Director of Public Prosecutions v Trumm
[2023] VCC 1070
•23 June 2023
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-22-01483
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DANIEL TRUMM |
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JUDGE: | HER HONOUR JUDGE CHAMBERS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 5 May 2023, 19 June 2023 | |
DATE OF SENTENCE: | 23 June 2023 | |
CASE MAY BE CITED AS: | DPP v Trumm | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1070 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – sentencing
Catchwords: Guilty plea – trafficking in a commercial quantity of a drug of dependence, namely methylamphetamine, prohibited person possess imitation firearm, possess a drug of dependence and knowingly deal with the proceeds of crime, namely $13,988.76 and related summary offences of dealing with property suspected of being proceeds of crime, driving whilst disqualified and using false registration plates – offending arose from transactions with covert police operatives – significant childhood disadvantage – application of Bugmy principles – long-term drug addiction – relevant criminal history – guarded prospects of rehabilitation – general and specific deterrence, just punishment, denunciation and community protection to be given weight
Legislation Cited: Drugs, Poisons and Controlled Substances Act 1981; Crimes Act 1958; Control of Weapons Act 1990; Sentencing Act 1991
Cases Cited:Kada v. The Queen [2017] VSCA 339; R v. Nguyen & Ors [2008] VSCA 235; Worboyes v. The Queen [2021] VSCA 169; Bugmy v. The Queen [2013] HCA 37; DPP v. Herrmann [2021] VSCA 160; Newton (a pseudonym) v. The King [2023] VSCA 22; R v. Verdins (2007) 16 VR 269
Sentence: Total effective sentence of four years, six months’ imprisonment with a non-parole period of two years and eight months fixed
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr L. Harrison | Office of Public Prosecutions Victoria |
| For the Accused | Mr C. Nikakis | Haines & Polites |
HER HONOUR:
1Daniel Trumm, you have pleaded guilty on indictment to the following offences:
(a) a rolled-up charge of trafficking in a commercial quantity of a drug of dependence, namely methylamphetamine contrary to s 71AA(1) of the Drugs, Poisons and Controlled Substances Act 1981, the maximum penalty for which is 25 years’ imprisonment;
(b) one charge of being a prohibited person in possession of an imitation firearm contrary to s 5AB(2) of the Control of Weapons Act 1990, the maximum penalty for which is 10 years’ imprisonment;
(c) two charges of possessing a drug of dependence, namely 1,4-Butanediol and Cannabis L contrary s 73(1) of the Drugs, Poisons and Controlled Substances Act 1981, the maximum penalty for which is either one or five years' imprisonment; and
(d) one charge of knowingly dealing with proceeds of crime, namely cash in the sum of $13,988.76 contrary to s 194(2) of the Crimes Act 1958, the maximum penalty for which is 15 years’ imprisonment.
2You have also pleaded guilty to three related summary offences, namely dealing with property suspected of being proceeds of crime contrary to s 195 of the Crimes Act 1958, a rolled-up charge of driving whilst disqualified contrary to contrary to s 30(1) of the Road Safety Act 1986, and fraudulently using a registration label contrary to s 72 of the Road Safety Act 1986.
3The offending to which you are pleading guilty primarily relates to instances where you trafficked in methylamphetamine to covert police operatives over a five-month period between 20 November 2021 and 27 April 2022. During that period you trafficked in 3.92 times the commercial quantity of methylamphetamine.
4You were between 31-32 years of age at the time of this offending and had a prior criminal history which you have admitted.
Circumstances of the Offending
5The circumstances of your offending are detailed in the Summary of Prosecution Opening upon Plea dated 29 October 2022, which is the agreed basis upon which you are to be sentenced.
6In 2021, the Eastern Region Crime Squad commenced an investigation into your activities through the use of covert operatives.
20 November 2021
7On 20 November 2021, at 11.20 am, the State Surveillance Unit of Victoria Police observed you leaving your address in Mount Waverley and drive to a veterinary clinic in Rowville in a 2007 silver Holden Commodore sedan. You had been disqualified from driving for 12 months on 29 March 2021 and your conduct in driving on 20 November 2021 forms part of the rolled-up summary offence of driving whilst disqualified (summary charge 6).
8When you arrived at the veterinary clinic, the police followed you into a consulting room and arrested you. You denied driving, saying you had been driven by a female and did not have the keys to the car. You were transported to the Knox Police Station for interview.
9The police then conducted a search of the consulting room where they located the keys to the Holden Commodore in a desk drawer, before they located and seized $3,265 in cash found concealed beneath dog bedding on the floor of the consulting room. The cash located by police is the subject of the summary offence of dealing with property suspected of being proceeds of crime (summary charge 5).
10The police then searched the silver Holden Commodore, in which they located the following items:
(a) a black ‘Radenso’ case found in the driver’s side door, containing a zip lock bag and circular clear container with blue lid, which on analysis were found to be;
i.4.4 grams of methylamphetamine with a purity of 86 per cent located in the zip lock bag; and
ii.25.1 grams of methylamphetamine with a purity of 81 per cent found in the clear container.
(b) a wallet located in the glove box containing a Victorian Heavy Vehicle Driver’s licence in the name of Anthony Cleve. The licence had a clear sticky label on it with a photograph of you placed over the top of the licence photo;
(c) various documents located in the glove box all in your name, including a Medicare card, Passport, Birth Certificate and Commonwealth Bank details;
(d) empty zip lock bags with a white crystal residue which were found in the glove box; and
(e) a Commonwealth Bank card in your name, located in the centre console.
11
The methylamphetamine found in the Radenso case is the subject of the
rolled-up charge of trafficking in a commercial quantity of a drug of dependence (charge 1).
12Following your arrest you were interviewed at the Knox Police Station, during which you provided police with your home address and phone number. You were then released pending summons.
13As you were leaving the police station, two covert police operatives spoke with you and subsequently drove you to your Mount Waverley address. You told the police operatives that you could provide them with ‘bags’, being a reference to 28 grams of methylamphetamine, for $7,200, stating that the quality of the drugs was “pretty good”.
14When you arrived at your address with the covert operatives, you made several calls to associates that you referred to as your “runners”, asking them to bring “everything they had”. You told these associates you wanted “it all as soon as possible” because the police had just taken your supply of methylamphetamine.
15After making the phone calls, you gave the covert operatives your phone number and they then left your address at about 5:30 pm, before returning at 6 pm. In this period, the police conducted checks on your mobile number which revealed the phone was held in the name of Anthony Cleve, being the name on the driver’s licence seized from the Holden sedan.
16When the police operatives returned to your address, they placed $1,100 cash on a coffee table in front of you, in exchange for which you gave them a clear plastic zip lock bag containing 3.5 grams of methylamphetamine. Subsequent analysis revealed that methylamphetamine had a purity of 84 per cent. This transaction forms part of the rolled-up charge of trafficking in a commercial quantity of a drug of dependence (charge 1).
17Before the covert operatives left, you told them that they could contact you again and you would be able to supply them with more methylamphetamine.
8 December 2021
18The next contact between you and the covert operatives occurred on 7 December 2021. On that date, you agreed to sell them an undetermined quantity of methylamphetamine and arranged to meet them the following day.
19On 8 December 2021, the covert operatives met with you at your address, during which you discussed the following matters:
(a) you asked how much methylamphetamine they wanted to which the covert operatives replied, “a ball each” meaning 7 grams and gave a price of $1,900, asking if they wanted it in separate bags;
(b) you said you knew a dealer who could provide “2 kilos at the drop of a hat” describing the quality of his methyl amphetamine as “fucking good”; and
(c) said it was cheaper to purchase methylamphetamine from you rather than your “runners” because they would “step on it” and “up the price”.
20At this meeting, you retrieved a small plastic container from a centre drawer of the coffee table in the lounge room, which the covert operatives estimated held approximately 14 grams of methylamphetamine. You used a fifty dollar note to scoop some methylamphetamine from the container, placing it in two plastic bags before weighing the bags on a set of silver scales.
21The covert operatives paid you $1,900 in exchange for two zip lock bags of methylamphetamine. Subsequent analysis revealed that the methylamphetamine in those bags weighed 7.1 grams with a purity of 84 per cent. This transaction also forms part of the rolled-up charge of trafficking in commercial quantity of a drug of dependence (charge 1).
15 December 2021
22On 15 December 2021, after being contacted by one of the covert operatives, you agreed to sell them 14 grams of methylamphetamine.
23The covert operative met you later that evening at an apartment in Mount Waverley. During this meeting, you discussed the following matters:
(a) you said that you were staying in the apartment because the “D’s” (referring to police detectives) had gone to your house the day before and so “you high tailed it out of there and you would return once things had “cooled down”;
(b) you said you could source a firearm that would cost between $8,000 to $10,000 and that “good ones” would cost even more;
(c) you told the covert operative that the smaller and cheaper handguns were “filthy” because they had probably been used before; and
(d) that you could source a handgun that was small enough to fit in the palm of a hand and could fire 6 rounds but needed “just a day or two” by way of notice to source a firearm and asked for the covert operatives to text you the word “skittles” when referring to a firearm.
24During this interaction, the covert operatives observed you scoop a quantity of methylamphetamine from a plastic container and smoke it using a glass smoking pipe. The covert operative gave you $4,000 in exchange for a small plastic bag of methylamphetamine. Subsequent analysis revealed that the methylamphetamine in this bag weighed 13.9 grams with a purity 83 per cent. This conduct also forms part of the rolled-up charge of trafficking in a commercial quantity of a drug of dependence (charge 1).
23 December 2021
25On 23 December 2021, after being contacted by one of the covert operatives, you agreed to sell a further 14 grams of methylamphetamine for $4,000 and arranged to meet the covert operative later that day.
26When the covert operative attended your address in Mount Waverley just after noon, you retrieved a small plastic container from which you took a quantity of methylamphetamine and placed it in a sealable bag in exchange for $4,000.
27Subsequent analysis revealed that the methylamphetamine in the plastic bag weighed 14 grams with a purity of 85 per cent. This transaction also forms part of the rolled-up charge of trafficking in commercial quantity of a drug of dependence (charge 1).
7 January 2022
28On 3 January 2022 you made contact with one of the covert operatives saying you “had something to show him”. You then described a single shot firearm, approximately 10 centimetres in length which has the capacity to fire 5 to 6 rounds of ammunition, which you said was priced at $4,000.
29On 5 January 2022, you contacted the covert operative again, this time saying you had sourced a better firearm costing between $6,000 to $8,000. You and the covert operative arranged to meet on 7 January 2022 for them to purchase methylamphetamine and a firearm.
30On 7 January 2022, the covert operative contacted you and you agreed to sell him 14 grams of methylamphetamine for $4,000. While the covert operative was travelling to your address to meeting you, you sent a message stating:
“OK sweet man. Can’t get that banger till tomorrow now that was my fuck up I’m sorry I lost track of days. This stuff is at normal price of 4 but your people will be happy”.
31The covert operative arrived at your address at approximately 2.20 pm. You apologised for not having the “shooter” with you. You discussed the size of the firearm, saying that it could “re-load really quickly”. You explained that you would pick the firearm up later that evening and would text the word “skittles” when you had it in your possession.
32The covert operative paid you $4,000 in exchange for a plastic sealable bag of methylamphetamine.
33Subsequent analysis revealed that the methylamphetamine in that bag weighed 13.3 grams with a purity of 82 per cent. This transaction also forms part of the rolled-up charge of trafficking in commercial quantity of a drug of dependence (charge 1).
10 January 2022
34On 10 January 2022 one of the covert operatives contacted with you in Mount Waverley and you agreed to sell a handgun for $8,000. At approximately 2.25 pm, two covert operatives travelled to your home.
35One of the covert operatives met with you inside your home while the other waited in a vehicle parked in your driveaway. You told the covert operative that you had the ‘package’ in the backyard, before going outside and retrieving a bag that was wedged between a neighbour’s fence and the wall on the eastern side of your backyard. You then returned inside with the covert operative.
36Once inside, you handed the bag to the covert operative, inside of which was a handgun with an army green slide and black magazine. The covert operative took a photograph of the handgun and sent it to the other covert operative who was waiting outside.
37The covert operative placed $8,000 cash on the coffee table and then returned to the car with the bag. On closer inspection they concluded the ‘handgun’ was in fact a ‘gel blaster’ or an imitation handgun. The covert operative returned with the bag and gel blaster to your house, in response to which you said words to the effect, “no issues, I’ll chase it up with my guy”. The covert operative then retrieved the $8,000 from the coffee table before leaving.
38You then wrote a message to the covert operative, stating:
“Now I know you’re legit, same time here tomorrow. I’m sorry for wasting your time today but for piece [sic] of mind for me today it was worth it. Up to you what you want to do wasn’t gonna take the chance. At least your friend know (sic) I apologise I hope he see’s where I’m coming from”
39Investigators subsequently identified the gel blaster as a Zev Tan Glock Atomic X Double Bell GBB Pistol Gel Blaster, that was retailed for sale online from a store based out of Brisbane.
40Your conduct in possessing this imitation firearm is the subject of the offence of being a prohibited person in possession of an imitation firearm (Charge 2).
11 January 2022
41On 11 January 2022, one of the covert operatives contacted you to enquire whether you were still meeting up to purchase the handgun. When you did not reply to this message, the covert operative contacted you again. You replied it would take you a whole day to acquire one and said that you would be in contact later.
21 January 2022
42On 21 January 2022, one of the covert operatives again contacted you to arrange the purchase of methylamphetamine. You agreed to sell them 14 grams of methylamphetamine for $4,000. The covert operative arrived at your Mount Waverley address at 3.30 pm and you apologised for the incident involving the gel blaster, saying you wanted to “make sure you’re legit” and “now I know you’re legit, we’re sweet”.
43The covert operative asked if you could still source a firearm. You said that it would not be a problem and you would sort it out later in the following week and get back to him.
44You then gave the covert operative a small plastic bag containing white crystalised rocks in exchange for $4,000. Subsequent analysis confirmed this was methylamphetamine weighing 13.4 grams with a purity of 82 per cent. This transaction also forms part of the rolled-up charge of trafficking in a commercial quantity of a drug of dependence (charge 1).
16 March 2022
45On 15 March 2022 one of the covert operatives contacted you again to arrange the purchase of methylamphetamine. You agreed to provide 14 grams of methylamphetamine and arranged to meet the following day.
46At approximately 12.30 pm on 16 March 2022, the covert operative met with you at your home. You handed the covert operative two plastic bags containing white crystalised rocks, saying one bag estimated to be approximately 56 grams was “AAA grade” whilst telling them that the other bag estimated to contain 28 grams was of a lesser quality. You again apologised for the incident involving the gel blaster on 11 January 2022 and confirmed you were still able to access a firearm if needed.
47The covert operative asked to purchase the higher grade methylamphetamine and you weighed some of the contents on a digital scale, before handing it to the covert operative in a small zip lock bag.
48The covert operative then asked if the price was still the same at $4,000. You told the covert operative to keep $200, saying you had bought it at a cheaper price and that “when you buy it cheaper you sell it cheaper”. The covert operative placed $3,800 on the kitchen bench in exchange for the plastic bag. Subsequent analysis revealed the substance to be methylamphetamine weighing 14.1 grams with a purity of 85 per cent.
49This transaction also forms part of the rolled-up charge of trafficking in a commercial quantity of a drug of dependence (charge 1).
8 April 2022
50On 7 April 2022 one of the covert operatives again contacted you to arrange for the purchase of methylamphetamine. You agreed to sell the covert operative 28 grams of methylamphetamine for $6,500.00. The covert operative met you at your address in Mount Waverley on 8 April 2022, where you produced a small zip lock bag with crystalised white rocks from a black safe you were carrying. The covert operative handed you $6,500 in exchange for the methylamphetamine.
51Subsequent analysis confirmed the substance was methylamphetamine weighing 27.7 grams with a purity of 78 per cent. This transaction also forms part of the rolled-up charge of trafficking in a commercial quantity of a drug of dependence (charge 1).
52The covert operative asked to purchase 3 ounces of methylamphetamine over the following two weeks. You replied that you could supply multiple bags at a discounted price of $6,200 and $6,300 cash per ounce, and that you could “sort it out” at short notice.
27 April 2022
53Your last interaction with the covert operatives was on 27 April 2022.
54On that date, one of the covert operatives contacted you requesting to purchase 3 ounces of methylamphetamine, as discussed at your last meeting. You replied you had this amount on you, and asked to meet the covert operative at an address in North Balwyn. The covert operative contacted you later that afternoon asking that you meet them on the Yarra Boulevard in Kew, purporting that their car had broken down and they needed your assistance.
55You were observed leaving the address in North Balwyn in a white Ford Ranger, bearing false number plates. This conduct is the subject of the rolled-up summary charge of driving whilst disqualified (summary charge 6) and the summary charge of fraudulent use of number plates (summary charge 23).
56You were intercepted and arrested by police in North Balwyn and your vehicle and mobile phone were searched. On the mobile phone, police located dozens of photographs of large quantities of white crystal substances, in various packaging with some on scales indicating a weight equivalent to a commercial quantity, and photographs of Australian currency. There were also numerous messages to different contacts and associates arranging the sale of drugs.
57The mobile phone also held details and booking arrangements for a short-term rental at the address in North Balwyn. At this address, the police executed a search warrant and, amongst other items including your personal belongings, the police located a beige “Tactix” box and a Lacoste satchel in which the following items were located:
(a) $13,988.70 cash in a plastic zip lock bag and $8.70 cash in the satchel which are the subject of charge 4 – knowingly deal with the proceeds of crime;
(b) a large plastic zip lock bag containing 91.3 grams of methylamphetamine, found to have a purity of 84 per cent, a small zip lock bag containing 5.2 grams of methylamphetamine, found to have a purity of 85 per cent, a small zip lock bag labelled ‘1G’ containing 0.5 grams of methylamphetamine, found to have a purity of 83 per cent and a small zip lock bag containing 1.2 grams of methylamphetamine, found to have a purity of 84 per cent: being a total of 98.2 grams. These items found in your possession are also the subject of the rolled-up charge of trafficking in a commercial quantity of a drug of dependence (charge 1);
(c) two drivers licences in other names, a Medicare card in another name and a black wallet containing your Commonwealth Bank card.
58When the police searched the kitchen of the property, they located a white plastic bottle containing 21.7 grams of 1,4-Butanediol giving rise to charge 3 – possession of a drug of dependence. In the kitchen drawers, the police also located various scales, empty deal bags and glass smoking pipes.
59The rental in North Balwyn had been booked through an online rental agency from 26 April 2022 to 3 May 2022 in the name of Adam Poyner. Personal cards in that name were subsequently located following a search of your Mount Waverley address, in addition to the following items:
(a) 1.6 grams of methylamphetamine, found to have a purity of 83 per cent located in a bedside table in the master bedroom which is also the subject of the rolled-up charge of trafficking in a commercial quantity of a drug of dependence (charge 1);
(b) cards in various names including two Visa Debit bank cards in the name of Adam Poyner;
(c) a plastic zip lock bag containing 9.8 grams of cannabis, which is the subject of charge 5 – possession of a drug of dependence; and
(d) a Swann CCTV unit in the TV cabinet in the lounge room.
60Over the course of you interactions with the covert operatives between 20 November 2021 and 27 April 2022 you trafficked approximately 236.3 grams of methylamphetamine with an average purity of 83 per cent over eight separate transactions in exchange for a total of $29,300 in cash.
61You were interviewed by police on the day of your arrest, but in accordance with your rights made no comment in response to questions asked.
Offence gravity
62The offence of trafficking in a commercial quantity of a drug of dependence is undeniably serious. This is reflected in the maximum penalty of 25 years' imprisonment fixed by the legislature. In addition, the offence is a Category 2 offence for which a custodial sentence is mandated under Division 2 of Part 3 of the Sentencing Act 1991 unless the criteria under s 5(2H) are met.
63In assessing the objective gravity of your offending, it is relevant that the transactions giving rise to the charge of trafficking in a commercial quantity of methylamphetamine arise out of your interactions with covert operatives. In the case of Kada v The Queen[1], the Court of Appeal distilled the principles that apply when assessing the culpability of an offender in these circumstances, to which I have had regard.[2]
[1]Kada v The Queen [2017] VSCA 339
[2]Kada, pg. 24-25, at [72]
64In this case, it is clear from the prosecution’s opening, that you were an active and willing participant in each transaction. There is no evidence that you were either coerced, pressured or induced by the police to engage in the transactions. You were readily able to source the methylamphetamine you provided the covert operatives throughout the period of your offending. I accept however, that on each occasion, it was one of the covert operatives who initiated the transaction by contacting you. It was the decision of the covert operatives to continue the transactions over the course of five months, and it was the decision of the covert operatives to terminate the operation on your arrest in April 2022.
65Nonetheless, there is nothing in the evidence to indicate you were overborne by the conduct of the police to continue with these transactions. To the contrary, you readily engaged in negotiations and discussions regarding the quality of the drugs sourced. It is clear that the police became involved at a time when you were already trafficking in methylamphetamine, at least beyond street-level trafficking.
66It appears you were able to facilitate the supply of methylamphetamine within your existing sources of supply, referred to by you as your “runners”. The purity of the drugs you were sourcing was high, and consistently so with each transaction. You were also found in possession of a reasonably significant amount of cash derived from the proceeds of crime, being $13,988.76. However, I accept the submission made your behalf that when you said you were able to source up to 3 ounces of methylamphetamine or a real firearm, this may have been no more than “mere puffery”.
67Although you were using methylamphetamine at the time of this offending, the extent of your offending well exceeded supplying amounts to sustain your habit. The 236 grams you trafficked was a significant amount, and translates into 196 grams of pure methylamphetamine, close to four times the commercial quantity.
68As you will appreciate, the trafficking in methylamphetamine causes incalculable harm to addicts, their families and the community more broadly. The fact that the drugs here did not enter the community is afforded little, if any, weight in your sentence. As the Court of Appeal has explained, this is because it would be “anomalous for the offender to receive a more favourable sentencing disposition due to a circumstance which from [his] perspective, is fortuitous, namely, the involvement of the police”.[3]
[3]Ibid, page 26, at [72(f)]
69In relation to the offence of possessing the imitation firearm, there is no evidence that you did so for a criminal purpose beyond the supply of that item. However, it is relevant in my assessment of your culpability that it was you, and not the covert operatives, who initiated the idea of supplying a firearm, initially for $8,000, and then revisited the prospect of sourcing a real firearm, despite the fact you are prohibited person by reason of your prior criminal history.
70The most serious offence for which you are to be sentenced is that of trafficking in a commercial quantity of a drug of dependence. Your role in the eight transactions over a five-month period, involving trafficking in close to four times the commercial quantity of pure methylamphetamine, represents a serious example of commercial quantity trafficking, although moderated to some degree by the fact it was the covert operatives who dictated the frequency and regularity of your trafficking conduct.[4]
[4]See R v Nguyen & Ors [2008] VSCA 235
71Your moral culpability for your offending is high. However, this is also informed by your personal circumstances, to which I now turn.
Personal circumstances
72You were born in New Zealand in December 1988 and are now 34 years old.
73During your plea hearing in May 2023, a brief letter was tendered on your plea from Ms Bernadette Werner, a Mental Health Consultant at Ravenhall Prison, where she outlined your disclosure of being exposed to physical and verbal abuse directed at your mother by your stepfather between the ages of seven and 13 years. This was the first occasion you had discussed these events. Given these matters, I adjourned your plea hearing for the Court to obtain a psychological assessment through Forensicare.
74A thorough assessment was then undertaken by Forensicare’s principal psychologist, Dr Kate McGregor whose report dated 14 June 2023[5] comprehensively outlines your personal history, and from which I have drawn much of the detail regarding your personal circumstances.
[5]Exhibit 3 – Psychological report of Dr Kate McGregor, Forensicare dated 14 June 2023
75You were raised in New Zealand and lived with your mother, a real estate agent, and your father, an engineer, until the age of seven when your parents divorced. Your mother, who spoke with Dr McGregor, had no concerns with your development as a child, and described you as having “a sensitive, timid and gentle temperament”. You had a close relationship with your mother and father, and described your early childhood as a happy one.
76However, after your parents divorced you and your older brother continued to live with your mother and saw your father on weekends. The safety and security of your early years ended abruptly when your mother re-partnered and her new partner moved into the family home. Dr McGregor reports that you and your mother were subjected to severe physical violence by that man, resulting in serious physical injuries to you both. As your brother was six years older, he largely escaped this treatment. You report that when your mother worked, her partner would lock you in your room instead of taking you to school. When this occurred, you report that your stepfather’s brother would attend the house and sexually abuse you.
77You reported two other significant events during this period. On one occasion, when you were eight years old, your stepfather killed your dog, leaving it on the doorstep. When you were 13 years old, a neighbour called the police when your mother was being physically assaulted. She was seriously injured as a result, and was then placed in witness protection for her safety due to the involvement of her partner and his brother in organised crime activity.
78From that time, you returned to live with your father and returned to a ‘stable’ environment. You had no contact with your mother for a number of years. While living with your father, you were not encouraged to speak about your traumatic experiences with your stepfather.
79You were educated up to Year 11, then completed an apprenticeship in boiler making with your father’s engineering business from the age of 15 to 18. You then worked on and off for your father’s business over 18 months, although you ceased this employment when your drug use escalated. You then began supporting yourself financially by selling drugs.
80At the age of 22, you moved to Perth where your mother resided. This was a difficult experience for you as your mother had significant mental health issues and was abusing alcohol and prescription medication. You worked as a fly-in, fly-out driller in the mining industry for two years in Western Australia. After three years, and when you became aware that your mother’s ex-partner was also living in Perth, you relocated to live in Melbourne. After moving to Melbourne, you worked as a boiler maker for a short period with S&S Engineering, before returning to selling drugs to support your own drug use.
81Your mother, father and brother all currently live in New Zealand and you have expressed interest in returning to live there.
82Your addiction to drugs has been long-standing. You began using cannabis at the age of 13, to help you sleep and manage symptoms of anxiety. Your addiction to the drug ice developed from the age of 15, as a means of managing the traumatic experiences of your childhood. You told Dr McGregor that your use of ice soon ‘snowballed’ to 1 gram and then 2 grams per week. You report using 1.5 grams a week at the time you were remanded for this offending.
83You have had three significant intimate relationships in your life. The first was with a woman in Perth, but this was a relationship characterised by mutual drug abuse. Your second relationship was a stable one with a woman who was 10 years older than you, during which period you were abstinent from all drug use for a year, until your employment as an auto electrical apprentice was terminated and you resumed drug use. You were in relationship with your third partner for 18 months, but both of you were abusing ice, leading to high levels of conflict and a family violence intervention order being obtained by police.
84Your long-standing addiction to methylamphetamine is reflected in your prior criminal history. In addition to two prior matters from 2013 and 2014 in Perth for possession of a prohibited drug, you have a relevant prior history in Victoria for trafficking and possession of drugs of dependence, dealing in property suspected of being the proceeds of crime, firearms offences and driving offences.
85
In April 2017 you were sentenced to 12 days’ imprisonment followed by a
24-month community correction order for offending that included trafficking in methylamphetamine, possessing a prohibited weapon, dealing in property suspected of being proceeds of crime, driving whilst your authorisation suspended, possession of drugs and drug paraphernalia, and refusing to accompany police for an oral fluid test.
86In March 2019, you were sentenced to 60 days' imprisonment for contravening the community correction order and were re-sentenced to 120 days imprisonment for the 2017 offences. In August 2019, you were fined $1500, with conviction, for possessing methylamphetamine. In December 2019, you were sentenced to 7 days imprisonment for offending including possessing methamphetamine.
87On 31 March 2020, you were sentenced to 40 days’ imprisonment for offending including trafficking in methylamphetamine, dealing with property suspected of being the proceeds of crime, dishonesty offences and driving while disqualified.
88On 29 March 2021, you were sentenced to 6 months’ imprisonment combined with a 12-month community correction order for offences that included trafficking in methylamphetamine, being a prohibited person in possession of an imitation firearm, dealing in property suspected of being the proceeds of crime, and possession of a drug of dependence, namely ecstasy, persistent contravention of a family violence intervention order, unlicenced driving and refusing to provide a sample of oral fluid.
89It is an aggravating feature of this offending that you were subject to the community correction order imposed in March 2012 for similar offending at the time you committed these serious offences.
90Having regard to the gravity and nature of your offending, when viewed in light of your relevant prior criminal history, the sentencing consideration of specific deterrence must be given weight in deterring your from future offending of this nature.
Matters relevant in mitigation of sentence
91Having assessed the objective gravity of your offending, I now turn to the matters that were raised on your behalf in mitigation of your sentence.
92First and foremost, you pleaded guilty to the charges at an early stage, without the need for a contested committal hearing. Your plea signifies the fact you have accepted responsibility for your offending and also saves the court and the community the cost and expense associated with a trial. Further, the utility of your guilty plea is heightened at a time when delays in the criminal justice system continue in the wake of the pandemic.[6] You are entitled to, and will receive a significant sentencing discount in light of your early guilty plea.
[6]Worboyes v The Queen [2021] VSCA 169
93Secondly, the law accepts that an early childhood marked by physical and sexual abuse, including exposure to family violence directed at other family members, can have an enduring impact and is relevant in reducing the moral culpability of an offender.
94In the case of Bugmy v The Queen,[7] the High Court articulated two different ways that profound childhood disadvantage may be relevant in assessing an offender’s moral culpability.[8] The first – more general – proposition is in the following terms:[9]
“The circumstance that an offender has been raised in a community surrounded by alcohol abuse and violence may mitigate the sentence because his or her moral culpability is likely to be less than the culpability of an offender whose formative years have not been marred in that way.”
[7] Bugmy v The Queen [2013] HCA 37.
[8] See generally discussion in Direction of Public Prosecutions v Herrmann [2021] VSCA 160, [36]; Newton (a pseudonym) v The King [2023] VSCA 22, [36].
[9] Bugmy v The Queen [2013] HCA 37, [40].
95The case of Bugmy related to an offender’s culpability for alcohol-fuelled violent offending. However, the broad proposition is not to be limited to those circumstances. Here, after having enjoyed a stable childhood until the age of seven, your formative years were severely disrupted by the violence and sexual abuse you suffered at the hands of your stepfather and his brother. Dr McGregor assesses the impact of your childhood abuse as follows:[10]
“…Mr Trumm was exposed to witnessing severe domestic violence and experienced severe, chronic physical, sexual and emotional abuse, such that he lived in a chronic state of fear, anxiety and hypervigilance for a prolonged period during childhood. Avoidance and dissociation were the only available resources for coping with his experiences. The severe, chronic and interpersonal nature of the trauma he experienced at a young age served as a vulnerability for the development of later psychological problems, including PTSD.”
[10] Exhibit 3 – Psychological report of Dr McGregor dated 14 June 2023, pg. 9, at [35]
96During critical years in your development, you were subject to severe and chronic abuse, both physical and sexual, due to which Dr McGregor assesses you now suffer a Post-Traumatic Stress Disorder which she states is characterised by hypervigilance, self-destructive behaviour, intrusive memories and intense distress. I consider the general proposition has application to your case. Your moral culpability could not be equated with an offender whose formative years have not been shaped by physical and sexual abuse and exposure to family violence perpetrated by your stepfather. Although your childhood experiences do not excuse your offending behaviour, it is against this background that you have developed a long-standing drug addiction.
97I have given significant weight to your trauma in early childhood in mitigation of your sentence.
98It was not submitted that the second - more specific – proposition in Bugmy applies to the circumstances of your case. Dr McGregor assesses that you commenced drug use at an early age to manage distressing PTSD symptoms, and that these have ‘served to maintain your ice use over this time’ which she notes ‘paradoxically [has] contributed to increased anxiety and avoidance symptoms’. However, Dr McGregor expressly concludes there is no basis to conclude that your offending behaviour was specifically, or causally connected to your childhood dysfunction or with your symptoms of PTSD, other than by underpinning your long-standing addiction to drugs. I do not consider the more specific proposition in Bugmy applies in mitigation of your sentence.
99There is also no basis to conclude that your diagnosed PTSD enlivens limbs 1 to 4 of the principles set out in Verdins[11] or that your impaired mental health operates to reduce your moral culpability for the offending. Nonetheless, I do accept Dr McGregor’s conclusion that your experience of PTSD will increase your difficulty in coping with incarceration, including symptoms of hypervigilance and intrusive memories such as to make the burden of your imprisonment greater than that experienced by those without such a condition. This thereby enlivens limb 5 of Verdins in moderating your sentence.
[11]R v. Verdins (2007) 16 VR 269
100On your behalf, Mr Nikakis submitted that the circumstances in which you were denied the opportunity to participate in the Drug and Alcohol Treatment Court is also relevant to your sentence. Prior to your plea hearing, your matter had been adjourned to Drug Court Division on the basis you may be eligible for a Drug and Alcohol Treatment Order: s4AAB County Court Act 1958. However, no formal determination was made by the Court as the finite resources of that court meant no further participants could be accommodated. As such, you lost the opportunity to be considered for such an order. It does not follow however, that you would otherwise have been found suitable for Drug and Alcohol Treatment Order following a judicial determination hearing. Mr Nikakis relies on the circumstances in which you lost the opportunity to be assessed as suitable for such an as a factor that enlivens the criteria in s 5(2H)(e) of the Sentencing Act 1991 allowing for a combination sentence of imprisonment with a community correction order for this offending. I return to that argument later in my reasons.
101I turn now to my assessment of your prospects of rehabilitation. Dr McGregor, having undertaken a validated risk assessment, concluded you present “as a high risk of general reoffending” and states that sustained abstinence from substances, particularly methylamphetamine, will serve to reduce this risk. She also recommends treatment and support to manage your diagnosed PTSD, as an important “precursor” for you to address your long-standing addiction to drugs.
102There are early positive indications for your future. As stated, you expressed a desire to engage in treatment through the Drug and Alcohol Treatment Court. Since being remanded on these charges, you have taken the opportunities available to you to participate in a range of programs offered in custody to support your rehabilitation, including drug and alcohol programs run by Caraniche and other vocational courses.[12]
[12]Exhibit 1 – Bundle of Certificates of completion of AOD and other programs.
103Perhaps of greatest significance is the fact you have now disclosed your experience of childhood abuse, and in the opinion of Dr McGregor have shown insight into the connection between these experiences, your mental health issues and problematic substance misuse. You have demonstrated a willingness to engage in treatment for your resulting PTSD and motivation to engage in drug treatment. You retain the support of your family and friends, including those who are prepared to offer you employment conditional upon you remaining abstinent from illicit substances. You have expressed interest in returning to live in New Zealand to be closer to your family.
104Against this however, you have a concerning and highly relevant criminal history, including numerous priors for trafficking in methylamphetamine. Past sentences of imprisonment and lengthy community correction orders had not deterred you from engaging in this serious offending. You have prior convictions for breaching court orders, including two previous community correction orders. As stated, you were subject to a community correction order at the time of this offending.
105Moreover, yours is not a case of offending motivated to fund your own drug addiction. It is clear that your offending extended beyond that of a desperate drug user who is coerced into supplying smaller amounts to support their habit. Nonetheless, I accept that addressing your long-standing addiction will be central to your future prospects. As things presently stand, I am guarded as to your prospects of rehabilitation although I do find there are some early positive indications for your future, which are to your credit. There remains much rehabilitation work ahead of you.
106Finally, I have regard to the fact that conditions in custody, whilst eased somewhat, remain under certain restrictions to respond to the pandemic and have regard to this added burden of your imprisonment in sentencing you.
Other sentencing considerations
107Deterrence, both specific and general are sentencing considerations of great weight in this case. In sentencing you I must signify to others that those who consider trafficking in this drug at commercial levels that they will receive significant punishment. It follows that one of the purposes of the sentence I impose is to unequivocally denounce your criminal conduct.
108On your behalf it was submitted that an appropriate sentence would be one that results in your immediate release, having served 422 days of pre-sentence detention, followed by a lengthy community correction order. It was submitted that I could be satisfied that the loss of opportunity to engage in a drug treatment order constituted substantial and compelling reasons that are exceptional and rare, either in isolation or in combination with other factors including your childhood trauma, enlivening s 5(2H)(e) of the Sentencing Act 1991 to permit such a sentence.
109After the plea hearing, and in order to further consider the submissions made on your behalf, I sought an assessment as to your suitability to complete a further community correction order. You were found unsuitable. You were assessed as a high risk of future general offending and the report noted your history of contravening community correction orders, and the fact you were on such an order at the time of this offending. Of concern, the report states you have been subject to random urine screens in custody and have returned two positive results for the drug buprenorphine in March and April 2023, which has not been prescribed for you in custody.
110I am not persuaded that it would give full effect to the paramount sentencing considerations of deterrence, just punishment and denunciation to sentence you to a further combined sentence of imprisonment and a community correction order for this offending. I consider the nature and extent of your offending, involving trafficking in a methylamphetamine close to four times the commercial quantity whilst subject to an earlier community correction order, precludes such a sentence. Having concluded as such, although I am not persuaded that the matters to which Mr Nikakis referred reach the high threshold for the criteria under s 5(2H)(e), either individually or in combination, in the event that finding has no impact on the sentence I intend to impose.
111I have had regard to current sentencing practices as indicated by the authorities to which I was referred by the prosecution, whilst acknowledging these neither dictate nor govern the sentence to be imposed. I have had regard to these cases, including that of DPP v McCann[13], where the offender pleaded guilty to trafficking in a commercial quantity of methylamphetamine, arising from transactions with covert operatives, and was sentenced to a 789 days' imprisonment and a three year community correction order. In that case, unlike here, there was no evidence of trafficking prior to the meeting with the covert operative, and the extent to which a commercial quantity was breached was lower than here. The court also found the accused suffered a pronounced neurodevelopmental disorder that significantly reduced his culpability for the offending.
[13][2021] VCC 541
112I have also had regard to the case of DPP v Haddara[14], which also has parallels with yours, where the offender was sentenced in this Court to 4 years’ imprisonment for trafficking in a commercial quantity of methylamphetamine, involving six transactions with covert operatives over an 11-week period, where the quantity of methylamphetamine was 158 grams pure, just over three times the commercial quantity. The offender in that case was 40 and had a relevant prior criminal history.
[14][2022] VCC 2304
113As always, each case must turn on its own circumstances. The cases to which I have referred are merely a guide to assist with respect to one of many sentencing considerations to be synthesised, being current sentencing practices.
Sentence
114Balancing the matters to which I have referred to, whilst guided by the maximum penalties for the offences, I now sentence you as follows.
115On charge 1 – trafficking in a commercial quantity of methylamphetamine, you are convicted and sentenced to 4 years’ imprisonment. In imposing this sentence I have regard to the fact it is a rolled-up charge, meaning the sentence must reflect the total criminality associated with the eight separate instances of trafficking, whilst the one maximum penalty applies. This is the base sentence.
116On charge 2 – prohibited person possess an imitation firearm, you are convicted and sentenced to 10 months’ imprisonment.
117
On charge 3 – possess a drug of dependence, namely 1,4-Butanediol and on charge 5 – possess a drug of dependence, namely Cannabis L, you are convicted and sentenced to 3 months and 1 months’ imprisonment respectively. In imposing this sentence, I do not conclude that these two drugs were possessed by you for a trafficking purpose. At no stage throughout your dealings with the covert operatives did you offer or propose to sell either cannabis or
1,4-Butanediol, and there is no evidence that you had sought to do so to others. Accordingly, the lower maximum penalty of 1 year’s imprisonment applies to these offences.
118On charge 4 – knowingly deal with proceeds of crime, namely cash in the sum of $13,988.76, you are convicted and sentenced to 18 months’ imprisonment.
119On summary charge 5 – dealing with property suspected of being the proceeds of crime, namely $3,265 found at the veterinary clinic, you are convicted and sentenced to 4 months’ imprisonment.
120On rolled up summary charge 6 – driving while disqualified, you are convicted and sentenced to 3 months’ imprisonment. On that charge, your licence is cancelled and you are disqualified from driving for a period of six months with effect from today's date.
121On summary charge 23 – fraudulent use of a registration label, you are fined $400 with conviction.
122I consider it appropriate that there be some order for cumulation to reflect the separate criminality of the offending associated with being a prohibited person in possession of an imitation firearm and for dealing in the cash, being the proceeds of crime. In determining the amount of cumulation, I have been careful to ensure you are not doubly punished, particularly in respect of charges 1 and 4, and while having regard to the sentencing principle of totality.
123I order that 2 months of the sentence imposed on charge 2 and 4 months of the sentence imposed on charge 4 be served cumulatively upon the sentence imposed on charge 1 and upon one another. All other sentences are to be served concurrently.
124This gives a total effective sentence of four years, six months’ imprisonment.
125I direct that you serve 2 years, 8 months’ imprisonment before you are eligible for parole.
126Pursuant to s 18 of the Sentencing Act 1991, I declare that 422 days be reckoned as the period of imprisonment already served under the sentence I have imposed.
127Pursuant to s 6AAA of the Sentencing Act 1991 I indicate that if not for your plea of guilty, the sentence I would otherwise have imposed is a sentence of 6 years, 6 months' imprisonment, with a non-parole period of 4 years, 3 months.
128Finally, I make the disposal and forfeiture orders sought by the prosecution, noting they are not opposed.
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