Director of Public Prosecutions v Wilkins

[2017] VCC 484

IN THE COUNTY COURT OF VICTORIA Revised
(Not) Restricted
 Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 14-02102
CR 15-00350

DIRECTOR OF PUBLIC PROSECUTIONS

v

TRAVIS WILKINS
TYLER FOXWELL

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JUDGE:	HER HONOUR JUDGE GAYNOR
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	26 April 2017
CASE MAY BE CITED AS:	DPP v Wilkins & Anor
MEDIUM NEUTRAL CITATION:	[2017] VCC 484

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms D. Tang
For Accused Wilkins	Mr R. Melasecca
For Accused Foxwell	Mr S. Anger

Pages 1 - 27

 

 

HER HONOUR: 

1Tyler Foxwell, you have pleaded guilty before me to one charge of trafficking in methamphetamine and amphetamine in a commercial quantity, one charge of possessing a drug of dependence namely alprazolam which is Xanax, one charge of trafficking in a drug of dependence namely cocaine, one charge of possessing a drug of dependence namely anabolic steroids and one charge of possessing an unregistered long arm firearm which was an air rifle. 

2Travis Wilkins, you have pleaded guilty before me to one charge of trafficking in a drug of dependence namely methylamphetamine, one charge of recklessly dealing with the proceeds of crime, one charge of trafficking in a commercial quantity of methylamphetamine and one charge of possessing methylamphetamine. You have also pleaded guilty to two summary charges - one of possessing a prohibited weapon and one of possessing cartridge ammunition without a licence which were uplifted to be heard in this court pursuant to s.145 of the Criminal Procedure Act. 

3The facts underlying your offending are as follows.  Police began an investigation - codenamed Operation Two Moons - into a trafficking ring headed by you, Tyler Foxwell and of which you, Travis Wilkins, were second in the hierarchy.  It involved the sale of large quantities of methamphetamine and other drugs including cocaine and steroids around Melbourne's northern suburbs.  The ring involved a number of sub-dealers including one Fabian Caldarera from whom you, Foxwell, also obtained large quantities of methamphetamine or ice. 

4In short compass, telephone intercepts surveilled by police revealed that you, Foxwell, between 14 April and 18 October 2013 trafficked 850 g of ice and between 550 and 600 g of amphetamines.  Pursuant to the Drugs, Poisons and Controlled Substances Act, the commercial cut-off for these drugs is 100 g each.  Between 7 June and 18 October 2013, you trafficked about 250 g of cocaine.  The trafficable quantity is 3 g. 

5You, Travis Wilkins, were found to have trafficked about 630 g of ice, also a commercial quantity between 23 July and 25 September 2013; and between
13 June and 22 July 2013, you trafficked 168 g of methamphetamine. 

6I attach the prosecution summaries dealing with the telephone conversations underlying these activities as an exhibit to the sentencing remarks.  Can I just check there if the commercial quantity for methamphetamine is 100 g, I have just said that it was a trafficking charge in relation to Mr Wilkins, Madam Prosecutor, of trafficking 168 g of methamphetamine?

7MS TANG:  Sorry, Your Honour, what was the query in relation to the amount?  Was that commercial or ‑ ‑ ‑ 

8HER HONOUR:  Is that wrong?

9MR MELASECCA:  Yes, I think it is more, Your Honour.

10MS TANG:  Two ‑ ‑ ‑ 

11HER HONOUR:  All right. 

12MS TANG:  (Indistinct) is commercial ‑ ‑ ‑ 

13HER HONOUR:  Just listen to me please, Madam Prosecutor.  All right.  You have got a charge with Mr Wilkins of trafficking at commercial quantity which is said to be 630 g of ice.  Then there is a charge of trafficking in ice which is described, I think, as 168 g which means it should be a commercial quantity.  I did not bring - could you check please?

14MS TANG:  Your Honour, commercial quantity is 500 g.

15HER HONOUR:  Right.  All right, well, I have made a mistake there so - all right.  I am glad we checked that.  Yes, that makes sense.  Very well.  Going back, pursuant to the Drugs, Poisons and Controlled Substances Act, the commercial cut off for each of those drugs is 500 g.  Between 7 June and 18 October 2013, you trafficked about 250 g of cocaine.  The trafficable quantity is 3 g.  Is that right?

16MS TANG:  Trafficable quantity is three.

17HER HONOUR:  Are you sure that 500 is right?

18MS TANG:  It is 500 for a mixture, Your Honour. 

19MR MELASECCA:  One hundred pure, Your Honour, 500 a mix.

20HER HONOUR:  All right.  Well, how is it put?  This should have been sorted.  How is it put in terms of the trafficable quantities?  There is no mention in the summary of they being mixed or pure.

21MS TANG:  They are mixed, Your Honour.

22HER HONOUR:  All right.  Right, I am going to start with paragraph 5 again.

23In short compass, telephone intercepts surveilled by police that you, Foxwell, between 14 April and 18 October 2013 trafficked 850 g of ice, that being a mixed substance and between 550 g of amphetamines, also said by the prosecution to be a mixed substance. 

24Pursuant to the Drugs, Poisons and Controlled Substances Act, the commercial cut off for a mixed substance of both ice and amphetamines is 500 g.  Between 7 and 18 June 2013, you trafficked about 250 g of cocaine.  Is that also said to be mixed?

25MS TANG:  It is.

26HER HONOUR:  And what is the trafficable quantity for a mixed?

27MS TANG:  Of ‑ ‑ ‑ 

28HER HONOUR:  Cocaine.

29MR MELASECCA:  Two hundred and fifty grams pure. 

30MS TANG:  Pure.  Five hundred mixed.

31MR MELASECCA:  And 500 mixed, Your Honour.

32HER HONOUR:  Sorry.  The trafficable quantity for pure cocaine is 250 g?

33MR MELASECCA:  No, trafficable is only three, Your Honour, mixed.

34HER HONOUR:  Mixed?

35MR MELASECCA:  Yes.  Three, mixed.

36HER HONOUR:  Between 7 June and 18 October 2013, you trafficked about 250 g of cocaine.  The trafficable quantity is 3 g.  You, Travis Wilkins, were found to have trafficked about 630 g of ice, also a commercial quantity, and said to be a mixed substance, between 23 July and 25 September 2013; and between 13 June and 22 July 2013, you trafficked 168 g of methamphetamine. 

37I attach the prosecution summaries dealing with the telephone conversations underlying these activities as an exhibit to the sentencing remarks. 

38On 18 October 2013, you, Foxwell, were arrested at the Ivanhoe Hotel.  Police searched your premises at 35 Merton Street, Ivanhoe where items discovered included various anabolic steroids, a debt list, a list of names, drug trafficking paraphernalia such as scales, an ice pipe, an air rifle the subject of Charge 4, and vehicles including a Posi-track excavator.  

39In a record of interview, you denied drug trafficking and you were remanded in custody.  You, Travis Wilkins, were also arrested on that day and a police search of your premises revealed amongst other things ammunition of various calibres and various ornamental swords, the possession of which underlie the summary charges.  You were charged with recklessly dealing in the proceeds of crime in relation to a Bose speaker located there. 

40The maximum penalty for commercial trafficking in either methamphetamines or amphetamines is 25 years' imprisonment.  The maximum penalty for possessing a drug of dependence based on an intention to sell is five years' imprisonment or 400 penalty units.  The maximum penalty for trafficking cocaine is 15 years' imprisonment.  The maximum penalty for possession of steroids on the basis of possession to sell is five years' imprisonment.

41The maximum penalty for possession of an unregistered firearm is two years' imprisonment or 120 penalty units.  The maximum penalty for recklessly dealing in the proceeds of crime is ten years' imprisonment.  The maximum penalty for possession of methamphetamine on the basis of possession to sell is five years' imprisonment. 

42Twelve other persons were identified by police as sub-dealers in the trafficking ring, including your then girlfriend, Blaire Ashweirth, Mr Foxwell.

43The resolution of charges and hearings involving the co-accused took some time and resulted in a significant delay in these proceedings which the prosecution has conceded was not the fault of either of you.  Pleas were entered by both of you in late 2015 at the committal mention stage and no witnesses have been called in the proceedings against you. 

44At the time of this plea on 7 October 2016, ten members of your ring have been dealt with by police and the courts.

45Tyler Foxwell, personal circumstances. 
I now turn to your personal circumstances, beginning with you, Foxwell.  You are now 28 and were 25 at the time of your arrest.  You have no prior convictions.  You grew up in a close, happy family as one of four children.  Your father, a builder, and your mother, now deceased, raised you in a rural property on the outskirts of Melbourne.  You are the only member of your family to have ever been charged with a criminal offence.   

46You were apparently a bright child and were one of four successful applicants out of a field of 4000 who obtained full scholarships to Ivanhoe Grammar for Year 7 to 12.  This was based on both academic and sporting abilities.  You performed extremely well in your secondary education, you were a member of the school's Meridian Club for bright students.  You were in the debating team and ultimately became a prefect in Year 12. 

47Sports-wise, you excelled as basketball captain for your teams in Years 10, 11 and 12.  You were a co-captain of the Australian Grammar Schools team in basketball which comprised the nine best players in the Australia Grammar School network and were a member of Victorian basketball championship teams in the under 12s, under 14s, under 16s, under 18s and under 20s.  You played school football in winter, being named most valuable player in Years 11 and 12.  You were ultimately captain of all sports in Year 12.

48However, this was achieved against a background of considerable difficulty within your family.  When you were 13, your mother was diagnosed with cancer and given only months to live.  She fought this disease for four years, undergoing chemotherapy and radiotherapy and spent long periods of time in hospital. 

49You and your siblings visited her daily with your father when she was hospitalised.  She died when you were 17.  You went on to complete your VCE Year 12 with a score of 82 which disappointed you.  Your mother who was Irish wanted her ashes scattered in her homeland and your father took you and your siblings there and stayed for three months.

50During that time and in his absence, his business foundered and soon after you all returned, he went bankrupt and the family property where you had lived all your lives had to be sold and the family moved to rented premises. 

51On leaving school, you began a carpentry apprenticeship with your father which you completed by 2011, at the same time on a part-time basis, undertaking a tertiary business course at Swinburne University at the behest of your mother who had wanted you to undertake tertiary education.  You completed this course in your early 20s. 

52Your preference was for more hands-on work and in 2012, you began employment as a machine operator with City Works which you eventually left due to your escalating drug habit and then foray into drug trafficking. 

53You told psychologist Patrick Newton, whose reports dated 22 June 2015 and 3 October 2016 were tendered on the plea, that after your mother's death, you could not sleep and were prescribed sleeping tablets by your GP.  You eventually became dependent upon them.  In your late teens, you became immersed in bodybuilding and gym work and through this encountered the culture of illegal steroid use.

54From about age 20, you began to use steroids acquired illegally through gym members, and through them you also obtained sleeping tablets which your GP would not prescribe you.  You continued to live at home and according to your father, to all outward appearances throughout this time, appeared to be coping well - both working with him and undertaking part-time university studies and continuing to play basketball until you were 20. 

55However, it was the view of Mr Newton who interviewed you four times for a total period of six hours, that following your mother's death, you were overwhelmed with grief, underwent no counselling and did not process this trauma but simply soldiered on. 

56In the evidence on the plea hearing, Mr Newton said you had failed to integrate this process of grief over your mother's illness and death so that your emotional state was then one where you either ignored the grief or became completely immersed in it.  This, he said, prevented you from moving on and he believed you used sleeping pills in that time to block out and sedate your distress.

57When you were about 23, you formed a relationship with your co-accused, Blaire Ashweirth, who was a party drug user.  Eventually, you began with her to use party drugs, mostly amphetamine, but also cocaine and ecstasy.  In his report of 22 June 2015, Mr Newton said of you,

"He enjoyed the boost of energy which these drugs provided and also experienced relief from the depressive symptoms that had lingered since his mother's death."

58Your use increased steadily and after six months, you moved to using methamphetamine which you told Mr Newton took your drug use to "a whole new level".  Mr Newton stated,

"Not only did he experience more powerful physical addiction, but he found himself unable to cope psychologically without a regular dose of the drug." 

59Your use became daily and increased to a level of 2 g per day which Mr Newton described as a huge amount of this drug and potentially life-threatening and toxic.  You used Xanax or alprazolam to counter the nervous system hyperactivity engendered by ice use and to enable you to sleep, one report stating you stayed awake for 13 days. 

60At about the age of 23 or 24, you moved about of your home, swiftly becoming distant from your family.  Eventually, you ceased work and your brother-in-law, Adrian Stuart, said in evidence on the plea that he wondered at the stage when you had stopped working how you were supporting yourself. 

61You initially began trafficking in order to fund your habit but then began making a profit which, you frankly admitted to Mr Newton, became the purpose of your continued offending although your drug habit continued on unabated over this time.  That offending also included your sourcing drugs and onselling them via your co-accused, but also your co-accused sourcing drugs for you.  In terms of enrichment your were able to pay the bond on two rented premises and for improvements to be made to two cars and to purchase an excavation digger.

62Mr Newton's view as per his first report was that at this point in time,

"Mr Foxwell's immersion in the drug using subculture became almost total so that drug use or activities associated with it dominated his life."

63Your father in his written reference and in evidence on the plea said he had taken his eye off you in the years following your mother's death as you had seem to be coping.  His now partner of six years, Lynn Steven, said when she first met you, you were an adjusted, positive, caring young man employed by his father who worked long hours on a daily basis although she noticed that you missed your mother who had passed away three years previously.  She stated, "As time went by, I watched him slowly change.  This was due to his father's bankruptcy and losing the family home." 

64She said that after meeting Ms Ashweirth, the changes in you were dramatic.  You could not sleep, often did not go to work, lost your appetite and became paranoid and secretive about your life.  She stated, "It was obvious to me that he was taking drugs and involved with drugs to some extent."  She said she mentioned those observations to your father many times but he chose to ignore them. 

65On your arrest, your were remanded in custody where you remained for almost six months being released on 3 April 2014.  Mr Stewart, in his evidence, said that at first in remand, you were a bit "poor me" and wanted only to see your girlfriend, Blaire.  However, once you learnt that your family's homes including that of Mr Stewart and his wife, your sister, were raided by police, you underwent a complete transformation. 

66You detoxified in gaol.  On your release, you immediately attended pursuant to bail conditions upon experience drug counsellor, Joe Lamberti, and did so regularly until his death later that year.  A few months later, you re-attended on his replacement, Amanda Brown, and continued to see her to the present day.

67I am satisfied that your reformation - almost three and a half years since your arrest - has been complete.  Dozens of random urine tests since then have proved negative and the lapse of time since then, Mr Newton upgraded his assessment of your rehabilitative prospects from guarded in June 2014 to positive in 2016.

68Ms Brown, a most experienced drug counsellor, in her report and in evidence stated that your rehabilitative prospects were extremely positive.  In evidence to the court, she said that those suffering drug addiction usually required two years of abstinence for a positive prognosis and significant lowering of the dangers of relapse.  She said your proven abstinence now of more than three years meant the chance of relapse was extremely low. 

69Both Mr Newton and Ms Brown in their reports and oral evidence said you engaged fully in your drug rehabilitation.  Your psychological counselling were open and honest, demonstrated good insight into your offending behaviours and were determined in your pursuit of pro-social goals. 

70Of significance, in my view, was the evidence that you eventually became extremely remorseful for your offending, not just as to its effects upon you and your family, but upon those who purchased drugs from you.  Mr Newton stated in his first report,

"Mr Foxwell expressed remorse and regret for his involvement in these activities.  He said that he had initially rationalised his conduct as being merely support for his own addiction by facilitating the 'recreational' activities of others.  He said he now recognises that he contributed to the addictions of others and through this, the deterioration in their mental and physical well-being."

71Other references from family and friends also attested to this remorse by you and in a letter to this court, you expressed regret for the offending, the effect your offending had on those drug users who were your customers. 

72Both Mr Newton and Ms Brown commented on the determination to fully rehabilitate that you had shown over this extended period of time. 

73I am satisfied that you have transformed your lifestyle.  You reside with your family with whom you are now once more close and with whom you spend most of your time.  You have abided by all the conditions of your bail including a daily reporting condition to police since your release in 2014 and nightly curfews between April and December 2014, attendance for drug treatment and you have not reoffended. 

74In late 2014, you began a relationship with a young woman of no prior criminal history who is firmly opposed to drug use and your plan is to marry. 

75In October 2014, you gained employment with JBT Contracting Services Pty Ltd which job you still hold.  You began there as a labourer and have been promoted to team leader where you work as a welder and a pipe layer/excavator.  This apparently is employment that you love and you work a 60 to 70-hour week. 

76Company director, Jason Tennant, wrote in his reference to the court that you were reliable and trustworthy and had advanced rapidly in the company.  He described you as a very valuable employee in whom the company had invested heavily in your training and equipment and machinery tickets.  He concluded,

"If Tyler was to cease his employment at JBT due to circumstances out of our control, it would be considered a big loss to us not only financially but it would leave a big hole in our company."

77I was informed by your counsel that the company is fully aware of the charges you face.  The raft of references I received all attested to your transformation to a hardworking, abstinent, pro-social young man who enjoys a close relationship with his family, partner and his friends. 

78I now turn to you, Travis Wilkins. 

79You are now 31 and were 28 and 29 at the time of this offending.  you also have no prior convictions.  You also are the only member of your family to have ever been in trouble with police.  You are one of three children born to your parents, your mother dying of cancer when you were seven.  You left school midway through your secondary education to begin a bricklaying apprenticeship which you completed, working with your father, also a bricklayer, while attending the Newport TAFE. 

80In your early 20s, you left bricklaying and began working in civil construction, continuing in that capacity until 2013 and in that time becoming a supervisor.  In 2013, you took long service leave. 

81You had left home at age 18 to live with a sister and shortly afterwards met your girlfriend, Angelique, who moved in with you to your sister's home and then the two of you moved to a flat. 

82At age 22, you purchased a house but when you were 24, you and Angelique separated and she left.  You then had another short relationship which ended and in early 2013, reconciled with Angelique to the point where you planned to marry.  However, in April 2013, she suffered a serious asthma attack and died in the hospital, the family having to make the decision to withdraw life support.  You had previously used amphetamine or ecstasy with friends but only on a sporadic and party basis. 

83But soon after Angelique's death when you were grief-stricken and distressed, a well-meaning friend thought it might be of therapeutic benefit for you to use methamphetamine or ice which you had never previously used.  You began smoking ice and rapidly developed an addiction. 

84You knew Mr Foxwell through work and began buying ice for him and then began to work with him.  By that stage, you had exhausted your superannuation funds to buy ice, stopped making mortgage payments and got into arrears to the tune of $15,000. 

85You told psychologist Ian Joblin, whose reports dated 8 April 2016 and 31 July 2016 were tendered on the plea, that in about September 2013, you decided to stop using ice and thereafter used sporadically but not as regularly until arrested by police on 18 October.  You were held in custody for four days and then released on bail.  In terms of enrichment, the prosecution points to a Bose speaker worth, your counsel informed me, perhaps a couple of hundred dollars.  This was clearly bought with the proceeds of crime.

86On your release on bail, you decided to return to bricklaying and eventually moved to Bendigo, presumably for a fresh start to live with a couple, Nathan and Tanya Dunn in Bendigo.  Mr Dunn has his own bricklaying company, Melwest Bricklaying.  His wife Tanya is a registered nurse. 

87In evidence on the plea, Mrs Dunn said that before coming to live with her family, which included a seven-year-old and two teenagers, she had a conversation with you to find out exactly what had happened.  She said you were honest about the charges and what had occurred.  You told her you were no longer using drugs. 

88You lived with the Dunn family for 12 months during which time you worked with Mr Dunn during the day and were home at night.  Mrs Dunn said she did not believe in that time you were using drugs.  You had told her you had not been using for some time before coming to live with her family and said that if she had thought you were, "he wouldn't have been in my house." 

89Mrs Dunn said that in the course of her work as registered nurse, she had seen many people on drugs, that Bendigo had a fairly substantial methylamphetamine problem.  She said when you first came to live with them, you were changed and depressed and embarrassed to some extent at the position you were in whereas you had previously been a happy-go-lucky man who was generally anti-drugs, including smoking. 

90She said you worked hard and rarely went out at night, also working most Saturdays.  In the time with them, she said although you did not enjoy talking about the offending behaviour, you would speak about it openly although you were clearly embarrassed.  You told Mrs Dunn when you first moved in that she could ask whatever she wanted whenever she wanted. 

91Mrs Dunn said you worked hard with her husband, at one stage running the business for two weeks while the Dunn family were holidaying in Bali.  She said she had many discussions with you where you expressed remorse for your offending and continues to have regular contact with you.  She believed you had used work as a way of dealing with the looming legal proceedings.

92In cross-examination, she said the two of you had had major conversations in relation to consequences "but other parents whose kids he was selling to and the destruction that their lives would have had… and that he recognises that impact would have had." 

93Eventually, you returned to Melbourne and began your own bricklaying business which you run to the present time.  You now employ three people. 

94You have attended upon a counsellor since December 2015, Gregory Redette, and have undertaken regular urine analysis all of which have proven negative for drug use.  In his report dated 28 July 2016, Mr Redette said you had attended upon him since December 2015 and in that period had made considerable progress in terms of your lifestyle and attitude.  

95Mr Joblin in his 8 April 2016 report said you were not an anti-social personality and that you "had difficulties with this drug use over a few months only in the context of a tragic and traumatic experience."  He went on to say, "Indeed, from my discussions with him, it seems that outside the experience, he would not have used and consequently offended in the matter for which he is before the court."

96Mr Joblin believed the offences were "predicated on the context of his mental state at the time.  That was located specifically in the death of his girlfriend in April 2013."  He said you did not seek to minimise the seriousness of your offending.  He believed the death of your girlfriend with whom you had been making plans to marry and have children had left you in an extremely vulnerable state and revived emotions from your mother's death when you were seven.

97Since your release from prison in October 2013, you have been reporting twice a week and obeyed a curfew from 10 pm to 6 am.  You have not reoffended. 

98You, like Mr Foxwell, were supported in court by family and friends.  As with
Mr Foxwell, I am satisfied that you, in the almost three and a half years since your arrest, have also completely transformed your life in a pro-social way, no longer use drugs and that your prospects for rehabilitation are like, Mr Foxwell, extremely positive.  

99Indeed, the rehabilitation achieved by each of you was accepted by the prosecution on the plea.  For understandable reasons, it was the prosecution's submission that each of you should receive substantial terms of imprisonment.  The offending that each of you engaged in although of relatively short compass was extremely serious. 

100It was the prosecution's submission, Mr Foxwell, which must be accepted that you were either the hub or on top or the main player of this enterprise of people involving a dozen people.  You were organising activity, you used other people's bank accounts, you arranged for other people's transaction and enlisted other people's services.  You, Mr Wilkins, are said by the prosecution merely to be one step below. 

101Of all those arrested in the police operation, the two of you are the only ones who have been charged with commercial trafficking.  This clearly places you in a more serious category than all other offenders.  Of those offenders, six were dealt with in the Magistrates' Court and three in the County Court before His Honour Judge Ryan. 

102On 10 July 2015, Bradly Stephen was sentenced by His Honour to an aggregate six months' imprisonment before being released on a three-year community corrections order in relation to a rolled up charge of aiding and abetting the trafficking of methylamphetamine, amphetamine and cocaine, trafficking anabolic steroids, knowingly dealing with the proceeds of crime and possessing a drug of dependence. 

103These offences were committed whilst he was on a good behaviour bond for the possession and use of amphetamines.  He too was a drug addict and a long-term friend of yours, Foxwell, who you enlisted in your drug trafficking business.  He had only sought professional assistance shortly before the plea and ceased use of amphetamines only in the fortnight preceding it.

104Your former girlfriend, Foxwell, Blaire Ashweirth, was sentenced by His Honour on 10 July 2015 to a six-month term of imprisonment with release on a three-year CCO on charges of aiding and abetting the trafficking of methylamphetamine, attempting to traffic amphetamine, two charges of knowingly dealing with the proceeds of crime, possessing methylamphetamine and possessing an unregistered long arm.

105She had no prior or subsequent convictions, had been the subject of horrific sexual abuse as a child and her role was presented as primarily supporting you in your drug trafficking activities by passing on messages and allowing you, Foxwell, to use her bank account to move around money to pay those to whom you were indebted.  On appeal, the CCA reduced her sentence to a straight community corrections order. 

106Fabian Caldarera was dealt with by His Honour on 10 July 2015 and sentenced to 12 months' imprisonment to be followed by a three-year community corrections order.  He pleaded guilty to one charge of trafficking methylamphetamine and one charge of possessing a drug of dependence namely anabolic steroids.  He supplied you, Foxwell, with 128 g of methamphetamine between 7 August and 29 September 2013. 

107On 23 October 2013, police surveilling him observed him travel from Melbourne to Sydney with another man in return, 112 g of methylamphetamine being located in his co-offender's backpack.  In His Honour's sentencing remarks, he stated that the total amount of amphetamines trafficked by him or in his possession for the purposes of sale was 238 g. 

108Mr Caldarera was 49 with an extensive criminal history including 20 court appearances over 30 years with 44 prior convictions, 16 of which were drug related and had two convictions for trafficking a drug of dependence. 

109Parity is clearly of significance in the sentencing exercise before me.  There is no doubt that the three co-offenders I referred to were lower in the hierarchy of the drug trafficking ring, essentially operated by you, Foxwell, although it was not resiled from by the prosecution that there was a loose arrangement of buying, selling and sourcing drugs for each other within that ring.

110It was the defence submission on behalf of each of you that I should deal with you by way of a community corrections order.  This would seem, at first blush, given the seriousness of your offending and the sentencing doled out to the co-offenders I have mentioned, to be an unsupportable proposition. 

111As I understood it however, the defence made its submission on two primary bases: 

112(1), a considerable delay in this matter attributable to neither of you.  That delay has in fact been exacerbated in the course of this plea.  It was originally heard, as I have said, in early October 2016 and adjourned for sentence prior to Christmas of that year. 

113However, for personal reasons, I was forced to further adjourn that sentence to 24 March 2017.  By that date, I concluded it was necessary to order a transcript of the plea hearing and so sentencing was again adjourned to today, 26 April 2017.  Therefore, the lapse of time between the arrest of each of you on
18 October 2013 and the date of this sentence has been three years, five months and eight days. 

114(2), in that time, each of you has undertaken extensive and transformative rehabilitation so that your prospects for rehabilitation in relation to each of you are in my view excellent.  Additionally, neither of you have prior or subsequent criminal convictions.  Both of you enjoy the support of respectable and pro-social family and friends and evidence has been led which I accept that each of you is remorseful for your offending over and above that circumstance by the arrest and the charging of criminal offences.

115It could be said that this delay has been a matter of good fortune for you both.  However, delay can equally work against an accused person depending upon how he/she uses it.  It is quite clear as I have already made evident that each of you has taken this opportunity to attend to the problems which in my view clearly underlay the offending of each of you, addressed also your drug addictions and proved yourselves thoroughly over this period of time. 

116That delay has not all in respects been of assistance to you.  Pursuant to the Sentencing (Community Correction Order) and Other Acts Amendment Act 2016 commencing on March 2017, the capacity of a court to compose a combination of imprisonment and CCO order disposition has been limited so that the gaol component may be no longer than one year and the length of the community corrections order no longer than five years.

117Had you been sentenced on the original date proposed, that is 7 December 2016, these legislative limitations would not yet have come into force.  Had your offending taken place after 20 March 2017, the amending legislation would have further restricted the sentencing options available in that the charge of trafficking in a commercial quantity of drugs is one of a number of offences for which a community corrections order may only be imposed in confined and particular circumstances. 

118As I have said, it is the prosecution's submission that a term of imprisonment should be imposed in relation to each of you, notwithstanding the recognition by the prosecution to the rehabilitative efforts of each of you, so that the principles of specific deterrence and danger to the community are not ones which loom large in the sentencing landscape of this case. 

119It is the defence submission of course that the gains made by each of you are best served by the imposition of a non-custodial disposition.  That is ongoing rehabilitation being in the long-term interest of the community.

120After anxious consideration, I have decided to impose dispositions which will mean neither of you will be sentenced to a term of imprisonment in any effective sentence.

121You have each been assessed and suitable for community corrections orders.  I have decided on this course in this case for each of you for the following reasons. 

122(1), the most serious offending, that is the commercial trafficking took place over a relatively brief period of time.  In your case, Foxwell, it was six months; and in your case, Wilkins, two months.  I do acknowledge however, that the amounts trafficked were at the high end as were the amounts relating to the trafficking charges in relation to each of you.

123(2), at the time of the offending, both of you - particularly, you Foxwell - had extremely heavy drug habits. 

124(3), although it is conceded by you, Foxwell, that eventually this drug trafficking enterprise became for you a means of profit as opposed to it being originally an enterprise designed to fund your own habit, the rewards you reaped were not particularly large.

125(4), I am satisfied that the involvement of each of you in this trafficking enterprise arose from your own substantial drug habits which in turn grew out of drug use in circumstances which offered you particular relief.  You, Foxwell, I accept, had never properly processed the long, drawn-out illness and death of your mother and your father's subsequent bankruptcy so that as Mr Newton said in his evidence on the plea, methamphetamines proved to be a particular relief for you; and you, Wilkins, by the sudden and untimely death of your fiancée. 

126Both of you, I am satisfied, came to drug taking late and your psychological difficulties swiftly led to drug taking habits of - particularly in your case, Foxwell - immense proportions.

127I am reinforced in that finding by the fact that neither of you had ever offended before this episode in your lives.  You both come from good families with which you have now thorough reengaged.

128(5), you have each pleaded guilty at a stage where no witnesses have had to be called either at committal or trial and I am satisfied by the independent evidence led in the case of each of you that you are remorseful for your offending above and beyond reactive remorse arising from apprehension and the institution of legal proceedings.

129(6), there has been a protracted delay in your cases through no fault of your own.  This, in my view, has had a significant impact in a number of ways. 

130(a), it has enable each of you demonstrate you are bona fide by thoroughly reforming yourself which as I have said, I am satisfied you have done. 

131At the same time, each of you has abided by rigorous bail conditions and continued with your rehabilitation in the face of considerable stress and pressure with the legal proceedings hanging over you.  That delay was exacerbated by my own inability to sentence you in December 2016 and then in March 2017. 

132You have, in my view, in these circumstances demonstrated your determination to contribute with your rehabilitation you each began following your arrest in 2013. 

133(b), that lapse of time means each of you are now in an entirely different position at the time of sentence than you were at the time of this offending. 

134You, Foxwell, are employed and in a relationship where you are expecting your first child.  You, Wilkins, run your own business and employ three others.  The authorities recognise that the particular losses and difficulties faced by an accused whose position has changed markedly because of a delay in sentencing is a strong mitigatory factor. 

135(c), that delay also bears on the issue of parity insofar as your co-accused are concerned, each of whom bar Ms Ashweirth ultimately, who were dealt with in the County Court were sentenced to terms of imprisonment in combination with a community corrections order. 

136You, Foxwell, and you, Wilkins, were above your co-offenders in the hierarchy of the drug ring's operations, but in my view there are distinctions that can be drawn.  They being:  delay, each of those persons being sentencing in July 2015, Bradley Stephen having been on a good behaviour bond for drug offending at the time of his involvement in this ring and having undergone only brief and belated rehabilitation at the time of sentencing, Fabian Caldarera was an older man with an extensive prior criminal history, Blaire Ashweirth was ultimately placed on a straight CCO and not required to serve any time in imprisonment. 

137The prosecution argument would be, I apprehend, that your offending so far transcended theirs in terms of seriousness that the effect of delay upon parity is therefore much reduced but in my view, the rehabilitative efforts of each of you have been of such exceptional quality and have placed each of you in so different a position at the time of sentencing that I can, in my view, proceed to sentence you in the way I propose without offending principles relating to parity. 

138(7), each of you enjoys considerable work support within the community.  Each of you operates within a strong pro-social framework so that the court can be satisfied as far as it is able that you will not relapse into your offending in the way that you did. 

139(8), I accept as I have said that in the case of each of you that your rehabilitative efforts have been exceptional.  Given the seriousness of your offending, I should add they would need to be. 

140The argument may be put that each of you have proceeded so far that a term of imprisonment should not and would not affect this.  This poses a serious difficult sentencing exercise.  In the end however, in my view, the community's long-term interests are best served by ensuring the continued rehabilitation and reform of each of you. 

141Had either of you been any less assiduous in the steps you have undertaken to reform yourselves, a custodial sentence would have been inevitable.  The combination, however, of what each of you has undertaken combined with a period of time the delay has afforded you in proving your long-term intentions has led me to the conclusion that despite the seriousness of this offending, I should take the unusual step of dealing with you by way of dispositions which will result in neither of you returning to gaol.

142In doing this, I make it very clear that I regard your offending with the utmost seriousness.  It may have occurred in the throes of extremely serious drug addiction.  It may have been of relatively short duration - and in the end, that was contributed to effectively by the arrest of each of you, and it may have been regarded by you both as simply supplying others with their recreational drug needs at the time.  But make no mistake, you were contributing heavily to the ice epidemic which has swept our society and which causes so much heartbreak, misery, damage and ruination of lives. 

143I accept that each of you now understands this, but the authorities made it very clear that ordinarily, offending such as yours, the prevalence of it, the damage caused by it would normally attract a significant term of imprisonment.  It is of course argued by the prosecution that general deterrence is of particular importance in this sentencing exercise and I do not disagree with that proposition. 

144In my view, however, would-be traffickers need not be comforted by the dispositions I intend to impose in this case.  It is only in cases such as these where a combination of particular delay and exceptional reformation would result in the disposition I propose to bring down on each of you. 

145In your case, stand up please, Mr Foxwell.  I propose sentencing you to a term of imprisonment which equates with the time that you spent on remand together with the imposition of a community corrections order for a period of five years.  What was that period of time?

146COUNSEL:  I am sorry, Your Honour.  I should have had it at my fingertips. 

147HER HONOUR:  All right.  Pardon?  A hundred and sixty-eight days.  It went from 18 October to 6 April.  So I am sentencing you to 168 days' gaol and you are then to be released on a community corrections order for a period of five years.  

148Can you stand up please, Mr Foxwell?  In your case - sorry, Mr Wilkins, you will be sentenced to a community corrections order for a period of four years and four months.  All right?  Now, I can only place you on a community corrections order with your consent.  I need to explain to you what the conditions are in relation to this order.  They are:

149Whilst you are on the order, you must commit any offence punishable by imprisonment.  That does not mean that you have to go to gaol.  It means that if you commit an offence for which you could be sentenced to gaol, you will have breached the order.  You must report to the Community Corrections office within two working days of the making of this order.  That is by Friday of this week. 

150Whilst you are on the order, you may not leave Victoria without the permission of the Community Corrections office.  You must report to and receive visits from the Community Corrections office.  You must not attend upon the Community Corrections office under the influence of either drugs of alcohol.  You must inform the Community Corrections office of any change of address or employment within 48 hours of that change.  You must obey all lawful directions of the Community Corrections office. 

151I am going to order that there are special condition in relation to each. 

152In relation to you, Mr Foxwell, I am going to order that you undertake 400 hours of unpaid community work.  I am going to order that you undertake drug assessment and treatment for drug use.  That will not necessarily last for the entire time and Corrections will probably just get you to keep seeing Ms Brown, but I want you to continue this and I am also going to, I think - I am going to order that you undertake assessment and treatment for psychological counselling as well. 

153You had a series of very serious issues underlying your offending.  I know that you have done a great deal of work, I know you are back with your family but you actually need to unravel those.  You have attended upon Mr Newton primarily for the purposes of assessment for court hearing, not for actually undergoing therapy yourself.  And you probably need to do that.  All right?  Thank you.  I am also going to order supervision.

154Mr Wilkins, the extra conditions are that you will undertake 350 hours of unpaid community work.  You are to attend for assessment and treatment for drug use.  You are also to attend for psychological assessment and treatment.  You will also be under supervision.  Thank you.  Have a seat. 

155Pursuant to s.6AAA, I declare in the case of each of you that if you had not pleaded guilty, Mr Foxwell, I would have sentenced you to a term of imprisonment of six years with a minimum term of four years.  Mr Wilkins, had you not pleaded guilty, I would have sentenced you to a term of imprisonment of five years with a minimum of three years. 

156COUNSEL:  May it please, Your Honour. 

157HER HONOUR:  Is there anything else I need to attend to?

158MR MELASECCA:  I think it goes without saying, Your Honour, but I think Your Honour needs to declare the time as being served.

159HER HONOUR:  I have not done it.  I declare the 168 days that I have imposed in relation to Mr Foxwell to be already been served by way of pre-sentence detention. 

160Now, I am just trying to think.  I think I signed all the orders last time. 

161MS TANG:  I have not received them, Your Honour.

162HER HONOUR:  Have you not?  All right.  We will sort them and forward them to you.

163MS TANG:  Thank you, Your Honour. 

164MR MELASECCA:  Your Honour, I do not know whether it was articulated in court but we certainly did so by correspondence, but the forfeiture orders have all been resolved.

165HER HONOUR:  Yes.  No, I knew that.

166MR MELASECCA:  And my learned friend will amend the order and provide Your Honour with the relative orders.

167HER HONOUR:  That was indicated on the last occasion, Mr Melasecca.

168MR MELASECCA:  Was it?

169HER HONOUR:  Yes.

170MR MELASECCA:  Yes, thank you, Your Honour. 

171HER HONOUR:  Thank you.  Right.  I will get those orders to you, Ms Tang.  Thank you very much.  Yes, we will stand down to 10.30.  Thank you.

172(Short adjournment.)