Director of Public Prosecutions v West

[2024] VCC 2006

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
(Not) Restricted
Suitable for Publication

DRUG & ALCOHOL TREATMENT COURT

Case No CR-24-00232
CR-24-00637
Indictment No. P10508973
P11596325

DIRECTOR OF PUBLIC PROSECUTIONS

v

DARCY WEST

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JUDGE:	HIS HONOUR JUDGE D. SEXTON
WHERE HELD:	Melbourne
DATE OF DETERMINATION HEARING:	8 October 2024
DATE OF SENTENCE:	9 December 2024
CASE MAY BE CITED AS:	DPP v West
MEDIUM NEUTRAL CITATION:	[2024] VCC 2006

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW

Catchwords:              Sentence – Trafficking in a Drug of Dependence – Commercial Quantity; Cultivation of a Narcotic Plant – Commercial Quantity; Unauthorised Possession of a Traffickable Quantity of Firearms; Possession of a Drug of Dependence; Knowingly Deal with Proceeds of Crime

Legislation Cited:      Sentencing Act1991

Cases Cited:Bugmy v R (2013) 249 CLR 571; The Queen v Verdins (2007) 16 VR 269; Smith v The Queen [2018] VSCA 208; Markovic v The Queen [2010] VSCA 105; DPP v Krasniqi [2024] VCC 1459; Gregory (a pseudonym) v The Queen [2017] VSCA 151, Fernando v The Queen [2017] VSCA 208, and DPP v Condo [2019] VSCA 181

Sentence:                  7 Years and 9 Months’ Imprisonment with a Non-Parole Period of 4 years and 6 months’

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms V. Worrell	Office of Public Prosecutions
For the Accused	Mr T. Acutt	Nelson Brown Legal

HIS HONOUR:

Introduction

1Darcy West, at a determination hearing before me on 24 September 2024 in the Drug and Alcohol Treatment Court, you pleaded guilty to a number of charges across two indictments. Subsequent to this date, you abandoned the application to seek a drug and alcohol treatment order, and the matter proceeded before me essentially as a traditional plea hearing, with hearings in October before sentencing today.

2The first indictment, (No. P10508973), relates to offending that took place between October 2022 and March 2023 (hereafter referred to as 'the earlier offending'). In relation to this offending you pleaded guilty to one charge of cultivating a commercial quantity of cannabis, which carries a maximum penalty of 25 years' imprisonment, two charges of trafficking in a drug of dependence in a commercial quantity which carries a maximum penalty of 25 years' imprisonment, one charge of unauthorised possession of a trafficable quantity of firearms which carries a maximum penalty of 10 years' imprisonment, two charges of possession of a drug of dependence which carries a maximum penalty of five years' imprisonment (or one year if I am satisfied that the possession was not for any purpose related to trafficking), and one charge of knowingly dealing with proceeds of crime which carries a maximum penalty of 15 years' imprisonment. You also pleaded guilty to the following related summary offences: one rolled-up charge of possessing ammunition without exemption or excuse which carries a maximum penalty of 40 penalty units, one charge of driving whilst disqualified which carries a maximum penalty of two years' imprisonment, and one charge of failing to answer bail which carries a maximum penalty of two years' imprisonment.

3The second indictment, (No. P11596325.1), relates to offending in July 2023 (hereafter referred to as 'the July offending').  In relation to this offending you pleaded guilty to two charges of trafficking in a drug of dependence which carries a maximum penalty of 15 years' imprisonment, and three charges of possession of a drug of dependence which carries a maximum penalty of five years' imprisonment (or one year if I am satisfied that the possession was not for any purpose related to trafficking). You also pleaded guilty to the related summary offence of dealing with property suspected of being the proceeds of crime which carries a maximum penalty of two years' imprisonment; and the related summary offence of possession of ammunition without exemption or excuse which carries a maximum penalty of 40 penalty units.

Circumstances of offending

The Earlier Offending:

4The details of this offending were set out in the lengthy summary of prosecution opening dated 18 September 2024, Exhibit 1A at your plea hearing, supplemented by the prosecution summaries of the phone analysis (Exhibit 1B) and trafficking related messages (Exhibit 1C). Given the length and level of details contained in these documents, what follows is a summary only of the earlier offending, however, I have read and considered these documents in their entirety for the purposes of sentencing.

5At the time of this offending you were 33 years old and were on bail for unrelated offending and had two active warrants out for your arrest for failing to attend a court appearance at Sunshine Magistrates Court in September 2022. You essentially came to the attention of police through police investigations into another person, who I will refer to as 'RM'. In December 2022 police executed a search warrant on an Essendon address. There, police seized a large quantity of methamphetamine, cash and RM’s iPhone. An analysis of this phone revealed messages on the Signal application between RM and yourself, together with videos referring essentially to the existence of a large cannabis crop. From this phone analysis investigators concluded that a factory was being used to cultivate cannabis and manufacture methylamphetamine.

6As a result of this investigation police obtained the call charge records for a mobile number which was used by you from December 2022 to February 2023. Through analysis of that phone, police ultimately identified an isolated industrial estate in Sunshine as an area of interest.

7On the evening of 24 February 2023, police received a report of a burglary at an address at Market Road in Sunshine and attended. When searching this address police located a large hydroponic system of cannabis cultivation in one of the five rooms. In addition to also locating a glass dish containing a white crystal substance, police also located in the office area a loaded pump action shotgun, a single barrel shotgun which police later learned had been reported stolen, a rifle, and loose ammunition, these being referable to Charge 4 on the indictment, possession of a trafficable quantity of firearms and related summary Charge 21 – possession of ammunition.

8As a result of these items being located police made further enquiries and obtained a search warrant for the property, which police learned had been leased by your co-offender Mr Krasniqi.

9

Soon after, the search warrant was executed. A five-room medium sized factory was identified containing a large amount of cannabis plants in a structure that had been built in the middle of the factory floor. The grow rooms comprised of heat lamps, fans and irrigation systems, and the bathroom contained a large machine that was used to harvest the cannabis. In addition to locating bags of cannabis, police located a black tick book. Jemena Electricity later attended the premises and confirmed that there was an electrical bypass that indicated the amount of electricity stolen between October 2022 and February 2023 equated to $11,333.76, this conduct attributable to your co-offender Mr Kasniqi. Upon examination, a forensic botanist concluded that there were 105 plants and loose cannabis with a total weight of 103.5 kilograms. This conduct is referable to

Charge 1 on the indictment, cultivating a narcotic plant in a commercial quantity.

10During the search police also located a clandestine methylamphetamine laboratory within the kitchenette of the factory. In addition to locating bags containing a white crystal substance, police located a hotplate and various dishes, bottles and containers. Across all locations where the investigation took place, including a hotel room where you were subsequently arrested, a total of 533 grams of methylamphetamine (mixed) was located, 421 grams of this being pure. This is referable to Charge 3 on the indictment, trafficking in a drug of dependence in a commercial quantity.

11Police also located in the factory an additional firearm and ammunition to the firearm and ammunition earlier located by police in the office area – a loaded Browning semi-automatic handgun, this being referable to Charge 4 on the indictment, and various rounds of ammunition being referable to the related summary charge of possess ammunition.

12Police linked you to this location in a variety of ways. Located outside of the Sunshine address was a Toyota Hiace van. CCTV captured you filling the van with petrol at a service station and driving away, this being referable to summary Charge 22, driving whilst disqualified. Further, police obtained footage from the Sunshine address which showed you coming and going between 12 February and 23 February.

13You were ultimately arrested at your room at the W Hotel on 7 March 2023. Upon their arrival police seized, among other things, the following items:

(a)   $27,300 in cash – this being referable to Charge 7 on the indictment, knowingly dealing with proceeds of crime;

(b)   Ziplock bags containing a white crystal powder, this being part of Charge 3 on the indictment, trafficking in a drug of dependence in a commercial quantity;

(c)   Ziplock bags containing cocaine weighing 28.3 grams, this being referable to Charge 5 on the indictment, possession of a drug of dependence;

(d)   A clear bottle containing 92.2 grams of 1,4-Butanediol, this being referable to Charge 6 on the indictment, possession of a drug of dependence;

(e)   A Ziplock bag with suboxone films, this being referable to summary Charge 30;

(f)    14 times nine-millimetre Luger ammunition, this being part of summary Charge 21.

14You were later interviewed by police and made a 'no comment' interview. In addition to analysing the CCTV footage from the W hotel, police analysed various phones for evidence of drug related activities, including the phone of the individual who initially booked the room at the W Hotel, your co-offender Mr Krasniqi’s phone, your phones and the phones of others. Exhibits 1B and 1C contain prosecution summaries of cultivating and trafficking related messages, showing the extent and nature of your illicit activities, referable to the relevant charges on the indictment.

The July offending:

15The details of this offending were set out in the summary of prosecution opening dated 8 July 2024, Exhibit 2 at your plea hearing. Following your arrest with regards to the earlier offending, you were subsequently bailed on that matter on 3 April 2023. Accordingly, you were on bail for the serious earlier offending (together with another grant of bail) at the time of the July offending.

16On 25 July 2023, police attended at an address in Tullamarine to arrest you for your non-compliance with bail. When approaching the property, police observed you to be slumped over in the driver's seat of a Toyota Hiace van. You were arrested and searched. Police located from your pocket an envelope containing cash and a bag containing methylamphetamine. From the van police located other items including $16,000 cash, further methylamphetamine and other substances. From your bedroom at the Tullamarine property police located further methylamphetamine and some ammunition. When later interviewed by police, save for admitting to possessing some of the ammunition, you essentially denied responsibility for the offending. You were remanded into custody on this matter and you have remained in custody since this time, a period of 531 days.

17Subsequent police analysis of your mobile phone revealed messages from the Snapchat social media application which indicated that you were actively trafficking methylamphetamine. Your phone also contained photographs of considerable amounts of cash, ice pipes and Ziplock bags containing methylamphetamine, as well as screen shots of notes indicating that you were tracking what you sold and what was owed.

18Exhibit 2 sets out the quantities of drugs located, together with the total amount referable to the proceeds charge, $21,389.40, In total, police found 106.3 grams of mixed methylamphetamine, 90 grams of which was pure, referable to Charge 1 on this indictment, trafficking methylamphetamine on 25 July 2023. 7.7 grams of cocaine was located, this being referable to Charge 2 on the indictment, trafficking cocaine on 25 July 2023. Police also located 8.7 grams of cannabis, 50.8 grams of 1,4-butanediol, and five grams of testosterone, these being referable to Charges 3, 4 and 5 on this indictment respectively, possession of a drug of dependence.

Nature and gravity of your offending and your level of responsibility for it

19Overall, I regard your offending as being very serious indeed and appropriately described as sitting towards the upper end of a mid-level example of this type of offending.  Having regard to your extremely limited criminal history, the current offending represents a dramatic escalation on your part into the realm of serious drug-related offending.  The relevant maximum penalties for the most objectively serious offending for which you now fall to be sentenced, the commercial quantity, trafficking and cultivate charges, which each carry maximum penalties of 25 years’ imprisonment, reflect the gravity of your offending.

20Turning firstly to the earlier offending.  You were on bail at the time and had two active warrants out for your arrest, these matters representing an aggravating factor in terms of the gravity of this offending and your level of culpability for it.  The quantity of cannabis which is the subject of the cultivation charge was most significant with the weight being more than four times the threshold for commercial quantity and the number of plants exceeded the threshold as well.  The set up of the hydroponic arrangement was, in my view, somewhat elaborate and sophisticated, particularly within the building which contained the crop.  While you are not criminally responsible for the theft of electricity, it provides context for what I regard as a rather well-organised cultivation set up.

21Charge 2 on this indictment relates to trafficking cannabis in a commercial quantity, referable to the same date as Charge 1 on the indictment, 24 February 2023, the date when police attended at the factory and located the hydroponic set up.  According to the summary of prosecution opening referable to this charge,[1] this charge is put on the basis that you were engaging in the business of trafficking the cannabis that was being cultivated at the Sunshine factory.  Exhibit 1B contains messages between you and your co-offender, Mr Krasniqi, where there are references to selling the cannabis.  While this, of course, must be seen as a serious offence, care needs to be taken not to doubly punish you in relation to your criminal involvement with the cannabis crop.  The trafficking charge is limited to a single date and while the charge is put on the basis that you were engaging in trafficking the cannabis that was cultivated, the quantum of the trafficking remains, in my view, rather opaque.  In any event, there is necessarily a crossover between Charges 1 and 2 in terms of your criminality, warranting a significant degree of concurrency.

[1] Paragraph [48].

22Charge 3 on this indictment, trafficking in a commercial quantity of methylamphetamine, represents, in my view, the most serious offence on this indictment.  The trafficking encapsulated by this offence traverses a sustained period of time, from 27 October 2022 to 7 March 2023.  I am satisfied that during this period you were actively engaged in the business of trafficking methylamphetamine by way of both manufacture and sale.  As is often stated, sentencing for trafficking drugs of dependence necessarily reflects that this is a quantity-based regime – all things being equal, the greater the amount trafficked, the more serious the conduct.  In your case the total quantity of methylamphetamine trafficked was 533 grams, over two times the mixed commercial quantity threshold.  The purity of the methylamphetamine was also significant.  While I acknowledge your longstanding drug addiction and its link to this offending, the significant quantity of methylamphetamine and the overall circumstances of your offending with regards to the offence of trafficking in a commercial quantity of methylamphetamine, are emblematic, in my view, of an enterprise with a considerable commercial motivation.  Your involvement in the trafficking of methylamphetamine far outweighed the needs of your addiction and there must have been, in my view, a significant motive of financial gain.

23In contrast to your involvement in the cannabis offending where you were involved with your co-offender, Mr Krasniqi, you were the principal and sole offender in relation to the manufacture and sale of methylamphetamine between October 2022 and March 2023.  The messages contained within Exhibit 1C reflect your considerable involvement in the business of trafficking methylamphetamine.  You were transacting with multiple customers.  You were engaging in multiple transactions.  You were instructing others to attend various addresses for deliveries.  You were directing others.  This must be seen, therefore, as a serious example of the crime of trafficking in a commercial quantity of methylamphetamine and your role in this particular offence must be seen as very significant.

24The gravity of your conduct overall is exacerbated in my view by your possession of a trafficable quantity of firearms, two of which were loaded, together with a significant amount of ammunition.  As conceded by your counsel, you possessed the firearms for a criminal purpose, being protection from attacks from others in the illicit drug trade.[2]  In addition to reflecting the overall serious nature and gravity of your drug-related offending, your possession of objectively dangerous weapons, some loaded, accentuates the overall gravity of already serious offending given the self-evident risks to the community.

[2]Outline of Submissions on determination hearing, dated 20 September 2024, Exhibit “A” at paragraph [25]

25You were also in possession of a substantial amount of cash, in excess of $27,000, reflecting, in my view, the commercial nature of this enterprise.  I accept, on balance, that the other drugs in your possession were likely not connected to trafficking but rather related to your drug dependence at the time.

26I turn now to a consideration of the nature and gravity of the July offending.  In my view this offending is clearly less objectively serious than the earlier offending and likely reflects your ongoing battles with drug dependency and associated criminal behaviours.  However, the fact that the July offending was committed while on bail for the earlier offending represents a significant aggravating factor.  You must surely have known of the gravity of your legal predicament and the gravity of the earlier offending, so that you would engage in further trafficking activity is concerning.  While the quantity of methylamphetamine referable to Charge 1 on this indictment is not insignificant, all of the offending is limited to a single date.  Again, however, the quantity of cash located reflects the commercial nature of your illicit activity at the time.  In relation to the possession charges, I am prepared to accept that on balance these substances were likely not connected to your trafficking activity and more likely related to your ongoing battles with drug dependency.

Personal circumstances

27You are now 33 years of age.  As highlighted in a very capable plea by your counsel, Mr Acutt, your personal background is a compelling story of a childhood marred by trauma, instability and exposure to drug use from a very early age.  Many of the painful details with regards to your background were provided by you directly when you gave evidence before me on 30 October 2024.

28You were born in Reservoir and raised in the Hoppers Crossing area.  Your parents separated when you were about five or six with you living with your mother, whom you described in evidence as your best friend.  She suffered drug-induced schizophrenia and struggled with substance abuse.  Your account of your early life with your mother when you gave evidence was harrowing indeed.  Your mother clearly suffered with regards to her mental health, thinking that people were living in the walls and the roof and placing a padlock on a manhole in the roof.  Sometimes she would lock you in a room for days on end, removing the door handles to prohibit you from leaving.  You bore witness to her significant drug use, which apparently involved intravenous use in your presence, including morphine, pethidine, and later, heroin and ice.  Understandably, it was not until some years later that you fully realised that your mother’s paranoid perceptions were not based in reality. 

29You clearly had a considerable regard for your mother given the intensity of your connection.  You felt like an outsider at school, with no friends, and, as I have indicated, regarded your mother as your friend.  On a good day you would accompany her cleaning houses, although clearly there were many days that were not good.  She informed you that her drug use was medicine for her headaches.  In evidence you recounted instances of her erratic and self-harming behaviour, including a distressing incident when you were aged ten or thereabouts, when you found your mother in the bathroom following an attempted suicide with a knife, which resulted in you calling the ambulance.  Following this incident, you were accommodated through Child Protection before living temporarily with an aunt and then living with your father and his new partner.  You apparently did not get along with your stepmother.  You only saw your mother one more time following the attempted suicide before learning at the age of 15 from your stepmother that your mother had sadly passed away from a drug overdose.

30You have an older brother who has had his own struggles with addiction and the legal system.  You apparently no longer have any communication with him.  You describe him giving you your first bong when you were just six years old.  Following your mother’s death, your brother gave you a bottle of alcohol on the day of her funeral and you apparently drank every day after that.  Around this time he also introduced you to methamphetamine and MDMA pills.  You have been dependent on substances to some degree ever since.  Your poly-substance dependence has included alcohol, GHB, cocaine, ketamine, methamphetamine and cannabis at various stages in your life.

31Unsurprisingly, given the death of your mother and the other traumas in your upbringing, your education did not continue past Year 7, though, to your credit, you commenced a carpentry apprenticeship after leaving school, which you completed at the age of 18 before starting your own business, Darcy’s Building Services, with this business prospering until 2021, at times with you having between two to four apprentices working for you at any one time. 

32You have had a number of significant intimate relationships since your late teenage years, from which you now have a number of children.  From your previous relationship with Amanda, you have a daughter now aged 13, whom you apparently had full custody of for a significant period of time.  From your relationship with Samantha, you have a daughter now aged 12.  From your relationship with Melissa, you have a daughter, now aged six.  You are currently in a relationship with Isabella Mendes, with whom you have a three-year-old daughter.  Ms Mendes also has a nine-year-old son, whom you essentially regard as your own given the nature of your relationship with Ms Mendes.

33You have a reported history of physical injuries, including of particular relevance, injuries to your knees.  In 1991 a motorbike apparently fell on you with a sharp object piercing your knee, which required 12 stitches.  You later underwent a knee operation in 2016 due to a torn meniscus in your knees, which you attributed to the general demands of your job.  You have reported ongoing pain in your legs.  You were also in a motor vehicle accident in 2021 where you flipped a car on a freeway, but you apparently have very little recollection of this incident.  In evidence before me you described a downturn in your life circumstances in late 2021 in the context of your inability to work as a result of the injuries to your knees, which led to a relapse in drug use.  You also refer to the development of a gambling problem from 2022, which caused you significant financial difficulties.  You attributed your involvement in the current offending to your drug use and the financial pressures arising from debts associated with your drug use and your gambling problem.

34You were assessed by psychologist, Gina Cidoni, for the purposes of this hearing, with her opinion set out in the psychological assessment report dated 24 September 2024, Exhibit M at your plea hearing.  Ms Cidoni referred to your problematic poly-substance history, including during the period of your offending.[3]  She referred to a previous diagnosis of depression, anxiety and borderline personality disorder in 2018, for which you had been prescribed medication, and a 2022 diagnosis of post-traumatic stress disorder.  According to Ms Cidoni you meet the diagnostic criteria for borderline personality disorder and post-traumatic stress disorder with the former being characterised by emotional instability, intense fear of abandonment, chronic feelings of emptiness, impulsive behaviour, and a pattern of unstable relationships.  Your post-traumatic stress disorder symptoms come from your childhood and include persistent re-experiencing of traumatic events, hyperarousal, avoidance of trauma-related stimuli and negative alterations in mood and cognition, such as feelings of worthlessness and mistrust of others.[4] 

[3] Paragraph [51].

[4] Paragraph [83].

35According to Ms Cidoni you grew up in an unstable environment where you were exposed to your mother’s substance abuse and mental health issues, which laid a foundation of deep emotional and psychological distress for you.  Witnessing your mother’s drug use, suicidal behaviours and mental health crises, alongside the absence of a stable, supportive family, left you vulnerable.  Your older brother introducing you to drugs further complicated matters and this early initiation into drug use became a maladaptive coping mechanism for your unresolved trauma and emotional pain.[5]  According to Ms Cidoni your offending is largely attributable to your methamphetamine abuse and underlying mental illness, both of which came from a combination of your traumatic childhood and situational stressors.  Your borderline personality disorder and post-traumatic stress disorder stem from your adverse childhood experiences which have left deep emotional scars, contributing to your lifelong struggles with emotional regulation and trust issues.  Your knee injury has further compounded these problems, causing chronic pain, depression and financial stress, which ultimately prompted a relapse into substance abuse as a way to cope with your difficulties.  According to Ms Cidoni:

'[Your] poor impulse control, characteristic of borderline personality disorder, along with faulty thinking patterns, exacerbated by methamphetamine use, led [you] into criminal behaviour as a misguided attempt to manage these overwhelming challenges.'[6]

[5] Paragraph [85].

[6] Paragraph [84].

36Having carefully considered your personal background, I am satisfied that your moral culpability for your offending is reduced in a general sense, in accordance with the well-known Bugmy[7] principles.  You have a background of considerable childhood trauma, deprivation and disadvantage.  It is entirely unsurprising that you now suffer from post-traumatic stress disorder.  You were introduced to drugs by an older sibling from a very young age and your introduction, in particular to methylamphetamine at the age of 15, occurred at a time of particular vulnerability, in the immediate aftermath of your mother’s untimely death.  I consider it highly likely that your own dysfunctional behaviour is impacted by your childhood experiences and your personal development, and therefore cannot be compared to that of a person who has not endured these experiences.  While a direct nexus between your childhood experiences and your offending is not established, it is nevertheless appropriate, in my view, to make a mitigatory allowance by virtue of a finding that your moral culpability for the current offending is generally reduced pursuant to the Bugmy principles.

[7]        Bugmy v R (2013) 249 CLR 571.

Recent circumstances

37You have now been in custody for a considerable period of time awaiting the finalisation of this matter.  On a background of borderline personality disorder and post-traumatic stress disorder, Ms Cidoni in her report referred to documentation from the Forensicare Mental Health Advice and Response Service dated 3 January 2024, that material tendered at your plea hearing and marked Exhibit G, which set out your ongoing mental health treatment in custody.  You have been prescribed medications which include Sertraline, Quetiapine and Buprenorphine.  Ms Cidoni referred to you actively participating in the Opioid Substitution Treatment Program, focusing on managing opioid withdrawal symptoms, anxiety and nightmares.  Ms Cidoni referred to 'some missed sessions'.[8]  She also referred to you reporting a decline in your mental health due to being separated from your children.[9]

[8] Paragraph [47].

[9] Paragraph [48].

38In evidence before me you referred to your current medications while in custody, which include Olanzapine, a high dose of Sertraline and Suboxone.  You referred in some detail to difficulties receiving your medications while in custody given your regular visits with your partner, Ms Mendes, in the mornings.  You indicated that if you do not take your Sertraline this can affect you for days.  In that regard, I note the Justice Health records extract tendered at your plea hearing and marked Exhibit N, does appear to refer to difficulties with regard to dosing of your opioid substitute medication in the context of your visits while in custody.  In evidence you also referred to your difficulties in custody as a result of your knee conditions, which impact upon your daily activities due to your inability to weight bear for sustained periods of time.  You refer to being in considerable pain and discomfort on a regular basis and have asked for medical scans but apparently there is a considerable wait time.  Notwithstanding this, you have managed to obtain work as a leading hand in the metal workshop, working five days a week, although there have been interruptions due to your physical incapacity.

39Your partner, Ms Mendes, gave evidence before me on 24 October 2024.  She impressed me as a resilient and forthright person who is very much committed to you.  Ms Mendes spoke at length of the impact of your offending upon her and the children.  She referred to having no contact with you for 12 months to ensure your sobriety before reintroducing you to the children.  She observed you to be very affected by this break in contact.  Ms Mendes also spoke of the difficulties associated with the ongoing care of the two children, who, it is fair to say, both have significant high needs.  She referred to your deep regret for your offending.  She referred to your difficulties in custody having regard to your knee injuries, and Ms Mendes also referred to her own observations with regard to your difficulties receiving your medication in a custodial environment. 

Sentencing factors

40In formulating an appropriate sentence in your case, the Sentencing Act 1991 requires me to have regard to various factors. I have already referred to the maximum penalties, the nature and gravity of your offending and your level of culpability for it, and your previous character.

41At the age of 33 you have an extremely limited criminal history.  Your three previous penalties have been imposed without conviction.  You have no drug-related prior matters, and you have never previously been sentenced to a term of imprisonment.  Given your extremely difficult personal history, this very much stands to your credit.

42As conceded by the prosecution your pleas should be considered early pleas of guilty, with the earlier offending matter resolving prior to trial and the July offending matter resolving prior to committal hearing.  Your pleas of guilty carry with them a utilitarian benefit, they reflect your acceptance of responsibility and willingness to facilitate the course of justice.  As a result of your pleas of guilty protracted criminal proceedings have been avoided.

43Having regard, in particular to your evidence before me, and the evidence of your partner Ms Mendes, I accept that you deeply regret your offending due to its impact on you and your family.  Whilst you appear to have a level of insight, it could not be said that your insight is significant, and I note that psychologist Gina Cidoni makes no reference to any remorse on your part.  Accordingly, I am unable to make a further mitigatory allowance on the basis of remorse.

44I turn now to a consideration of the impacts of your time in custody.  You have been in custody now for a period in excess of 16 months and I accept that this is a considerable period of time to have these serious matters hanging over your head, particularly having regard to your psychological fragilities.  Having regard to those fragilities and the opinion of Ms Cidoni at paragraph 89 of her report, I am satisfied that a mitigatory allowance is warranted pursuant to Verdins[10] Principle 5 due to the significant additional burden of imprisonment due to your psychological conditions.  According to Ms Cidoni prison is not equipped to address your psychological needs, especially given your diagnoses of borderline personality disorder and post-traumatic stress disorder, conditions which are particularly difficult to manage in a prison setting which inherently triggers symptoms of these disorders.

[10]R v Verdins (2007) 16 VR 269.

45I am not, however, satisfied that there is a serious risk that imprisonment will have a significantly adverse effect on your mental health pursuant to Verdins Principle 6.  That being said, your recent experiences with regard to delays associated with appropriate dosing of your medications highlights just how arduous the prison environment is and will likely remain for you.  Whilst not formally making a mitigatory allowance pursuant to Verdins Principle 6, in a general sense I have taken into consideration your difficult circumstances in custody given your particular psychological makeup.

46I am also satisfied that a further mitigatory allowance is warranted due to your physical injuries and the associated hardship in the custodial environment.  I am satisfied that a mitigatory allowance is warranted due to the hardship in custody occasioned by your physical injuries on the basis that there will be a greater burden on you by reason of your state of health.[11]

[11]The first principle in Smith v The Queen [2018] VSCA 208 at paragraph [30].

47Finally, with regard to the impact of the custodial environment upon sentencing, I accept that the residual discretion for mercy is enlivened in your case having regard to your anxiety associated with being unable to care for your family, including two special-needs children for a protracted period of time.[12]

[12]Pursuant to the principles in Markovic v The Queen [2010] VSCA 105 at paragraph [20].

48In relation to Charge 1 relating to the earlier offending, cultivate cannabis in a commercial quantity, I have had regard to the parity principle.  In that regard your co‑offender, Mr Krasniqi, received a sentence of three years and nine months’ imprisonment for the same offence before her Honour Judge Cannon on 17 September 2024.[13]

[13]DPP v Krasniqi [2024] VCC 1459.

49

The parity principle is grounded essentially in the notion of equal justice: an unjustifiable difference in sentences imposed on like offenders for like offending should be avoided.  In any sentencing decision each case is necessarily

fact-specific.  Mr Krasniqi was the tenant of the factory and was criminally responsible for the considerable theft of electricity.  Having read and considered the reasons for sentence of Her Honour Judge Cannon, I note no mitigatory allowances were made pursuant to the Verdins principles, the Bugmy principles or hardship in custody.

50Both your counsel and the prosecution provided material to the court on the issue of current sentencing practices, one of the many applicable sentencing factors in the sentencing exercise.  In addition to the provision of various well-known sentencing decisions dealing with the offences of trafficking and cultivating in a commercial quantity, I have read and considered the table provided from the Victorian Sentencing Manual.  Sentences of other courts are not binding precedents but are merely historical statements of what has happened in the past and current sentencing practices represent just one of the relevant sentencing factors to be considered.

51Clearly, however, sentences for the crimes of cultivating and trafficking in a commercial quantity have attracted sentences of imprisonment of some years' duration.  Furthermore, the well-known decisions of Gregory (a pseudonym) v The Queen,[14] Fernando v The Queen,[15] and DPP v Condo[16] have highlighted the applicable factors which impact upon the sentencing exercise in this area.  I have read and considered those authorities in particular noting that many of the factors referred to in Gregory, such as relevant prior convictions, a plea of not guilty and a quantity approaching the large commercial quantity threshold, do not apply in your case.

[14][2017] VSCA 151.

[15][2017] VSCA 208.

[16][2019] VSCA 181.

52Given the seriousness of the offending to which you have pleaded guilty and its prevalence in the community, the sentencing purposes of denunciation and general deterrence loom large in the sentencing exercise.  Given your pleas of guilty and your limited criminal history, I am satisfied that specific deterrence need not be a prominent sentencing purpose in your case.

53Any sentence I impose should seek to facilitate your rehabilitation to the degree that is appropriate in the circumstances.  Whilst, given the nature of your offending and your difficult personal history, your prospects for rehabilitation must be seen as somewhat guarded, psychologist Gina Cidoni placed your risk of reoffending at the medium level with this risk being potentially mitigated through treatment.  Your rehabilitative prospects are enhanced, in my view, by virtue of your strong supports in the community, in particular the support of your partner Ms Mendes.

54Notwithstanding your extremely difficult history you have previously proven your ability to behave in a pro-social manner, owning and operating your own business and employing others.  I accept your heartfelt indications that your motivation for the future is to be released in time to be a meaningful parent to your children and it is therefore appropriate, in my view, to structure the sentence to be imposed in order to best facilitate your rehabilitation.

55Overall, there is a need to have regard to the principle of totality and the need to avoid a crushing sentence.  As I have already indicated totality has particular application with regard to Charges 1 and 2 relating to the earlier offending.

Conclusion

56Mr West, you are, as your counsel suggests, greater than the sum of your worst deeds.  You have dealt with more trauma than most in your relatively young life.  You have shown signs of your best self, and significantly, you remain well supported by your partner and it seems highly motivated to rehabilitate.  I have no doubt that your time in custody to date has been difficult for you.  However, in sentencing you I must have regard to the very serious nature of your offending, the need to denounce it on behalf of the community and send a clear message to others that significant involvement in the pernicious activity of drug trafficking and related behaviour will be met with strong punishment.

57Doing the best I can to reconcile the various sentencing factors, purposes and principles, and ultimately having regard to the need to impose a just punishment, I have concluded, consistent with the parsimony principle, that nothing short of a significant sentence of imprisonment is warranted in your case.

58I have decided to impose a sentence in your case which incorporates a significant parole eligibility component in order to hopefully facilitate your future reintegration into the community and ultimate rehabilitation.

Sentence to be imposed

Earlier offending – Indictment P10508973 - Court Reference CR-24-00232

59On Charge 1 on that indictment, cultivating a commercial quantity of cannabis, you are convicted and sentenced to three years and four months’ imprisonment.

60On Charge 2 on that indictment, trafficking in a commercial quantity of cannabis, you are convicted and sentenced to three years’ imprisonment.

61On Charge 3 on this indictment, trafficking in a commercial quantity of methylamphetamine, you are convicted and sentenced to four years and nine months’ imprisonment.  This is the base sentence.

62On Charge 4 on this indictment, a rolled-up charge of possession of a trafficable quantity of firearms, you are convicted and sentenced to two years’ imprisonment.

63On Charges 5 and 6 on this indictment, possession of cocaine and possession of 1,4-butanediol, you are convicted and sentenced to an aggregate sentence of three months’ imprisonment.

64On Charge 7 on this indictment, knowingly dealing with proceeds of crime, you are convicted and sentenced to nine months’ imprisonment.

65On the related summary offence of unauthorised possession of ammunition, you are convicted and fined $800.

66On the related summary offence of driving whilst disqualified, you are convicted and sentenced to one month’s imprisonment.

67On the related summary offence of failing to appear in accordance with an undertaking of bail, you are convicted and sentenced to one month’s imprisonment.

68I order that 15 months on Charge 1, four months on Charge 2, four months on Charge 4 and one month on Charge 7, be served cumulatively upon each other and upon the base sentence imposed on Charge 3, making a total effective sentence for this indictment of six years and nine months’ imprisonment.

July offending – Indictment P11596325.1 - Court Reference CR-24-00637

69On Charge 1 on this indictment, trafficking in methylamphetamine, you are convicted and sentenced to 15 months’ imprisonment.  This is the base sentence on this indictment.

70On Charge 2 on the indictment, trafficking cocaine, you are convicted and sentenced to nine months’ imprisonment.

71On Charges 3, 4 and 5 on this indictment, possession of cannabis, 1,4-butanediol and testosterone, you are convicted and sentenced to an aggregate sentence of three months’ imprisonment.

72On the related summary offence of dealing with property suspected to be the proceeds of crime, you are convicted and sentenced to nine months’ imprisonment.

73On the related summary offence of possession of cartridge ammunition, you are convicted and fined the sum of $400.

74I order that two months of the sentence imposed with regard to Charge 2 and one month of the sentence imposed on the related summary offence of dealing with property suspected to be proceeds of crime, be served cumulatively upon each other and upon the base sentence on Charge 1 for this indictment, making a total effective sentence for this indictment of 18 months’ imprisonment.

75I order that 12 months of this sentence be served cumulatively upon the total effective sentence imposed on the first indictment, making a global total effective sentence of seven years and nine months’ imprisonment.

76I order that you serve a period of four years and six months’ imprisonment before becoming eligible for parole.

77Pursuant to s18(4) of the Sentencing Act 1991, I declare a period of 531 days pre-sentence detention and order that this amount be administratively deducted from your sentence.

78Pursuant to s6AAA of the Sentencing Act, I declare that had you pleaded not guilty but been found guilty at trial, I would have imposed a global total effective sentence of 10 years’ imprisonment with a non-parole period of seven years’ imprisonment.

79Finally, I make the various forfeiture and disposal orders sought, these applications not being opposed by you.

80Turning firstly to you, Ms Worrell, any issues or ambiguities with regards to those sentences.

81MS WORRELL:  Not that I've seen, Your Honour.

82HIS HONOUR:  The same question, Mr Acutt.

83MR ACUTT:  No, Your Honour. 

84HIS HONOUR:  Mr Acutt, would you like me to leave the link open for you to have some privacy with your client.

85MR ACUTT:  Yes please, Your Honour, thank you.

86HIS HONOUR:  Thanks.  Yes, adjourn the court please.

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