DPP v Natale

[2022] VCC 1199

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-21-01810

DIRECTOR OF PUBLIC PROSECUTIONS

v

ANTHONY NATALE

JUDGE:	HIS HONOUR JUDGE GAMBLE
WHERE HELD:	Melbourne
DATE OF HEARING:	4 and 26 July 2022
DATE OF SENTENCE:	26 and 27 July 2022
CASE MAY BE CITED AS:	DPP v Natale
MEDIUM NEUTRAL CITATION:	[2022] VCC 1199

REASONS FOR SENTENCE

Subject:CRIMINAL LAW – Sentence.

APPEARANCES:	Counsel	Solicitors
For the Prosecution	Mr M. Rochford Q.C. with Mr P. Pickering. (Plea) Mr P. Pickering (Sentence)	Office of Public Prosecutions
For the Accused	Mr P. Morrissey S.C. (Plea) Mr D. Georgiou (Further Plea and Sentence)	Melasecca Kelly & Zayler

TUESDAY 26 JULY 2022

HIS HONOUR:

Introduction and overview

1Anthony Natale, you have pleaded guilty to an indictment containing one charge of trafficking in a drug of dependence in a quantity that is not less than a large commercial quantity (‘LCQ') (MDMA and methylamphetamine), one charge of knowingly dealing with the proceeds of crime ($2,047,950 in cash) and one charge of possession of a drug of dependence (cocaine and cannabis).[1]

[1] Charges 1, 2 and 3, respectively, on Indictment L11778065.1.

2The maximum penalty for trafficking in a LCQ is life imprisonment and, for knowingly dealing with the proceeds of crime, 15 years’ imprisonment. As I am satisfied on balance that you did not possess the cocaine or cannabis for any purpose related to trafficking, the lesser maximum penalty applies to the possession charge, namely one year imprisonment or a fine of 30 penalty units.  This is a ‘rolled-up’ charge since it encompasses two types of drug not one.

3The trafficking in a LCQ charge is also a rolled-up charge because it encompasses a large commercial quantity of each of the drugs MDMA and methylamphetamine. The applicable statutory threshold quantity for each type of drug varies.[2] Where, as in this case, there is a mixture of substance and drug of dependence (‘a mixture’), the threshold quantity for a large commercial quantity of MDMA is 1kg and for methylamphetamine, 750 grams. These threshold amounts were far exceeded based just on what the police found at the home of your co-accused Mr Yuksek, namely 169.9 kg of a mixture containing MDMA and 24 kg of a mixture containing methylamphetamine. But, unlike Mr Yuksek, your criminality in relation to the trafficking in a LCQ charge is not restricted to what the police found at that property, about which I will say more later in these sentencing reasons.

[2] See Column 1B in Part 3 of Schedule 11 of the Drugs, Poisons and Controlled Substances Act 1981.

4I note that the offence of trafficking in a LCQ of a drug of dependence is a standard sentence offence for which the standard sentence is 16 years’ imprisonment.

5I also note that you have consented to this court hearing and pleaded guilty to a related summary offence, summary Charge 13, of possess a controlled weapon (an extendable baton) without legal excuse, for which the maximum penalty is one year imprisonment or a fine of up to 120 penalty units.

6You were aged between 25 and 27 at the time of this offending.  You are now 29, having been born in November 1992.

7The circumstances of that offending are set out in the detailed typed prosecution opening dated 29 March 2022, not all of which was read out by the prosecution at the plea.[3] Your counsel acknowledged that the relevant parts of that document could be treated as an agreed statement of facts for sentencing purposes

[3] A copy of which was tendered as exhibit A on the plea.

8The offence of knowingly dealing with the proceeds of crime is alleged to have occurred in the period between 2 October 2018 and 6 March 2019 while the offence of trafficking in a LCQ is alleged to have occurred in the period between 10 January and 1 March 2019. The overlap period is therefore from 10 January until 1 March 2019.  The proceeds period commenced about 3 months earlier than, and extended 5 days beyond, the trafficking period.

9Each of the offences of possess drug of dependence and possess controlled weapon are charged on a single date basis and confined to the date of your arrest on 26 July 2020.

10It is alleged that you were part of a drug trafficking syndicate and within the operations of that syndicate you performed a variety of roles including delivering drugs,[4] receiving cash for the sale of drugs, attending and purchasing items for use in drug preparation and mixing and preparing drugs for sale.

[4] Whilst the opening also refers to delivering cash, any consideration of that conduct is to be confined to the knowingly dealing with the proceeds of crime charge to avoid any risk of doubly punishing Mr Natale for the same conduct.

11I have been mindful that the prosecution opening is a wide ranging analysis of the nature and extent of the syndicate’s operations and sometimes makes reference to events, circumstances and even some people that you had nothing to do with. Whilst that provides a necessary context, it is important to keep it in its proper perspective when considering your own offending and the appropriate penalty for it so as to avoid sentencing you on some wider or different basis than the one on which you have been indicted.

12I also note that the basis and explanation for your offending were discussed, to some extent, during the course of the plea hearing.

13I have had regard to the prosecution opening and those discussions when determining the appropriate sentence in this case. I will not recite in full the content of the prosecution opening now. It is sufficient, for present purposes, to provide the following briefer outline.

Circumstances of the offending

14In 2018 and 2019, Victoria Police in conjunction with a number of other investigative agencies were investigating the syndicate operations of a large scale drug venture that was suspected to have been involved in the importation, manufacture and distribution of large quantities of drugs.  At one point, you, Mr Natale, were identified as a part of the syndicate’s operations.

15The syndicate members and their perceived roles were as follows.

16Aiden Khodher (‘Khodher’) was believed to be the head of the syndicate and directed your actions as well as those of another syndicate member, Vincent Fitzpatrick (‘Fitzpatrick’). By those means, Khodher was able to launder significant amounts of cash, deliver illicit drugs, receive money in exchange for drugs, and purchase and store chemicals required for the drug manufacturing process.

17Fitzpatrick assisted Khodher with the importation of ingredients to be used in the manufacture of drugs, with storing those deliveries, and later, with the disposal of the imported ingredients once there was a perceived danger of discovery by the police.  Fitzpatrick received large amounts of cash for the assistance he provided.

18Another syndicate member, Sener Yuksek (‘Yuksek’), assisted the syndicate by allowing his property in Fraser’s Rise to be used as a storage facility to store large commercial quantities of MDMA and methylamphetamine. He pleaded guilty to a single rolled-up charge of trafficking in a large commercial quantity of a drug of dependence that encompassed the amounts of 24 kg of methylamphetamine[5] and 169.9 kg of MDMA[6] that police found at his property during a search they conducted on 1 March 2019. Mr Yuksek was sentenced by me for that offence on 19 May 2022.[7]

[5] This weight relates to a mixture of substance containing methylamphetamine.

[6] This weight relates to a mixture of substance containing MDMA.

[7] [2022] VCC 683, a copy of which was tendered as exhibit B on the plea.

19As for you, Mr Natale, it is put that you worked for Khodher by delivering cash and drugs, by receiving cash for the sale of drugs and by performing other tasks as requested by Khodher including attending and purchasing items for use in drug preparation and mixing and preparing drugs for sale.  It is put that you regularly attended Mr Yuksek’s property in order to prepare drugs.  All of that conduct is relevant for the purposes of sentencing you for the trafficking in a LCQ charge, save the conduct involving the delivery of cash for money laundering purposes as that conduct on your part is separately charged by way of the knowingly deal in proceeds of crime charge and you are not to be punished twice for that conduct.

20Part of the investigation of the syndicate involved the interception of telephone communications, the installation and monitoring of surveillance devices and physical surveillance.

21As a result, the investigators became aware that you met with Khodher on a regular basis, usually at the rear of a bar in Ascot Vale (“the Bar”).

22On 2 October 2018, you met with a police covert operative and provided him with a ‘token’, a common practice employed by money laundering networks for the purposes of identifying each other.  You then handed the covert operative a bag containing bundles of cash totalling $200,000.

23On 17 October, you were observed travelling from your home in Pascoe Vale to the rear laneway of the Bar and then to an address in Keysborough where you handed a bag to a male called Nguyen. You then returned to the Bar. Khodher later contacted Nguyen before meeting with you on 19 October in the same laneway.

24On 23 October, you met with Khodher at a shopping centre and then at the Bar. Afterwards, you delivered three shopping bags to a Keysborough address.  Police intercepted a vehicle as it left that address a short time later.  Nguyen, who was in the vehicle, was found in possession of a cash counting machine and two shopping bags; one contained $699,950 in cash while the other contained $300,000. Those two bags were of similar appearance to the ones that you had earlier been seen to hand over. A check of Mr Nguyen’s mobile phone number revealed that it had been earlier contacted by both you and Khodher.  The remaining shopping bag was located in a separate vehicle that was intercepted by police after it was driven away from the same Keysborough address later that day by a man named Hung Mai.  It contained $463,000 in cash as well as ATM receipts and Post-It notes indicative of money laundering.

25The total amount of cash seized by police from the two vehicles was therefore $1,462,950. It was at Mr Khodher’s direction that you delivered that cash to the recipients Nguyen and Hung Mai for the purpose of money laundering.

26In late October 2018, Fitzpatrick ordered items online from a Chinese website at the direction of Khodher for the purposes of drug manufacture and trafficking.  At around the same time, he took delivery of a vacuum food sealer from the same website.  In early November, he took delivery of 65.9 kg of plastic bags from China.

27On 3 December, Khodher was seen to attend a carpark at the rear of the Bar and meet with a man named Garg to whom he handed a shopping bag containing $300,000 in cash which police later seized from that man.

28On the same date, Khodher met with a man named Wiggett who was intercepted by Queensland police a few days later in possession of a bag containing 21kg of amphetamine.

29On 24 December, Fitzpatrick sent Khodher a coded text message about the importation of Cellulose Sodium, a known cutting agent for illicit drugs.

30On 29 December, Fitzpatrick took delivery of a package from China which contained 50kg of Cellulose Sodium.

31On 2 January 2019, you were seen to travel to Yuksek’s property.

32On the following day, Fitzpatrick twice spoke to Khodher on the phone about the difficulties he was having paying for Cellulose Sodium via Western Union and Money Gram.  In subsequent conversations, he said he would contact the supplier and then meet with Khodher to discuss the situation.

33On 6 January, Fitzpatrick took delivery of two packages from China containing a total of 40kg of Cellulose Sodium.

34On 9 January, you and Khodher attended the Bar and met with two male members of a Western Australian drug syndicate, one of whom was named Gibbs.  During that meeting, Khodher told you to ‘get that MD bro…it’s supposed to be 5 kilos, I need you to pick that up’. You then met with Gibbs and provided him with a bag containing 5kg of MDMA. In a later statement, Gibbs confirmed the outcome of the meeting. However, the drugs were never recovered. Later that day, Khodher told you ‘What you need is the money bro…you know with the blue bag, it’s getting swapped tomorrow for good stuff’.

35On 10 January, you attended Yuksek’s property on three occasions.  On the second visit, you stayed for approximately 40 minutes. You then attended at the Bar where Khodher was overheard telling you to ‘leave one here’.  You then called Yuksek to tell him that you needed to return and see him. Shortly after, you called him again to say that you had arrived. On the third visit, you remained at his property for about 10 minutes. After that visit, you again attended at the Bar before then meeting Yuksek at a hotel that evening.

36On 11 January, Fitzpatrick rented a storage unit in Brunswick East.

37On the same day, you met with Khodher at the Bar where he gave you directions to an address in Derrimut. After attending that address, you then travelled to an address in Roxborough Park where you met an unknown male with whom drugs and the sum of $24,850 were exchanged.

38On 12 January, you attended at the same Roxborough Park address where you met the same unknown male. You then travelled back to the Bar and met with Khodher. The two of you then travelled in a vehicle during which time he instructed you to be more careful with your operations, saying ‘Don’t drive around with that shit…I know it doesn’t mean much, but what happens is they catch you with a kilo and then they go we found 600 glad wrap bags’. A short time later, the two of you returned to the Bar where he told you to clean up some empty bags on the floor before going home. The prosecution allege that those plastic bags are part of the quantity of bags that had been earlier purchased by Fitzpatrick.

39On 16 January, you were seen to drive out of Yuksek’s garage and travel to the Bar before then meeting Yuksek at a hotel.  After that meeting, you re-attended the Bar.

40On 19 January, Fitzpatrick received a delivery of 90kg of Cellulose Sodium from China.  In the days following, he communicated with Khodher about that matter.

41On 4 February, you and Khodher attended at a Bunnings store and purchased the following items:

·A medium mixer for a drill attachment;

·A large mixer drill attachment;

·A 35 litre plastic container;

·A 20 litre plastic container; and

·An Ozito’ multipurpose mixer.

42After taking this equipment back to the Bar, you both returned to Bunnings and exchanged the Ozito mixer for a more powerful model. Later that day, the two of you discussed buying and selling drugs involving significant weights and amounts of money.

43On 10 February, Khodher spoke to you about depositing significant sums of money into your accounts without attracting suspicion.  Ultimately, you made 16 deposits, all of $5,000 or less, with the total amount deposited being $60,000.

44On 20 February, Fitzpatrick took delivery of a further 40kg of Cellulose Sodium from China.

45On 21 February, you were heard speaking with Khodher about the delivery of methylamphetamine in a half kilo block of ‘green tea’ and cocaine in a bag. At one point, he was telling you about the differences between the quality and quantity of drugs in different coloured bags and the importance of keeping particular bags separate and not mixed. At separate times, Khodher admonished you, saying ‘How did you fuck that up?, we got half a keg, you fucked up...’ and later, ‘…I can’t believe you fucked up like that’ and, finally, ‘Are you fucking retarded?’.

46On the same day, Khodher contacted a man named Kohli and discussed a money laundering transaction which police believe involved $250,000. At a later meeting, Khodher provided Kohli with what police believe was a backpack.

47On 22 February, Fitzpatrick took delivery of 40kg of Cellulose Sodium.  Further deliveries of 80kg and 40kg were received on 24 and 26 February, respectively.

48On 26 February, after discussing the purchase of buckets from Bunnings with Khodher, you then travelled to Yuksek’s property.

49On 27 February, Fitzpatrick received delivery of a further 40kg of Cellulose Sodium. On that same day, you purchased a number of large white buckets from Bunnings, of a similar type to those you had purchased about three weeks earlier, on 4 February. Later that day, you drove to Yuksek’s property.

50On the following day, you returned to Yuksek’s property and spent three hours there, during which time police heard the sound of an electric drill, consistent with it being used to mix large amounts of drugs in preparation for later distribution.

51Mr Natale, the police investigation revealed that you visited the Yuksek property at least 23 times in the two month or so period between 2 January and 28 February 2019. On 18 of those visits, you attended the Bar either before or afterwards.

52On 1 March 2019, Fitzpatrick received delivery of a further 40kg of Cellulose Sodium.

53On the same date, police attended and searched the Yuksek property. As that search was underway, you were seen to drive past the property and witness what was occurring. Almost immediately, you were detected making several phone calls to Khodher in which you sounded panicked about the situation. It is of note however, that as worried as you were then, you still went on to engage in another money laundering transaction on behalf of Khodher on 6 March and in a further conversation about drugs on 27 June.

54The search conducted by police at the Yuksek property located the following items:

·$3,500 in cash in the master bedroom;

·12 twenty litre buckets and a 35 litre bucket containing MDMA, in a cupboard in bedroom 3;

·2 cooler bags containing white powder, blue tablets and brown powder containing MDMA, in the same cupboard;

·24 vacuum sealed bricks containing methylamphetamine concealed in Chinese tea packing, most of which were located on shelving in the garage with the remainder being located in the cupboard in bedroom 3;

·A vacuum sealing machine and a set of kitchen scales on shelving in the garage;

·3 rolls of heat sealing vacuum seal bags, cling wrap, packaging material and a set of digital scales on a workbench in the garage;

·3 twenty litre buckets containing residue of drugs near the rear garage door;

·3 mobile phones, two of which belonged to Mr Yuksek and the other to his wife; and

·2 SIM cards, in the master bedroom.

55The MDMA located was in both raw and pill form.  Those substances and the methylamphetamine were seized by police and later subjected to forensic analysis and testing, the results of which revealed the following:

·159.2 kg of MDMA in the white buckets;

·10.7 kg of MDMA in the cooler bags, in both powder and tablet form; and

·24 kg of methylamphetamine in the vacuum sealed packages.

56Thus, the total amount of MDMA found at Mr Yuksek’s property was 169.9 kg.  The total number of MDMA tablets/pills located was 7011.

57The total amount of methylamphetamine found at that property was 24 kg.

58When the contents of the mobile phone belonging to Mr Yuksek’s wife were analysed, the police discovered that he had contacted her on three occasions in early 2019 to warn her not to go into the garage (on 27 January and again on 12 and 26 February), and on a further occasion in that timeframe to advise her to take the kids out for a while as he was expecting a visitor (on 22 February).

59When Mr Yuksek was later interviewed by police, he exercised his legal right to answer ‘No Comment’ to the questions and allegations put to him.

60On 3 and 5 March, Fitzpatrick received further deliveries of 40kg of Cellulose Sodium.

61On 6 March, you met with a police covert operative posing as a member of a money laundering syndicate at a shopping centre. Upon your request, the operative showed you a $5 token which you photographed. The operative then asked you how much money you had in the bag you were carrying to which you replied ‘$385,000’. You then gave him the bag containing that amount of money.

62Between 8 and 15 March, Fitzpatrick took delivery of a further 120kg of Cellulose Sodium.

63In total, Fitzpatrick took delivery of 660kg of Cellulose Sodium in the 11 week or so period between 23 December 2018 and 15 March 2019. It is put by the prosecution that the purpose of that substance was to assist in the manufacture of ecstasy pills (MDMA) at the Yuksek property prior to that drug being distributed by Khodher.

64On 2 May, Fitzpatrick was heard telling Khodher that he had been to the storage unit and had his hands full trying to juggle money.

65On 23 May, you called an unknown male and discussed the police search and seizure at Mr Yuksek’s property.  You sounded concerned and at one point told him that you couldn’t understand how it could have happened as only four people knew about it.

66On 12 June, Fitzpatrick called Khodher and told him that he’d been to the storage unit and taken $20,000 of which $10,000 was going to be used to buy a car.

67The next day, police located that storage unit in Brunswick West.

68On 17 June, during another conversation with an unknown male, you said that you had attended the Yuksek house the night before the search and ‘wiped everything down’.

69On 27 June, you had a further conversation with an unknown male during which you stated that Khodher was paying for Yuksek’s legal representation. You also discussed the difference between ‘cooking’ drugs and trafficking them and indicated that the price of an ounce was $2,000.

70On 4 August, Fitzpatrick was recorded speaking to an unknown male about the contents of the storage unit.  He said he had 25kg boxes of ‘stuff’, that he was ‘stuck with this filling sugar shit’ and he was going to dump it.

71On 20 August, Khodher told Fitzpatrick that they had to pay ‘seven mil’ extra, but due to the search at the Yuksek property, they were unable to pay and their supplier thought they were ripping them off. Khodher was recorded saying that he had been getting death threats from ‘the Columbians’ until they had confirmed that there had in fact been a search.

72On 16 September 2019, Khodher and Fitzpatrick discussed the police search and seizure and how it would lead back to them. They agreed that Fitzpatrick needed to get rid of the 400kg of Cellulose Sodium, which they referred to as ‘mixing shit’. Ultimately, they carried out that plan by transporting it in Khodher’s vehicle to the Maribyrnong River where it was dumped.

73On 26 July 2020, Khodher was arrested by the Australian Federal Police in Queensland in relation to attempting to import 550kg of cocaine into Australia from Papua New Guinea. He is yet to face trial in respect to any charges that have been or are to be laid in respect of the current matter.

74When police searched your home on the same date, they found the following, Mr Natale:

·A zip lock bag containing 1.1g of cocaine;

·A zip lock bag containing 27.8g of cannabis;

·An extendable baton; and

·$6,050 in cash.

75You were then arrested and interviewed, giving ‘No Comment’ answers as was your legal right.

76Your DNA and fingerprints were detected on the following items recovered from the police search at the Yuksek property:

·11 of the 20 litre buckets;

·The set of digital scales;

·The heat seal bags; and

·The vacuum sealer machine.

Note: At this point the sentencing hearing was adjourned due to technical difficulties with the recording and transcribing of the proceedings.

WEDNESDAY 27 JULY 2022

I now resume my sentencing reasons at the point I had reached yesterday immediately prior to having to adjourn the sentencing hearing due to difficulties with the recording and transcribing of the proceedings.

Circumstances of the offending (cont’d)

77Mr Fitzpatrick was arrested at his home on the same date that you were arrested, Mr Natale. He was found in possession of $64,895 in cash and a number of documents and receipts relating to the Cellulose Sodium. He has been charged by police and his case is next listed for hearing in this court on 26 August 2022, at which time he intends to make an application for a sentence indication.

Pre-sentence detention

78I note that you were charged and remanded in custody on the same date that you were arrested, namely, 26 July 2020.  As you were not bailed until 28 September, you served 65 days in pre-sentence detention during that time. 

79You were then further remanded in custody at the end of your plea hearing on 4 July 2022.  The period from then until, but not including today's date, represents a further period of 23 days of pre-sentence detention.

80Accordingly, you have spent a combined total of 88 days in pre-sentence detention for this matter, which I will declare and reckon as time already served later in these sentencing reasons.

Resolution and plea

81Mr Natale, I consider that your plea to these charges has occurred at an early stage in these proceedings.  Negotiations between the parties commenced at the straight hand-up brief committal hearing on 23 August 2021.  Those negotiations continued in this court until, at a further directions hearing on 31 March 2022, they were ultimately successful in resolving this matter.

No prior or subsequent criminal record

82I also note that the current offending for which you now fall to be sentenced has been your only foray into the criminal world, albeit a serious one.  You have no previous or subsequent findings of guilt or convictions and there are no other charges which have been laid or that are outstanding.  You therefore fall to be sentenced for the current offences as a first-time offender.

Personal circumstances

83I will now turn to outline your personal circumstances, Mr Natale. 

84As I have already observed, you are now 29 years of age, and due to turn 30 in November. 

85You are one of identical triplets,[8] born to a father who immigrated to Australia in his twenties, and a mother who was born in Australia to parents of Italian background.  Your father passed away just over a year ago.  Your two brothers share a serious blood disease for which they require regular blood transfusions and have a shortened life expectancy.

[8] Counsel for Mr Natale corrected this after sentence was delivered, indicating that whilst Mr Natale is a triplet, he is not an identical triplet.

86You enjoyed a loving and stable family environment while growing up.  Whilst you received love and affection from each of your parents, you were, and still are, particularly close to your mother.

87You struggled with the academic demands of school, requiring a teacher's aide from Year 8 until you left school at the end of Year 11. You were shy and preferred to spend most of your time with your brothers rather than with other students.  You decided to leave school in order to work.

88You were in a serious two year relationship between the ages of 17 to 18.  Even now, you still struggle to deal with the end of that relationship.

89A significant and traumatic event occurred in your life when you were aged 19.  You were subjected to an armed robbery while at a Pokies venue.  Before stealing your wallet, the offender held a gun to your head and demanded that you apologise and beg for mercy.  Unsurprisingly, you feared for your life during that ordeal.

90Your mental health deteriorated in the aftermath of that event.  You could no longer work fulltime.  You became hypervigilant and struggled to regulate feelings of anger.  You experienced nightmares and triggered flashbacks.  Although you enjoyed a mild improvement of your symptoms throughout your early twenties, your work attendance remained sporadic.  Even now, you remain fearful.

91A further event occurred at your family home when you were 25 which only compounded the situation.  You were woken at night by the sound of a group of males making an unsuccessful attempt to break in, one of whom appeared to be armed.  You rang police and reported what you had just seen on the footage from the security cameras which you had previously installed in your family’s home, but the offenders were never caught.

92As a result, you became even more hypervigilant, feeling compelled to stay awake at all times.  In order to try and achieve that, you began a pattern of polysubstance abuse, using cocaine to help you stay awake and vigilant, and then cannabis to ameliorate the effects of stimulant withdrawal.

93You have been assessed by the consultant psychologist, Luke Armstrong, on four occasions:  initially on 16 August 2020, again on 20 May 2021, and most recently, on 17 and 28 June 2022.  I have had regard to the contents of the three reports that he has prepared as a result of conducting those assessments.[9]

[9] Exhibits 2, 3 and 4, respectively.

94In his first report,[10] Mr Armstrong concluded that your emergent mental health problems were a consequence of the traumatic events you experienced as an adult, although he also noted the compounding effect of a distressing relationship breakup and your father’s cancer diagnosis.  He was then of the view that you presented as mild to moderately depressed and of low intelligence.  In this context he noted that your capacity to problem solve and give verbal expression to any distress was concrete and limited.  He also noted that your comprehension or insight of your mental health problems is naïve at a minimum, and at worst, concrete in nature and that your capacity to engage in healthy coping mechanisms is limited.

[10] Dated 16 August 2020.

95He concluded that you appeared to have developed features of PTSD after being subjected to a frightening armed robbery, as well as a substance abuse disorder.  He noted that whilst you accepted that you have a major drug problem and accompanying mental health issues, your insight surrounding your mental health difficulties is concrete.  He recommended you for a residential program like the REFOCUS Residential Drug Facility as it provided concurrent psychiatric/psychological treatment. In his opinion, you presented with good prospects for rehabilitation and a low risk of re-offending in light of your progress to that point, your acceptance of the need for treatment, your desire to obtain it, and the protection provided by your family who are now more aware of the extent of your problems and fully prepared to support and supervise you in the future.

96In his second report,[11] Mr Armstrong noted that you had, by that time, completed 12 weeks of drug treatment at the REFOCUS Residential Facility.  Since being discharged from that facility, you had sought outpatient counselling on four occasions, and maintained abstinence from all illicit drug use.  You had also maintained part-time employment at the family restaurant. In his view you presented with features of a major depressive episode, and your presentation was complex due to the following reasons:

·Your substance abuse disorder remained in early remission;

·Whilst your PTSD symptoms had somewhat stabilised, you continued to present with features of the condition including hypervigilance and accompanying fear and distress, although there had been some improvement; and

·You presented with features of an intellectual disability which meant that your capacity to regulate emotions was more challenging than it would be for someone of greater intelligence.

[11] Dated 20 May 2021.

97Mr Armstrong concluded his second report by noting that you were vulnerable to a major depressive episode and by recommending a regime of psychological treatment.  In the event that you showed no improvement over four to eight weeks, he recommended that consideration be given to review by a psychiatrist and possibly, the use of antidepressant medication.

98In his third and final report,[12] Mr Armstrong concluded that you were motivated to remain drug free and in sustained remission.  Your ongoing features of PTSD remained.  He shared your treating psychologist’s view that you met the criterion for a major depressive disorder for which antidepressant medication was warranted.  In his view, this condition had been intensified as a result of your father’s death more than 12 months ago and by your compromised ability to grieve due to the difficulties you have in verbalising such distress.

[12] Dated 28 June 2022.

99Mr Armstrong noted a number of relevant matters in relation to the experience that you may have in serving a custodial sentence. As he observed, you have previously held a distorted view of being unsafe and at risk of harm.  Any exposure to hardened, violent offenders in prison will likely only serve to confirm such distorted beliefs and further exacerbate your mental health (PTSD) problems in a prison environment. Furthermore, unlike many other prisoners, you will not be able to adapt to prison in a functional way, as your limited cognitive abilities will mean that you are more likely to become overwhelmed.  Such a stressor will, in Mr Armstrong's opinion, adversely impact on your prognosis for depression. And, your low IQ in verbal and language problem solving will present as a further risk.  You are gullible and naïve and not violently disposed by nature, all of which puts you at risk of being exploited by more sophisticated and violent prisoners while in custody.

100In light of those opinions, I am well satisfied that there is an evidentiary basis for accepting that principles 5 and 6 of Verdins case have been engaged.

Matters in mitigation

101There are a number of other matters in mitigation that you can rely on, Mr Natale.

102By entering early pleas to these charges, you have saved the community the cost and time of a relatively lengthy trial.  The added utilitarian value of your pleas being entered during the currency of the COVID-19 pandemic, when this court is experiencing significant listing pressures and delays in fixing jury trials for hearing, must be acknowledged and duly rewarded.  You are therefore entitled to and will receive an increased sentencing discount as compared to that which would have been afforded in pre-pandemic times.[13]

[13] See Worboyes v The Queen [2021] VSCA 169.

103I consider you to be genuinely remorseful for your criminal conduct, and in particular for involving yourself in the insidious drug trade.  It is not just the fact that you have pleaded guilty that leads me to that conclusion.  The various testimonials from your uncle, sister-in-law and two friends all refer to your sincere regret.[14]  You told Mr Armstrong that you now regretted your decision to become involved, as it had destroyed your life and that of other vulnerable drug users as well.  And in your letter to this court, you acknowledged the harm that your crimes had caused to society and promised to repent by being a more productive and positive member of the community while serving your sentence, and then upon your release.[15]  I accept that you are so motivated.

[14] The written references were tendered as a bundle (exhibit 7).

[15] This letter from Mr Natale was dated 27 June 2022 and tendered as exhibit 6.

104The fact that you have voluntarily undertaken a period of residential drug counselling and treatment and some psychological counselling whilst on bail are each mitigatory considerations in their own right.  But they also provide further support for the fact that you are truly remorseful and wish to rehabilitate.

105As I have already noted, you were released on bail on 28 September 2020 but not into the community, as such.  Some three weeks or so earlier, you had been assessed by the organisation REFOCUS and found suitable for their three-month residential drug and alcohol rehabilitation program, and it was to that facility that you were bailed.  In a letter that was no doubt used for the purposes of your bail application, the residential manager, Ms Czerner, noted the program conditions that every resident had to comply with as follows:[16]

·In the first 28 days, they were not permitted to leave the facility alone for any reason and were not permitted to use any mobile phone or any other type of electronic communication device;

·They must remain abstinent from all drugs, including alcohol, and submit to random, supervised saliva drug screens and breath testing for alcohol;

·They must attend various group and individual programs as directed; and

·As at the time the letter was written, residents were not permitted to receive visitors due to COVID-19 restrictions.

[16] Dated 7 September 2020 and tendered as exhibit 8.

106I was informed by your counsel and have no reason to doubt that you successfully completed that three-month residential drug program.  It is therefore appropriate to take that fact into account in your favour, not just because it demonstrates your motivation to address your drug habit and improve your prospects of rehabilitation, but because of the quasi-custodial nature of that placement.  I have taken that fact into account in accordance with the principles enunciated by the Court of Appeal in cases such as Akoka v The Queen.[17]  It represents a form of punishment in its own right, although it is not as punitive as time spent on remand in gaol and any mitigatory allowance should not be undertaken as a pure mathematical exercise.

[17] [2017] VSCA 214.

107It is to your credit that you successfully completed that program and abided by strict bail conditions over a significant period, all the while staying out of any further trouble with the law and abstaining from any further drug use to this day.

108As Mr Armstrong noted in the last of his reports, since being exited from the REFOCUS program, you have voluntarily engaged in a number of sessions with his psychologist colleague, Ms Allen, although to some degree there has been poor follow-up between sessions partly due to your difficulties in financing them.  Further treatment is recommended and required in her view.

109As to any explanation for your offending, your counsel indicated that it was partly about the money you were being paid, of which he acknowledged the $6,050 found in your possession by police, formed a part, but also about the opportunity to receive free cocaine, a drug for which you had developed a significant addiction and were unable to fund from your own resources.

110I also note that you told Mr Armstrong that your primary motivation for getting involved in this offending was the fact that you had a drug habit that you could no longer afford to finance.  On a secondary level, however, you indicated that after learning of your father’s lung cancer diagnosis, you had conducted research looking for cures and had convinced yourself that a lung transplant, which cost several hundred thousand dollars, was the answer.  You said that you were introduced to Mr Khodher via a cousin who had been supplying you with cocaine previously and to whom you owed a significant drug debt.  You were offered a job with high paying prospects and saw it as a means to pay off your debt and receive free cocaine.  Mr Khodher was initially very generous to you but later became abusive.  Whilst you were afraid of him and considered leaving, you also wanted to please him and demonstrate that you were up to the task.

111In my view, all of that provides a necessary context in which to view your offending but little in the way of mitigation.  Whilst it can legitimately be said that your offending was not driven by pure greed, your decision to become involved and stay involved did have a relatively strong financial element.

112As a result of his assessment and testing of you, Mr Armstrong concluded that your cognitive ability is within the borderline range of intellectual functioning and that your overall thinking and reasoning abilities exceed those of only approximately 4 per cent of individuals your age.  You also impressed him as being somewhat naïve and gullible and less mature than age peers. In light of those matters, I am prepared to accept your counsel’s submission that there is room in your case for a modest reduction in your level of moral culpability for this offending and in the weight to be attached to general deterrence.

113The fact that you have no criminal history of any sort is a significant sentencing consideration.  This lapse, although a very serious one, would, as suggested by your referees, seem to be out of character.  It certainly appears to be at odds with the hardworking, thoughtful and family-orientated person that those who know you well speak of. 

114You have a strong work ethic and a sound employment history.  On leaving school, you commenced a carpenter’s apprenticeship but did not enjoy it.  Before becoming employed in the family restaurant, you worked for six months as a concreter’s labourer and then in a number of warehouses.  Since exiting from the REFOCUS program, you have worked fulltime in the family restaurant.

115You have strong and unwavering support from your family who have variously either personally attended or followed these court proceedings via a WebEx link, with interest.  They are committed to helping you while you serve your sentence and on your release.  They are better informed now about the issues that you face than they were at the time of your offending.  In particular, they are cognisant of the need for you to address your mental health issues through professional counselling and treatment rather than simply by bottling them up or by resorting to self-medication through drug use.

116For the reasons given by the psychologist, Mr Armstrong, and for other reasons, I accept that you will find the service of a custodial sentence very difficult and more onerous than many other prisoners.  The 'other reasons’ to which I refer include the fact that you are not well versed in prison life and will have to undergo at least the first part of your sentence under the restrictive rules which Corrections have had to put in place to deal with the ongoing risks posed by COVID‑19.  Work and educational opportunities are more limited, as are the opportunities for contact visits from family and friends.  As very recent events at MRC have also demonstrated, there is the ever-present risk of contracting the virus and of consequent lockdowns.

117To your credit, you appear to have a positive attitude going forward and I accept that you have a genuine desire to put your time in custody to good use, as difficult as that may be while the pandemic remains with us.

Gravity of the offending

118I now turn to consider the objective gravity of your offending, Mr Natale.

119The offence of trafficking in a drug of dependence in not less than a LCQ is the highest quantitative category in the quantity based statutory hierarchy applicable to trafficking offences.  Put simply, it is the most serious type of trafficking offence under the law of this state.

120As the Court of Appeal has noted, when Parliament fixed the new maximum penalty of life imprisonment for this offence, it was intended to send the clearest message to would-be traffickers, and to sentencing courts, about how sternly large-scale drug trafficking was to be punished.[18]

[18] Quah v The Queen (2021) 290 A Crim R 136, 151 [57] citing Maxwell ACJ in Arico v The Queen (2018) 272 A Crim R 450 at [317].

121By its very nature therefore, any offence of trafficking in not less than a LCQ, must be treated as a very serious offence.  Parliament have reflected that view by fixing such a high maximum penalty and by making it a standard sentence offence, for which the standard sentence is 16 years.[19]

[19] As to sentencing for a standard sentence offence, see [141]-[148] of these sentencing reasons.

122Mr Natale, there are a number of features of the offence that you committed that mark it out as a serious example of this type of offence.

123It is a rolled-up charge as it encompasses two types of drugs not one.

124As appellate courts have noted, the quantity of the drug in any given case is an important but not the only or determinative factor in any assessment of the gravity of the offence at hand.  So, whilst the quantity involved must be given due weight in the sentencing calculus, it must not be allowed to swamp all other sentencing considerations.

125With that caution in mind, I note that the respective quantities of the two drugs here were very significant indeed, in particular the quantity of MDMA.  Whilst the precise quantities cannot be stated with precision in your case, the following can be said.  Based purely on what the police located at the Yuksek property, the applicable statutory thresholds for a LCQ of methylamphetamine and MDMA, respectively, were easily surpassed.  The 24 kg of methylamphetamine equates to 32 times the LCQ threshold for that drug.  And, the 169.9 kg of MDMA represents 169 times the LCQ threshold for that drug.  On any view, they are very significant individual amounts and even more significant when considered as a combined quantity.

126But, unlike Mr Yuksek, your criminality for this offence is not confined to those quantities.  For example, on 9 January 2019, you were personally involved in the supply of 5 kg of MDMA to a member of an interstate drug trafficking syndicate for an unknown sum of money and then, two days later, you delivered an unknown quantity of drugs to another person for an agreed price of $24,850.

127The sheer quantities of the drugs cannot be ignored and take this case not just into the highest quantitative category but well into that category.

128All of that said, I also note that there is no higher statutory threshold quantity for trafficking purposes than LCQ, and so, there is no ceiling to the quantity of drug that can be encompassed by such a charge.  Theoretically, it is infinite.  It must therefore be borne in mind that there will be cases that involve quantities in excess of those in this case, and sometimes well in excess, although I suspect not very often.

129Another relevant factor of your offending is the period over which it occurred.  It is a further differentiating factor between you and Mr Yuksek.  Whereas he was dealt with on a single date basis, your charge of trafficking in a LCQ includes criminal conduct which took place over a period of nearly seven weeks, between 10 January and 1 March 2019.

130As appellate courts have noted, the role played by an offender in the commission of this type of offence is an important consideration for a sentencing court.  In this case, it seems clear that you occupied a position below that of Mr Khodher.  You were not the architect or head of this drug trafficking syndicate.  The evidence, such as it is, does not suggest that you financed the operation or stood to reap any of the profits made from the sale of any drugs.  I accept that you simply did the bidding of Mr Khodher and displayed little, if any, initiative of your own.

131Whilst acknowledging that Mr Khodher was generous and, on occasion praised you, your counsel suggested that there was a bullying element to Mr Khodher's treatment of you, albeit that it did not involve any element of coercion.  I accept that Mr Khodher was a strong influence over you and at times demeaned you.  So much is clear from the content of the intercepted conversation referred to in paragraph 54 of the prosecution opening, in which he was admonishing you in insulting terms for what he saw as your stupidity.

132However, it would seem that there were only a small number of members of this drug syndicate and in that context, your role was a very significant one.  Clearly, Mr Khodher trusted you implicitly and you repaid that trust by willingly doing his bidding.  You immersed yourself in the day-to-day activities of the syndicate in a variety of ways and without your assistance this criminal enterprise could not have operated as it did.  You were not just a storeman as Mr Yuksek was, nor a mere courier.  For example, you were directly involved in the purchase of various items needed to prepare and package drugs for sale; you mixed and prepared drugs in preparation for sale; and you were directly involved in selling drugs on a number of occasions.

133Whilst you took on some additional personal risks in doing what you did, you also provided a measure of insulation to Mr Khodher since he was not required to personally attend Mr Yuksek's property where the drugs were mixed and stored, nor undertake the sales that you did on his behalf.

134Given how enmeshed you were in this criminal enterprise, I have no doubt that you would have had a real appreciation of the very significant quantities of drugs involved.  It was you, after all, who was responsible for mixing and preparing the drugs found by police at Mr Yuksek’s property and it was you who was personally involved in the sale of drugs on 9 and 11 January, respectively. In my view, you must have known that you were involving yourself in a significant criminal venture and that your offending was of a serious nature and would be considered so by the police and the court in the event that you were caught.  There is simply no other interpretation open.  Some support for that view can be found in your concern at seeing police at Mr Yuksek’s property and the efforts you admitted to making to remove your fingerprints from relevant items when you left the Yuksek property on the night before that police attendance. All of those matters to which I have referred are relevant to any assessment of your level of moral culpability for this offence, which I have ultimately concluded is significant even allowing for your cognitive limitations.

135I am also satisfied that you were well paid for the tasks that you undertook.  As your counsel acknowledged, that payment was in the form of cash as well as drugs for your own use (cocaine, not methylamphetamine or MDMA).

136I consider the knowingly dealing with the proceeds of crime charge to be a very serious offence in its own right.  It is a serious example of that type of offence.  Again, I consider your moral culpability to be significant.

137As I have already indicated, I have not taken that conduct into account when assessing the nature and gravity of the trafficking charge.  Whilst the fact that Mr Khodher wanted this money laundered because it derived from his drug trafficking activities provides a context to this proceeds charge, the conduct in which you engaged still involves a separate and additional level of criminality on your part, for which you must be additionally punished.

138A number of matters are relevant to an assessment of the objective gravity of this offence.  Whilst you would appear to have acted as a courier for the personal benefit of Mr Khodher, you did so on multiple occasions and in respect of very significant amounts of money.  So, there were multiple occasions on which you assisted in passing on money to others for money laundering purposes as opposed to a single occasion. And, the total sum involved was very large indeed.  The between dates period alleged for this charge reflects the fact that there were three such transactions.  On 17 October 2018, you handed over $200,000.  Six days later, on 23 October, you handed over a further $1,462,950.  And then, on 6 March 2019, you handed over a further $385,000, after telling the recipient exactly how much money was in the bag.  The total sum involved was therefore $2,047,950. I have no doubt that at the relevant times, you were well aware of how much money you were assisting to launder and of the illegitimate source of that money.  It is illuminating in terms of your attitude and level of moral culpability, that you were prepared to conduct yourself in the way that you did on 6 March 2019, notwithstanding that only five days earlier, you had seen the police searching Mr Yuksek’s property, which you well knew contained very significant amounts of drugs.

139The remaining charge on the indictment, possess drug of dependence, was certainly not a minor example of its type given its rolled-up nature and the amount of cannabis.

140This court was provided with very little information about the related summary offence of possess controlled weapon other than the fact that it relates to an extendable baton found at your house when the police searched it.  I have not been told why you had it and I cannot speculate in that regard.  As controlled weapons go, it is not of the most serious type, but nor is it minor or insignificant.  In the end, I consider it to be neither a serious nor a minor example of this type of offence.

Standard sentence offence

141As I have already noted, the offence of trafficking in a LCQ of a drug of dependence is a standard sentence offence.  The standard sentence is 16 years' imprisonment.

142I note the following in this context.

143As s5A of the Sentencing Act 1991 makes clear, the period specified as the standard sentence is the sentence for an offence that, taking into account only the objective factors affecting the relative seriousness of that offence, is in the middle of the range of seriousness.

144Section 5B(2)(a) obliges the court to take the standard sentence into account as one of the factors relevant to sentence and, by way of reinforcement, s5(2), in its amended form, states that the standard sentence is a matter to which the sentencing court must have regard when imposing sentence.[20]

[20] Specifically, s.5(2)(ab).

145But, as the Court of Appeal made clear in Brown,[21] s5B(3) expresses the legislature’s clear intention that the obligation to take the standard sentence into account should not otherwise affect the sentencing discretion.  It is to be treated as a 'legislative guidepost', having the same function as the maximum penalty.  It does not affect the established 'instinctive synthesis' approach to sentencing and does not require or permit 'two stage sentencing'.  And, it does not otherwise affect the matters which the court may, or must, take into account in sentencing.

[21] (2019) 59 VR 462; [2019] VSCA 286. See also Quah v The Queen [2021] VSCA 164, at [20]-[21] (The Court).

146Brown and a number of subsequent cases have noted that the standard sentence provisions do not require or permit a sentencing court to compare the seriousness of the subject offence with the hypothetical 'middle‑of‑the‑range' offence.

147Further, when fixing a non-parole period in respect of such a standard sentence offence, the court must not fix a non-parole period that is less than 60 per cent of the head sentence unless satisfied that it is in the interests of justice not to do so.

148And, finally, I note that a court must not have regard to sentences imposed in other cases unless they involve standard sentence offences.

The parity principle

149As I have already noted, Mr Yuksek was sentenced by me on 19 May this year.  He pleaded guilty to a single charge of trafficking in a LCQ of a drug of dependence which was based on his role in storing the amounts of MDMA and methylamphetamine which police found at his property on 1 March 2019.

150So, the trafficking charge for which he was sentenced involved a lesser quantity of drugs, a shorter period of offending and a lesser role.  His personal circumstances and those of his family were also different to yours, with each of you being able to draw upon some matters in mitigation that the other was not.

151Unsurprisingly, your counsel did not seek to shackle himself to the sentence imposed on Mr Yuksek, for very understandable reasons.  Strict parity does not arise in your case.  There are a number of reasons for that, chief among them being the different and more serious nature of your offending in relation to the trafficking charge, and the fact that you fall to be sentenced for an additional proceeds offence which must be viewed as serious in its own right and reflected in the overall punishment imposed.

The totality principle

152That said, totality considerations require that there be a sensible level of concurrency as between the individual sentences imposed in respect of the trafficking and proceeds offences.

Other relevant sentencing principles

153In light of the nature and seriousness of this offending, and even allowing for some modest reduction in its significance on account of Mr Natale's level of cognitive functioning, general deterrence is a significant sentencing consideration in this case.

154Denunciation is a very important sentencing factor.

155By the sentence that it imposes today, this court must make it clear that offending of this nature and magnitude will not be tolerated but rather denounced in strong terms and made the subject of significant punishment in order to discourage those in the community who might be minded to act in a similar way.  They must understand that it is simply not worth taking the risk.

156While still relevant, specific deterrence is not as significant a sentencing factor, in my view.  I have reached that conclusion in light of Mr Natale's very good prospects, the positive steps that he has taken whilst on bail and the degree to which he has likely already been personally deterred by his arrest, remand and prosecution for this matter.  It should not be forgotten, however, that Mr Natale's offending was persistent and continued even after he became aware that police had discovered what was occurring at Mr Yuksek's property.  Whilst that development concerned him, he still went on to deal in the proceeds of crime to the tune of $385,000 less than a week later.

157For similar reasons, I consider protection of the community to be another relevant but not prominent sentencing consideration.

158This court must also have regard to Mr Natale's age and prospects of rehabilitation.

159He is still a relatively young man but not a young or even a youthful offender.  On the cusp of turning 30, he has much of his life still ahead of him and can make something of it if he chooses.  He falls to be sentenced as a first-time offender who has clearly demonstrated an acceptance of personal responsibility and remorse for his actions. 

160He has sought out and undergone treatment for his drug addiction and some psychological counselling for his mental health issues.  I do note, however, that the psychologist, Mr Armstrong, has noted previously that Mr Natale had a less than fully developed insight into his mental health problems and that his capacity to engage in healthy coping mechanisms is limited.

161Mr Natale has, to a degree, already been personally deterred.  He has a good work ethic and a consistent employment history.  And he continues to enjoy very strong support from his family who have rallied around him and can provide accommodation and employment on his eventual release.

162Mr Armstrong considers Mr Natale to be motivated to remain drug free and to have a positive prognosis.  However, he also notes in his last report that although Mr Natale has already undergone some psychological counselling with his colleague Ms Allen, he still requires mental health interventions in the medium and long term. [22]  In a similar vein, Ms Allen has said that Mr Natale still needs ‘significant psychological support’.[23]

[22] See report of 28 June 2022 (exh 4) at pages 4.7.

[23] Ibid, at page 3.8

163All relevant matters considered, I have reached the conclusion that Mr Natale’s prospects of rehabilitation are very good.

164The law also requires that this court justly punish Mr Natale for his serious criminal conduct.  A just punishment must reflect not only the circumstances of his offending but also his personal circumstances and any matters in mitigation upon which he can rely.  Individualised justice is what is called for.  At the end of the day, however, there is no gainsaying that the nature and seriousness of this offending warrants a very substantial sentence of imprisonment.

Sentences imposed in other standard sentence offence cases

165As s5B(2)(b) of the Sentencing Act 1991 makes clear, a court sentencing for a standard sentence offence must only have regard to sentences previously imposed for the offence as a standard sentence offence in relation to the sentencing for which this section applied.

166There are only a relatively small number of such cases to date, certainly at appellate level.[24]  Those appellate cases provide some very general assistance but are by no means to be viewed as precedents.

Statements of general principle

[24] Those cases are Quah v The Queen (2021) 290 A Crim R 136; [2021] VSCA 164; DPP v Kumas; Kumas v DPP [2021] VSCA 215; and Dimovski v The Queen [2022] VSCA 6.

167I have already referred to a number of statements of general principle made by the Court of Appeal in relation to the inherent seriousness of the offence of LCQ trafficking by reference to its place at the top of the statutory quantitative based hierarchy and the applicable maximum penalty.

168I now wish to refer to what that court has said in relation to the need for 'sentencing relativities' between sentences imposed for LCQ trafficking offences and sentences imposed for commercial quantity ('CQ') trafficking offences.

169In Gregory v The Queen ('Gregory'),[25] the court indicated that sentences well into double figures would be well within range for the upper category of CQ trafficking and that there was a need to maintain 'appropriate relativities' between the different categories of trafficking offences.  Subsequently, in both Rahmani v The Queen ('Rahmani')[26] and Quah v The Queen ('Quah')[27], counsel appearing for the Director submitted that the need for an uplift in sentences for upper end CQ trafficking (to which the maximum of 25 years applies) meant that sentences for LCQ trafficking (to which the maximum of life imprisonment applies) would 'likewise be expected to increase'.  That argument was accepted by the court in Quah.[28]

[25] (2017) 268 A Crim R 1.

[26] [2021] VSCA 51.

[27](2021) 290 A Crim R 136; [2021] VSCA 164.

[28] Ibid, at [51]-[57].

170Those statements by the Court of Appeal are, and were intended to be, of assistance to sentencing judges of this court.

Need to factor in effect of decision in Worboyes

171However, I note that the decision in Gregory was handed down in 2017, well before the COVID-19 pandemic occurred. Accordingly, any reference in that case to the need for sentences of a particular magnitude for upper end CQ trafficking must be viewed in light of the later observations of the court in Worboyes and a number of subsequent cases as to the twin mitigating effects of a plea entered and time served during the course of the pandemic.  So care must be taken in considering the ‘sentencing relativities’ point in that context.

172While on this issue, I note that of the Court of Appeal cases that have involved a consideration of standard sentence offence examples of sentencing for LCQ trafficking, Quah involved a sentence imposed at first instance in pre-pandemic times, whereas both Kumas[29] and Dimovski[30] involved the court re-sentencing an offender during the course of the current pandemic.

[29] [2021] VSCA 215.

[30] [2022] VSCA 6.

173In Kumas, the Director referred the court to six cases in which an offender had been sentenced in the County Court for a LCQ trafficking offence after the enactment of the standard sentence regime.  The sentences imposed in those first instance cases ranged from eight to 15 years.[31]  Of those six cases, one was Quah itself, later upheld on appeal.  Of the remaining five cases, four involved sentences imposed in 2019[32] and therefore in pre-pandemic times, while one was imposed on 20 March 2020,[33] at the very outset of the pandemic and well before the decision in Worboyes was handed down.

Submissions on penalty

[31] A breakdown of the sentences for each case can be found at footnote 31 on page 16 of the Court’s judgement in Kumas.

[32] Lamberti, Kha, Nguyen, and Al Janabe.

[33] Dong.

174In his submissions on penalty, senior counsel who appeared for the defence, Mr Morrissey, acknowledged the seriousness of this offending but also sought to emphasise the combination of mitigating factors that arise for consideration. Whilst accepting that this court had no alternative but to impose a significant sentence of imprisonment with a non-parole period, he urged the court to fix a very lenient sentence with a disparate non-parole period of less than 60 per cent of the head sentence as it was not, in all the circumstances, in the interests of justice to be bound by the strictures of s11A(4)(c) of the Sentencing Act 1991.

175For his part, senior counsel who appeared on behalf of the prosecution, Mr Rochford, submitted that this was an example of high-level drug trafficking given the quantity of the drugs involved and the circumstances of the offending.  And, he submitted, the proceeds offence was itself very serious given the large sum of money to which it related.  General deterrence and denunciation were very important sentencing considerations as too was specific deterrence.  A significant term of imprisonment was required and there was simply no basis for fixing a non-parole period of less than 60 per cent in all the circumstances.

Analysis

176I have had regard to the submissions of each of the parties, for which I am grateful.  As is clear from what counsel have said, this is a case that involves very serious offending committed by someone of previously good character and for whom there are a number of other significant mitigating factors that need to be considered in the mix, including an early plea entered during the COVID-19 pandemic and the onerous nature of a custodial sentence for someone with Mr Natale’s personal characteristics.

177Whilst the case of Dimovski involved a similar quantity of methylamphetamine to that found by police in this case,[34] it did not also involve an even larger and additional quantity of another drug or offending of the scope and magnitude of the offence of LCQ trafficking which Mr Natale carried out.  I note that neither party put forward any case said to be comparable to the present.  That is not surprising given the particular circumstances of this case and of this offender.  As always, there are significant limitations involved in any exercise that involves looking at the sentences imposed in other cases.  None of the other cases to which I have made reference are identical or on all fours to the present case.  As between this case and others, the circumstances of the offending and of the offender vary enormously and cut both ways.  Ultimately, of course, I must engage in a process of individualised justice in which the focus must be and remain on the particular circumstances of these offences and of this offender.

[34] In that case, it was 25.4 kilograms or 33 times a LCQ.  Here it was 24 kilograms or 32 times a LCQ.

178Having undertaken that task, and after carefully considering, balancing and weighing all of the relevant considerations raised by this case, I have determined to impose the following sentences.

Sentence

179Mr Natale, on Charge 1, for the offence of trafficking in a large commercial quantity of a drug of dependence, you are convicted and sentenced to a term of 15 years’ imprisonment.

180On Charge 2, for the offence of knowingly dealing with the proceeds of crime, you are convicted and sentenced to a term of five years’ imprisonment.

181On Charge 3, for the offence of possession of a drug of dependence, you are convicted and discharged.

182On summary Charge 13, for the offence of possess a controlled weapon without lawful excuse, you are also convicted and discharged.

183The sentence of 15 years imposed for Charge 1 will be the base sentence.

184I order that 18 months of the sentence imposed for Charge 2 is to be served cumulatively with the sentence of 15 years imposed on Charge 1.

185The total effective sentence is therefore one of 16‑and‑a half‑years.

186In the particular circumstances of this case, I consider it appropriate to provide Mr Natale with the opportunity for a lengthy period of supervised release in the community by way of a suitably tailored parole period.

187With that in mind and in order to foster and encourage his future rehabilitation, I fix a non-parole period of 10 years and three months.  This is as low as the non-parole period can be fixed in my view if all of the applicable sentencing considerations are to be appropriately recognised and weighted.  To go below this figure would seriously risk undermining the interests of justice rather than advance them.

Pre-sentence detention

188Pursuant to s18 of the Sentencing Act 1991, I declare that Mr Natale has served a total of 88 days pre-sentence detention, not including today’s date, in respect of the sentence he has received today.  I order that such period is to be reckoned as already served under that sentence, and I further order that the declaration and its details be entered in the records of this court.

Section 6AAA indication

189Pursuant to s6AAA of the Sentencing Act 1991, I give the following indication:

190But for his pleas of guilty to the two offences for which he has received terms of imprisonment today, Mr Natale would have been sentenced to a term of 24 years with a non-parole period of 16 years for those offences.

Ancillary orders

191I grant each of the two disposal orders in the terms sought by the prosecution, pursuant to s78(1) of the Confiscation Act 1997. I also grant each of the two forfeiture orders in the terms sought by the prosecution, pursuant to s33(1) of the Confiscation Act 1997 and s9(1) of the Control of Weapons Act 1990, respectively.  In exercising my discretion in favour of making each of those orders, I have had regard to the fact that the defence did not oppose any of these applications.

Section 89DI Declaration

192As s89DI(1) of the Sentencing Act 1991 states, on the conviction of a person by a court for a serious drug offence, the court must make an order declaring the person to be a serious drug offender. The term “serious drug offender” used in that section has the same meaning as it does in s3(1) of the Confiscation Act 1997.  In that definition section, specific reference is made to an offence under s71 of the Drugs, Poisons and Controlled Substances Act 1986, namely trafficking in a drug of dependence in not less than a large commercial quantity.

193Accordingly, it is appropriate, indeed mandatory to make such a declaration in the circumstances of this case.  In that event, I declare that as a result of being convicted of the offence of trafficking in a drug of dependence in not less than a large commercial quantity alleged in Charge 1 of indictment L11778065.1, Mr Natale is a serious drug offender.

194Let me be very clear about this.  Mr Natale has just been declared to be a serious drug offender but subsequent to him having been sentenced.  He has not been sentenced today as a serious drug offender.

Other matters

195Mr Georgiou, is there anything that you wish to raise in respect of the sentence or reasons for sentence at this stage?

196Mr GEORGIOU:  Your Honour, there's just one very minor matter.  I believe that Mr Natale, although being a triplet, is not an identical triplet.

197HIS HONOUR:  All right.  Thank you.  Anything additional to that?  No?  Thank you.

198Mr GEORGIOU:  No, Your Honour.

199HIS HONOUR:  Mr Pickering, anything to raise from the prosecution perspective?

200MR PICKERING:  No, Your Honour.

201HIS HONOUR:  Mr Georgiou, do you want to briefly utilise the Web-Ex link to confer with your client after I leave the Bench?

202MR GEORGIOU:  Perhaps, Your Honour.  That would be appreciated.

203HIS HONOUR:  You have leave to do that.  

204MR GEORGIOU:  Thank you.  Thank you, Your Honour.

205HIS HONOUR:  Counsel, in the unusual circumstances of this case, given what has occurred, I am minded to provide each of the parties, immediately after I leave the Bench, through my associate, a copy of my sentencing reasons in draft form.  I say draft form because they are not unrevised until such time as they come back from VGRS and then, after being revised in a limited way, they become my revised reasons.  But I consider it appropriate in the circumstances to provide the parties with the benefit of my draft, unrevised reasons for sentence, and you will have that shortly, when I leave the Bench.  In due course, they will be revised and ultimately published, and of course, you will bear that in mind and treat the draft sentencing reasons in the proper way.  Thank you.

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