Director of Public Prosecutions v Urquhart
[2024] VCC 1217
•12 August 2024
| IN THE COUNTY COURT OF VICTORIA AT GEELONG CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-23-00479
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ALEX URQUHART |
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JUDGE: | HIS HONOUR JUDGE DEMPSEY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 20 June 2024, 9 August 2024 | |
DATE OF SENTENCE: | 12 August 2024 | |
CASE MAY BE CITED AS: | DPP v Urquhart | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1217 | |
REASONS FOR SENTENCE
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Subject:Criminal law – sentencing.
Catchwords: Trafficking in commercial quantities of 2 substances (Methamphetamine and 1-4 Butanediol). Offender subject of a firearms prohibition order. Breach of that order by possession of firearms, ammunition and associated equipment. Handling stolen goods namely a car. Possession of proceeds of crime in the form of more than $100 000 in cash, as well as separate proceeds of crime charge of items of jewellery. Possession of drug offences and possession of other weapons (not firearms). Offender 31 years of age, with persistent and relevant prior convictions. Multiple previous terms of imprisonment. Personal history involving trauma, drug use. Diagnosis of complex PTSD. Sentencing considerations applicable for trafficking in multiple substances, and the way in which firearms offences are to be treated in such circumstances. Plea of guilty. Totality. Punishment, deterrence and protections of community. Poor prospects of reform. Imposition of significant head sentence and setting of non-parole period.
Legislation Cited: Drugs Poisons and Controlled Substances Act 1981, Crimes Act 1958, Firearms Act 1996, Sentencing Act 1991.
Cases Cited:Lieu v The Queen [2016] VSCA 277, Markarian v The Queen (2005) 228 CLR 357, R vPidoto & O’Dea (2006) 14 VR 269, Gregory (a pseudonym) v The Queen [2017] VSCA 151, DPP v Maxwell [2013] VSCA 50, Gayed v the Queen [2021] VSCA 141, Danaf [2020] VSCA 226 Gatho v The Queen [2019] VSCA 226, Gelmi v the Queen [2020] VCC 864, Mitchell v The Queen [2016] VSCA 321, Berichon v The Queen; Houssein v The Queen [2013] VSCA 319 , Fazal v The King [2024] VSCA 161, Sultan v The King [2022] VSCA 205, Queen v De Simoni [1981] HCA 31, Phillips v The Queen [2012] VSCA 140, Worboyes v The Queen [2021] VSCA 169, Queen v Verdins [2007] VSCA 102, Norman v The King [2023] VSCA 213, DPP v Malikovski [2010] VSCA 130, Mohamed v The Queen [2022] VSCA 136
Sentence: TES 7 years and 4 months
NPP 5 years and 6 months
PSD 803 days
s.6AAA – 9 years 2 months with a non-parole period of 7 years 4 months
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr R. Pirrie | Office of Public Prosecutions |
| For the Accused | Mr J. Barreiro | Geelong Lawyers |
HIS HONOUR:
INTRODUCTION
1Alex Urquhart, your previous offending has meant that you have spent a sizeable part of your 20s in custody.
2You have been a persistent trafficker of drugs, possessor of weapons and acquirer of stolen goods and other items that do not belong to you.
3In June 2022, at age 29, you trafficked, in no less than a commercial quantity of two separate drugs, possessed firearms contrary to prohibition orders (and in one instance used one), handled stolen goods, possessed yet more illicit drugs and dealt with a not insubstantial amount of cash suspected of being the proceeds of crime. In total, 13 offences proceeded before me as a plea of guilty on indictment on 20 June 2024, including a number of related summary offences (RSOs). Further plea submissions were made on 9 August 2024.
4Your offending is as serious as it has been historically persistent. Moreover, you appear to have a real affinity with, or attraction to, the criminality you engage in, which gives me little comfort regarding your capacity to change.
5As your counsel sensibly conceded, the only penalty that I can impose on you is a lengthy prison sentence with a non-parole period. In other words, you will spend now a significant portion of your 30s incarcerated.
6I am going to sentence you to a total effective sentence of 7 years and 4 months and set a non-parole period of 5 years and 6 months.
7The length of that sentence and the relationship between the head sentence and the non-parole period are arrived at by consideration of the following matters:
(a) The details of the offending;
(b) Biographical details pertaining to you;
(c) The impetus for and gravity of the present offending;
(d) Matters of sentencing principle; and
(e) Finally, matters concerning disposition.
8This was in many ways a complex sentencing exercise, given the sheer number of charges and the way in which they are to interact for the purposes of sentencing. I am grateful for the assistance of both counsel in this task.
THE OFFENDING [1]
Apprehension
[1]Taken from Summary of Prosecution Opening dated 18 June 2024, Exhibit A on the plea.
9I will begin with the offending, starting, unusually, with your apprehension. On Wednesday, 1 June 2022 you were 29 and living in a unit in Sun Street, Moolap. It appears to call that a flat, overstates it. Photos tendered depict a sparsely furnished room or two in a semi-abandoned industrial estate, with a mattress on the floor for you to sleep on.
10At 4.53 am on 1 June 2022, First Constable Gilles and Detective Sergeant Meath observed you driving a BMW on Pakington Street, Geelong West. The back of the car appeared to be drifting within the lane and the rear lights of the vehicle were moving slowly from side to side. Police intercepted you on Clarence Street, Geelong West and asked you to exit the vehicle.
First search of BMW
11When police searched the car, they found;
(a) a black Samsung fold phone with a phone number ending in ‘124’;
(b) a pocketknife;
This is the subject of related summary offence 28 - possess a controlled weapon without lawful excuse that has a one-year maximum penalty.
(c) Ziploc bags containing methamphetamine and diacetylmorphine, otherwise known as heroin;
That is the subject of Charge 2, trafficking in a drug of dependence, commercial quantity of methylamphetamine, maximum penalty 25 years' imprisonment; [2]
[2]Trafficking in a drug of dependence in a commercial quantity, is classified as a Category 2 offence. The Court must impose a custodial order pursuant to section 5(2H) of the Sentencing Act 1991 unless certain exceptions apply. No such exceptions were argued. Such an outcome here is inevitable, regardless of this statutory provision.
The possession of heroin forms part of Charge 9, possession of a drug of dependence, rolled-up charge with other substances that carries a one year's imprisonment maximum penalty; and
(d) $4,075.80 cash;
This represents in part related summary offence 14, dealing with property suspected of being the proceeds of crime, (which is a rolled-up charge that accommodates a far greater sum that I will come to in a moment) and carries with it a maximum penalty of two years' imprisonment.
12Your car was secured with a key, and you were arrested and conveyed to Geelong police station.
Remand and initial interview
13You were interviewed by police and you declined to comment on the allegations, as of course was your right.
14You were then remanded in custody where you have remained ever since.
Second search of BMW
15At approximately 11.50 am on the same day, police went back to your car to conduct a daylight search, where four sets of vehicle keys, belonging to a Mercedes Benz, Volkswagen and two Holden vehicles were located and seized.
Further investigation – search warrant on home
16At 1.45 pm, search warrants were executed on your property at Moolap. Police used keys seized through the search to gain access to the property.
17A number of relevant items were found there:
(a) A homemade firearm, namely a pen gun.[3] This appears to be accessible to you in the room you were sleeping in, and it was capable of being fired.[4] It was also chambered to fit cartridges from the .22 family of rimfire cartridges;[5]
[3]Exhibit B: Bundle of hand-up brief exhibits 9, 31 and 43, Depositions p.82
[4]Exhibit 8: Further plea submissions dated 4 August 2024 at 1.3.a. See also Exhibit B: Bundle of hand-up brief exhibits 9, 31 and 43, Depositions p.82.
[5]Exhibit 8: Further plea submissions dated 4 August 2024 at 2.6
This is Charge 4, possess firearm contrary to a firearm prohibition order[6], maximum penalty 10 years' imprisonment.
[6]That firearms prohibition order appears at Depositions p.132. It is issued on 19 February 2020 under the s4 Firearms Act 1996. The notice itself cites it is in the public interest to issue such an order, given one or more of the following – your prior criminal history, your behaviour, the people with whom you associate and that you may pose a threat or risk to public safety based on information known to the Chief Commissioner. That order was served when you were in prison, see Depositions p.134. You were at that stage on remand for offences including trafficking, possessing controlled weapons, possessing ammunition and the like.
(b) An assortment of steroids and other drugs;[7]
[7]Exhibit B: Bundle of hand-up brief exhibits 9, 31 and 43, Depositions p.85.
This is a component part of the rolled-up Charge 9, possession of a drug of dependence, maximum penalty of one year's imprisonment when not for purpose related to trafficking; and
(c) A gun cleaning kit;[8]
[8]Exhibit B: Bundle of hand-up brief exhibits 9, 31 and 43, Depositions p.86.
This is part of Charge 6, possession of a firearm related item contrary to a firearm prohibition order, maximum penalty 10 years' imprisonment.
(d) A knuckle duster and two flick knives;[9]
[9]Exhibit B: Bundle of hand-up brief exhibits 9, 31 and 43, Depositions p.84.
This is related summary offence 28, possession of a prohibited weapon without exemption or approval, maximum penalty of one year's imprisonment.
(e) A CCTV hard drive;[10] and
[10]Exhibit B: Bundle of hand-up brief exhibits 9, 31 and 43, Depositions p.87.
(f) An electronic cash counter.
The Volkswagen and its contents
18In the shed at Sun St, Moolap, police located a 2018 grey Volkswagen Golf Coupe with no registration plates. A registration check revealed the car to be an outstanding stolen vehicle. It had been reported stolen between 16 September 2021 and 25 March 2022 from Tullamarine.
It is your possession of this car that represents Charge 8, handle stolen goods, maximum penalty 15 years' imprisonment.
19Inside that stolen Volkswagen, police located and seized the following:
(a) A gel blaster imitation firearm which from the photographs looks very much like the real thing. It is matt black and has a magazine extending slightly from the butt of the handle.[11]
[11]Exhibit B: Bundle of hand-up brief exhibits 9, 31 and 43, Depositions pp.90-1.
This is Charge 7, possessing an imitation firearm contrary to a firearm prohibition order;
(b)
A shoe box containing eight firearm magazines, two firearm scopes and
22 boxes of assorted ammunition;[12]
[12]This large assorted of firearm related material is depicted at Exhibit B: Bundle of hand-up brief exhibits 9, 31 and 43, Depositions p.92
(c) There was no admissible or, for that matter, other evidence on the brief about the calibre of that ammunition.[13] I was told by Mr Pirrie on the further plea on 9 August 2024, that some of this ammunition was .22 calibre and other ammunition was of a higher calibre of the grade used in semi-automatic weapons. This was ultimately not contested on the further plea, and the way that this concession was made in the absence of a formal statement by police is dealt with later in my reasons.
[13]Exhibit 9: Letter from Geo Healthcare dated 10/07/2024 at 2.5.
These items are part of rolled-up Charge 6, possession of firearm related items contrary to a firearm prohibition order;
(d) There was a plastic bag that contained assorted watches and jewellery, one silver ring, one small container of gold specks, a gold rectangle, two thick gold chains, a gold ring and two watches.[14]
[14]Exhibit B: Bundle of hand-up brief exhibits 9, 31 and 43, Depositions p.93.
This is related summary offence 15, deal with property suspected of being proceeds of crime.
There was a green shopping bag which contained $110,000 in cash.[15] This is the second part of rolled-up summary charge 14, dealing with property suspected of being the proceeds of crime, which has a maximum penalty of two years' imprisonment.[16]
[15]Exhibit B: Bundle of hand-up brief exhibits 9, 31 and 43, Depositions p.96.
[16]See also the $4,075.80 cash found on you at the time of your arrest.
(e)
There was a cardboard box containing 62 white 100ml containers of
1,4- Butanediol.[17]
[17]Exhibit B: Bundle of hand-up brief exhibits 9, 31 and 43, Depositions at p.96.
This is part of Charge 1, trafficking in a drug of dependence, commercial quantity of 1,4-Butanediol, maximum penalty 25 years' imprisonment;
(f) There was a vacuum sealed package of cannabis.[18]
[18]Exhibit B: Bundle of hand-up brief exhibits 9, 31 and 43, Depositions at p.97.
This is part of the rolled-up Charge 9, possession of a drug of dependence.
(g) Four clear resealable bags of methylamphetamine concealed inside a black vacuum sealed bag and one plastic bottle containing methylamphetamine.[19]
Again, this is part of Charge 2, trafficking in a drug of dependence, commercial quantity methamphetamine;
(h)
A 25-litre plastic tub containing three quarters of a viscous liquid being
1,4- Butanediol.[20]
This is part of Charge 1.
Examination and testing
[19]Exhibit B: Bundle of hand-up brief exhibits 9, 31 and 43, Depositions at pp. 99-100.
[20]Exhibit B: Bundle of hand-up brief exhibits 9, 31 and 43, Depositions at p.101.
20On 23 August 2022, the items seized were transported to police for testing.
Drug analysis
21
A certificate of analysis prepared by the Forensic Services Department on
21 October 2022 and 15 December 2022 confirmed the following quantities of drugs were seized from the vehicle and premises. Gentlemen, I will just deal with the first two given their significance. 1,4 Butanediol 30,499 grams estimated, plus 11.6 grams where the commercial quantity application is 2 kilograms. And with respect to methamphetamine, 101.8 grams plus 30.5 grams where the commercial quantity applicable is 50 grams.
Drug
Qty (in grams)
Commercial quantity (where applicable) [21]
1,4 Butanediol
30,499 grams (estimated)
+ 11.6 grams[22]
2kg
Methylamphetamine
101.8 grams + 30.5 grams
50g
Oxandrolone
16.9 grams
Stanozolol
9.7 grams
Methandienone
12.2 grams
Testosterone
18.3 grams
Diacetylmorphine
0.3 grams
[21]Schedule 11, Part 3 of the Drugs Poisons and Controlled Substances Act 1981.
[22]In other words, close to 30kg in total
Mobile phone download
22On 11 June 2022, police received the downloaded contents on the mobile phone from Victoria Police E-Crime and located a number of files:
(a) The first was a CCTV video recording from 25 April 2022[23] in Moolap St at approximately 7.25 pm. The footage depicts two males leaving the premises and getting into a white Volkswagen Amarok Utility and driving away. You run from your premises onto the road before firing two shots from what is conceded to be the semi-automatic pistol, which is the subject of Charge 5, in the direction that the vehicle had just driven. You are wearing distinctive white and black shoes, a chain around your neck, glasses and a cap and carrying a Samsung fold phone which I infer is the one found on you during your arrest.
This conduct represents Charge 3, use loaded firearm in a public place, maximum penalty of 10 years' imprisonment.
(b) There were photographs of you on 4 May 2022[24] wearing a balaclava and posing with a semi-automatic handgun with a particular serial number attributed to an outstanding stolen firearm; [25]
(c) That weapon was capable of discharging .22 ammunition. Again, there was no evidence on the brief that this was so, and your concession about that detail about this weapon is dealt with later. That firearm has not been located. Through your counsel, you indicated that you destroyed it the very day you discharged it in the way I just described and disposed of it in a watercourse. That is not consistent with the charge date, and one explanation proffered is that the meta data relating to the images above was incorrect somehow. I cannot make any real findings about the whereabouts of the item now, or when and if it was ever destroyed. Further, no application was made to amend or alter the dates of possession of the firearm.
This is Charge 5, possession of a firearm contrary to a firearm prohibition order, maximum penalty 10 years' imprisonment;
(d) There was a video recorded of you on 20 May 2022 of you handling a white container filled with liquid while wearing gloves. The container has the same markings and stickers as the container seized from the unit in Moolap;
(e) Video recordings on 20 May 2022 and 30 May 2022 of you using an electronic money counter to count a large sum of money and weeks later counting money, said to be the cash located and bound up as part of related summary offence 14; and
(f) A photograph of a purchase receipt of a 2009 Mercedes C63 AMG Sedan for the total sum of $38,000 on 19 March 2021. [26]
ARUNTA phone calls
[23]Around 6 weeks prior to your arrest.
[24]Less than a month before your offending before me, and 2 weeks after the events that constitute charge 4.
[25]Exhibit B: Bundle of hand-up brief exhibits 9, 31 and 43, Depositions at pp.140-1.
[26]See Depositions at p.228.
23As I said, you were arrested on 1 June 2022. On 30 June 2022, police executed a search warrant and obtained ARUNTA calls from the Metropolitan Remand Centre made by you while in custody between 5 June 2022 and 22 June 2022.
24During a phone call between you and your mother on 5 June 2022, you had the following conversation with her.
MR URQUHART: All right, no worries. Well, I've got money for a surety as well, I've got - that's why I need Jezza to go - go get that grey Golf if he hasn't already. So, just tell - - -
MS HARRISON: Go get the what?
MR URQUHART: The grey Volkswagen Golf.
MS HARRISON: Okay, yep.
MR URQUHART: Because I have money for a surety and I left the money in there.
MS HARRISON: Oh, that's a safe place for it.
MR URQUHART: Well, where else am I gunna put it when I'm - when I'm me? There's - - -
MS HARRISON: Very true.
MR URQUHART: Like - - -
MS HARRISON: Hang on.
MR URQUHART: Like, if - you know - you know how - you know how much I paid for my Mercedes?
MS HARRISON: Yeah.
MR URQUHART: Well, there's three times that in there. That's why I need - - -
MS HARRISON: Okay.
MR URQUHART: - - - him to go and get it.
MS HARRISON: So Volkswagen which was with your Merc. Yeah?
25During a further recorded phone call between you and your mother on 8 June 2022, you refer to having possessed $110,000.
Subsequent interview
26On 21 June 2022, you refused a further police request for an interview and DNA sample, as is your right.
27The foregoing detailed summary paints a picture of serious criminality. How it is that you found yourself in this position needs to be examined in light of your personal circumstances that I will turn to now.
MATTERS PERSONAL TO THE ACCUSED
28You are now 31 years old.
Family
29You grew up in Geelong. Your parents separated shortly after your birth. You had had very little contact with your father, who was an interstate truck driver, for much of your childhood. You had some contact with him in your teenage years but have not spoken to him since 2020. He too has issues with drugs and has been imprisoned.
30You are close to your mother, and you speak to her regularly whilst in prison.
Abuse
31You reported abuse at the hands of an older boy when you were aged around 10 years old.[27] That is something you have only recently disclosed and have only recently begun dealing with.
[27]A description of this abuse is found in Exhibit 2: Report of Carla Lechner dated 21 August 2023, p.3. I will not repeat it in detail here.
32You commenced drinking alcohol at a very young age. That consumption increased through your teenage years. Your appetite for illicit drugs came later. There are few periods, other than those experienced by you in prison, where you have been clean and sober since this time.
Education
33School was deeply unpleasant for you. You were bullied and retaliated angrily. You were expelled from Belmont College for fighting by the end of year 10.
34You repeated that year at Colac Secondary College, having moved there to live with your father.
Employment
35Following that, you worked for 18 months as a tyre fitter at Bob Jane. This is the only long-term employment you have ever had.
36It ended in 2013, more than a decade ago. You lost that job and your use of drugs increased. Not only did you lose your job, but you also lost your driver’s licence and ultimately your liberty.
Fatality
37In 2016, you struck and killed a man on an electronic scooter. You were charged with serious driving offences, but they were ultimately withdrawn. The experience was very traumatic and coincides with further increased drug use upon release from custody in a criminal history I am about to outline, after I deal with your mental health.
Mental Health
38Both Carla Lechner, forensic psychologist[28] and Dr Matt Treeby neuropsychologist[29] agree you fulfil the diagnostic criteria for Complex Post Traumatic Stress Disorder, ‘manifested by such symptoms as hypervigilance, intrusive thoughts, interpersonal mistrust, chronically low self-esteem, emotional and behavioural dysregulation.’ [30]
[28]Exhibit 2: Report of Carla Lechner dated 21 August 2023.
[29]Exhibit 3: Report of Dr Matt Treeby dated 9 April 2024.
[30]Exhibit 2: Report of Carla Lechner dated 21 August 2023, p. 4.
39You also have ADHD, with difficulty concentrating, restlessness and poor impulse inhibition.
40Most of your prior criminal matters have, like the offences before me, centred around drugs.
41I was informed that your Complex PTSD remains untreated, and you are also diagnosed with Stimulant Use Disorder and Opioid Use Disorder which are in remission while you are in custody. Any ongoing use of drugs obviously represents a significant risk that you would re-offend.
42Ms Lechner noted you are socially and emotionally immature, impulsive in nature, have a low tolerance for frustration, and have a strong desire for immediate gratification. Dr Treeby echoed this, indicating you meet the requirements for a diagnosis of ADHD. You do not have an intellectual disability.
43You present with multiple risk factors for recidivism, including childhood maladjustment, substance use, antisocial personal traits and multiple breaches of community-based orders. Dr Treeby frankly concedes you are at a high risk of re-offending in the longer term, a risk that may be reduced should your mental health issues and substance abuse issues be treated appropriately, though this prognosis remains pessimistic given your enduring antisocial personality traits.
44The difficulty experienced by you in managing stress and hypervigilance ‘may compromise [your] ability to manage adversity in the custodial setting’.[31] It is said that your post trauma symptoms are further likely to be aggravated by such an environment.
[31]Exhibit 3: Report of Dr Matt Treeby dated 9 April 2024, 17 [95].
45Your prospects for reform are presently worse than guarded. You have not taken advantage of sentences designed to supervise and assist you upon release. You seem to relapse and fall into serious offending very easily. No less than five terms of imprisonment have failed to adequately deter you.
46You have some insight, in that you see the potential for intensive supervision under parole as a positive, telling Dr Treeby ‘When I get out, hopefully I’ll have a roof over my head. This time I’ll be on parole and hopefully have some supports to help stay off the drugs. That’s my main problem.’[32]
[32]Exhibit 3: Report of Dr Matt Treeby dated 9 April 2024, 8 [45].
Forensic history
47You have a prior criminal history going back to 2012.
48You have persistently and consistently offended since then. Your offending is highly relevant, including as it does, multiple prior convictions for drug trafficking, weapons, and dishonesty offences.
49Having received a 12 month CCO in November 2013 for driving offences, possession of methamphetamine, and use of same, possess weapon without excuse, prohibited person use firearm and other offences, you breached the CCO.
50On 7 April 2014, you were dealt with for the breach of CCO in Geelong. When passing sentence, the learned magistrate noted in your criminal history ‘very serious offending which resulted in a CCO which was largely ignored and where further offending occurred’. You were imprisoned for six months (four of which were suspended for two years) at the age of just 21.
51By 3 February 2015 you were back in court for contravening the suspended sentence order I just referred to. You had trafficked methamphetamine, possessed a firearm while prohibited, dealt with proceeds of crime and possessed MDMA. You were sentenced to one year and eight months' imprisonment, including two months cumulative as part of the restored sentence from 4 April 2014. A non-parole period was set at 21 months. Thirty-four days were reckoned as having been served.
52In January 2018, you were again before the Magistrates’ Court, for trafficking methamphetamine, again, driving offences and dealing with property suspected of being the proceeds of crime. This time, you were sentenced to one year and five months with a non-parole period of 11 months. One hundred and ten days were reckoned as served.
53On 17 July 2020 you were sentenced to another substantial term of imprisonment in the Magistrates’ Court. That matter was dealt with on appeal in this court before Judge Murphy on 19 August 2020. Judge Murphy sentenced you to one year eight months' imprisonment, with a non-parole period of 14 months. Three hundred and twenty days were reckoned as having been served. It was whilst on remand for this sentence that you were served with the firearm prohibition order.
54The offending the subject of that appeal was in the same vein as the offending before me, prohibited person possess firearm, deal with the proceeds of crime, possess drugs, handle stolen goods, traffic methamphetamine, possess controlled weapon, deal with property suspected of being the proceeds of crime, commit offences on bail, handle stolen goods, and again possess weapons. I am informed that you were not paroled on this occasion and served the entirety of the sentence. You were released by my reckoning in the early months of 2021.
55On 19 March 2021, despite having been imprisoned for more than a year and not having worked since 2013, you somehow acquired a $38,000 Mercedes Benz car that you paid cash for. One can only speculate how that purchase was effected. Your choice of motor vehicle is telling.
56
On 11 November 2021, you possessed methamphetamine, possessed
1,4- Butanediol, dealt with proceeds of crime and possessed a drug of dependence. You were sentenced to 161 days' imprisonment, reckoned as served, meaning that you were released on 11 November 2021 from the last sentence. The offending before me occurs in April and June of 2022.
57Those sentences I have just summarised, cumulatively, represent a substantial period of your 20s (approximating five and a half years).
58You have received constant and negative publicity from local media, who have painted you as a serious criminal and a ‘major’ player in the local drug scene.
59I cannot comment on where you may have once fitted within a hierarchy of local offenders in the past, but you must, and I think do, accept that the present offending is extremely serious.
60This local notoriety I spoke of creates a stigma that is hard for you to shake. Your employment and other prospects are diminished because of your history of prison, but also because your reputation precedes you. You told Ms Lechner ‘I can’t relate to normal people, I’m very self-conscious that people somehow know I’ve been in jail’.[33]
[33]Exhibit 2: Report of Carla Lechner dated 21 August 2023, p.4.
61There is degree of fatalism about your outlook on life. You appear to be known locally as a drug trafficker and it takes little for you to lose focus on your reform and do that very thing you are known for.
62Moreover, once you do succumb to drug use and offending, you appear to be ‘all-in’. You don’t just offend but embrace all the trappings of drug trafficking, offending that Mr Pirrie, not inaccurately, described as a gangster lifestyle with conspicuous signs and images of unearned wealth or success, firearms, jewellery and the like.
63That is best dealt with under the cover of the lead-up to the offending.
IMPETUS FOR AND GRAVITY OF OFFENDING
Background
64Upon your last release from prison in 2021, you attended residential rehabilitation at The Cottage for about three months of a four-month program. You found the intensive therapy very demanding, opening up for the first time about traumatic events and, particularly, your abuse.
65You recognised the benefit of rehabilitation but found it agonisingly hard. You left just before completing the program and spent time couch-surfing in Melbourne and then, once again, back in Geelong.
66Once in Geelong, things unravelled very quickly. You lacked much needed supervision and support. You were initially homeless and associating with others in the drug trade.
67You recommenced heavy drug abuse, particularly GHB, but by mid-2022, you were using ice and heroin. Reference was made to the way in which you were apprehended, that is to say, heavily substance-affected[34], as being illustrative of your state at the time.
[34]Mr Pirrie noted that your reported use of drugs was sufficient to kill an elephant, suggesting it was unrealistic. Whatever it was, given your history I can infer you were using heavily and regularly.
68Your immersion in a life of drug use led, cyclically and familiarly, to the selling of drugs and, as I said, the trappings of life outside the law.
69Your counsel rather frankly acknowledged that you are skilled at the sale of drugs, which was euphemistically described as the ‘dark arts’. You see it as a way to make a lot of money very quickly, in preference presumably to the tedium and toil of actual work. That much is borne out by these charges and the circumstances of this offending.
Offending itself
Trafficking offences
70Mr Barreiro rightly observed such offending is undoubtedly serious, especially in relation to the trafficking charges. In assessing the objective gravity of trafficking, the Court is to consider the following:
(a) The role of the offender;
(b) The position of the offender in the drug trafficking hierarchy;
(c) The nature and extent of the offender’s involvement;
(d) The sophistication of the enterprise; and
(e) The amount of drugs involved or intended to be involved in the enterprise.[35]
[35]Lieu v The Queen [2016] VSCA 277, [41]-[42].
71Plainly, trafficking in a commercial quantity of drugs is a serious offence. The maximum penalty available of 25 years' imprisonment is alone evidence of the seriousness with which Parliament views this offence and provides a yardstick against which this sentence to be imposed should be considered.[36]
[36]Markarian v The Queen (2005) 228 CLR 357, 372.
72Trafficking in drugs is an inherently pernicious trade. Drug offences are a substantial societal evil that causes significant societal harm and affect its most vulnerable members. Judicial officers have a responsibility to fix sentences which are designed not only to punish but to serve as an effective deterrent. General deterrence, as the dominant purpose for which sentence is to be imposed, has been emphasised by sentences in many Australian jurisdictions. That much is inarguable.
73The community has a justifiable expectation that such offences will be treated very seriously. The consequences for engaging in such serious criminality must be such that any like-minded members of the community who are contemplating behaving like this, or in any similar fashion, will pause to consider whether the potential rewards are worth the risk of being caught and punished.[37]
[37]You too need to fully understand that when you engage yourself in the risk vs reward calculus when contemplating more serious drug trafficking that the price you will pay for your criminality will be so severe that the promise of reward is simply not worth it. It is a lesson you have been slow to learn so far.
74In this State, there is a quantity based sentencing regime according to the weight of the substance, and not the perceived hierarchy of harm[38], which informs the maximum penalty.
[38]R vPidoto & O’Dea (2006) 14 VR 269.
75Weight or quantity alone is not the only metric to measure the gravity of the offence. Other factors relevant to an assessment of the gravity of a particular trafficking include an offender’s role of course, the duration of the offending and motivation.
76Here, the trafficking is put on the quantity of drugs found on a single day and, to a limited degree, the cash and other items that were located. There was a concession here that at least some of the money located is the proceeds of drug sales in the past.
77It was conceded by your counsel that it is a fair inference for me to draw that money was derived from the sale of drugs. I can, and do, draw that inference, but will exercise due caution when I sentence you for this charge given that you are not to be sentenced for another offence under the same part of the Crimes Act 1958, for instance, section 194, that has higher penalties depending on the state of mind or knowledge of the offender. This offence that I am dealing with carries a maximum penalty of two years' imprisonment.
78There is little other evidence to assist the court in assessing your role and the level of sophistication. Mr Pirrie submitted that by quantity alone of two substances, you have established yourself as a high-level dealer. You are certainly far from being a street level dealer.
79I conclude that you engaged in your offending for profit. That accords with your counsel’s frank assessment that you see trafficking in drugs as a way to make a lot of money quickly. The potential value of the drugs would obviously differ depending on how it was to be sold, which on any view of it, must have been immense.[39] That such profit was not realised, and the drugs were seized, is not of much moment. Your own expectation that your dealing would involve large amounts of cash explains the necessity of having a cash counter.
[39]This has not been quantified.
80The amount of methamphetamine in Charge 1 was between two and three times the scheduled commercial quantity. Whilst not determinative of the assessment of the objective gravity of the offending, the amount trafficked is of importance ‘other things being equal, the greater the quantity trafficked the more serious the offence’.[40]
[40]Gregory (a pseudonym) v The Queen [2017] VSCA 151 at [23]–[24].
81The amount of 1,4-Butanediol in Charge 2 was 15 times the scheduled commercial quantity. Ordinarily, according to the guidance offered by the court in Gregory, this represents the more serious of the offending.
82I am mindful though that 1,4-Butanediol is substantially less profitable than other drugs of dependence. As the Court of Appeal said in DPP v Maxwell[41], the Court must consider the potential financial reward, in addition to weight.
[41][2013] VSCA 50 at [21].
83Mr Barreiro provided the Court with a chart of recent sentences imposed for trafficking in a commercial quantity of 1,4-Butanediol.[42] The 10 cases referred to differ wildly in terms of quantum alone, but generally speaking when one looks at cases such as Gayed,[43] Danaf [44] and Gatho[45] and Gelmi[46] for instance, the sentences are much lower than what one would expect based on quantity alone if that substance was something anything other than 1,4- Butanediol.[47]
[42]Exhibit 6: Charge of sentences imposed in 1.4 Butanediol cases.
[43][2021] VSCA 141.
[44][2020] VSCA 226.
[45][2019] VSCA 226.
[46][2020] VCC 864.
[47]Ranging between 7 years to 4 ½ years for between 1402kg and 42kg.
84Here the drugs were largely 62 x 100 ml bottles for instance located in the VW, decanted into something smaller. There still was, of course, the larger container in the Golf as well.
85I was not taken to any specific authority when it comes to trafficking commercial quantities of other drugs. I have familiarised myself with current sentencing practices, in so far as I can discern from them a review of the most recent sentencing snapshot,[48] and the useful collation of relevant cases provided by the Judicial College of Victoria. It is clear that stern sentences are usually imposed for such offending, and the sentence I impose will be no different.
[48]Sentencing Advisory Council April 2022, number 268.
86The methamphetamine in your possession to be on-sold for profit was between two to three times the commercial quantity as I said. It was not packaged the same ready way for sale as the 1,4-Butanediol was. It was contained in clear resealable bags inside another vacuum sealed bag in the boot of the Golf.
87On balance, and given the rather unique considerations to sentencing offenders even for very large amounts of 1,4-Butanediol, I am of the view that Charge 1 represents the more serious of the offences on the indictment.
88As the Court of Appeal explained in Mitchell v The Queen,[49] separate acts of trafficking or possession of different drugs must be treated as involving separate criminality, the seriousness of which must be assessed separately for each drug and this will be reflected in the sentence I impose.
[49][2016] VSCA 321, [27].
89In the interests of making these sentencing reasons as transparent as possible, and given, as I said, some of the slightly different sentencing considerations detailed in Maxwell, I am not minded to impose an aggregate sentence for the trafficking charges in the way Mr Barreiro invited me to. This does not mean the sentence I impose will be higher or lower than any aggregate if I was minded to impose one. It simply means that one can readily see how I have treated each individual offence when I have sentenced you.
Firearms offences
90Firearm offences are also self-evidently serious. Four of the offences you have pleaded guilty to carry maximum penalties of 10 years. You were said to possess these items in a particular context, living as you were in an empty unit in an unpopulated industrial estate. I was told that you were fearful and isolated whilst living there, but there is no evidence that you carried the weapons outside the flat, other than the occasion that you discharged one in the street.
91Possession of many of these items, save for the imitation firearm, creates an obvious risk of causing serious injury or death and this risk is heightened when the possession is associated with ongoing criminal enterprise or other criminal conduct, even if there is no evidence of its use or threatened use.
92The objective gravity of possession offences is primarily influenced by the Berichon[50] categories of seriousness. I also found much assistance in Boyce JA’s decision in Fazal.[51]
[50]Berichon v The Queen; Houssein v The Queen [2013] VSCA 319 [26].
[51]Fazal v The King [2024] VSCA 161.
93Possession of firearms can be broadly divided into two categories:
(a) Firstly, where it is not open that the possession of the firearm is associated with some ongoing criminal activity, and
(b) Secondly, where the evidence enables the conclusion that the possession is for the purpose of criminal activity or a specific criminal purpose.[52]
Comparatively small gaol sentences may be imposed for the former, but more severe sentences for the latter.
[52]Fazal v The King [2024] VSCA 161.
94These categories are not fixed sub-categories though which prescribe the manner in which a court must assess the gravity of the offending.[53]
[53]Sultan v The King [2022] VSCA 205, [39]
95There are many factors that may influence the seriousness of a possess firearm offence, even if it is not associated with ongoing criminal purpose. Some of these factors include:
(a) an offender’s criminal history, especially any prior firearms convictions. In your case that is especially relevant;
(b) any circumstantial evidence that enables the conclusion that the firearm possession is for an unlawful activity; and
(c) where the offender also possessed ammunition, and that is the case here.[54]
[54]A portion of those boxes and bags of bullets are depicted at photo 92, but not all of them. I have been careful not to doubly punish you for the possession of the ammunition, given it is factor I have taken into account when assessing the gravity of your possession of both the home made gun and the semi-automatic pistol.
96The various possession offences share factors that are relevant to assessing gravity. Other factors that may aggravate a firearm possession offence include:
(a) the number of firearms involved. Here, there were three, with one being an imitation;
(b) the nature of the firearms. Modified firearms for ease of concealment and firing, homemade weapons, and high-powered firearms that are capable of great lethality, are considered more serious. Here, one item was homemade, and one was semi-automatic. There is no evidence the scopes could be fitted to the weapons and, I should add, nor the magazines.
(c) whether the weapon is loaded and/or the presence of ammunition. The weapons were not loaded at the time of location, and the ammunition that was compatible with two of the items was kept separate to the weapons.
(d) where the firearm and ammunition are not kept in a secure location, are readily accessible and capable of being retrieved and discharged quickly. None of the firearms here were securely stored. One was in a room where you were sleeping. I infer the firearm you did discharge in the street was sufficiently accessible for you to use that evening.
(e) the duration of possession. Possession for a longer period may aggravate the offending, but possession for a short period may not mitigate the offending it if was by design to reduce the risk of being caught. There is a tension in this case between the evidence that suggests you possessed the semiautomatic handgun for more than a week, and the instructions which you gave counsel which were put to me. I am satisfied in the absence of a serious challenge to the evidence presented by the Crown in this regard, you did so possess the handgun, for a limited period of time.
(f) the status of the offender, either as a prohibited person or the subject of a firearm prohibition order, and the nature and extent of their prior history. In your case, your prior criminal history discloses that you are very comfortable possessing weapons. You have done so before and been imprisoned for it before. You disobeyed a prohibition order, which gave the police greater powers to search you for instance, and I am told that it was a deterrent for a period of time, but not sufficient enough of a deterrent to prevent you from arming yourself once more.
97There are policy considerations relevant to assessing the gravity of each of the possession offences discussed below.
98I found the conceptual grouping of offences discussed by Boyce JA in Fazal to be helpful. One can view offences of this kind on a spectrum, where possession for the purpose of actual use of a weapon in connection with other criminal activity would fall at the upper end. By extension, possession for use of a ‘sword’ would necessarily be more serious than that of a ‘shield’. Your counsel urged me to find the latter purpose as operating here and I did find that is so.
99Importantly, so as to avoid double punishment, the criminal conduct the subject of the principal offence cannot be relied on in relation to the charge of possession of a firearm to elevate that possession into the more serious category.[55]
[55]Berichon [27]. Such is the situation here.
100The firearms located are not said to be directly related to any specific act of trafficking, but it is hard to say that they are totally unrelated. The image of you posing there, with your balaclava on, semiautomatic gun in hand, is irresistible that you see it as some kind of indispensable object to complete your persona as a major player.
101This is days after you mindlessly fired that gun in an industrial area. No person was identified as being at risk[56], but it was obviously such an inherently risky thing to do. No real explanation was given why you did this.
[56]And I do not sentence you as though you did – see Queen v De Simoni [1981] HCA 31
102I took no comfort at all that you were often heavily substance-affected for part of the time that this offending took place.
103Mr Barreiro conceded that, given all the surrounding circumstances, the possession of weapons does not fall in the lowest end of the spectrum.
104Many of the factors identified by Boyce JA in Fazal at [63] and [64] apply here, including having multiple firearms, the ability to conceal them, and the presence of stolen cars and large quantities of cash. [57]
[57]Fazal was arguably more serious: there were more guns, the guns were more deadly (a high calibre rifle with a scope attached, and a sawn-off shotgun), there was more ammunition, and Mr Fazal’s action in discharging the rifle towards a CBD apartment was plainly more dangerous. He was not, though it seems a prohibited person and he was not a commercial trafficker of drugs
105Paragraphs [63] and [64] of that ruling gives more explanation of the principle which I will apply (citations omitted)
[63] In this case the simple objective circumstances that surrounded the applicant’s possession of the various weapons gave rise to at least a strong suspicion that those weapons were possessed in connection with, or for the purpose of, some form of criminal activity. One might appeal to the following matters: the number of firearms possessed; that three of the firearms were unregistered; that one firearm was a semi-automatic handgun; that a scope was attached to one of the rifles; that the firearms were potentially lethal; that two of the firearms were able to be concealed; and that the possession of the firearms occurred in conjunction (as to time and place) with the possession of stolen motor vehicles, a significant amount of money as well as drugs possessed for the purposes of trafficking.
[64] The objective case for the Crown that the possession of the firearms was related to a criminal purpose seems relatively strong. To some minds the objective evidence might have been sufficient in itself to have made the necessary connection to the required standard. But once senior counsel told the judge during the plea that his client was a dealer in drugs; once the judge was told that the applicant had become paranoid and scared of people that he met in the drug milieu; and once it was made clear that it was for these reasons that the applicant had chosen to ‘arm and protect himself’; in these circumstances it strikes me that — far from erring as contended — the judge would likely have erred had she not aggravated as she did. This may not have been the establishment of a connection with criminality that stood right at the most serious end of the spectrum; but it seems to me that a relevant connection was established nevertheless. To adopt the very language of Redlich JA in Berichon, it was possession of firearms ‘where the firearm is, for example, possessed in the context of a criminal activity to provide security…’.
106I find the necessary ‘connection’ here that is required to aggravate the instant offending insofar as it relates to the firearms offending, at least those that are operational. I stress I have not aggravated or treated the trafficking charges as more grave given your possession of the weapons. I have not doubly punished you in that sense.
107The possession of a semi-automatic weapon in contravention of a prohibition order is clearly the more serious of the weapons charges you face. I was urged to impose sentences that are substantially concurrent between Charges 3 and 5. Naturally, you could not have fired the weapon in public unless you possessed it. I agree that this is so, and the sentences will be substantially concurrent.
108Mr Barreiro agrees that sentences imposed for those such as yourself who are prohibited from possessing firearms and who do acquire guns are measurable in years, plural. He did not seek to dissuade me that such a sentence was available or appropriate here. [58]
[58]A review of the Victoria Sentencing manual case collection at 12. Firearms Offences confirms this
109You have then an operational homemade weapon capable of being fired. This obviously represents separate criminality, which in my view requires a modest amount of cumulation on the sentence I impose on Charge 5.
110The possession of ammunition and other accoutrements for cleaning guns is a concern, adding to your overall criminality as well. This too will be the subject of a modest amount of cumulation. [59]
[59]All done with an eye to observing the principle of totality, see below.
111You had an imitation firearm, that was found within reach of the large amount of cash that was the proceeds of crime.
112The other miscellaneous weapons charges involving knives and the like are serious but will be the subject of short concurrent sentences. They are not of the same magnitude as the firearms offences and add little if anything to your overall criminality. [60]
[60]See photo at Depositions p.84.
Dishonesty offences
113Your dishonesty offences vary in nature and gravity.
Handle stolen goods
114You had a stolen VW in a shed, believing or knowing it to be stolen. This was an item of not insignificant value. The offence is generally regarded as a more serious offence than theft, and generally thought in the modern history of the offence, this has been reflected in its greater maximum penalty of 15 years compared to theft being 10 years. This gravity is generally linked to the role of the offence in encouraging and ensuring the success of preceding thefts. Put another way, without handlers, there'd be fewer thieves.
115You also had a $38,000 Mercedes that you paid cash for in 2021. I do not sentence you on the basis that the purchase or ownership of that car represents separate offending, though the circumstances of your acquisition of it are highly dubious given your life circumstances. Though one can’t help but observe, if you were released from prison and in need of a new, fresh start, then there was an asset there to be sold that could give you a chance of that.
Proceeds of crime (cash)
116You had at your disposal more than $100, 000. I have already noted that you have pleaded guilty to a charge under s195 of the Crimes Act which states ‘A person who deals with property if there are reasonable grounds to suspect that the property is proceeds of crime is guilty of a summary offence and liable to two years' imprisonment maximum penalty'.
117Although the inference is there to be made, in fact, it was conceded, that this was derived from previous trafficking, the maximum remains 12 years. I cannot and do not treat you as having pleaded to any of the offences under s194 of the Crimes Act, that attract much higher penalties commensurate with more informed states of mind as to the provenance of the proceeds.
118As to the fact of whether all or not all of it or only some of it, was to be kept by you, you certainly intimated to your mother that all of it could be put up as your own surety.
119I treat this as a serious example of the charged offence, and a measure of cumulation on other sentences is required.
Proceeds of crime (other items)
120Your collection of items in the form of jewellery was reasonably suspected of being the proceeds of crime but on a much more modest scale. It is a rolled-up charge. It is impossible to say where the items came form or what their value is, other than they answer the description ‘proceeds of crime’. A short sentence will be imposed that will be effectively subsumed within the sentence I impose on Charge 14.
Other drug offences
121Charge 9 is a rolled-up charge for a number of a number of drugs. This offending carries a one year maximum. Your possession of these drugs appears consistent with your own drug abuse. I will impose a modest, totally concurrent sentence for this offending.
Post offence
122You have been in custody for over two years (803 days). I accept that this is a long time to await your fate, and although delay was not pressed as a separate head of mitigation, I am minded to take this state of uncertainty about your fate into account to your benefit.
123You have done an array of courses in custody,[61] with a particular focus on seeking help for your mental health and drug use. You have also engaged in self-funded treatment from Joanne Urzua at All Abilities Engagement Services. [62]
[61]Exhibit 4: Three certificates from Caraniche.
[62]Exhibit 5: Letter from Joanne Urza from all Abilities dated 29 May 2024.
124You are a peer educator at MRC as of 10 July 2024, offering support, insight and leadership to other prisoners. [63]
[63]Exhibit 9: Letter from Geo Healthcare dated 10/07/2024.
125You have been determined not to ‘waste time’. You have maintained contact with your mother and you are supported by your girlfriend.[64]
[64]Exhibit 7: Reference from Stefanija Lukic dated 19 June 2024.
126I am told that this represents something of a shift for you, to dedicate your time in custody to improving yourself and dealing with past trauma and substance addiction rather than simply asserting ‘I am sick of this and I won’t offend again’.
MATTERS OF SENTENCING PRINCIPLE
127I have dealt specifically elsewhere with matters of principle insofar as they relate to the offending before me. I am turning to principles broader than that now.
128Principles of punishment, denunciation, general deterrence and protection of the community loom large in this exercise.
129By appropriately punishing such conduct, the court is, on behalf of the community, seeking to denounce it and vindicate the values of that community. Your counsel conceded that general deterrence in cases of this nature carries particular significance in the sentencing exercise, though asserted that general deterrence must be appropriately tempered by the particular circumstances of your present case and matters in mitigation. I find you are unquestionably a suitable vehicle through which to deter others and it does assume a real prominence in the exercise I am engaged in.
130Protection of the community is relevant due to the harm trafficking in drugs of dependence can cause to the community. The same can be said of firearms.
131Protection of the community can be achieved in the short to medium term by removing you from the community for a truly significant period of time. But that concept needs to be viewed more broadly and acknowledge the community can be protected by the reform of an individual, if they have that capacity.
Plea of guilty
132You pleaded guilty at the committal mention stage.
133This plea is an important sentencing factor, and you are entitled to a meaningful discount.[65] It demonstrates a willingness to accept full responsibility for his offending and a willingness to facilitate the course of justice as well as demonstrating remorse. The savings to the community are noteworthy.
[65]Phillips v The Queen [2012] VSCA 140 at [38].
134I can add to this, although you were initially reluctant to disclose information that you must have been aware of regarding the guns and the ammunition on the further plea, you declined to force the Crown to formally produce proof of certain aspects of the case, in favour of frankness and assistance. I consider this to be of utilitarian value, if not a further modest demonstration of remorse.
135The principles establishing a more pronounced sentencing discount in accordance with Worboyes[66] are diminishing over time as the court emerges from the resourcing issues of the pandemic. Nonetheless, this plea attracts a utilitarian value and should be reflected in the sentence.
[66]Worboyes v The Queen [2021] VSCA 169, [39].
Verdins [67]
[67] Verdins [2007] VSCA 102.
136I have covered the relevant matters regarding the application of Verdins already.
137None of the factors that feature in the reports are said to reduce your culpability, or moderate general deterrence, or diminish the value of specific deterrence in the sentence I impose.
138Rather, it is submitted that Verdins principles 5 and 6 apply, so as to moderate the sentence in recognition of the possibility that:
(a) A substantial sentence will weigh more heavily on you than it would on a person in normal health; and
(b) There is a serious risk of imprisonment having a significant adverse effect on your mental health.
139On the basis of the evidence before me, I accept that I can moderate the sentence imposed on you for these reasons, but that level of moderation will be modest.
Totality
140I am mindful of the significance in this case of the application of the principle that requires me when sentencing you for multiple offences, to ensure that the aggregate term I impose is a just and appropriate measure of the total criminality involved.
141There must be an appropriate relativity between the totality of all criminality and the totality of the effective length of the sentence. This is true when I consider the interaction between many of the charges on the indictment.
142I have determined an appropriate length for each charge, taking the applicable sentencing considerations into account, and designated the highest term being the base sentence, and then determined the extent to which there should be any cumulation regarding each count, and finally stood back and considered in the light of totality what an appropriate sentence ought to be.[68]
[68]Norman v The King [2023] VSCA 213 [54]-[55].
Specific deterrence and prospects of rehabilitation
143You need to be specifically deterred from re-offending.
144You have not taken advantage of sentences designed to supervise and assist you upon release. You seem to relapse and fall into serious reoffending easily. No less than five terms of imprisonment have failed to adequately deter you. You are not being punished for that previous offending, but the previous offending weighs a great deal in the sentencing synthesis here when assessing what your prospects are. You have some insight, and you see the potential for intensive supervision under parole, positively telling Dr Treeby 'When I get out, hopefully I'll have a roof over my head' and the like.
145I find your prospects to be poor, but not yet extinguished. Your past history is a good guide as to how you will behave in the future. But to some extent, it is unknown just how much you will apply yourself in custody given the recent promise of being more engaged and serious about your own reform. There are encouraging signs, but they are yet to be tested in the community.
Protection of the community.
146The court is obliged, as far as it can, to impose a sentence that enhances your prospects for reform.
147As the Court of Appeal said in DPP v Malikovski[69]:
'There is a vital community interest in maximising the prospects of rehabilitation of an offender who has been convicted of a serious crime. The prospect of an offender being rehabilitated represents the best hope the community has that the prisoner will never again engage in violent behaviour'.
I note that is apposite for all offending.
[69][2010] VSCA 130 at [51].
Parole
148I am aware that you have spent a significant amount of your adult life in prison and have already spent 803 days in custody in relation to this matter.
149Just punishment and protection of the community must be balanced against the risk that a crushing sentence may ultimately do more harm to the community than good. I was urged not to take what good remaining years you may have in your 30s from you, but you must accept that a substantial term is warranted when you offend this way.
150I will of course fix a parole period for you. It is obvious that you require intensive supervision, monitoring and assistance. In affixing an appropriate sentence for you and allowing for a parole eligibility component, I have had regard to the principle of parsimony. That is, the requirement not to impose a sentence more severe than that which is necessary to achieve the purposes for which sentences are to be imposed.
151The purpose of parole is to provide for mitigation of punishment in favour of reform through conditional release when appropriate. A non-parole period is the minimum time that I determine justice requires you must serve, having regard to all of the circumstances. I have attempted to give you a meaningful parole period. That is to say, the potential for you to be supervised in the community if the Adult Parole Board considers this is appropriate, in order to facilitate your reintegration into the community.
152Though you are not particularly young, you may be in a position to re-enter society and contribute to it. A sensibly structured sentence would serve the interests of the community in minimising the risk of further offending following the completion of your sentence. [70]
[70]Mohamed v The Queen [2022] VSCA 136 [66].
SENTENCE
153Having carefully considered, balanced and weighing all of the relevant sentencing considerations, you will be convicted on each charge and sentenced as follows, in accordance with the accompanying chart.
#
Charge
Sentence
Degree of cumulation on base on each other
1 Trafficking in Commercial Quantity (Methylamphetamine)
25 year maximum
4y 2m BASE
4y 2m2 Trafficking in Commercial Quantity (1,4-Butanediol)
25 year maximum
2y 4m 8m 3 Using a loaded firearm in a public place
10 years maximum1y 2m 3m 4 Possessing a firearm contrary to a firearm prohibition order
10 years imprisonment
Homemade pen gun
20m 4m 5 Possessing a firearm contrary to a firearm prohibition order
10 years imprisonment
.22 semi-automatic pistol
2 y 4 m 12m 6 Possessing a firearm related item contrary to a firearm prohibition order (rolled up)
10 years imprisonment
Magazines, scopes and ammunition, gun cleaning kit10m 3m 7 Possessing an imitation firearm contrary to a firearm prohibition order
10 years imprisonment
Gel blaster gun10m 2m 8 Handle stolen goods
15 years imprisonment
VW10m 3m 9 Possession of a drug of dependence
5 penalty units for a small quantity of cannabis, 1 year imprisonment where not for any purpose related to trafficking or 5 years imprisonment in any other case Section 73(1) of the Drugs, Poisons and Controlled Substances Act 1986
6m Nil RSO 2 RSO Possess a prohibited weapon without exemption or approval
2 years imprisonment or 240 penalty units Section 5AA of the Control of Weapons Act 1990Knuckle duster and flick-knife.
3m Nil RSO 14 RSO Dealing with property suspected of being proceeds of crime
2 years imprisonment or 240 penalty units Section 195 of the Crimes Act 1958
$114 075.8013m 3m RSO 15 RSO Dealing with property suspected of being proceeds of crime
2 years imprisonment or 240 penalty units Section 195 of the Crimes Act 1958
Jewellery4m Nil RSO 28 RSO Possess a controlled weapon without lawful excuse
1 year imprisonment or 120 penalty units Section 6(1) of the Control of Weapons Act 1990
Pocketknife3m Nil ORDERS
TES 7 y 4 m (88m)
NPP 5 y 6 m (66m)154If my maths is correct, it is my intention to sentence you to a total effective term of 7 years and 4 months, that being 88 months. I will set a non-parole period of 5 years and 6 months, that is 66 months, before you are eligible for parole. As I said, my intention is to impose that sentence of 7 years and 4 months with a minimum term of 5 years and 6 months.
PRE-SENTENCE DETENTION
155I declare 803 days in custody has already been served in satisfaction of this sentence.
SECTION 6AAA
156But for your plea of guilty, I would have sentenced you to a total effective sentence of 9 years and 2 months with a non-parole period of 7 years 4 months.
ANCILLARY ORDERS
157A disposal order will be made in relation to charges 1 and 2.
158A firearms forfeiture order will be made in relation to charges 4, 6 and 7.
159A forfeiture order will be made in relation to RSO’s 14 and 15.
160An automatic forfeiture order should be made in relation to related summary offences 2 and 28, pursuant to 9 of the Control of Weapons Act 1990.
161A forfeiture order will also be made in relation to the Samsung phone and CCTV hard drive.
162MR BARREIRO: As the court pleases.
163HIS HONOUR: Gentlemen, can you just double-check the orders for cumulation.
164MR PIRRIE: I've done that, Your Honour, that's correct.
165MR BARREIRO: Yes, I've done that as Your Honour was delivering your remarks and it appears to be correct to me.
166HIS HONOUR: Right. I know that you both have other places to be, particularly you Mr Barreiro. That is a lot for your client to take in. I stress those reasons are unrevised, but obviously you are welcome to discuss them with your client and, if Mr Sonnet is true to his word, he will forgive you if you want to spend five to 10 minutes now just debriefing with your client and we will leave the link.
167MR BARREIRO: I'm grateful.
168MR PIRRIE: Your Honour, could I just raise with Your Honour – hopefully my instructor is online and she can hear this, but as I understand there was a forfeiture order also sought under s32 of the Confiscation Act for the $114,000 cash, dealing with suspected proceeds of crime being the watches and jewellery and - - -
169HIS HONOUR: I have under paragraph 160, a forfeiture order will be made, because one has been sought in relation to related summary offences 14 and 15 and 14 is the $114,000 and 15 is the jewellery.
170MR PIRRIE: So that's for the forfeiture of that? Well that would seem to cover that then, Your Honour, yes.
171HIS HONOUR: That is at p40, paragraph 160.
172MR PIRRIE: Thank you, Your Honour.
173HIS HONOUR: If that is incorrect, let me know.
174MR PIRRIE: Yes, Your Honour.
175HIS HONOUR: Thanks to both of you. I will allow you if you wish Mr Barreiro of course just to debrief with your client, his mum and his girlfriend and your instructor if she is still there.
176MR BARREIRO: Thank you, Your Honour.
177HIS HONOUR: Thanks. Thanks again, Mr Pirrie.
178MR PIRRIE: Thank you, Your Honour, I'll leave the link.
179HIS HONOUR: Thanks.
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