DPP v Braione

1. The circumstances of your offending were set out in the Summary of Prosecution Opening for plea dated 14 February 2025, Exhibit 1 at your Determination hearing.
2. Your offending took place on two occasions, 31 March 2022 and 4 May 2022. At the time of your offending you were aged 34 and residing at an address in Snowdon Close in Keilor Downs. You had previously been in a relationship with LM, with whom you shared custody of your two children. At the time, you used two motor vehicles, your Ford Ranger and Ms LM's Toyota Corolla.
3. Your offending on 31 March 2022 is captured by Charge 1 on the Indictment, trafficking in a commercial quantity of methylamphetamines, namely 239.8 grams of a mixture containing methylamphetamines, at Keilor Downs on this date. On this day, police were conducting covert surveillance which involved you. Shortly after 8.46 am, you were observed to leave the Keilor Downs property and get into your Ford Ranger and drive to another address in Keilor Downs. You pulled up and parked beside Ms LM's Toyota Corolla which was then parked on the street. You accessed the boot of the Toyota Corolla before driving back to your property in your Ford Ranger. At about 11.00 am, you left your house again in your Ford Ranger and drove back to the other Keilor Downs' location, where

Ms LM's Toyota Corolla was still parked. You got out of your vehicle and again accessed the boot of the Toyota Corolla before returning to your car and driving off. A few minutes later, you were observed driving along Wimmera Cresent, Keilor Downs, with Mirnes Kunto following closely behind in his black Range Rover. You both parked and exited your respective vehicles and briefly met beside the vehicles, where you supplied Mr Kunto with a zip-lock bag containing the methylamphetamine. 4. Following this exchange, you and Mr Kunto drove your respective vehicles in separate directions, with police maintaining surveillance of Mr Kunto's vehicle and subsequently intercepting him. He was ultimately arrested and the vehicle was searched. Ultimately, police found a plastic tub located in the front-passenger footwell of the vehicle. Inside the tub were items which included a white cotton bag, inside of which were two large zip-lock bags, each containing a crystal substance which was subsequently seized by police. Those two clear zip-lock bags and the contents were consequently analysed forensically, and the first zip-lock bag was found to contain 239.8 grams of methylamphetamine with a purity level of 85 per cent. Your DNA was detected on a swab taken from the back, hence your liability for Charge 1 on the Indictment, trafficking in a commercial quantity of methylamphetamines, namely 239.8 grams. The second zip-lock bag contained 249.3 grams of methylamphetamine with a purity level of 86 per cent. You were not charged in relation to this second zip-lock bag. By way of completeness, I was informed by the prosecution that Mr Kunto was sentenced after pleading guilty to one charge of trafficking in a large commercial quantity of methylamphetamine, in relation to the drugs found in the car, to a sentence of 9 years and 10 months' imprisonment with a non-parole period of 6 years and 8 months' imprisonment. 5. Your offending on 4 May 2022 is captured by Charges 2, 3, and 4 on the Indictment - two charges of trafficking in a commercial quantity of methylamphetamines and one charge of possession of cocaine. On this day, police were again conducting covert surveillance nearby your residence. At about 9.30 am, you were observed walking in Keilor Downs. At about 9.40 am, you were observed walking along Wanaka Drive and not carrying anything. Police surveillance then lost sight of you. While out of police sight, you collected a black-and-grey sports bag from an unknown location on Wanaka Drive. Shortly after, you were observed by police walking again on Wanaka Drive, now carrying the sports bag, and you travelled to Odessa Avenue, where you stopped and took a seat at the bus stop. You placed the bag you were carrying between your legs. At about 9.54 am police, approached you and conducted a search of you and the sports bag. Inside the sports bag, police found a large zip-lock bag containing methylamphetamine which was subsequently seized. Subsequent forensic analysis by police revealed that this large zip-lock bag found in the sports bag contained a total of 1000.2 grams of methylamphetamine with a purity level of 82 per cent. This forms the basis of Charge 2 on the Indictment. 6. You were arrested by police and transported to the Fawkner Police Station for questioning, where you exercised your right not to comment. 7. Later that morning at about 11.55 am, police executed search warrants at your property in Snowden Close, Keilor Downs. Various items were located there, including a total of $75,895 cash in Australian currency in various locations at the property, including in the kitchen, in your bedroom, and in a plastic bag in bushes in the back yard. Various other items were located, including sets of scales and a cash counter, in your bedroom wardrobe. Police also located a key to

Ms LM's Toyota Corolla in your bedroom. 8. Shortly after, at about 12.24 pm, police used that key to open and search

Ms LM's Toyota Corolla, which was parked on Swindon Crescent in Keilor Downs. Concealed in the boot of the vehicle, in a compartment under the spare tyre, was a Woolworths' shopping bag which contained multiple zip-lock bags of a white crystalline substance. The twelve clear zip-lock bags found in the Woolworths' shopping bag were subsequently forensically examined, and nine of the zip-lock bags were found to contain methylamphetamine with a total weight of 1129.4 grams of methylamphetamine, hence your liability for Charge 3 on the Indictment, and two zip-lock bags were found to contain cocaine, with a total weight of 36.7 grams, hence your liability for Charge 4 on the Indictment. 9. Having been arrested on 4 May 2022, you remained in custody until being granted bail at the Melbourne Magistrates' Court on 31 August 2022, after spending a period of 120 days in custody in relation to this matter. 10. For the past 2 and a half years or thereabouts, you have been on bail for these matters. I was informed by the prosecution at your Determination hearing that you were initially charged with a large commercial quantity of methylamphetamines given the quantities to which I have referred. The procedural chronology contained in the Summary of Prosecution Opening sets out the protracted chronology of this matter. I note there were multiple committal mentions before a committal hearing in May 2023, and then multiple case assessment hearings in the County Court before the matter ultimately resolved to the charges on the Indictment on

30 September 2024, seven days prior to the listed trial date, at which point this matter was referred into the Drug and Alcohol Treatment Court for Determination.

1. The charges to which you have pleaded guilty are extremely serious, and as reflected by the relevant maximum penalties, in particular, with regards to the offence of trafficking in a commercial quantity of drugs. Charges 1 to 3 involve methylamphetamine. Given the now well-known adverse impacts of methylamphetamine on the broader community, those individuals who choose to engage in trafficking significant quantities of this pernicious substance can expect significant punishment. The sentencing purposes of denunciation and general deterrence are prominent sentencing purposes in such cases. As is often stated, quantity is a highly relevant consideration in sentencing for trafficking offences. Other things being equal, the greater the quantity trafficked, the more serious the offence.[1]
2. Charge 1 involved the trafficking by you of 239.8 grams of mixed methylamphetamine at 85 per cent purity, with 203.83 grams pure, representing approximately four times the relevant commercial quantity threshold for pure methylamphetamine. Charge 2 involved the trafficking by you of just over 1 kilogram of mixed methylamphetamine of 80 per cent purity, with 820.16 grams of pure methylamphetamine, representing sixteen times the relevant commercial quantity threshold for pure methylamphetamine. Charge 3 involved the trafficking by you of over 1 kilogram of mixed methylamphetamine at a purity of 79 to 83 per cent, thus representing approximately four-and-a-half times the commercial quantity mixed threshold.
3. On any analysis, the quantity of methylamphetamines trafficked by you described by your counsel, Mr Papas, as a very large amount, is very significant and is capable of causing enormous grief in the broader community. Globally, across two days in March and May 2022, you were involved in trafficking almost 2.5 kilograms of methylamphetamine. Your conduct referable to Charge 1 involves active behaviour on your part - passing a quantity of methylamphetamine to another individual involved in trafficking activity. Your conduct in relation to Charge 2 likewise involves active conduct on your part, travelling around Keilor Downs and being located at a bus stop with a bag containing in excess of 1 kilogram of methylamphetamine in zip-locked bags. The methylamphetamine located in the Toyota Corolla was located by police on execution of a search warrant while you were in custody. While not, therefore, as active as the conduct referable to the other charges, the significant quantity, in excess of 1 kilogram of methylamphetamine located, is self-evidently serious. Likewise, the 36.7 grams of cocaine found in the vehicle is not an insignificant quantity, representing twelve times the relevant trafficable quantity threshold.
4. Your conduct extended over two separate dates, on 31 March and 4 May 2022. However it was not alleged by the prosecution that you were actively engaged in trafficking activity for the period extending between those dates.
5. Overall, given the quantities, purity levels and overall circumstances of the offending captured in particular by Charges 1, 2 and 3, these must in my view be seen as serious examples of the crime of trafficking in a commercial quantity of methylamphetamines. Indeed your counsel Mr Papas described your offending as representing high level trafficking. The type of drug trafficked in my view is relevant to an assessment as to the objective seriousness of the trafficking charges in particular. While the relevant legislation does not distinguish between different categories of drugs in respect to the harm caused, or dangerousness, courts have recognised in particular the serious nature of trafficking in methylamphetamines, given the harm caused.[2] There was in my view a self-evident aspect of commerciality to your offending, given the quantities of drugs involved, their separation into separate zip-lock bags, and the quantity of cash located at your residence, noting that the forfeiture application by the prosecution in relation to the amount of $75,895, is not opposed by you.
6. While, as I will later indicate and I accept you were in the grip of drug dependency at the time, the quantity and circumstances of your offending is far too great in my view to be explained simply by your drug dependency. The culpability of an offender motivated by financial gain will be higher than one whose only motive was to fund their addiction. In all the circumstances, the level of your culpability must be seen as significant in this case. You have a prior conviction dating from 2018 for cultivating cannabis, for which you received a community correction order. This relevant prior conviction elevates to some degree your moral culpability for the offending now before me, as you must surely have known, as a result of your prior court appearance and the penalty imposed, of the significant consequences of criminal involvement with illicit substances. That you would again involve yourself in offending with regards to illicit substances does elevate to some degree your moral culpability.

1. You are currently 38 years of age. According to clinical psychologist, Carla Lechner, who assessed you on 19 November 2024 for the purposes of this matter, you present with a:

"... long-standing and chronic drug addiction that has arisen in the setting of exposure to multiple adverse childhood experiences that have contributed to [your] substance dependencies and underlying mental health problems."[3]

1. You are one of three children born to your parents, who separated when you were aged between 7 and 8 years, in the context of domestic violence perpetrated by your father. You report being close to your mother, your older sister, and your twin sister. I note in that regard that the three women to whom I have just referred were present at your determination hearing before me.
2. Your contact with your biological father following your parents' separation was short-lived and you report now having no contact with him. Your mother apparently worked multiple jobs and was often absent from home during your formative years, in order to financially provide for the family after the separation of your parents.
3. Your mother eventually re-partnered with a man who would become your stepfather when you were about 14 years old.
4. Your stepfather, who assumed a father-figure role in your life at a critical stage of your upbringing, was clearly a problematic influence upon you. He was apparently engaged in drug cultivation and drug dealing, and introduced you to this criminal activity and his associates. I note that you referred in your assessment with Drug and Alcohol Treatment Court clinical adviser, Ms Krishna Jones, to the fact that you first used amphetamine at the age of 15, after your stepfather gave it to you. You also reported first using cocaine at the age of 17, in the context of being introduced to it by your stepfather. You have reported leaving school at about the age of 16, in Year 10, and initially commenced a cabinetmaking apprenticeship. You moved in with your stepfather and in return for not paying rent or board you were expected by him to contribute to the drug cultivation and drug-dealing activities conducted by your stepfather and his associates.
5. You have reported that at about the age of 18, you moved out of your stepfather's house following a disagreement, but a few months later received a call from one of his associates to check on your stepfather's welfare. You ultimately found your stepfather deceased at a grow house within his then residence. You were asked by your stepfather's associates to clean up the residence in anticipation of police attendance, and to move your stepfather's body and remain with him until the ambulance and police arrived. You have reported being physically ill as you attended to these tasks, and you have reported experiencing flashbacks with intrusive memories about this event. You described to psychologist Carla Lechner your stepfather as being a mentor and friend.
6. In terms of your substance-use history, you have reported first smoking cannabis from the age of 14 or 15. As I have indicated, your introduction to amphetamine at the age of 15 came at the hands of your stepfather, as did cocaine at the age of 17. Your reported first use of methamphetamine at the age of 17 or 18 does correspond with your criminal involvement with your stepfather and his ultimate demise. You have reported to Ms Lechner that your drug use escalated after the death of your stepfather.[4]
7. You met your first significant romantic partner, Ms LM, while in high school. In 2017, she fell pregnant with your first child, X, who is now aged six. You have another child with Ms LM, V, now aged four.
8. You have one prior conviction which dates from 2018. While you ultimately completed the Community Correction Order which was imposed for that offending, you have reported that therapeutic interventions at around this time did not succeed in ridding you of your addictions. You have reported engaging in drug and alcohol counselling while on bail for that matter through the Daily Planet Rehabilitation Centre, which as evidenced by the ABC news article tendered on your behalf and marked as Exhibit "J", had problematic aspects with regards to the credibility of this service. It appears that, save for this period of rehabilitation and the completion of the Community Correction Order, you have not been successful historically in obtaining appropriate treatment for your substance-abuse problems.
9. Your daughter, V, was born in 2020, when you and Ms LM were still together and living in Pascoe Vale. You apparently experienced depressive symptoms following your daughter's birth, spent time away from the family environment, started associating with other negative peers, and your problems with regards to substance abuse again escalated. You apparently commenced heavy drug use approximately 18 months prior to the current offending, taking multiple Xanax a day, in addition to using multiple grams of cocaine daily and up to 2 grams of methamphetamine each day. According to clinical advisor, Krishna Jones, in her report dated 6 January 2025, at the time of your offending you would have satisfied the diagnostic criteria for a diagnosis of a substance use disorder which was severe in nature.[5]
10. According to Ms Lechner, you were raised in a dysfunctional family environment characterised by your father's violence, parental separation and emotional unavailability on your mothers' part, and adverse childhood experiences that led to the development of symptoms of a complex post-traumatic stress disorder that ultimately undermined your social, emotional and vocational development.[6] When your mother re-partnered with a man who took an interest in you, you were vulnerable to this man's influence and exposed to a criminal lifestyle. You were therefore involved with criminal activities at a young and impressionable age.[7] You were emotionally attached to your stepfather and were traumatised by finding him deceased in a grow house. You developed additional symptoms of post-traumatic stress disorder and your drug use escalated. According to Ms Lechner, your offending occurred in the context of ongoing mental health issues and increasing drug use as a means of self-medicating, a vicious cycle which lead to a worsening of symptoms.[8] You reported that your drug use was escalating at the time of the offending now before me and that you were selling drugs in order to support your addiction.
11. Importantly, according to Ms Lechner, your exposure to a criminal lifestyle at an impressionable and vulnerable time had an impact on your moral development, such that you were able to rationalise your subsequent involvement in criminal activities as a legitimate lifestyle. According to Ms Lechner therefore, "there is a clear nexus between [your] upbringing in [your] adolescent years and [your] offending behaviour". According to Ms Lechner, at the time of your offending, in addition to suffering from a substance use disorder, you were suffering from symptoms of complex post-traumatic stress disorder.[9] These symptoms date back to your childhood, with your use of drugs providing you with the means of avoiding these symptoms.[10] According to Ms Lechner:

"[Your] involvement in trafficking is inextricably linked with [your] escalating use of drugs in the context of unresolved post-trauma symptoms. As [your] drug use escalated, [your] need to support [your] addiction also increased. [You] lacked the skills to fund [your] habit in a legitimate way hence [you] fell into a habit learned in [your] teenage years."[11]

1. Following your arrest on these matters on 4 May 2022, you spent some 3 and a half months in custody before being bailed. You have now been on bail for an extended period of time. I am satisfied overall that you have made excellent rehabilitative progress within this period of time.
2. Following your release on bail, you spent some 3 months at the Hader Clinic, where you underwent formal detoxification and residential rehabilitation. Following your placement at the Hader Clinic, you spent a period of time at a transitional house in Essendon. From October 2023, you commenced one-on-one counselling with alcohol and drug counsellor, Amanda Brown, making good progress with regards to your recovery. I was informed that during this period you also severed ties with drug-using friends and associates. While you have reported to

Ms Lechner a couple of lapses, I accept you have been very committed with regards to your recovery efforts, and you have been, it seems to me, conscientious in developing a good life for yourself and your family. 3. A significant amount of plea material was tendered on your behalf documenting this positive trajectory on your part. From the middle of 2023, you have been working with Bartolo Concreting, and the reference from Mr Giacinta Micallef dated 30 September 2024[12] describes you in glowing terms. Since 2023, you have been volunteering with the organisation Homeless Aid, with the director and founder of this organisation, Mr Majed El-Ali, also writing a glowing reference[13] with regards to your substantial weekly volunteering commitments for almost three years with this organisation. Significantly, Mr El-Ali was also present at your Determination hearing, such is his apparent level of regard for you. 4. From 18 April 2024, you have engaged in one-on-one consultations with psychologist, Kyle Miller, as evidenced from Mr Miller's letter dated 10 October 2024[14]. 5. After what was no doubt a difficult period of time, I was informed that you have reconnected with extended family and now have the love and support of them. I note in that regard that your mother and sisters were present in court at your Determination hearing, and various character references were provided to the Court on your behalf from your family. 6. You met your current partner, ER, after completing your period of intensive rehabilitation in 2023. Ms ER was also present at your Determination hearing and provided a character reference dated 12 February 2025[15]. Ms ER gave birth to your son in August 2024. You live as a family in a townhouse in Keilor East, with a separate room set up for your two older children, X and V, with whom you share custody with their mother 50 per cent of the time. Prior to giving birth, Ms ER worked part-time in the area of pathology while also studying to be a nurse. In addition to the practical supports offered by you, your immediate family rely upon the income from the concreting job to enable you to live as a family in the townhouse. 7. Your rehabilitative efforts since being bailed on 31 August 2022 are commendable, and particularly having regard to your difficult upbringing, your life circumstances now appear to be almost unrecognisable from those at the time of your offending. According to Drug and Alcohol Treatment Court Case Manager, Isabella Claassen, in her report dated 27 January 2025,[16] since being on bail you have ceased associations with antisocial peers, made prosocial friends with people at your gym and through your children's extracurricular activities. You present as highly motivated with regards to your rehabilitation.

Matters relevant to the Drug and Alcohol Treatment Court Determination hearing

1. I turn now to matters relevant to the making of a Drug and Alcohol Treatment Order. The purposes of a Drug and Alcohol Treatment Order are to facilitate your rehabilitation, to take account of your drug or alcohol dependency, to reduce the level of criminal activity associated with drug or alcohol dependency and to reduce your health risks associated with drug or alcohol dependency. Importantly, if I am considering making such an order, I must regard your rehabilitation and the protection of the community from you, achieved through your rehabilitation, as having greater importance than other sentencing purposes, such as denunciation and general deterrence. Importantly, this does not render redundant matters such as denunciation and general deterrence. Rather, s18X(2) of the Sentencing Act 1991 essentially gives prominence or priority to community protection through rehabilitation.
2. The criteria for the making of a Drug and Alcohol Treatment Order are set out in s18Z of the Sentencing Act 1991. Of relevance to this hearing, I may only make a Drug and Alcohol Treatment Order if I am satisfied on the balance of probabilities that you are dependent on drugs or alcohol and that your dependency contributed to the commission of the offending. Furthermore, I may only make a Drug and Alcohol Treatment Order if I consider that otherwise it would be appropriate to impose a sentence of imprisonment of no more than four years. Finally, I must not make a Drug and Alcohol Treatment Order unless satisfied in all the circumstances that it is appropriate to do so.
3. Your counsel essentially submitted that a lengthy Drug and Alcohol Treatment Order would represent an appropriate outcome in your case; that you satisfy the dependency and contribution criteria, and that due to the various mitigatory factors, the Court otherwise could appropriately impose a sentence of imprisonment of no more than four years. It was submitted on your behalf that you have made commendable rehabilitative progress whilst on bail over an extended period of time, a return to custody now would be catastrophic to both yourself and your immediate family, and you have been found suitable for a Drug and Alcohol Treatment Order by both Drug and Alcohol Treatment Court assessors. In contrast, the prosecution submitted that it was not open to impose a Drug and Alcohol Treatment Order in your case, primarily on the basis that a sentence of four years' imprisonment or less would be manifestly inadequate, having regard to all of the circumstances but in particular the seriousness of your offending. Issue was also taken with the contribution criteria given the nature and seriousness of the offending.
4. Turning firstly to the dependency criteria, having regard to all of the circumstances of your case, including your lengthy personal history of drug dependency as reported to various experts, your reported daily use of methylamphetamine, GHB, cocaine and Xanax tablets in the period leading up to your arrest, and having regard to the opinion of Drug and Alcohol Treatment Court Clinical Advisor Krishna Jones in her report dated 6 January 2025,[17] that you would have satisfied diagnostic criteria for a diagnosis of substance use disorder at the time of the offending which was severe in nature, and finally, having regard to the prosecution concession that the dependency criteria had been established in your case, I am satisfied on the balance of probabilities that at the time of your offending you were dependent on drugs or alcohol.
5. Turning now to the contribution criteria - the prosecution in this case submitted that the nature and seriousness of your offending, and in particular the significant commercial aspect to your offending, posed a barrier to the contribution criteria being met. As I indicated in argument at your Determination hearing, I am bound by the wording of s18Z(1)(c)(II),[18] namely I must be satisfied on the balance of probabilities that your dependency contributed to the commission of the offence. In my view, there is nothing in the wording of this provision, nor is there anything in the secondary materials relevant to this provision, which would justify a qualification being placed upon the contribution criteria that is simply not there. In my view, there must be some causal connection between your drug dependency and the offending now before me, such that your dependency contributed to the offending. Your dependency need not be the sole or primary contributing factor to the commission of the offending. Whilst self-evidently your offending had a significant commercial aspect, such that your drug dependency could not on its own explain your offending, I am satisfied in all the circumstances of your case on the balance of probabilities that your longstanding drug dependency did indeed contribute to the commission of the offences now before me. Clinical psychologist Carla Lechner was specifically asked to provide her opinion on any connection between your drug dependency and the commission of the offending, concluding,

"Mr Braione's involvement in trafficking is inextricably linked with his escalating use of drugs in the context of unresolved post-trauma symptoms. As his drug use escalated, his need to support his addiction also increased. He lacked the skills to fund his habit in a legitimate way, hence, he fell into a habit learned in his teenage years".[19]

Notably, Ms Lechner's opinions were unchallenged by the prosecution.

1. I turn now to consideration of the "four year criteria". As I have stated, I may only make a Drug and Alcohol Treatment Order if I consider that otherwise it would be appropriate to impose a sentence of imprisonment of no more than four years. In deciding whether it would otherwise be appropriate to impose a sentence of imprisonment of no more than four years, I have taken into consideration various matters. I have considered of course the relevant maximum penalties, in particular, the maximum penalty for trafficking in a commercial quantity of methylamphetamines, 25 years' imprisonment. I have taken into consideration the nature and gravity of your offending as I have previously explained. I have taken into consideration your level of culpability for your offending. I have concluded in that regard that whilst your culpability remains significant, it is reduced due to the particular circumstances of your disadvantaged background and its impact upon your offending, in accordance with the well-known Bugmy principles.[20] Again referring to the opinions of Ms Lechner, which were unchallenged by the prosecution, in her view there is a clear nexus between your upbringing in your adolescent years and your offending behaviour.[21] According to Ms Lechner, you suffer with symptoms of complex post-traumatic stress disorder which date back to your childhood, with your longstanding use of drugs providing you with a means of avoiding these symptoms.[22] According to Ms Lechner your offending is "linked with your drug addiction, underlying and unresolved mental health issues and exposure to role models in which criminal behaviour was viewed as the norm".[23] In accordance with Bugmy principles, you are entitled to full weight to be given to your deprived background, and given the opinions of Ms Lechner with regard to the nexus between your background and the offending, you are entitled to what is often referred to as a specific Bugmy allowance. As the authorities make clear, each case is necessarily fact specific, and the weight to be attached to a reduction in an offenders moral culpability pursuant to the Bugmy principles depends upon the individual circumstances of the offender, the nature of the offending, and the asserted connection between the two. I am satisfied that your personal history contextualises both your drug dependency issues and your recourse to drug trafficking. However, in my view it must be remembered that the nature and extent of your trafficking, reflected in Charges 1 to 3 on the Indictment, was most considerable. Whilst your deprived background may explain your recourse to this species of offending, it does not in my view provide a complete explanation for your involvement in what can only be described as fairly high end commercial drug trafficking.
2. I have also taken into consideration your plea of guilty to these charges. Although your pleas of guilty were entered fairly late in the proceedings, about seven days prior to trial, your matter resolved in the context of protracted resolution hearings, and in circumstances where the prosecution it seems agreed to proceed on multiple commercial quantity charges as opposed to the original large commercial quantity charge brought against you. Whilst your plea cannot therefore be considered as an early one, it did occur in the context of reasonable negotiations with the prosecution. In any event, through your pleas of guilty a trial has been avoided, witnesses have been spared cross-examination, and court time and costs have been saved, warranting a significant mitigatory allowance. Whilst not explicitly relied upon by your counsel, I consider that the circumstances of your plea together with your strong rehabilitative efforts since being granted bail are capable of justifying a modest further mitigatory allowance on the basis of remorse.
3. I have taken into consideration your rehabilitative efforts which I view as considerable, and your rehabilitative prospects which I view as being strong in all the circumstances.
4. Whilst not reaching the level of exceptional circumstances, I have also taken into consideration the impact that a sentence of imprisonment would have upon your immediate family, in particular given the sentiments expressed by Ms ER in her character reference. Clearly, your incarceration would have extremely negative consequences for Ms ER and the children and I accept the significant anxiety for you in relation to a sentence of imprisonment, leaving Ms ER with the sole care of your son and resulting in your removal from your 3 children's lives during their formative years.
5. I have also taken into consideration the extended delay associated with the finalisation of this matter. Over a significant period of time, whilst no doubt living with the anxiety associated with this serious matter hanging over your head, you have engaged in significant reformation such that a further mitigatory allowance is warranted.
6. I have also taken into consideration the impact of any term of imprisonment upon you, given your psychological fragilities, in particular your complex post-traumatic stress disorder. According to the unchallenged opinions of Ms Lechner,[24] imprisonment would be more difficult for you given the violent and threatening prison environment which is likely to be reminiscent of your early formative years, such that a mitigatory allowance pursuant to Verdins principle 5 is warranted.[25]
7. I have also considered the principle of parity, having regard to the sentences imposed upon your co-offenders. In that regard, I note that Mr Kunto was sentenced on 31 January 2024 to a total effective sentence of nine years' and 10 months' imprisonment with a non-parole period of six years' and eight months' imprisonment, in relation to charges which included trafficking in a large commercial quantity. The charge of trafficking in a drug of dependence in a large commercial quantity involved, according to the prosecution, just under 2.5 kilograms of methylamphetamines. Ms LM received a Diversion with regards to one charge of possessing a small quantity of methylamphetamines seized from her house. Clearly, for various reasons, the sentences and circumstances of offending were disparate from yours, noting in particular the increased maximum penalty relating to Mr Kunto for the large commercial quantity charge.
8. In considering the four year criteria, I have had regard to s18X(2),[26] which as I have stated gives prominence to your rehabilitation and the protection of the community from you, achieved through your rehabilitation over the other sentencing purposes set out in s5(1) of the Sentencing Act 1991. This in my view is a matter of some significance, given the nature of your offending and the prominence usually accorded to the sentencing purposes of denunciation, general deterrence, and community protection. In my view, the matter is complicated by virtue of the serious drug offender provisions contained in Part 2A of the Sentencing Act 1991. In relation to the charges on the indictment, upon conviction for Charge 1, you fall to be sentenced as a serious drug offender on Charges 2 and 3. Pursuant to s6D of the Sentencing Act 1991, where I consider a sentence of imprisonment is justified, in determining the length of that sentence, I must regard the protection of the community from you as the principle purpose for which the sentence is imposed and I may, in order to achieve that purpose, essentially impose a disproportionate sentence having regard to the gravity of the offence considered in light of its objective circumstances. There seems to me to be a tension between the operation s6D and s18X(2), in any event, given the specific task at hand, I have determined that I am bound by s18X(2) given my consideration of making a Drug and Alcohol Treatment Order, which, whilst emphasising the importance community protection, directs me to have regard to community protection through the lens of achieving your rehabilitation.
9. In consideration of the four year criteria, I have also had regard to current sentencing practices with regard to the crime of trafficking in a commercial quantity of methylamphetamines. Whilst of course noting that every case is necessarily fact specific, and current sentencing practices are but one of the many sentencing factors relevant to the sentencing exercise, I have had regard to the table of cases provided by the prosecution. I have also had regard to the decision of the Director of Public Prosecutions v Aaron Moran (a Pseudonym) [2021] VCC 1836 referred to by your counsel. As noted during argument at your Determination hearing, whilst the offender in that case received a lengthy Drug and Alcohol Treatment Order for trafficking in a large commercial quantity of a drug of dependence, the drug of dependence in question was Butanediol, and the Court of Appeal in this state has noted that comparatively lower sentences have been imposed for cases involving Butanediol given the reward differential in contrast to methylamphetamines.[27]
10. I have also had regard to another matter relied upon by your counsel, the sentencing statistics for trafficking in a commercial quantity of drugs for the period 2018 to 2023.[28] Whilst of course, sentencing snapshots or statistics cannot in and of themselves be determinative, I have read and considered the relevant document. The snapshot confirms the experience of this Court - that from the commencement of the Drug and Alcohol Treatment Court, there have been participants sentenced to Drug and Alcohol Treatment Orders for the crime of trafficking in a commercial quantity of drugs. However, as I indicated in argument at your Determination Hearing, this Court is unaware of any participant placed upon a Drug and Alcohol Treatment Order with a quantity of methylamphetamine in any way approaching the quantities involved in your offending. Furthermore, as the sentencing snapshot makes clear, the data is likely to have been affected by the COVID-19 pandemic, particularly in the 2020 to 2021 and the 2021 to 2022 financial years, where prison sentences may be shorter during those periods than in other years to reflect the combined effect of the enhanced sentencing discount for pleas of guilty which alleviated the strain on the justice system pursuant to Worboyes v The Queen [2021] VSCA 169, and the mitigatory allowance made for the increased burden of custody given the impacts of COVID-19 on the custodial environment. Finally, noting that you face three commercial quantity charges, the snapshot reveals that the median imprisonment length for cases involving a principle offence of trafficking in a commercial quantity of drugs was four years' imprisonment, with a median total effective sentence of four years' and nine months' imprisonment. Given all of those circumstances, I have concluded that the sentencing statistics do not overly assist your counsel's overarching submission with regard to the four-year criteria.
11. Turning now to my conclusion regarding the four-year criteria. In all the circumstances, I have concluded after careful consideration that it would not be appropriate to otherwise impose a sentence of imprisonment of no more than four years in your case. Notwithstanding the constellation of mitigatory factors, your offending is, in my view, far too serious to justify a sentence not exceeding four years. The four year criteria accordingly not having been met, pursuant to s18Z(1) of the Sentencing Act 1991, I am unable to make a Drug and Alcohol Treatment Order in your case.
12. And I so rule.

1. HIS HONOUR: Ms Skvortsova, what course do you intend to adopt from here having regard to s18Z of the Sentencing Act 1991? I have noted from the transcript from the last hearing that a concession was made that your client would, in the event that I declined to make an order wish for the matter to be finalised before me. Is that still the case?
2. MS SKVORTSOVA: That is still the case, Your Honour.

[1] Gregory (a pseudonym) v The Queen [2017] VSCA 151 at paragraph [24]

[2] DPP (Cth) v Maxwell [2013] VSCA 50 at paragraph [33]

[3] Report of clinical psychologist, Carla Lechner, dated 13 January 2025, Exhibit "C", page 1

[12] Character Reference Letter by Giacinta Micallef dated 30 September 2024, Exhibit "H"

[13] Character Reference Letter by Majed El-Ali dated 1 February 2025, Exhibit "F"

[14] Psychologist Letter by Kyle Miller dated 10 October 2024, Exhibit "D"

[15] Character Reference Letter by ER dated 12 February 2025, Exhibit "E"

[18] Sentencing Act 1991

[25] R v Verdins [2007] VSCA 102

[26] Sentencing Act 1991

[27] DPP (Cth) v Maxwell [2013] VSCA 50 at Paragraph 33

[28] Sentencing Snapshot 291: Sentencing Trends for Trafficking in a Commercial Quantity of Drugs in the Higher Courts of Victoria 2018-19 to 2022-23