesser, although serious, charge of trafficking in a commercial quantity only.
Secondly, in my view Mr Wong’s role in the syndicate was of greater length and duration than yours, it being, if you like, more or less a fulltime job for which he was paid and which gave him access to the use of cocaine, a drug to which I note he was not, as you were, addicted. In other words I accept that your role in this syndicate was limited, that you received no profits from it apart from access to the drug to which you were addicted, and that your role was a more limited one than that undertaken by Mr Wong. The authorities make it clear that the fact that a person engaged in drug trafficking in order to service a drug addiction is to be distinguished from cases where the accused person is motivated by profit.
Thirdly, the issue of delay and rehabilitation was not one which featured in Mr Wong’s case.
I also note your comment to Dr Riebl that your participation in a drug distribution syndicate 'seemed to have more of the quality of a social outing with the promise of reward in the form of cocaine for his personal use than of a participation in a serious criminal activity.'"
159 Her Honour went on to say that in her view the issues of delay and rehabilitation had great weight in the sentencing exercise, notwithstanding that she accepted that this was an extremely serious crime committed by Carron which would ordinarily warrant a term of imprisonment. She went on to say this:
“In my view, however, yours is a singular case marked by exceptional rehabilitation and enhancement of your rehabilitative prospects such that it is one of those very rare cases where a non-custodial sentence may be imposed. I note that you conducted a contested committal but that clearly resulted in a settlement of these matters and a plea to the charge before the court, which is a lesser charge in terms of seriousness than that faced by Mr Gallin and Mr Wong. That is, your offending although serious is of a lesser magnitude than that faced by either of them.”
160 Her Honour also referred to Mr Carron suffering from ADHD and post-traumatic stress disorder which would make prison “a struggle for you and possibly undo the good work that has been done.”
161 She went on to note that, like Mr Gallin, Mr Carron had a prior conviction for recklessly causing injury and was placed on a good-behaviour disposition without conviction. Like Mr Gallin, she did not regard the prior matter as being relevant to sentencing him.
162 Her Honour took the view that in all the circumstances an onerous long-term Community Corrections Order was appropriate, as it met “both the punitive and rehabilitative imperatives of your case”. Her Honour also referred to the fact that she had been provided with three different assessments, including the assessment report for the community corrections disposition which had shown that Carron was at low risk of reoffending.
163 Her Honour emphasised that this was an exceptional situation, and that the offending of Carron was extremely serious. She said that had it not been for his extensive efforts to rehabilitate, including providing up to 180 clean urine screens, he would have been facing gaol. She made it clear that ordinarily she would not have hesitated in gaoling him. Her Honour also emphasised that Carron had pleaded guilty to a lesser charge, and had psychiatric conditions which would make it more likely that his rehabilitation would be undone in prison. She went on to impose a Community Corrections Order in the terms to which I have previously referred.
164 In terms of the level of responsibility at the drug house, with all due respect to Her Honour, I note that, like Wong, Carron was trusted to man the phones on occasion, which meant he was able to step into a managerial role when needed, as had Wong. Also, Carron was entrusted to fill the deal bags from larger quantities of cocaine on a regular basis, to the point where he had trafficked 900 grams of the product. And he had the necessary mental element in relation to commercial quantity, which is not the case for you Mr Topal.
165 In any event, it is clear that Her Honour was of the view that Carron’s rehabilitation was so remarkable, factoring in his traumatic background, that, in combination with all of the other mitigating circumstances in his case, his was an exceptional one which warranted leniency.
166 At the initial plea hearing, Mr Saunders submitted that your rehabilitation was just as impressive and exceptional as Mr Carron’s – that he had a greater role than you and had committed a more serious offence. He submitted, in essence, that in circumstances where the Crown had not chosen to appeal that sentence, I was bound to use Her Honour’s sentence as a yardstick when applying the principle of parity to your case. He submitted that the only way that I might not have regard to Mr Carron’s sentence in sentencing you appropriately was if I were to come to the view that Judge Gaynor’s sentence for Carron was, in essence, entirely inadequate. He submitted that this was problematic in circumstances where the DPP had not appealed Carron’s sentence on the ground of manifest inadequacy.
167 Mr Saunders made further submissions today along similar lines but referring me to a Court of Appeal decision to which I shall refer in a moment.
168 The learned prosecutor submitted that I did not have to reach such a view as submitted by Mr Saunders in relation to Carron’s sentence in order to impose a sentence of imprisonment on you, and at the plea hearing Mr Milesi did not urge me to put Her Honour’s sentence to one side in arriving at an appropriate sentence in your case. He submitted that Mr Carron’s case was exceptional and that he had demonstrated a greater level of rehabilitation in view of his particular circumstances, but that your situation did not reach such an exceptional level so as to avoid gaol. Again Mr Milesi made further submissions today and provided me with an authority which I have also considered.
169 I now come to some authorities which are relevant in this case on the question of parity.
170 In the matter of Taleb v R [2014] VSCA 96, having reviewed a number of authorities on the question of parity in circumstances where a co-offender had received a lenient sentence, their Honours Neave and Weinberg JJA referred to an extract from the text, Fox and Freiberg’s Sentencing: State and Federal Law in Victoria, as follows:
“The principle of parity between sentences does not require a court to impose exactly the same sentence imposed upon a co‑offender, or one which is so low as to be wholly disproportionate to the offence, merely because such a sentence has been imposed on a co-offender. In such cases an offender’s sense of grievance must yield to the public interest in having an appropriate sentence being imposed.” [47]
171 Their Honours went on to say:
“To summarise, the avoidance of an unjustifiable disparity between the sentence imposed on an appellant and a co-offender may require the reduction of the appellant’s sentence to a level which might otherwise be regarded as at the bottom end of the range, but not to the point where the offender’s sentence is wholly inappropriate or outside the range.” [48]
172 Their Honours said further that the view they had expressed was consistent with the observations of French CJ, Crennan and Kiefel JJ in the High Court decision of Green v R; Quinn v R (2011) 244 CLR 462 at 475 [33], emphasising the following from the extracted passage:
“Moreover, if the relevant sentencing legislation, on its proper construction, does not permit an inadequate sentence to be imposed, there can be no discretion on appeal to impose one.” [49]
173 Neave and Weinberg JJA then said the following:
“The emphasised words in the quotation above required their Honours to consider the purposes of sentencing described in s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW) which included ensuring that the offender is adequately punished for the offence and s 21A of that Act which required the Court to take account of the relative seriousness of the offence as well as including the common law parity principle. In their Honours’ view these provisions prevented a sentencing judge from imposing an inadequate sentence on that offender, where this was necessary to produce parity with the sentence imposed on a co-offender.
Similarly, s 5 (2)(c) of the Sentencing Act 1991 (Vic) requires the Court to have regard to ‘the nature and gravity of the offence’ in sentencing the offender. In our view those words may well prevent the imposition of a manifestly inadequate sentence in order to give effect to parity.” [50]-[51]
174 Therefore, the High Court and members of our own Court of Appeal have made it clear that if giving effect to parity would result in a manifestly inadequate sentence, the requirement to have regard to the nature and gravity of the offence might well operate so as to prevent this happening.
175 Today I have been provided with the Court of Appeal decision of Bernath & Ors v The Queen [2014] VSCA 195 at 589. In that case the Court said that even if they took the view that the sentence of a co-offender was far too low, nevertheless, justice between co-offenders must prevail. At that point the court footnoted R v Williams [2001] VSCA 130 at [13] per Winneke P and then in the same footnote said, "But see further Taleb v The Queen [2014[ VSCA 96 paragraphs 39-52." It appears to me that the authority of Taleb actually is in conflict with the authority of Bernath & Ors v The Queen. Taleb v The Queen however is based on High Court authority which it appears to me in the context of the actual point on parity that was made in Taleb, was not drawn on from the Court of Appeal in Bernath notwithstanding that they did refer to the authority of Green at a different point in the judgment.
176 Further, in Dalgleish (2017) 349 ALR 37, the High Court made it clear that a sentencing judge’s instinctive synthesis is not constrained by current sentencing practice - that current sentencing practice is but one matter that a judge must take into account in arriving at an appropriate sentence in any given case. I cannot see how the same reasoning would not apply to the application of the parity principle - that is, it is not a controlling principle but one of the matters that a sentencing judge ought have regard to- Of course, it is an important one, but it is but one principle that a judge must have regard to.
177 Mr Topal, I make it clear that I am aware of the differences in your case as opposed to the cases of your co-offenders. I accept that your role was lesser than any of your co-offenders and that you are facing a trafficking simpliciter charge as opposed to the various more serious charges that your co-offenders faced. I am very much aware of the differences in the maximum penalties applicable to trafficking a commercial quantity and trafficking a large commercial quantity of a drug of dependence, as opposed to trafficking simpliciter; and the requisite states of mind that go with each of the offences. I make it clear that I am dealing with you on the basis of trafficking simpliciter, and that the period of your offending was four months, with the 1,061 transactions occurring over a period of three months.
178 I am also most mindful of the quantities of drugs trafficked by your co-offenders – the closest quantity to your situation is Mr Carron, who trafficked 900 grams, as opposed to you trafficking 819.5 grams, although your state of mind was such that you are being dealt with for trafficking simpliciter whilst he was dealt with for the more serious offence of trafficking in a commercial quantity. He offended over a slightly shorter period of time than you but I must say, in my view, his role was more serious than yours.
179 The person who had the role closest to yours was Mr Wong. However, he was dealt with for a far more serious offence of trafficking in a large commercial quantity of cocaine, the quantity being 2.907 kilograms, and his offending enduring for about six months. He performed the role of a trusted courier but also had a trusted role in managing the phones from time to time, and he was also dealt with for dealing with property suspected of being proceeds of crime. He was a recreational user of cocaine as opposed to being addicted to the substance like you, and was motivated purely by financial gain in undertaking the criminal work that he did. But, bearing all of this in mind, I must still have regard to the fact that he was sentenced to a substantial gaol term.
180 You have no prior convictions. Mr Carron had one, although it was not relevant for the purposes of sentencing him. Like you, he could call delay in his favour – in your case, there has also been delay, which has meant that you have had these proceedings hanging over your head for about three years and also that you have been able to demonstrate in that time that you have been able to rehabilitate significantly and impressively. In this regard I also take into account the urine screens that you have provided, all of which show that you have not been abusing substances. I regard your background as being a more favourable one than that of Mr Carron, but you have also had your difficulties in this regard. You each have mental health issues and have had struggles with substance abuse. His sole motivation for offending was to feed his cocaine addiction. Whilst this was a major motivation in your case, you also offended to make some money.
181 At the end of the day, Mr Topal, I have had regard to the sentences imposed in respect of each of your co-offenders and considered the various differences in their cases, compared with yours. The only co-offender not sentenced to an immediate gaol term with a non-parole period was Mr Carron. Mr Carron’s case was said to be a rare and exceptional one for offending of the kind in which he engaged. In those circumstances, although I have had regard to Carron’s sentence, which was a most lenient one, I am afraid that I cannot do justice to the nature and gravity of your offending by imposing a similar sentence upon you. I have had as much regard as the law permits to the principle of parity in your case, but I cannot impose a sentence upon you which I regard as inadequate in respect of a most serious example of trafficking simpliciter. In my view if I were to give full effect to parity insofar as Carron's sentence is concerned, the sentence that I would impose, a Community Corrections Order, would be manifestly inadequate in your case, and would be to pay insufficient regard to the nature and gravity of your offending, and to my instinctive synthesis in respect of your case.
182 The fact that the Director of Public Prosecutions did not appeal Carron’s sentence is not to the point in my view, and is not determinative of what I ought do in respect of your case. However, in imposing sentence upon you, I have reduced the sentence that I would have otherwise imposed upon you for your offending, in view of the most merciful treatment of Mr Carron, whose offending was more serious than yours. I am afraid, however, that your offending is just too serious to warrant anything short of a gaol term with a non-parole period; however, the non-parole period is lesser than might otherwise be the case in view of the matters in mitigation personal to you.
183 Please stand up.
184 You are convicted of the offence.
ANCILLARY ORDERS and SENTENCE
185 Firstly, I make orders for disposal in the terms of the draft order provided to me by the prosecution and which is not opposed by you.
186 I make an order for forfeiture of a Samsung mobile phone which is not opposed by you.
187 Further, I make an order for a forensic sample to be taken by way of a buccal swab from the mouth because I regard it as being in the public interest to do so because of the seriousness of your offending and because it is not opposed. I must tell you that if you do not cooperate with the authorities in the obtaining of a sample, then reasonable force can be used by the authorised officer or officers in order to secure it.
188 In relation to the offence on the indictment, you are sentenced to three years’ imprisonment with a non-parole period of 12 months.
189 I declare that you have already served 24 days by way of pre-sentence detention.
190 If not for your plea of guilty, I would have sentenced you to a total effective sentence of five years’ imprisonment with a non-parole period of three years.
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HER HONOUR: Is there anything?
MR SAUNDERS: No Your Honour.
HER HONOUR: All right thank you.
MR MILESI: No Your Honour.
HER HONOUR: Yes, if you could remove Mr Topal. Yes we'll now adjourn.
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