Director of Public Prosecutions v Watson
[2021] VCC 133
•12 Feb 2021
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 20-01125
Ind. L10436044
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BEN WATSON |
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JUDGE: | HIS HONOUR JUDGE TINNEY |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 4 Feb 2021 |
DATE OF SENTENCE: | 12 Feb 2021 |
CASE MAY BE CITED AS: | DPP v Watson |
MEDIUM NEUTRAL CITATION: | [2021] VCC 133 |
REASONS FOR SENTENCE
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Subject: trafficking in a commercial quantity of drug of dependence (methamphetamine) 2x Commercial Quantity. three priors for trafficking. Past prison terms imposed in County Court. 31 years of age now. Poor prospects. Early plea.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms A. Singh | Office of Public Prosecutions |
For the Accused | Ms M. Tittensor SC (For Plea) Ms B. Coath (For Sentence) | Pica Criminal Lawyers |
HIS HONOUR:
1Ben Watson, on Thursday of last week (4/2/21), you pleaded guilty to trafficking in a commercial quantity of a drug of dependence. The drug was methylamphetamine. In addition, you pleaded guilty to two related offences, being one charge of committing that offence whilst on bail and one charge of dealing with property suspected of being the proceeds of crime.
2The maximum penalties are correctly set out in the Crown sentencing submissions. I remind you that it is a 25-year maximum term of imprisonment for the commercial quantity trafficking.
3You are 31 years of age and have a highly relevant criminal history.
4The matter was opened to me last Thursday by the prosecutor Ms Singh in accordance with an amended written opening dated 4th February 2021 which was marked as Exhibit A. Ms Tittensor, who appeared on your behalf, told the Court that this was an agreed statement. I will sentence in accordance with it. In addition, there are also some photographs which were contained within the depositional materials which displayed various things referred to in the summary. I mentioned also in the course of discussions your attitude upon the police attendance as disclosed in the statements of some of the police members.
5This serious criminal conduct came to light as a matter of pure chance when you were seen behaving suspiciously in and around a hotel in Chadstone where you were staying. You were staying there under a name other than your own. You had provided $1500 cash for an acquaintance to book the room for you. In the early hours of the 19th February 2020, police entered your room on the
9th floor and found you and a female in bed. They found the various items disclosed in the summary. There was a decent quantity of 80% pure methylamphetamine, some scales, and over $33,000 cash, more than two times the commercial quantity on the mixed measure. The female referred to in the summary is going to run a contested committal, as I understand it.6You were on bail at the time. Ms Tittensor told me the circumstances of those charges and also told me that the undertaking was entered only after you had mistakenly not appeared at court on a summons.
7As to those charges themselves, a warrant to search your house was executed when you were already in custody in December 2018. Many of the charges referred to in paragraph 19 were actually withdrawn and a pretty modest fine was imposed ultimately.
8Still, the fact remains, you were on bail at the time you committed the offences I am dealing with.
9As I have said, you were arrested at the hotel on 19 February 2020 and have been in custody since. You made a no comment interview as was your right but as a result, until very late into the plea, you had not provided any account of your offending to the court. Nor did you provide anything resembling an account to Mr Newton. A belated account was given to me only after I had quizzed your counsel as to role and received no submissions. I will come back to that later.
10I have been made aware of the listing chronology and I will treat your plea as an early one.
11So much then for my summary of the summary. I will sentence on the basis of the more complete agreed factual statement. This was very serious offending.
In Mitigation
12Your counsel, Ms Tittensor, conducted a comprehensive plea on your behalf. She really could not have said more on your behalf. She relied upon some very detailed written plea submissions, not an outline, as well as a report from Mr Newton and a letter from your mother. Finally there were some course certificates as well as a handful of clean urine screens and the two emails I have referred to a short time ago relating to the emergency management days and the recent suspension of personal visits.
13She took me to your background in great detail and submitted that there was some level of disadvantage. She dealt with aspects of your mental health and drug usage. She highlighted the nasty assault upon you in late 2019. She made some submissions as to the seriousness of the offending. She conceded that you had a relevant criminal history and had displayed a lack of response to past court orders. She emphasized the existence of family support. She spoke of the efforts you had made in custody. She made submissions as to your rehabilitative prospects.
14She relied chiefly upon the following:
· Your early guilty plea;
· The presence of some remorse;
· The increased prison burden owing to COVID-19; and
· The application of some of the principles from the case of Verdins[1].
[1]R v Verdins [2007] VSCA 102; 16 VR 269; 169 CrimR 581
15She conceded the inevitability of a prison term and one of a dimension where a non-parole period would be required.
Prosecution
16Ms Singh, who appeared on behalf of the Director, had prepared some written submissions. They were uncontroversial and I see no need to set them all out. They were marked as Exhibit B and set out some well-established matters of sentencing principle. Ultimately the Crown argued that your conduct was deserving of a head sentence and a non-parole period, something which had already been conceded by your own counsel.
17The prosecution submitted that specific and general deterrence and denunciation were important here and challenged the application of any of the principles from the case of Verdins. They referred me to two of the past sentences that had been imposed on you. Those sentencing remarks are marked as Exhibit C. Now, Ms Singh had observed some discussion between the Bench and your counsel as to the case of Gregory[2] and argued that the decision had application to my task but submitted that there were further matters of aggravation in the case of Gregory. I was never suggesting you were on all fours with that offender and it was plain enough that my task was to take into account all the relevant matters and sentence you for your crimes.
[2]Gregory v The Queen [2017] VSCA 151
Background
18I turn now to your background. I am not going to descend in these reasons to all the detail of your background. It was set out before me in great detail in the written submissions, with pages devoted to that topic ranging from early family background, education and employment, mental health, sexual abuse, substance abuse, your criminal history and events leading up to the offending. Also coverage of the current situation in custody. There is also the lengthy discussion of your background in the report of Mr Newton, as well as the discussion of it in your mothers’ excellent letter. I see no need to set it all out as I have no reason not to accept the personal family background placed before me. You are now 31 years of age born on 7 July 1989, so your offending last year cannot be put down to some youthful frolic or exuberance.
19It was not an ideal background by any stretch of the imagination, though we as judges sitting up here see precious few of those. There was a lack of stability and consistency with some unfortunate exposure to violence in the home. You had some unfortunate role models. Your father was violent to your mother, they separated and you initially resided with your mother. You then moved between your parents’ homes. At one stage you went to your father and your brother remained with your mother. At a later stage you returned to your mother who had re-partnered with a violent man and again you were exposed to that abusive relationship. As I say, I see no need to set it all out. It was an unfortunate background, no question about that.
20An offender’s individual circumstances will always be of importance. After all, I am sentencing you. Your background was one of some disadvantage. It is no answer to say that those events occurred all those years ago. These things tend to leave their mark. They may also have played a role in your decision to use drugs but that to an extent is speculative. Your counsel was not making a McKee and Brooks[3] submission as to the mitigatory impact of drug use. Many people use drugs and the suggestion is that your ongoing use of them is more connected to the conditions spoken of by Mr Newton and this concept of, as he puts it, “self-medication”. I will deal with those issues when addressing the Verdins submissions. Your background does not in any way explain this offending. Nor does drug use explain it given the scale of this crime. There is no direct link or nexus between your background and the criminal acts as there sometimes is. See the case of Snow[4].
[3]The Queen v McKee and Brooks [2003] VSCA 16
[4]DPP v Snow (a Pseudonym) [2020] VSCA 67
21Now, it will always be matter of what weight to attribute to evidence of a disadvantaged background. Your counsel told me she was not relying on the Bugmy line of authority but she then continued to make submissions as to your background and being less blameworthy than someone without your background so it seemed to me she was in fact pressing a Bugmy style submission, but at a very modest level.
22Social disadvantage will not attract the same weight in every case or in the same way. Sometimes it might lead to reduction or even a substantial reduction in moral culpability and also sizeable reduction in the weight to be given to general and specific deterrence. Sometimes it might be enough to take it into account in a general way without those sizeable reductions, which appeared to be the gist of your counsel’s submissions. It will always depend on the nature and extent of the disadvantage, the nexus if any with the offending but also the nature of the crime and the relative importance in a particular case of sentencing considerations including deterrence, community protection and rehabilitation. See the case of Terrick[5]. Plainly where there is a strong nexus, then the mitigatory value will rise. It does not all flow in one direction either and can even lead to a finding of a greater need for community protection.
[5]DPP v Terrick [2009] VSCA 220
23I give full weight to your background in the way that phrase has been employed in cases such as Bugmy [2013] 249 CLR 571, Marrah [2014] VSCA 119, Snow and Terrick (op cit).
24I believe though there can only be some small reduction in your moral culpability.
25Returning to your background. You are much closer to your mother now and that flowed from her separation from her partner towards the end of your schooling.
26You have no relationship with your father. You have siblings. Your older brother has had no involvement with the criminal justice system at all.
27You were at one point sexually assaulted as a child. You had fragmented schooling though obtained your VCE. You obtained an apprenticeship but that was interrupted by an accident. There were some other unskilled jobs.
28Your life has been derailed by drug use and that started pretty early on in your life. You have had only sporadic employment, you have a long term use of drugs and have had some mental health issues. There have been some periods in your life where you have buckled down and applied yourself but they have been few and far between over the last few years. As your mother’s reference makes clear, you are a very different person when you use drugs.
29There was a nasty assault upon you late in 2019 that further unsettled you. That produced the post-traumatic stress disorder referred to.
30You have not ever really meaningfully and consistently over a long period engaged in drug treatment even though it is obvious that you need to. There is always some ability on your part to rationalise it away.
31Part of your background is a lengthy enough criminal history. It is clearly highly relevant to my task. The chronology in the history speaks for itself but we can add into the mix a few more details. The release onto a community corrections order by Judge Ryan in 2015 after you had served over 400 days in custody, then the commission in 2016 in the course of that community corrections order of the matters Judge Meredith dealt with you for in 2017. Then the breach of the community corrections order and ultimately release on parole in mid-2018, breach of that parole order and going back into custody and then release in May 2019.
32You started using drugs upon your release. You may have been making enquiries about counselling and treatment whilst you were in custody, but upon your release, you did nothing to engage in any treatment. There was the nasty assault in October 2019 and now this offending. It is a pretty diabolical last few years. Your counsel says 5 of the last 7 years have been spent in prison. Well that is what will happen if offences of a high enough level of seriousness are committed and, now you have committed your most serious offence ever.
33You have received and served those past sentences and do not fall to be sentenced a second time for those offences by me. None of those other matters aggravate this offending and I am required to pass a proportionate sentence but I do have to make judgements as to the need for community protection and the weight to attribute to specific deterrence. I have to make an assessment as to your prospects of rehabilitation. It is a pretty sobering record over the last 6 or 7 years and you have backed it up by escalating the offending. Judge Meredith possessed guarded optimism as to your future prospects acting as he did on the positive materials touching upon your efforts with Dr Grech whilst in the community. There was also positive material as to your efforts in custody with motivation and insight gained and skills obtained to avoid relapse and re-offending spoken of. He issued a warning to you when he passed sentence in September 2017. You should have listened. He said the following:
“Ultimately it will be up to you to obtain the appropriate help that you need to commit to a drugfree future. It is within your capacity to do so. I fear if you do not make this commitment, then you are at stage where you will be effectively abandoning a productive life for one where you will remain in the shadow of drug abuse, its attendant antisocial lifestyle and the consequences which flow from that” (see page 25)
34You have done virtually nothing since to improve your position. He was not suggesting to you that you should continue down the road of “self-medication”. His words, it would seem, fell on deaf ears.
35I must protect the community from you. You continue to offend despite the best efforts to keep you in the community and when that has not worked, despite being sent to prison. I must try again to deter you. Your rehabilitation though still relevant takes something of a backseat in my task for obvious reasons.
36You have at least been using your time wisely in custody and that is one small positive. The test for you comes upon release and you have repeatedly failed it.
Verdins
37Your counsel advanced some arguments as to the application of the Verdins principles. She relied upon Mr Newton’s report. Mr Newton has been preparing these reports a long time and is very much aware of the case of Verdins and not at all hesitant to mention a nexus between a condition and an offence when he believes it may exist. He did not speak of a nexus or connection in this report and there is, as far as I can determine on the balance of probabilities, none. I do not doubt that you have had some unfortunate events in your life. “Unfortunate” is an understatement. Not a great childhood, sexual abuse, the suicide of your Aunt and the nasty assault spoken of. I do not ignore any of those things. Nor do I ignore your unfortunate background. I take it into account as far as I am able to. I hope I have made that plain earlier in these reasons. I accept that you have the cyclothymic disorder. It operates at a relatively mild level. You suffered from post-traumatic stress disorder. You have used drugs for many years. The argument is that your disorder has predisposed you to drug use, the incident in October 2019 added to that distress and you then started to increase your drug use. That this drug use then impacted on your ability to reason calmly and rationally. That is, that the drugs had that impact. Well, Mr Newton makes it clear that non-compliance with appropriate treatment and the continued use of illegal drugs is entirely counterproductive and drug use makes your condition much more severe.
38There can be many reasons why people turn to drugs and you did that many, many years ago. You have been told repeatedly of the need to desist. Of the need not to use drugs as a form of ‘self-medication’. Of the need for treatment and counselling. Not only that, you have been told of the actual legitimate medication that you need to take. You ignore those instructions. In so far as this strained Verdins argument is made to me, I reject it. I am meant to be rigorous in my examination of these arguments and the material in support of it. I do not even have the supportive expert opinion in this case. There is no true nexus between your conditions and the offence. Your drug use cannot be mitigatory here.
39Leaving that aside for the moment, what role did drug use actually play in relation to this offending anyway? This is a commercial trafficking that is obviously totally removed from trafficking to support a habit.
40Ultimately, I am not satisfied on the balance of probabilities of any connection at all between the disorders and conditions spoken of in Mr Newton’s report and this actual offending. It is also clear that you were not even prepared to provide an account of your offending to Mr Newton (see para [28]). You saw him three times and plainly have not provided to him any account of how you came to possess the drugs or money. Had you done so it would be in his report. Until late into the plea, that was also the position in this court.
41Much weight was placed on the undoubtedly nasty assault in October 2019 and the impact of post-traumatic stress disorder and self-medication to deal with those symptoms and how that operated upon you but we know that on three prior occasions you had trafficked in drugs and not at a low level at all in the Judge Meredith 2016 offending.
42The argument was that you were trying to come to terms with your symptoms of post-traumatic stress disorder and the cyclothymic disorder and did that by increasing your drug use and that owing to your drug use, your life spiralled out of control and you lost the ability to exercise appropriate judgment. That this misguided “self-medication” eroded those abilities and hence you had reduced moral culpability. It is as far as I can see speculation upon speculation. I am prepared to find that you used drugs. I do accept that there was a nasty event in October 2019 but to reduce your culpability in such a setting on a Verdins basis is not open as far as I am concerned. I am not satisfied of any link between your conditions and the offending. The offending has to be looked at with a level of scrutiny as well. You were agitated when the police entered your room. It would be incredible had you not been given you were caught red handed with a sizeable quantity of drugs. Ms Tittensor highlighted that erratic and agitated state. I note that you were able to say to your offsider things such as “say no comment”, “don’t tell them anything”, “keep your mouth shut” (Depositions pages 117 and 101).
43But how can it be in any way mitigatory that you have engaged in drug use which impacts upon your abilities? How is that even to be accepted as being the position when one examines the nature of this offending? How can anyone say there is a connection in such a setting when Blind Freddie would know that financial gain was your motivation. Your offending has next to nothing to do with drug use. Or the cyclothymic disorder or the post-traumatic stress disorder. This was not some small street level trafficking to fund a habit, even an
out-of-control one. You were in possession for sale of over two times the commercial quantity of methylamphetamine. You had scales and over $33,000 cash. Now it is true that I must not infer some previous sales by virtue of that cash. But the very existence of the cash makes it clear enough that financial need is not in play here. You gave $1500 cash to get the room. You have over 500 grams mixed ice of high purity. I am not satisfied that this offending has anything to do with the disorders that you suffered including the post-traumatic stress disorder. I am not satisfied of any Verdins basis to reduce your culpability or to give less weight to general or specific deterrence. Nor does the report support the suggestion that there is an increased burden or any likelihood of serious and significant deterioration of your condition. I note that the sixth limb was not pressed. Indeed, from that report it seems apparent that your condition seems to have stabilised and you are doing well in custody.44None of this is to say that the cyclothymic disorder is to be ignored or the post-traumatic stress disorder for that matter. I take them into account in a general fashion, just not in a Verdins fashion. Undoubtedly the attack upon you was a most unpleasant one and has left you scarred. But ultimately I do not accept that Verdins has any application here. This was, by its very nature, an organised and large enough crime. Not impulsive and not to fund a habit.
45Your account of stealing the drugs and cash from “someone” when they fell asleep and having some concern as to reprisals hence the reluctance to have mentioned it to the Court or to Mr Newton was belated, to say the least. The plea proceeded for over two hours without that account surfacing. Once it did surface, I placed you counsel on notice that provisionally, I had real difficulties accepting it. I asked if she proposed to call you. She conferred with you and unsurprisingly, you chose not to enter the witness box.
46Drugs have been a major issue for you for many years. That is not mitigatory. No doubt they play havoc with your mental health condition but that is your choice. A choice not to take the drugs you should be taking, the prescribed drugs, and to load up by “self-medication” on the illegal drugs.
47You are not some silly teenager. You are now 31. You are getting older and you really cannot expect leniency when coming before a court on a charge of commercial quantity trafficking. You have been warned in the past and you have not heeded the warning. You must expect that courts will focus less on your unfortunate early background, less on your rehabilitation and place far greater weight on the other purposes of sentencing.
Guilty plea
48Let me turn then to the other matters raised on your behalf. You have pleaded guilty at what I will treat as the earliest opportunity. I take that early plea into account in your favour. You have facilitated the course of justice. You have taken that early responsibility for your crimes. The community has been saved the time, the cost and effort associated with a committal in the lower Court and a trial in this Court. Witnesses have been spared the experience of giving evidence. There is a utilitarian benefit in pleading guilty; I take it into account. I take into account your early guilty plea and will pass a lesser sentence owing to those factors.
Remorse
49Your counsel argues that your plea should be treated as an is indicator of some remorse. It is a funny concept, a repeat trafficker on each occasion bobbing up and claiming remorse and then re-offending and claiming remorse yet again. There comes a point where the claim must wear thin and that point has been approaching. A guilty plea though is usually, not always, indicative of at least some remorse. I also have your mother’s reference which speaks of the way you feel for committing crimes whilst under the influence of drugs. The problem with that is I am not satisfied this was such a crime and nor can I have any satisfaction that you have given her anything resembling a truthful account of the offending. After all you will not provide a truthful account to Mr Newton or to the Court. I am ultimately prepared to find that your guilty plea is indicative of some limited remorse in this case and I take that into account in mitigation.
Rehabilitation
50As to your prospects of rehabilitation, your counsel submitted that you had some prospects but that they were guarded. She could not put it higher than that. It is difficult for me to be optimistic. I hope you can change but so too did the last two judges who have dealt with you. Your criminal history and the chronology of offending is disturbing. You are growing older and yet not wiser. Your offending has escalated seriously. That is so despite being placed on a community corrections order in the past, despite being imprisoned in the past, despite being on bail at the time. You need to totally change your approach to life. You need meaningful and committed treatment and abstinence from drugs and compliance with the advice of your medical health professionals. Also compliance with the legal medications they prescribe. You also need strict oversight. Mr Newton spells out what you do need. You still have a lack of insight about many of these things.
51If you continue to use drugs in the way that you have, you will have virtually no prospects of rehabilitation. None. If you can abstain from drugs and comply, well who knows? You might just turn your life around but that is what it would take, a 180-degree shift. It has been beyond you for years though there have been brief enough periods where you have made genuine efforts. You have family support but that is not new. You have been making decent efforts in custody doing courses and remaining drug free. But that has been so in the past. You are also making the right noises but it is easy enough in custody to make promises and vows. The test will come upon your ultimate release and it will be many years from now. You have failed that test repeatedly in the last few years. I actually hope you can succeed in the future. I hope you are at an age where you realise that there has to be another and better way of leading your life. Going in and out of prison is not much of a life. I would hope that there may be some deterrent effect from the time you have spent already in custody and from the sentence I will soon pass upon you. But sentences in the past seemingly have not deterred you from offending. This one will be much longer and will hopefully have a greater deterrent effect.
52It is not too late for you to change. I will not write you off. You have not given up and that is at least something. Your mother believes that you have the potential to change and that is conditional on the provision of counselling and mental health treatment. I accept that is possible. If you continue to use drugs, your prospects will be, as I say, almost non-existent. You will be doomed.
53If I was pressed to select an adjective to describe your prospects from where I sit today, well, I would describe them as poor. No doubt those prospects would improve significantly if you abstained from drugs.
COVID-19
54I turn to the impact of COVID-19. Your time in custody has not been easy. The COVID-19 virus and the response to it by those running the prisons has increased your prison burden. Prison has been a more stressful environment. Social distancing has not been easy. No doubt there is worry about catching the virus in such a setting where there is no level of autonomy. You have experienced some lockdowns and suspensions of some courses and limited access to counselling. Also no personal visits once the restrictions came into effect. As I said in the course of the plea, I am not sure there is such a thing as a good time to be in prison but this has most certainly been a bad time to be there. Since the plea was conducted your counsel, through your solicitor, has made further submissions as to the emergency management days that you have accrued already. Those days make no allowance for many aspects of your increased burden, for instance the absence of visitors.
55In addition, the uncertainty of the impact of COVID-19 is demonstrated by the fact that visits, which had resumed from about 23 January 2021, have been temporarily suspended since last I saw you owing to the new cases that have emerged. I take into account the increased burden arising from the response to the virus in the past. As to what lies ahead, it is very hard for me to know. That uncertainty is not that easy and I take that into account. Despite this recent hiccup, compared to last year, things have picked up a great deal both in the community and also in prison. The impacts of the virus upon prisoners had been lessening with visits resumed and courses getting back underway but we are obviously experiencing these ups and downs. There is still a 14-day quarantine period but that will not apply to you as you have been in prison already. The events of the last few days with the temporary suspension of visits shows that whilst we have been travelling very well in the community, it is not that difficult to see how restrictions may start up again. Indeed, there has been talk today of potentially another lockdown. We have had a bit of a slip up. So there will be, I am sure, some ongoing anxiety amongst prisoners as to how they will fare. I take that into account. However, I cannot know if limitations will persist and must not speculate and if they do and your prison experience worsens, we know that there is the potential availability of Emergency Management Days. Anyway I take into account the impact of the virus in the ways contemplated by your counsel.
The Offences
56Your counsel conceded that the commercial quantity trafficking was a serious offence. She is right. For virtually all of the plea, there was a deafening silence as to how and why you came to be involved. Silence on anything to do with the offence. Then almost as the curtain rang down on the plea, Ms Tittensor placed before me your instructions. I expressed my concern as to them. No evidence was called. Your instructions are untested and I reject them. I am not satisfied on the balance of probabilities of any aspect of your account.
57So what do I really know of your crime? You possessed the drugs for sale. I know that. I am not satisfied it has anything to do with your various conditions. Nor am I satisfied on the balance of probabilities that it is connected to your drug use. There is the cash. The $33,000. There is also the $1500 cash you gave for the room. There is a summary charge that you have pleaded guilty to relating to the $33,000 cash and for which I must pass sentence. But, secondly, the cash existed as a matter of fact. I am not going to somehow improperly expand the date on the trafficking and infer that the cash is the product of acts of past trafficking. I am dealing with you for these drugs possessed for sale on the date on which they were found. Not for any earlier illegal conduct. However the money casts some light on any implied suggestion that you were trafficking to support your own habit or that you had any financial need. You had the cash to hand, a large amount of it. See the case of Ververis[6]. This was not trafficking to support your own need at all. Nor is the quantity in any way suggestive of that. You are miles removed from those unfortunate addicts who are caught up in the miserable existence of small scale trafficking to support a habit. In a way, need and not greed is on display in those cases and there is the absence of the aggravating feature of financial gain. The absence of greed. Their moral culpability may be reduced. That is not the character of your crime at all.
[6] [2010] VSCA 7 at para [35]
Purposes
58I have to consider a number of purposes of sentencing. Rehabilitation is one such purposes and I do not ignore it. However your prospects are poor.
59I am required to punish you justly and proportionately. That is an important sentencing purpose here for this style of crime.
60I must also denounce your conduct. Again that is important.
61Community protection is also important.
62Deterrence is critical in this sort of case. There is the need for this court to seek to deter you, but not just you, but also others from offending in the future.
63I must give the principle of specific deterrence, that is deterring you, significant weight here given the serious nature of this crime and your past history before the courts.
64General deterrence is also a very important purpose of sentencing in this case.
65Illegal drugs have had a devastating impact on our community. You surely know this. They cause untold misery to the many who use them and to the families of those who use them. They destroy lives. Those who make the decision to traffick in drugs at the level you did really cannot expect much by way of leniency. You are a repeat offender. Your past trafficking has not been minor. In one of the past acts of trafficking, your most recent, you had over 200 grams of ice.
66People such as you who traffick in drugs at a decent level are almost always taking a calculated risk as you undoubtedly were. They hope that the potential rewards will justify that risk. They hope not to be caught.
67The seriousness with which Parliament regards drug trafficking can be gleaned from the very large maximum penalties provided for. We, as Judges, must strive to deter future likeminded offenders from committing these serious offences.
68I must pay regard to current sentencing practices though it is not a single controlling factor.
69I have looked at the relevant portions of the Judicial College of Victoria Sentencing Manual (see JCV Sentencing Manual – Case Summaries at 7.3).
70In the course of discussions, I mentioned the case of Gregory. I have also looked at the Sentencing Advisory Council Snapshot No. 244 of 2020 dealing with this offence.
71The Court of Appeal concluded in the case of Gregory that the current sentencing practices for serious examples of commercial quantity trafficking were inadequate. Plainly then there has to be some caution in looking at sentences imposed prior to the decision or for that matter the data contained in the statistics which predate that decision. The Judicial College of Victoria Sentencing Manual at 7.3.1.1 says as much.
72The Court of Appeal in Gregoryidentified features which would lead to the expectation of sentences advancing well into double figures. See paragraph [98]. One factor was if the quantity was close to the large commercial quantity. Another was a finding that a person had a senior role, or role in charge, or lengthy duration of offending, or a person having relevant prior convictions or being convicted following a trial. There were a variety of matters which the Court of Appeal said would lead to far greater sentences being imposed in the future in serious examples of this crime.
73Now, they were focussing on upper category offences. There have been enough decisions out of that same Court questioning the worth or value of breaking down offences into categories and subcategories. What is far more important is to actually examine the conduct.
74The eight-and-a-half-year term imposed upon Gregory for commercial quantity trafficking was not disturbed. The Court of Appeal went on to say that had they not been constrained as they then thought they were by current sentencing practice, a sentence of 13 to 15 years would have been in the range on a guilty plea in that case. These were very high numbers and signalled a very different range of sentences into the future for some commercial quantity traffickers. Some not all. The case of Gregory has been affirmed in cases since for instance DPP v Fatho and Huynh[7], Sharbell[8] and Condo[9].
[7] [2019] VSCA 311
[8]Sharbell v The Queen [2018] VSCA 324
[9]DPP v Condo [2019] VSCA 181
75Having said all that, I have to tell you that statistics do not inform my task in the sense that they do not provide the appropriate sentence in this case. They are of very limited use. Nor do other sentences imposed upon other offenders operate in some manner as though they are precedents. In fact, there is no such thing as one correct sentence.
76I am not for one moment suggesting that you are on all fours with Gregory. You are not.
77I am exercising a sentencing discretion. I am sentencing you for your crimes and that is not a mathematical task or one where the outcome is dictated by what has happened in other cases.
78Matters of principle are far more important and there are many such statements of principle in the cases to which I have referred.
Offence gravity and role
79As I said a moment ago, there has been, from time to time, criticism of the practice of Judges in this court applying adjectives to describe where the particular offending sits on the spectrum of offence seriousness (see Weybury)[10].
[10]DPP v Weybury [2019] VSCA 120
80However, be that as it may, I have to make a judgement as to the gravity of your offending. Now, here, the weight of the drug is a fixed matter. The quantity of drug is undoubtedly an important consideration but by no means the only or even the most important matter. I do not let the quantity of drugs swamp other considerations but plainly it is important here. The fact is, you had just over two times the commercial quantity by mixed weight. So over 500 grams mixed (517 grams) with a large commercial quantity threshold fixed at 750 grams mixed. So you have not just marginally exceeded the commercial quantity. You are right up there in quantity and this is a quantitative-based regime. I note that in Haddara[11] the Court of Appeal spoke of the prevalence of the offence of trafficking in methylamphetamine and the need to elevate general deterrence.
[11]Haddara v The Queen [2016] VSCA 168
81I am not to be concerned with the harmfulness of given drugs because, as I have said, this is a quantitative-based regime.
82Duration is what it is. One day. On the 19th February 2020, you were trafficking in a commercial quantity of this drug as you were on that day in possession for sale. It is clear that you do not stand to be sentenced for events before that date. If there had been earlier transactions embraced by a between dates charge that would probably be a feature of some aggravation but it is not mitigatory that you are in possession for sale on the day of arrest. You stand to be sentenced for the trafficking on that date. That is very often the case when a drug is seized.
83Sometimes there is a duration of offending alleged. In some cases, there can be material that may cast some light on an offender's role or the scale of the enterprise. There might for instance be physical surveillance or telephone intercepts or listening devices. There might be a documentary trail or even evidence from a co-accused spelling out the extent of the role, or maybe even covert purchases by a police undercover operative.
84Sometimes there is even an account as to role offered by an accused to the police, or to a psychologist or to the court through instructions to counsel or by way of sworn evidence given before the Court. There may be material touching upon the dimension of the past financial gain and that contemplated into the future.
85Well, here, what I had until about 2 ½ hours into the plea was silence. Silence broken only then by your untested instructions provided to your counsel. An account which I queried at the time and which your counsel elected not to place before me by way of sworn evidence led from you.
86As I have said already, I am not satisfied on the balance of probabilities of your account. I reject it. I do not accept that you stole the drugs or the cash.
87So you were in a room rented for a large sum of money with a decent quantity of drugs and the cash and scales. There is no reason for me to think you were some minor player. Quite the opposite actually given your possession of this quantity and the cash. Financial gain undoubtedly was the motivation here. I have absolutely no doubt of that. I am satisfied of that beyond reasonable doubt. I cannot know exactly what sum you hoped to obtain but it was big enough for you to justify the large risk that you knew you were taking.
88A court will always try to understand the role of an accused, but sometimes the court is simply not able to identify the precise role. That is actually quite common in drug prosecutions.
89As is often enough the position in this sort of case, I will never know the full details of your involvement. Quite simply, you will not tell me. That is not a matter in any way in aggravation by the way.
90There is however no material as there sometimes is filling in any of the gaps here. What I do know is that on the day in question you and you alone possessed these drugs for sale. There is no evidence before me disclosing the involvement of any other person at all. Your co-accused is yet to be dealt with and is running a contested hearing.
91There is certainly no Verdins type reduction in your moral culpability here and only very modest reduction arising from your background that I have spoken of.
92You knew exactly what you were doing. You knew the risks. How could you not given that you have been sent to prison twice already for three charges of trafficking that have been brought to this court? You do not have youth on your side and have poor prospects of rehabilitation and a high enough risk of reoffence.
93There can of course be larger quantities than this but bear in mind that a quantity above 750 grams mixed is a large commercial quantity. You had twice the commercial quantity. So, as I said earlier, this was no modest rise above the commercial quantity. You did not just “squeak in”. This was a serious crime by one with no suggestion of any juniority in any hierarchy. In fact no suggestion of any hierarchy at all. Committed by a man who was on bail at the time and one with very little by way of reduced culpability and by one with a highly relevant recent criminal history. The prosecutor argued that Gregory had application here and your counsel did not challenge that submission. I believe Gregory does apply to my task. I have read the case again carefully. As I said before, I am not suggesting you fall at his level. He had a between dates charge with evidence of significant past trafficking, enrichment, high profit, a highly organised business structure with intimidation, violence and interstate movement of drugs. Your case is obviously very different.
94You are not in that same class as Gregory but as I said earlier, the Court of Appeal was suggesting there would be nothing unusual with that style of offence receiving 13 to 15 years on a guilty plea.
95Your offending was still serious indeed. You were on bail at the time that you have committed this serious instance of trafficking in a commercial quantity. That is obviously a matter of aggravation.
96The proceeds of crime offence is no minor example of it.
97I take into account all of the submissions made by your counsel and those made by the prosecution. I also take into account the written material filed on the plea. I have scarcely mentioned your mother’s reference but have read it again today and take it into account as well. One can feel only sympathy for her. She has been ‘put through the ringer’ by you over the years. She may even in a way blame herself for aspects of your childhood experience but at the end of the day, you are a mature man and you are exercising choices. They happen to be very bad choices. Seriously criminal choices, as you well know.
98Prison is always a disposition of last resort. Your counsel conceded the inevitability of a prison sentence and one of a dimension requiring the fixing of a non-parole period. She was quite right to make that concession. It was obvious. She quibbled however when I used the phrase substantial sentence but how can it not be a substantial term of imprisonment given the matters I have mentioned. She submitted I should fix a longer than usual non-parole period. There is no such thing as a usual non-parole period but she elaborated by submitting that given your rehabilitative needs and the evidence of Mr Newton, that there should be a decent enough gap to provide for your possible release and rehabilitative needs, needs which might be enhanced by the supervision and structure that may exist upon parole release.
99I have to proceed on the footing that you will serve every day of the head sentence that I will soon pronounce. I am not able to take into account the possibility of release on parole. I am required by law in this case to fix a
non-parole period. The Adult Parole Board will make the decision as to whether you can be released. It has nothing to do with me. Really, it is between you and them. But I accept that you are someone who will need a lot of work and supervision and structure to succeed in the community.Totality
100I take into account the principle of totality of sentence.
101I must consider whether the effect of the sentences is just and appropriate and commensurate with your overall criminality. Your overall criminality here was high. The most serious offence by a country mile is the commercial quantity trafficking charge.
102I have engaged in a last look at the sentences imposed by this court and the total effect of them in endeavouring to guard against the imposition of a crushing term upon you. However a very sizeable prison term is demanded here.
103I believe that there can be a decent level of concurrency in this case given the timing of the offending. The trafficking and the possession of property suspected of being proceeds of crime all occurred on that single day. You were also on bail, hence the other offence. I will make the sentence imposed on the offence of committing an indictable offence on bail concurrent with the other sentences as I have treated the fact of your being on bail as matter of aggravation when I am sentencing you for the trafficking. If I then was to cumulate the sentence imposed on that summary matter, I believe there would be an aspect of double punishment.
Forfeiture
104There are a couple of ancillary orders that are sought here. There is no opposition to them being made and I will pronounce them in an abbreviated form. Firstly, there is an application to forfeit the various items referred to in the schedule. This application is made under s.33 of the Confiscations Act. I am satisfied that the preconditions exist for the making of that order and I have signed that order and direct that the property referred to in the schedule be forfeited to the relevant Minister. So I have signed that order.
Disposal
105Secondly, there is a disposal order sought under the provisions of s.78(1) of the Confiscations Act, again, for the various items listed in the schedule. Again, there is no opposition. Again, I am satisfied of the preconditions to the making of that order and I have signed that order. I direct that the items referred to in the schedule be forfeited and that they be held and dealt with in a manner contemplated by the order which I have signed.
106Just remain seated please. You would normally stand now to receive sentence but what I will do is I will have you remain seated given that we are using the video link.
Sentence
107On Charge 1, that is the charge of trafficking in a commercial quantity of methylamphetamine, I convict and sentence you to 9 years and 4 months' imprisonment. That is the base sentence.
Summary offence
108On the related summary offence of possession of property suspected of being the proceeds of crime, you are convicted and sentenced to 7 months' imprisonment.
109On the related summary offence of committing an indictable offence whilst on bail, I convict and sentence you to 14 days' imprisonment.
Cumulation
110I direct that 2 months of the sentence imposed on the summary offence of possess property suspected of being the proceeds of crime is to be served cumulatively upon the base sentence.
111The 14-day prison term in relation to the bail offence will be served concurrently upon the base and part concurrent sentence. It follows that I am ‘otherwise directing’ pursuant to section 16(3C).
Total effective sentence
112What this produces then is a total effective sentence 9 ½ years' imprisonment
Non-parole period
113I fix a period of 6 years and 9 months during which you will not be eligible for release on parole.
Section 18 pre-sentence detention
114You have already served 359 days of this sentence by way of pre-sentence detention and that declaration is to be entered into the records of the court.
Section 6AAA
115I have taken into account your guilty plea. If you had pleaded not guilty and been found guilty of these offences, I would have sentenced you to 12 years' imprisonment. I would have fixed a non-parole period of 9 years 3 months. That declaration is to be entered into the records of the court.
116I will just check to see if there are any other matters. Ms Coath or Ms Singh, are there any other matters that I need to deal with at all?
117COUNSEL: No, Your Honour.
118HIS HONOUR: All right. Just bear with me.
119All right. Look, Ms Coath, it is up to you. It is probably best if you communicate with your client in a different setting but I simply tell you, if you wanted to have a brief word to him now, that is possible. I will be leaving the Bench in a moment. The prosecution and instructing solicitor would exit the meeting as indeed would your client's mother and any other people. So it would be you and him but bear in mind my staff would be here. Are you wanting to use that at all or would you rather arrange a separate meeting?
120MS COATH: Your Honour, unless Mr Watson has any urgent queries this afternoon, my preference is - he is shaking his head, Your Honour. I will speak to him next week.
121HIS HONOUR: Yes, I think it is better to do that.
122MS COATH: But I am grateful for the opportunity. Thank you, Your Honour.
123HIS HONOUR: No, that is fine. Look, I ask people but it is always a bit awkward to be doing it in the presence of staff and the like.
124Well, look, Mr Watson, that completes the matter then. I hope the visits open up at some stage for you in the not too distant future but you have heard Ms Coath, she will be in contact with you, probably sometime next week and will have a conference with you about what has happened here today, all right?
125Well, I think that completes the matter then. So let me just see. I will close the court then till 9.30 on Tuesday then please. Thank you.
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