Daniel Chamoun, you are before me having pleaded guilty to a charge of trafficking in a commercial quantity of methylamphetamine and a charge of refusing to give police access to your phone.
At age 38 it appears that your life is into its third stage. The first stage of your life was a period where, despite some early difficulties, you were a contributing member of the community, working in IT roles both here, interstate and at one stage in Singapore. That work involved working in data services and IT infrastructure. You demonstrated hard work and commitment, and your life superficially was going well. Behind the scenes however you were reliant on a longstanding addiction to methylamphetamine. In the context of your early diagnosis of ADHD, that drug had a paradoxical effect of providing you with a sense of calm and stability.
The second part of your life seems to have commenced in 2019, when as a result of your successful IT career, you made the decision to go out on your own. The timing of that decision will escape no one who has lived in this State. In 2020 the COVID pandemic hit and despite the nature of your work your fledgling business struggled. Not only that, but you were no longer answerable to any employer and no longer working in the structured environment of an office.
Your drug use increased and did so at a time when you were no longer financially able to support your own addiction. For the first time in your life at age 34 you were charged with a range of criminal offences, the most relevant being a charge of trafficking methylamphetamine.
You were remanded and in February 2021 you were sentenced to a nine-month term of imprisonment to be followed by a community correction order. Emergency management days saw your early release.
Despite some good intentions when you left custody, you soon descended into illicit drug use again and re-offended. Significantly you were again charged with trafficking methylamphetamine and possession charges. This time on 7 June 2023, you were sentenced to a community correction order of two years' duration.
Again, you failed to deal with your addiction, only superficially engaging with the opportunity of the CCO and descending again to significant drug use and to trafficking. Which brings me to the offending before me.
On 13 December 2023, police raided your family home to execute a search warrant. Your mother and sister were present to experience the shock and stress of that experience.
Police located three different phones, various computers, a Ziploc bag containing a white crystal substance, a food preserver/vacuum sealer machine and buried in the back garden, a waterproof case containing a bag of methylamphetamine along with a large vacuum sealed bag inside, itself containing various smaller bags of methylamphetamine.
On analysis the methylamphetamine was 736 grams weight, 601 grams of which was pure methylamphetamine. That is 12 times the amount of pure methylamphetamine required to constitute a commercial quantity of that drug, being 50 grams.
You were remanded and so began the third stage of your life.
Despite your previous periods of imprisonment, for whatever reason during this period of remand you had the wake-up call needed to make decisions to change your life. Despite understanding that you were inevitably facing a longer period of incarceration, you applied to be bailed to a residential rehabilitation facility.
On 23 January 2024, you were assessed by addiction specialist Ms Maria Hutchison to determine your suitability for a rehabilitation program called The Cottage in Shepparton. I had the benefit of hearing evidence from Ms Hutchison at your plea. She was previously the CEO of The Cottage program and maintains her hands-on connection to it. I also had the benefit of a letter from program director Mr Aaron Gilhooley.
On 5 February 2024, you were bailed to attend The Cottage. Thereafter you spent four months undertaking the inpatient program.
That program involves a daily morning check in, with the opportunity to participate in mediation and hearing a positive and motivational reading. Residents are encouraged to share honestly and openly with each other.
It also involved daily education sessions and community exercise activities, introducing you to a range of psychological theories and approaches including cognitive behavioural therapy, the 12-step recovery method, neuro-linguistic programming, positive psychology, behavioural motivational interviewing techniques and recognised models of change and recovery.
The program required your commitment to activities targeted towards rehabilitation from 8.30 am to late in the evening. It required weekly drug urine screenings and abiding by a 6 pm curfew after which staff and residents would have a meal together, participate in a 12 step recovery meeting before the 11 pm lights out.
The program is a three phase program. The first month requires participants to have no contact with people outside of The Cottage before progressing to day leave for the weekends for about a month, and finally weekend leave for the third phase. Drug testing is additionally required on any return from leave.
You were drug free coming out of custody and you remained drug free in your time at The Cottage.
After consultation with the medical services at The Cottage you were also medicated for your ADHD for the first time since you were a seven-year-old. The drug Vyvanse has had a positive effect on you resulting in the stabilisation of your cognitive and emotional functioning, including a noticeable reduction in distractibility, impulsivity and mood lability.
The letter from Aaron Gilhooley attests to your commitment and successful completion of inpatient Cottage program. Ms Hutchison facilitated weekly workshops during your time there. She described you as initially standoffish and wondering why you were there. However what she observed was that you soon 'surrendered' to the program. You came to participate openly and in a committed way. She described you as engaging with the classes and workshops and challenging her, which she viewed as a sign of a person wanting to change your thinking and behaviour. You reached a point where she described you as being an example for newcomers and you approached her regarding continuing one on one counselling with her.
After completing the inpatient program, you were exited to the outpatient program run by Ms Hutchison. That program is also structured, involving a Monday online group meeting, a Wednesday workshop, and one on one counselling with her, initially weekly for a period of six weeks then progressing to fortnightly for a further six weeks.
You have also made contact with her sporadically since then when needed.
In addition, the outpatient program requires mandated supervised drug screens, 34 were provided to me. Four of those are positive for amphetamine which Ms Hutchison explained was consistent with your prescribed medication. She stated that in her experience a positive test for methylamphetamine use will appear differently on a urine screen result. Although there was an appropriate query by the prosecution about the consistency of those results with your daily consumption of the ADHD medication, Ms Hutchison also gave evidence that at no stage did she observe signs or behaviours which would be tell-tale for a return to illicit drug use, nor to indicate you were non-compliant with your ADHD medication.
Indeed, the indication you gave to Ms Cidoni on assessment was that your ADHD medication is having a positive effect for you.
Ms Hutchison says you have also managed to cut ties with old associates who were or are involved in the drug using milieu. She says you have navigated the period of adjustment first from custody to The Cottage and then from The Cottage to home. She says you have maintained abstinence and remain motivated to address your physical and mental health.
Thus, the third stage of your life has been a significant one for you where you have confronted your addiction and worked towards your own rehabilitation.
Having achieved that level of abstinence and stability, which I accept is over a reasonable time period given your chronic history of addiction, you are now faced with the inevitable return to imprisonment.
That is so given the seriousness of the offending. Parliament has classified this offence as a Category 2 offence, which means a sentencing court must impose a term of imprisonment not in combination with a CCO unless some exception exists.[1] There was no argument here that there is an applicable exception.
Treatment of trafficking in that way reflects Parliament's intention that this offending is serious. Any offence which involves movement of drugs from supplier to the consumer in our community is serious. That is so because of the significant deleterious effect of drugs on any person who consumes them - as you have experienced, drugs and in particular a drug like methylamphetamine has the capacity to ruin lives. It does so daily. This court sees every day not only the ruined lives of addicts to that drug, but the harmful impact it causes to victims of violence and abuse at the hands of an ice addict. It is a scourge on our community and those who traffic in it must expect condign punishment.
In your case, you admit you were involved in possessing a commercial quantity of that drug for the purpose of trafficking it.
Trafficking offences are governed by a quantity-based scheme. That is, Parliament has determined that there is a sliding scale of seriousness of a trafficking offence based on the amount of drugs trafficked. For an offence of trafficking (simpliciter) the maximum penalty is 15 years' imprisonment. For an offence of trafficking in a commercial quantity the maximum penalty is 25 years' imprisonment, and for an offence of trafficking in a large commercial quantity the maximum penalty is life imprisonment. Quantity is thereby a key indicator to the offence seriousness and a key point of comparison between cases.
As has been said many times in higher courts however, quantity is only one of the many factors which must be synthesized for the purpose of arriving at an appropriate sentence in an individual case.[2]
It determines the category of offending and the maximum penalty however it is not of itself determinative of the outcome. In other words, it is a starting point and not an end point.[3] A commercial quantity of course has the capacity to affect many people.
I accept that, not unusually, I cannot draw any conclusion as to your role in trafficking other than that you were involved in a commercial quantity of trafficking. Whether there were others is unknown to me. How long you were involved is unknown to me and the extent of sale and any financial gain is unknown to me.
I must sentence you for a single date offence, being the day of the search and seizure of the drugs. I take into account the other accoutrements found at your premises which demonstrate some active involvement in movement of the drugs, though I accept this was unsophisticated.
I accept that there was no cash or other evidence of financial enrichment. I accept you were a 37 year old living at home with your parents and that there was no suggestion of a lavish lifestyle. I accept that you were trafficking largely if not solely to fund your own addiction. While no excuse, I accept that places you in a different category from those who sell drugs to take advantage of and profit only from the addiction of others. In that way I accept your moral culpability is reduced to an extent.
You pleaded guilty to one charge of trafficking in a commercial quantity of methylamphetamine at an early stage, prior to the committal hearing. No witnesses were cross examined and I accept that once a more serious charge was withdrawn you entered your plea at the first available opportunity.
You also pleaded guilty to Summary Charge 3 failure to assist with a request to provide police with the passcode for your Google Pixel phone, the maximum penalty for which is two years' imprisonment. I can reasonably infer that was likely because it may have demonstrated the true extent of your drug trafficking behaviour, although of course I cannot and do not speculate what that may have involved.
You received the benefit of your plea.
The sentencing principles for those who traffic methylamphetamine are clear. The sentence I impose must justly punish you. It must denounce your conduct on behalf of the community, and crucially, it must send a message to other would-be drug traffickers that they should expect imprisonment on being arrested and prosecuted. It must achieve community protection by removing drug traffickers from circulation.
Your offending is aggravated by the fact you were on a CCO for drug trafficking at the time of this offence. You will be dealt with for the breach of that order, and potentially for the original offending once this matter is complete.
I accept that given your relevant criminal history, the sentence I must impose must specifically deter you from reoffending again. However, I accept in light of the positive work you have done to rehabilitate yourself and your period of abstinence, that principle may be sensibly moderated in your case.
I accept Mr Tovey's submission that there is also room for significant consideration of the sentencing principle of rehabilitation. I accept that your prospects of rehabilitation are now positive. Although I note that you have previously been afforded the opportunity of two CCOs, it is not unusual that beating a long term addiction often takes several attempts, and success tends to occur only when the person has reached a point of resolve themselves.
Significantly, and to that end Ms Hutchison and Mr Gilhooley both attest to your acceptance and your accountability. That is, they say you have taken ownership of your choices and what your addiction has involved and what you have done in the past. You are taking accountability without blaming others or making excuses for your behaviour.
In your case you have the ongoing support of your family. Your parents have both been in court for the duration of these proceedings, along with a close friend. You will return to live with your parents after your release.
I accept too that you have a good employment record although you have not been able to obtain work recently. I accept the uncertainty of these proceedings and your realistic awareness that you would return to imprisonment has made that additionally difficult. However, your past history should afford you opportunities to engage again in the workforce and contribute to your own future and to the community more broadly.
I agree with the submissions of your counsel that long term community protection is best achieved by a sentence which recognises the work you have already done and which enhances your prospects of continuing on that path at the earliest opportunity and under the supervision of the parole board for a longer rather than shorter time. For that reason, along with the fact you have a short criminal history and have never been on parole, that you pleaded guilty and have expressed both genuine remorse for your behaviour and genuine insight into how it has affected your life and affects the lives of others, I have reduced the non-parole period of the sentence.
In that regard I have also taken into account the time you spent in the restrictive regime of The Cottage where you were not permitted to leave unescorted for the first month, and where you were subjected to a leave regime thereafter. That involved requesting and being granted leave. It involved being drug tested on return from leave, and it involved necessary engagement with programs. Although not commensurate with the restrictions of imprisonment, it was nonetheless a restrictive environment and I take that four month period into account.[4]
In addition I also take into account the fact that you have a longstanding diagnoses of ADHD. According to the expert material available to me, that condition has affected your educational, occupational, and interpersonal functioning and has also intensified your vulnerability to substance use as a maladaptive coping strategy and has contributed to your prior offending behaviour.
In that sense it is impossible to unscramble the impact of your ADHD and the impact of illicit drug use on your behaviour. I accept that you were using drugs simultaneously with being a functioning member of the community. However it is apparent that you were indeed self-medicating in a maladaptive way.
I accept that the stability which has come since your remand for this offending has been achieved through several measures: by way of abstinence from illicit drug use, compliance with a newly imposed medication regime to address your ADHD, and obviously the therapeutic support from The Cottage program and Ms Hutchison. According to Ms Cidoni, the medication regime has been important. She says:
[2]
Clinical observations and collateral reports indicate that the medication has played a significant role in stabilising (your) cognitive and emotional functioning.
[3]
Unfortunately, Vyvanse is an amphetamine based drug and as such you will not be permitted to have it in custody. According to Ms Cidoni:
[4]
the forced withdrawal of this medication would pose a serious risk of destabilisation. The removal of stimulant pharmacotherapy in the absence of an equivalent therapeutic substitute is likely to result in a resurgence of core ADHD symptoms, including distractibility, emotional volatility, and impaired impulse control.
[5]
She describes removal of your current treatment regime as representing a 'clinically significant' deterioration in mental health.
[6]
The likely outcome would be decompensation characterised by heightened agitation, reduced behavioural control and impaired capacity to engage constructively with supports.
[7]
In addition she anticipates an elevated risk of relapse to illicit drugs on release.
[8]
I accept that in light of those matters, limbs 5 and 6 of R v Verdins[5] apply in your case. That is, you will experience imprisonment as more burdensome than a person without ADHD with its consequent effects on your mental state and behaviours and, without appropriate medication, your condition is likely to deteriorate.
[9]
I have had regard to current sentencing practices for this offending and have had regard to the sentences of this court brought to my attention by Mr Glerum along with the Judicial College Victoria summaries and a number of cases from higher courts.
As always there are similarities and differences between both offending and offender. Current sentencing practices are but one feature I must take into account. Ultimately I am required to impose a just sentence in all the circumstances before me and that is what I have endeavoured to do.
[10]
Mr Chamoun, on Charge 1 of trafficking in a drug of dependence being methylamphetamine in a commercial quantity, you are convicted and sentenced to two years and 10 months' imprisonment.
On Summary Charge 3 of failing to comply with a direction to assist, you are convicted and sentenced to 30 days' imprisonment.
I direct that seven days of the sentence on Summary Charge 3 are to be served cumulatively on Charge 1.
The total effective sentence is therefore two years, 10 months and seven days.
I direct that you must serve one year of imprisonment before becoming eligible for parole. I declare that you have already served 55 days of imprisonment. That might be - - -
COUNSEL: Fifty-nine, not including today.
MR TOVEY: That's agreed, Your Honour.
Thank you. I declare that you have already served 59 days' imprisonment and that that period should be reckoned as having been served under this sentence.
I declare pursuant to s6AAA of the Sentencing Act1991 that but for your plea of guilty, so if you had not pleaded guilty, the sentence I would have imposed would have been a total effective sentence of four years' imprisonment with a non‑parole period of two years and eight months' imprisonment.
Forfeiture and disposal orders are sought by the prosecution and are consented to by you. I propose to make those in the terms sought.
Are there any matters to raise, counsel?
MR TOVEY: No, Your Honour.
COUNSEL: May it please the court.
HER HONOUR: Mr Chamoun, Mr Tovey, I'm happy to leave you on the link so that you can talk that through with Mr Tovey but in essence you have a year minus 59 days before becoming eligible for parole. I really hope for you that your resolve and that good work you did do on bail stays with you and that you come out put this behind you and move forward with your life.
OFFENDER: Thank you, Your Honour.
HER HONOUR: Thank you very much. Thank you, counsel, for your assistance. Thank you.