DPP v Duffy [2021] VCC 1741

2 You pleaded guilty to these charges on 2 September 2021 when arraigned in short form before her Honour Judge Marich. You again pleaded guilty to all charges when arraigned in full before me on 28 September 2021 on Indictment No. K11003723.1.

3 The maximum applicable penalties for these charges are:

(a) trafficking in a commercial quantity of a drug of dependence, Charge 1, 25 years' imprisonment;

(b) possession of a drug of dependence, Charges 2 and 3, five years' imprisonment, or a fine of 400 penalty units, or both the fine and imprisonment; and

(c) prohibited person in possession of a firearm, Charge 4, 10 years' imprisonment, or a fine of 1,200 penalty units, or both the fine and imprisonment.

4 You are also to be sentenced in respect of a related summary charge that was transferred to this Court under s145 and s242 of the Criminal Procedure Act 2009. You pleaded guilty to the summary charge of possessing cartridge ammunition whilst not being the holder of a licence under the Firearms Act 1996 or a permit under s58A.

5 The maximum applicable penalty for the related summary charge is a fine of 40 penalty units.

6 The circumstances of offending are well set out in the Prosecution Plea Opening dated 16 September 2021, tendered as Exhibit A. Rather than read the whole of that document now, I shall attach a copy of Exhibit A as "Annexure A" to these Reasons for Sentence. You have accepted the accuracy of the facts asserted in that document and are to be sentenced on those agreed facts.

7 By way of brief summary, the charges arise out of a number of search warrants that were executed at a suburban hotel and in relation to a car parked in the hotel's carpark.

8 On 17 April 2019, police executed search warrants at Room 17 of the Sandbelt Hotel in Moorabbin. At that time, you and three of your associates were in the room. During the search police located and seized:

(b) a resealable plastic bag containing 17 yellow MDMA tablets stamped with a Warner Bros logo, and four yellow tablet portions, and a further 774 yellow MDMA tablets stamped with the same logo contained in several resealable plastic bags;

(c) a resealable plastic bag containing an off-white crystal substance; and

(d) a resealable plastic bag containing white powder.

9 You were arrested at the scene and taken to the Moorabbin Police Station.

10 The hotel duty manager later inspected Room 17 and found the keys to a Ford Falcon Utility XR6 bearing registration plates YXY 014. You were previously seen to have driven that vehicle. When the vehicle was searched under warrant, police located and seized the following items:

(a) a semi-automatic .22 Long Rifle Stirling rifle with a sawn-off barrel and stock bearing a defaced serial number, found together with a box of 50 subsonic .22 Long Rifle rounds of cartridge ammunition and a magazine with a capacity of greater than 10 rounds located in a Targus notebook bag behind the passenger seat;

(b) two boxes of subsonic .22 Long Rifle ammunition containing 50 rounds each concealed in the driver-side speaker trim;

(c) a fabric glasses case located in the centre console containing cartridge ammunition;

(d) a resealable bag containing 1,444 yellow MDMA tablets with a Warner Bros logo, concealed in the driver-side speaker trim;

(e) a further yellow MDMA tablet with the same logo, located between the passenger seat and the centre console; and

(f) a black Mazda folder containing two small sets of scales, concealed in the driver-side speaker trim.

11 Analysis was undertaken of the various drugs seized during the searches of the hotel room and the car. Dealing first with Charge 1 on the Indictment, trafficking in a commercial quantity of a drug of dependence, drug analysis established that each of the yellow tablets and tablet portions found in the hotel room and in the car contained 3,4-methylenedioxy-N-methylamphetamine (MDMA) with an approximate purity of between 22 and 24 per cent. The total weight of the tablets and tablet portions was found to be 620.6 grams. The commercial quantity applicable to MDMA when mixed with another substance is 500 grams. It is agreed that you had the MDMA tablets in your possession for the purpose of sale.

12 Charge 2 on the Indictment, possess a drug of dependence, concerns the total amount of the white powder substance that was found in the hotel room. The substance had a total weight of 4.8 grams and on analysis was found to be the drug methylamphetamine in a purity of between 83 and 84 per cent.

13 Charge 3 on the Indictment, also a charge of possessing a drug of dependence, concerns the cannabis found in the hotel room. The cannabis was found to have a total weight of 21.8 grams.

14 Turning now to the remaining charge on the Indictment, Charge 4, prohibited person in possession of a firearm. At the relevant time you were bound by the terms of an Intervention Order that had been imposed against you in the Magistrates' Court at Frankston on 24 January 2019. As such, you had become a "prohibited person" as defined by the Firearms Act, and had that status when the firearm was found in the car.

15 The related summary charge of possession of cartridge ammunition concerns the ammunition that was found in the car. At the relevant time you did not hold a licence or permit to possess the ammunition.

16 As mentioned earlier, you were arrested at the hotel and then taken to the Moorabbin Police Station. Later that day, you participated in a recorded interview with police. During the interview you admitted that you had been living in the hotel room for the past three months and otherwise had no fixed address. You admitted that some of the MDMA tablets, the cannabis and the methylamphetamine were yours. You stated, however, that a portion of the MDMA tablets was not yours and must have been left by other persons who also had access to and used the hotel room.

17 You denied knowledge of the Ford Falcon utility, claiming that you had never been inside that vehicle. You denied knowledge of the items seized from that vehicle.

18 Despite your various denials made in the interview, which denials you maintained until recently, you have, by your pleas of guilty, accepted responsibility for these crimes.

19 The most serious of your crimes is Charge 1, trafficking in a commercial quantity of a drug of dependence, MDMA. This category of crime is one that produces much danger and harm to the community and is evil in nature. The only rational inference to be drawn from the agreed facts is that you committed this crime to reap financial reward.

20 Ordinarily, in cases such as these, deterrence, denunciation and condemnation, and protection of the community are dominant sentencing factors.

21 In assessing the gravity of this particular case, among the matters I must take into account are:

• the trafficking was constituted by possession of the drug for sale;
• there is no suggestion that this was part of an ongoing business of trafficking; and
• the quantity of drugs involved.

22 When sentencing you for this offence, I must also take into account the maximum applicable penalty of 25 years' imprisonment, which marks its inherent gravity.

23 In addition, I must take into account where, in the range covered by the quantity defined as a commercial quantity, the quantity to which you have pleaded guilty sits.

24 In Gregory (a pseudonym) v The Queen,[1] the Court of Appeal observed:

"23. As this Court has pointed out repeatedly, the sentencing regime for trafficking offences is quantity-based.[2] That is, the legislature has fixed the maximum penalties by reference to specified quantitative thresholds - commercial quantity ('CQ') and large commercial quantity ('LCQ') - with the applicable quantities for each drug of dependence specified separately.[3] ...

24. It follows, as the Crown submitted on the appeal, that quantity is a highly relevant consideration in sentencing for trafficking offences. Counsel for ... [the appellant] accepted this was so. Other things being equal, the greater the quantity trafficked the more serious the offence.[4] There are, of course, other important indicators of offence seriousness - in particular, the offender's role in the trafficking, the duration of the offending and the motivation for the offender's involvement."

25 In relation to Charge 1, although there is no evidence of any actual sales, there is no suggestion that your possession of this massive quantity of tablets was for your personal use.

26 Charges 2 and 3, possession of methylamphetamine and cannabis respectively, are also serious.

27 Charge 4, possession of a firearm whilst being a prohibited person, is also a serious offence. The learned prosecutor, Mr Shaw, submitted, and I accept, that there are a number of aggravating features to this crime. First, the firearm had a sawn-off barrel and stock; second, the serial number of the firearm had been defaced; and third, the firearm was kept together with a magazine and a large quantity of ammunition. You have offered no explanation for your possession of the firearm or the ammunition.

28 On your behalf, your counsel, Mr Antos made a succinct plea in mitigation of penalty. He conceded the gravity of your offending and that the only appropriate response to the charges on the Indictment is the imposition of a term of imprisonment of such duration that both a head sentence and minimum non-parole period must be fixed. I now turn to the matters relied upon by your counsel.

29 You are aged fifty-five years. Your counsel noted that you were born and raised in the outer eastern suburbs of Melbourne and that you had an "unremarkable, normal upbringing within the family home".[5] You are the eldest of three children in the family.

30 You completed your schooling at Mazenod Boys College. You then worked in painting and interior design, until becoming a full-time carer for your father. That happened approximately seventeen years ago. Your father suffered from many health conditions including bowel cancer and throat cancer. Your father passed away shortly before you committed these offences. Until the time of his death, your father lived in public housing. Thereafter, you were no longer permitted to stay there. You moved into the Sandbelt Hotel in approximately January 2019. You had limited financial means.

31 You have used many illicit substances over the years, on an on-again/off-again basis. Despite this, you deny addiction to any of these substances, claiming your use was merely for recreational purposes.

32 You instructed your counsel that you began drinking alcohol in your formative teen years, and you deny binge drinking. It was not suggested that you are an alcoholic.

33 I was told that you are a chronic gambler and that in the three months leading up to the date of offending you had gambled intensively at the Sandbelt Hotel.

34 Although I was told little of your personal relationships, I was informed that you have a twenty-three-year-old daughter, with whom you have had no contact since your arrest and subsequent remand. Indeed, your counsel states that you have had no contact with any members of your family since that time.

35 You have been on remand since the day of your arrest on 17 April 2019. Whilst in custody you have been working in a maintenance position.

36 Your counsel states that it is unlikely that you will have stable accommodation upon your release and notes that you have limited financial resources.

37 You have admitted to an extensive prior criminal history dating back to 1983 when you were aged approximately seventeen and one-half years. Your early court appearances and convictions between 1983 and 1985 were mainly for dishonesty offences.

38 On 25 June 1987, in the Magistrates' Court at Ringwood, you were fined $100 for possession of a category A/B longarm without a licence and $50 for discharging a firearm in a public place.

39 On 28 October 1988, you appeared in the County Court at Melbourne on charges of intentionally causing injury and criminal damage. You were released on a Community-Based Order for a period of two years and ordered to perform 400 hours of unpaid community work.

40 On 21 June 1990, you appeared in the County Court and were dealt with for breaching the terms of the Community-Based Order to which I have just referred. You were resentenced on the charges. The Community-Based Order was cancelled. You were released on a two-year $500 good behaviour bond. You breached the terms of your good behaviour bond, and on 20 June 1991, you were again resentenced on the charges of intentionally causing injury and criminal damage. On the charge of intentionally causing injury, you were sentenced to eighteen months' imprisonment. On the charge of criminal damage, you were sentenced to six months' imprisonment, to be served concurrently. The bond of $500 was forfeited.

41 On 2 March 1989, you appeared in the Magistrates' Court at Ferntree Gully on a charge of possess a pistol or imitation firearm without a licence, and a charge of assault with a weapon. You were fined $1,000 on each charge.

42 On 24 January 1991, you appeared in the Ferntree Gully Magistrates' Court on charges of possess a pistol or imitation firearm without a licence, fail to answer bail, and use amphetamine. You were fined $1,500, $200 and $150, respectively.

43 On 24 April 1991, you appeared in the Magistrates' Court at Ringwood on charges of trafficking in a drug of dependence, obtain property by deception, theft of a motor vehicle, two charges of unlawful possession, one charge of burglary, two charges of theft, a charge of handling stolen goods, possession of a drug of dependence, and use a drug of dependence. You were sentenced to nine months' imprisonment on the charge of trafficking in a drug of dependence, and six months' imprisonment on each of the other charges, these terms to be served concurrently.

44 On 15 February 1993, you appeared in the Magistrates' Court at Ringwood where you were sentenced to three months' imprisonment on a charge of handling stolen goods, and fourteen days' imprisonment on each of two charges of tamper with a motor vehicle. You were also charged with two charges of cultivate a narcotic plant (cannabis), and charges of possess cannabis, use cannabis, and use amphetamine, on which charges you were convicted and fined an aggregate amount of $250.

45 On 12 August 1993, you appeared in the County Court at Melbourne on a charge of criminal damage. You were sentenced to a term of six months' imprisonment.

46 There were subsequent appearances and convictions in 1995 on dishonesty charges, and in 2000 on driving charges.

47 On 5 October 2004 you appeared in the Frankston Magistrates' Court on a charge of cultivate a narcotic plant (cannabis). You were sentenced to 1 month's imprisonment, wholly suspended for a period of 12 months.

48 In February and December 2011 you appeared in the Magistrates' Court at Ringwood on a driving charge, and a charge of reckless conduct endangering a serious injury.

49 On 18 April 2016 you appeared in the Magistrates' Court at Dandenong charged with contravening a family violence intervention order. You were convicted and fined $500.

50 On 1 May 2017 you again appeared in the Magistrates' Court at Ringwood on a charge of intentionally damaging property. You were convicted and fined $750.

51 On 18 June 2018 in the Magistrates' Court at Ringwood you faced a charge of contravening a family violence interim intervention order. The charge was dismissed under s76 of the Sentencing Act.

52 Your counsel did not elaborate on the circumstances surrounding any of these court appearances, other than to assert that the majority of your past offending was due to poor choices and bad company.

53 Your counsel stated that you instructed that you have no mental health issues and that you have never had any mental health problems in the past.

54 As mentioned, you pleaded guilty to the charges.

55 A guilty plea, no matter why or when it is entered, must almost always attract a sentencing discount. A number of factors affect the weight that your guilty plea can attract.

56 On 29 July 2019 you pleaded not guilty at a committal when you were ordered to stand trial on a number of charges. The committal proceeded by way of straight hand-up brief.

57 The Defence Response dated 30 July 2020 filed on your behalf in this Court stated:

"The Accused denies in any way trafficking in a commercial quantity of a drug of dependence.

The Accused denies in any way trafficking in a drug of dependence.

The Accused admits he is a prohibited person yet denies ever possessing a firearm."

58 You entered your guilty pleas to the charges on the Indictment on 2 September 2021, approximately five weeks before your trial was listed to commence.[6]

59 In determining the weight to be given to your plea of guilty, I take into account the following factors:

(b) you are entitled to a statutory discount because of your plea;

(c) you have avoided the cost and inconvenience of a trial. You have spared witnesses the inconvenience and ordeal of giving evidence upon your trial; and

(d) there is enormous social utility involved in your guilty plea, and by taking this course, I accept that you have facilitated the course of justice.

60 Dealing with the question of the social utility inherent in your guilty plea, I note that there was delay in the matter proceeding, largely attributable to the world-wide pandemic of COVID‑19.

61 In the recent case of Worboyes v R,[7] the Court of Appeal emphasised the need to give greater weight to a guilty plea in the current climate so as to recognise the social utility inherent in such a course. As their Honours stated:

"34 It may thus be concluded that ... the preponderance of authority contemplates that mitigation of punishment should flow from a plea of guilty based solely on the utilitarian benefits of the plea. Hence, appellate courts have recognised the public interest in facilitating pleas of guilty so as to conserve courts' trial processes, and so as to alleviate the congestion in criminal courts that delay in the hearing of contested trials creates.

35 As is abundantly clear, one of the pernicious effects of the current pandemic is that the lists of the criminal courts in this State have become severely congested. Unacceptable delay in the disposition of criminal cases is endemic. Indeed, it is not an overstatement to say that the system of criminal justice in this State is in crisis, requiring a response from the courts. We therefore consider that, whilst the courts of this State continue to labour under the adverse effects of the pandemic, a sentencing court should view a plea of guilty as carrying with it a greater utilitarian benefit than at other times and in other circumstances, and, concomitantly, as attracting an augmented mitigatory effect on sentence, simply because the plea will benefit the beleaguered administration of justice. Given the unhappy state of the courts' lists, the courts must, in an endeavour to alleviate the strain on the system, encourage those accused who are guilty to so plead. Such encouragement must come from an actual and palpable amelioration of sentence.

36 There are, it must be recognised, real disincentives in the current climate for accused persons who are on bail to plead guilty, particularly if a sentence of imprisonment is on the cards. As the judge observed in the present case, a newly-sentenced prisoner in times of the pandemic will spend the first two weeks of his or her sentence in isolation. Thereafter, he or she will have very restricted opportunities for contact with family and friends. Further, rehabilitative and other programs within prisons are severely curtailed. That this is so is notorious. These circumstances must render the prospect of imprisonment even more unpalatable than is usually the case, and operate as a further deterrent to the entry of a guilty plea. These disincentives to pleading guilty must be balanced by a proper inducement, through mitigation of sentence, to accept guilt.

37 Self-evidently, the other side of the coin is that there are real incentives for the cynical and unprincipled to exploit the delays resulting from the pandemic. The longer the delay, the more the memory (and enthusiasm) of witnesses dims, and the preparedness of victims to actively and willingly participate is tested, with associated forensic disadvantages to the prosecution. In ordinary times with ordinary delays, the lot of victims and witnesses already is not a happy one. The longer the delays, the more pronounced their plight.

38 Further, and significantly, criminal jury trials in times of the pandemic are far more resource-depleting than in times where the threat of serious infection is not present. One of the aspirations of encouraging utilitarian pleas of guilty must be that scant resources, upon which there is great demand, will be to an extent freed up.

39 For these reasons, we consider that - all other things being equal - a plea of guilty entered during the currency of the COVID‑19 pandemic is worthy of greater weight in mitigation than a similar plea entered at a time when the community and the courts are not afflicted by the pandemic's effects. A plea of guilty during the pandemic ordinarily should attract a more pronounced amelioration of sentence than at another time. Although a sentencing judge need not quantify the extent of any 'discount', he or she must ensure that the plea of guilty results in a perceptible amelioration of sentence."[8]

62 Your counsel has conceded that there is no evidence of remorse before me, either generally, or as might otherwise be inferred from your guilty plea. I hasten to add that the absence of remorse does not constitute an aggravating factor, rather it means that remorse cannot be counted in your favour in mitigation of penalty.

63 You have not offered any explanation as to how you became involved in these offences, and have not provided any information as to the identity of persons from whom you obtained the drugs or to whom you were to supply them. You said nothing of what you stood to gain, although, as I have stated, it is to be inferred that your involvement was for financial reward. There is no suggestion that any person pressured you to take possession of the drugs for the purpose of sale.

64 Your counsel was silent on the question of your prospects for rehabilitation. Accordingly, on this subject I must take account of the fact that there is no evidence of remorse, there is an absence of explanation for your offending or of the circumstances surrounding it, your poor criminal history, including a number of prior appearances and convictions for drug offences, your multiple breaches of court orders, and the absence of any plans or desires expressed on your behalf about your reformation or rehabilitation. You do not suffer from any mental health conditions or any diagnosed psychological or personality issues. In these circumstances, although one should never write off a person's prospects for rehabilitation, in this instance it is difficult to be optimistic about those prospects. Understandably, your counsel conceded that principles of deterrence, both general and specific, must be a feature of sentencing purpose in your case.

Applicability of s5(2H) Sentencing Act

65 Section 5(2H)(e) of the Sentencing Act 1991 applies to Charge 1 on the Indictment. That provision is in the following terms:

"(2H) In sentencing an offender for a category 2 offence, a court must make an order under Division 2 of Part 3 (other than a sentence of imprisonment imposed in addition to making a community correction order in accordance with section 44) unless -

(e) there are substantial and compelling circumstances that are exceptional and rare and that justify not making an order under Division 2 of Part 3 (that is not a sentence of imprisonment imposed in addition to making a community correction order in accordance with section 44)."

66 There is no suggestion that I should impose a combination sentence of imprisonment together with a community correction order. I am satisfied that there are no substantial and compelling circumstances that can be described as exceptional and rare and that justify not making such an order.

67 I take into account all of the matters personal to you to which I have referred, including your prospects of rehabilitation, which I assess as limited. I must also take into account such matters as deterrence, especially general deterrence, which is of importance in a case such as this. I am required to take into account the question of the protection of members of the community from you and bear in mind the likelihood of your re-offending.

68 As mentioned, I must give added weight to your plea of guilty because of COVID‑19. As at the date of imposing this sentence, the State of Victoria is in its sixth lockdown as the Delta strain of the virus seems to be spreading rapidly through the community. On 14 October 2021, there were 2,297 new cases of COVID‑19 detected in the community and eleven deaths. It was a record day in the whole of Australia; the highest number recorded so far in the pandemic in this county. On 15 October 2021, there were 2,179 new cases recorded and six deaths. On 16 October 2021, there were 1,993 new cases and seven deaths. On 17 October 2021, there were 1,838 new cases and seven deaths. Today, there were 1,903 new cases and seven deaths. As at today, no jury trials are listed for hearing in Melbourne, a situation that has prevailed for most of this year. Had you not pleaded guilty, it is certain that your trial date listed as 12 October 2021 would have to have been vacated. It is most probable that the trial would not have been refixed for hearing this year.

69 I am called upon by the Sentencing Act to manifest the community's denunciation of your conduct and generally to impose a just punishment.

70 On the charge of trafficking in a commercial quantity of a drug of dependence, namely MDMA, Charge 1, you are convicted and sentenced to four (4) years' imprisonment.

71 On Charge 2, possession of a drug of dependence, namely methylamphetamine, you are convicted and sentenced to twelve (12) months' imprisonment.

72 On Charge 3, possession of a drug of dependence, namely cannabis, you are convicted and sentenced to three (3) months' imprisonment.

73 On Charge 4, prohibited person in possession of a firearm, you are convicted and sentenced to two (2) years' imprisonment.

74 On the question of whether cumulation is required, and if so, how much, I take account of the fact that the charges are discrete, although they were committed on the same day, and involved offending of such gravity that total concurrency would fail to do justice.[9] I must also pay regard to principles of totality and proportionality, and avoid imposing a crushing sentence.

75 Balancing these matters, I consider it is appropriate to order some period of cumulation. I therefore direct that nine (9) months of the sentence imposed in respect of Charge 4, and three (3) months of the sentence imposed in respect of Charge 2, be served cumulatively upon the sentence imposed on Charge 1, the base sentence, and with each other.

76 That results in a total effective sentence of five (5) years' imprisonment.

77 In determining the non-parole period in your case, I am required to take into account the purpose of fixing a non-parole period which is "to provide for mitigation of punishment in favour of ... [your] rehabilitation through conditional freedom".[10] The fixing of a non-parole period requires discrete consideration of the factors bearing upon the question of when you should be eligible for release. The relevant factors I am required to take into account are:

(b) that, where either general or specific deterrence is important, that objective should not be undermined by an unduly short non-parole period; and

(c) that the prisoner's prospects of rehabilitation are almost always a significant consideration.[11]

78 Taking all these matters into account, including your limited prospects of rehabilitation, I direct that you serve a minimum period of three (3) years and four (4) months' imprisonment before becoming eligible for parole.

79 Under s18(4) of the Sentencing Act 1991, I declare that the period of 915 days is to be reckoned as a period of imprisonment already served under this sentence, and I direct that the fact of this declaration and its details be noted in the records of the Court.

80 On the related summary charge of possessing cartridge ammunition whilst not being the holder of a licence under the Firearms Act 1996 or a permit under s58A, you are convicted and fined in the amount of $1,000.

Statement and Direction under s6AAA Sentencing Act

81 I am required to state the sentence and non-parole period, if any, that would have been imposed in respect of the offences, but for your plea of guilty. Therefore, pursuant to section 6AAA, and taking into account the matters I have previously referred to as relevant to the weight to be given to your guilty pleas, I state that but for your guilty pleas, the sentences I would have imposed are as follows:

82 On the charge of trafficking in a commercial quantity of a drug of dependence, namely MDMA, Charge 1, you would have been convicted and sentenced to six (6) years' imprisonment.

83 On Charge 2, possession of a drug of dependence, namely methylamphetamine, you would have been convicted and sentenced to eighteen (18) months' imprisonment.

84 On Charge 3, possession of a drug of dependence, namely cannabis, you would have been convicted and sentenced to four and one half (41/2) months' imprisonment.

85 On Charge 4, prohibited person in possession of a firearm, you would have been convicted and sentenced to three (3) years' imprisonment.

86 On the question of cumulation, I would have directed that fifteen and one half (151/2) months of the sentence imposed in respect of Charge 4, and four and one half (41/2) months of the sentence imposed in respect of Charge 2, be served cumulatively upon the sentence imposed on Charge 1, the base sentence, and with each other.

87 That would have resulted in a total effective sentence of seven (7) years and eight (8) months' imprisonment.

88 I would have directed that you serve a minimum of five (5) years and two (2) months' imprisonment before becoming eligible for parole.

89 I note that for the purposes of making this declaration, I have assumed that the sentence would have been imposed during the pandemic crisis, meaning that the service of such a sentence would be more onerous than would otherwise have been the case.

90 I direct, pursuant to section 6AAA, that the sentences that would have been imposed but for the pleas of guilty be noted in the Court's records.

91 I will just get counsel to double check my figures. I will go through those figures again.

92 MR ANTOS: I have got them, Your Honour. I am just going through them. I am sorry, my mathematics is not, perhaps, quick.

93 HER HONOUR: So Charge 1 is four years' imprisonment. That is the base. Charge 2 is twelve months' imprisonment. Charge 3 is three months' imprisonment. Charge 4 is two years' imprisonment. Nine months of the sentence imposed in respect of Charge 4, and three months of the sentence imposed in respect of Charge 2, is to be served cumulatively upon the sentence imposed on Charge 1, the base sentence, and with each other. Now, as I make it, that is twelve months cumulative upon the base sentence of four years, making a total effective sentence of five years' imprisonment.

94 MR SHAW: Yes, that is agreed, Your Honour. Similarly, the cumulation under the s6AAA statement is also agreed as being accurate.

96 MR ANTOS: Thank you. I agree with that as well, Your Honour. Thank you.

97 HER HONOUR: Thank you. Now I turn to the ancillary orders.

98 You have consented to the ancillary orders sought by the Prosecution. First, there is a disposal order to be made.

99 Upon the conviction of Liam Duffy on 2 September 2021 on a number of Schedule 1 offences, namely trafficking in a drug of dependence in no less than a commercial quantity, and others, and upon being satisfied that the property referred to in the Schedule is a drug of dependence and/or property prescribed by the regulations that was used, or was intended to be used, in, or in connection with, the commission of the offence or was derived or realised, directly or indirectly, by that person or another person, from the commission of the offence, The Court orders by consent pursuant to s78(1) of the Confiscation Act 1997, the forfeiture to the State of the property referred to in the schedule, and I further direct that it be placed in the custody of the Chief Commissioner of Police, to be held by him until 28 days from this date, or the conclusion of any appeal proceedings where it may be tested and/or analysed and then destroyed.

100 I will not read the Schedule unless either of the parties require me to do so. Do either of you require me to read the thirteen items listed in the schedule?

104 HER HONOUR: Thank you, Mr Shaw. I now turn to the firearm forfeiture order.

105 Upon the finding by the Court that Liam Duffy has been found guilty of offences under the Firearms Act, the Court orders by consent pursuant to s151 of the Firearms Act 1996 that the property referred to in the Schedule be forfeited to the Minister. The items in the schedule are:

(1) Exhibit 205: Silk sunglass case containing cartridge ammunition

(2) Exhibit 208: Sawn-off .22 calibre semi-automatic rifle with loaded high capacity magazine and additional 50 subsonic rounds in box

(3) Exhibit 210: 100 rounds of subsonic .22 ammunition in two boxes.

106 I have signed those Orders. Are there any further matters that need to be discussed?

113 HER HONOUR: Would you like the benefit of a few minutes to speak to your client using the link, while we still have it?

114 MR ANTOS: I would be indebted for that indulgence, Your Honour.

115 HER HONOUR: Very well. My associate will arrange a private link, so that you can speak with your client. Otherwise, close the Court.

IN THE COUNTY COURT OF VICTORIA Indictment no: K11003723

Filed on behalf of: Director of Public Prosecutions

1. The accused, Liam Duffy (born 16 December 1965),[12] lived in Room 17 of the Sandbelt Hotel at 630 South Road, Moorabbin from 28 January 2019 to 17 April 2019.[13]

2. At about 6:00 am on 17 April 2019, police executed search warrants under s 81 (1) of the Drugs, Poisons and Controlled Substances Act 1981 and s 465 (1) of the Crimes Act 1958[14] at Room 17 of the Sandbelt Hotel.[15]

3. The accused and three of his associates, Arthur Moutsidis, Carly Pitchford, and Robert Sykes, were present in the room.[16]

4. First Constable Emily Clarke became aware that cannabis was present in the room and placed the accused under arrest for the possession of cannabis.[17]

5. Police searched the room. They located and seized the following:

1. a re-sealable plastic bag containing green vegetable matter located in a black "Culture Kings" satchel on a cabinet;[18]
2. a re-sealable plastic bag containing 17 yellow tablets stamped with "Warner Bros" logo and four yellow tablet portions located in the Culture Kings satchel;[19]
3. a re-sealable plastic bag containing an off-white crystal substance located in the Culture Kings satchel;[20]
4. a small plastic tub with a pink lid containing a clear viscous liquid located, along with a plunger and glass pipe, in a small light blue purse in a Coles bag on a chair;[21]
5. a "Powertech" box located near the bedside table containing a total of 774 yellow tablets stamped with Warner Bros logo in several re-sealable plastic bags;[22]
6. a plastic bottle containing a clear viscous liquid located on the bedside table;[23]
7. a re-sealable plastic bag containing white powder located in a cupboard in the bathroom;[24]
8. a black Apple iPhone located on the floor next to the bed;[25]
9. $900 cash located in the accused's pocket;[26]
10. $75 cash located in the accused's wallet.[27]

6. These exhibits were logged and secured by Senior Constable Tori Durling.[28] Photographs of the premises and exhibits were taken by Senior Constable Trent Parker.[29]

7. At 7:49 am, police transported the accused to Moorabbin Police Station.[30]

8. At 8:15 am on 17 April 2019, police executed further search warrants pursuant to s 465 (1) of the Crimes Act[31] at the office of the Sandbelt Hotel. They located and seized the following:[32]

1. Sandbelt Hotel guest registration cards for the accused showing that he had leased Room 17 between 28 and 29 January 2019;[33]
2. Sandbelt Hotel guest registration cards for the accused showing that he had leased Room 17 between 29 January 2019 and 17 February 2019;[34]
3. Sandbelt Hotel guest registration cards for the accused showing that he had leased Room 17 between 17 February 2019 and 10 March 2019;[35]
4. Sandbelt Hotel guest registration cards for the accused showing that he had leased Room 17 between 10 March 2019 and 21 April 2019;[36]
5. Sandbelt Hotel guest registration cards for the accused showing that he had leased Room 17 between 14 and 16 April 2019;[37]
6. Sandbelt Hotel guest list for 17 April 2019 showing the accused as the occupant of Room 17 on that day.[38]

9. These exhibits were logged and secured by Senior Constable Ryan Paligorov.[39]

10. At 2:56 am on 17 April 2019, police Surveillance Operative 042 observed a blue 2012 Ford Falcon XR6 ute registration YXY 014 enter the northern car park of the Sandbelt Hotel.[40]

11. Cameron Rowley, an employee of the Sandbelt Hotel, was familiar with the accused as a guest. During the accused's stay at the hotel, Rowley had seen the accused go to the Ford ute on several occasions and also saw him drive away in it.[41] At some stage on the night of 16-17 February 2019, Rowley saw the accused park the ute in the northern car park of the Sandbelt Hotel.[42]

12. On 15 April 2019, the accused took Carly Pitchford to the Ford ute while it was parked at the Sandbelt Hotel.[43]

13. During the execution of the search warrants at Room 17, Senior Constable Trent Parker photographed a Ford key on a bench inside the room. The Ford key had a key to the laundry area of the Sandbelt Hotel attached. These keys were situated near the entry to the room and near the Culture Kings satchel.[44]

14. At about 8:50 am, police left the premises. The manager on duty, Justin Plummer, entered Room 17 a short time later. During his inspection of the room, Plummer located the keys to the Ford ute, a round of cartridge ammunition, and several items of drug paraphernalia.[45] He called police to advise them that the Ford ute was still in the car park.[46]

15. At about 5:55 pm police executed a search warrant of the Ford ute under s 465 of the Crimes Act.[47] They located and seized the following:[48]

1. a fabric glasses case containing cartridge ammunition located in the centre console;
2. a semi-automatic .22lr calibre "Stirling" rifle with a sawn-off barrel and stock and a defaced serial number located together with a box of 50 subsonic .22lr rounds of cartridge ammunition and a magazine with a capacity of greater than 10 rounds in a Targus notebook bag behind the passenger seat;
3. a re-sealable plastic bag containing about 1444 yellow tablets stamped with Warner Bros logo concealed in the driver side speaker trim;
4. two boxes of subsonic .22lr ammunition containing 50 rounds each concealed in the driver side speaker trim;
5. a black Mazda folder containing two small sets of scales concealed in the driver side speaker trim**;**
6. one yellow tablet stamped with Warner Bros logo located between the passenger seat and centre console.

16. These exhibits were logged and secured by Senior Constable Lincoln McLean.[49]

17. At 5:50 am on 17 April 2019, police executed search warrants under s 81 (1) of the Drugs, Poisons and Controlled Substances Act[50] and s 465 (1) of the Crimes Act[51] at 26 Lesden Street, Bentleigh East. This property is a large family house and is the address of Andrew Karisson's mother, Faye Karisson, and father, Bill Karisson.[52] Andrew Karisson is an associate of the accused.

18. A 2016 Seadoo jet ski with hull identification RT769, on a trailer with Victorian registration Z15617, was located in the driveway of the address and seized.[53] As at 17 April 2019, this jet ski was registered to the accused.[54]

19. Police interviewed the accused on 17 April 2019.[55]

1. initially said he did not know where 26 Lesden Street, Bentleigh East was;[56]
2. said he owned a jet ski;[57]
3. said he was retired, made his money through investments in the stock market and gambling at the casino, and that his father had left him a lot of money; [58]
4. admitted that he had been living in Room 17 for three months and had no other fixed address;[59]
5. admitted that the contents of the Culture Kings satchel were his, being MDMA tablets, cannabis, and methylamphetamine;[60]
6. denied owning the Powertech box and said people leave stuff in his room;[61]
7. admitted owning the $900 located in his pocket and $75 located in his wallet;[62]
8. said that Carly Pitchford also had a key to the room and stayed there 4-5 nights per week;[63]
9. denied any knowledge of the Ford ute, saying that he had never been in the vehicle;[64]
10. denied any knowledge of the items seized from the Ford ute.[65]

21. The items referred to in subparagraphs 5 (b), (c), (d), (e), (f), (g) and 15 (c) above were analysed by Kathleen Poel, a scientist at the Forensic Services Department.

22. The yellow tablets and tablet portions referred to in subparagraphs 5 (b), (e), and 15 (c) above weighed a total of 620.6 grams. They each contained 3,4-methylenedioxy-N-methylamphetamine (MDMA), with an approximate purity of 22-24%.

23. The substances referred to in subparagraphs 5 (c) and (g) above weighed a total of 4.8 grams. They each contained methylamphetamine, with an approximate purity of 83-84%.

24. The substances referred to in subparagraphs 5 (d) and (f) above weighed a total of 137.7 grams. They each contained 1,4 butanediol. The purity of these substances was not determined.

25. MDMA, methylamphetamine, and 1,4 butanediol are drugs of dependence.[67]

26. The commercial quantity applicable to MDMA mixed with another substance is 500 grams.[68] The traffickable quantity applicable to MDMA mixed with another substance is 3 grams.[69]

27. The traffickable quantity applicable to methylamphetamine mixed with another substance is 3 grams.[70]

28. The traffickable quantity applicable to 1,4 butanediol mixed with another substance is 50 grams.[71]

29. The green vegetable matter referred to in subparagraph 5 (a) above was analysed by Madeline Brenker, a botanist at the Forensic Services Department. She found it to be cannabis L mixed with unidentified plant material, weighing a total of 1.5 grams.

30. Cannabis L is a drug of dependence.[72]

31. Rachael Feilso, a forensic officer from the Forensic Services Department, conducted DNA analysis on the clip seal regions of seven of the re-sealable plastic bags containing MDMA tablets located in the Powertech box (see subparagraph 5 (e) above). The mixed DNA profile found on the bags is 100 billion times more likely if the accused was one of the contributors.

32. Ms Feilso conducted DNA analysis on the clip seal region of the re-sealable plastic bag containing MDMA tablets located in the Ford ute (see subparagraph 15 (c) above). The mixed DNA profile found on the bag is 100 billion times more likely if the accused was one of the contributors.

33. Ms Feilso conducted DNA analysis on the handle / grip of the shotgun found in the Ford ute (see subparagraph 15 (b) above). The mixed DNA profile found on the handle / grip is 100 billion times more likely if the accused is one of the contributors.

34. On 24 January 2019, the Frankston Magistrates' Court made a Family Violence Final Intervention Order under the Family Violence Protection Act 2008 against the accused. The order was served on the accused that day. The order expires at midnight on 24 January 2021.[74]

Charges 1 - trafficking in a drug of dependence (MDMA), commercial quantity

35. The prosecution alleges that the accused possessed for sale the MDMA found in Room 17 of the Sandbelt Hotel and in the Ford ute, and thereby trafficked in that MDMA.

36. The total weight of the MDMA was 620.6 grams, which is not less than the commercial quantity applicable to MDMA mixed with another substance (500 grams).

37. The total weight of the MDMA was not less than the traffickable quantity applicable to MDMA mixed with another substance (3 grams). The accused's possession of the MDMA is therefore prima facie evidence of trafficking by the accused of that MDMA.[75]

Charge 2 - trafficking in a drug of dependence (MDMA); Charge 3 - possession of a drug of dependence (MDMA)

38. Charges 2 and 3 also relate to the MDMA located in Room 17 of the Sandbelt Hotel and in the Ford ute. Charge 2 is an alternative charge to charge 2. Charge 3 is an alternative charge to Charge 1 and Charge 2.

Charge 4 - trafficking in a drug of dependence (methylamphetamine)

39. The prosecution alleges that the accused possessed for sale the methylamphetamine found in Room 17 of the Sandbelt Hotel and thereby trafficked in that methylamphetamine.

40. The total weight of the methylamphetamine was not less than the traffickable quantity applicable to methylamphetamine mixed with another substance (3 grams). The accused's possession of the methylamphetamine is therefore prima facie evidence of trafficking by the accused of that methylamphetamine.[76]

Charge 5 - possession of a drug of dependence (methylamphetamine)

41. Charge 5 also relates to the methylamphetamine located in Room 17 of the Sandbelt Hotel. Charge 5 is an alternative charge to charge 4.

Charge 6 - trafficking in a drug of dependence (1,4 butanediol)

42. The prosecution alleges that the accused possessed for sale the 1,4 butanediol found in Room 17 of the Sandbelt Hotel and thereby trafficked in that 1,4 butanediol.

43. The total weight of the 1,4 butanediol was not less than the traffickable quantity applicable to 1,4 butanediol mixed with another substance (50 grams). The accused's possession of the 1,4 butanediol is therefore prima facie evidence of trafficking by the accused of that 1,4 butanediol.[77]

Charge 7 - possession of a drug of dependence (1,4 butanediol)

44. Charge 7 also relates to the 1,4 butanediol located in Room 17 of the Sandbelt Hotel. Charge 7 is an alternative charge to charge 6.

Charge 8 - possession of a drug of dependence (cannabis L)

45. The prosecution alleges that the accused was in possession of the cannabis referred to in subparagraph 5 (a) above.

46. The cannabis is deemed to be in the accused's possession because it was on premises occupied by him, namely Room 17 of the Sandbelt Hotel.[78]

Charge 9 - negligently dealing with proceeds of crime

47. The prosecution alleges that the money referred to in subparagraphs 5 (i) and (j) above was the proceeds of crime. The accused was dealing with the money by possessing it, in that it was in his pocket and wallet.[79]

Charge 10 - negligently dealing with proceeds of crime

48. The prosecution alleges that the Apple iPhone referred to in subparagraph 5 (h) above was the proceeds of crime. The accused was dealing with the phone by possessing it, in that it was on premises occupied by him.[80]

49. By reasons of the matters referred to in paragraph 34 above, the accused was a prohibited person as at 17 February 2019, the date that the search warrants were executed.[81]

50. The firearm referred to in subparagraph 15 (b) above was located in the Ford ute, which belonged to the accused. The accused thereby had custody and control of the firearm and thus had possession of it.[82]

Charge 12 - negligently dealing with proceeds of crime

51. The prosecution alleges that the jetski and trailer referred to in paragraph 18 above were the proceeds of crime. The accused was dealing with the jetski and trailer by possessing them, in that he had custody and control of them.[83] The jetski and trailer were registered in the accused's name and were stored at an associate's parents' property.

[1] (2017) 268 A Crim R 1; [2017] VSCA 151. See also Nguyen v The Queen [2021] VSCA 211

[2] See R v Pidoto and O'Dea [2006] VSCA 185; (2006) 14 VR 269 at 272-3, paragraphs [11]-[15]

[3] Drugs, Poisons and Controlled Substances Act 1981 (Vic), sch 11, pt 3

[4] DPP (Cth) v KMD [2015] VSCA 255 [(2015) [2015] VSCA 255; 254 A Crim R 244], paragraph [52]

[5] Exhibit 1, written plea submissions dated 22 September 2021, paragraph 6

[6] The trial was listed to commence on 12 October 2021. Given the ongoing lockdowns due to COVID‑19 restrictions, it is inevitable that the trial would have to have been adjourned until 2022.

[7] [2021] VSCA 169

[8] Ibid at paragraphs [34]-[39] (citations omitted)

[9] See R v O'Rourke [1997] 1 VR 246 at 253; and DPP v Grabovac [1998] 1 VR 664 at 683-684

[10] See Director of Public Prosecutions v Josefski [2005] VSCA 265; (2005) 13 VR 85 at paragraph [43]

[15] Depositions, 315; 317-8; 320; 322-3; 324-5; 327; 331-2.

[44] Depositions, 320; 632; photoset 8, photos 10 & 19.

[48] Depositions, 381; 383; Additional statement of SC Lincoln McLean dated 19 June 2019, 1-2.

[49] Additional statement of SC Lincoln McLean dated 19 June 2019, 1-2.

[52] Depositions, 387-8; 389; 391-2; 394.

[67] Drugs, Poisons and Controlled Substances Act 1981, s 4 (1) "drug of dependence" (c)(i), Sch 11, Pt 3, column 1.

[68] Drugs, Poisons and Controlled Substances Act, s 70 (1) "commercial quantity" (c)(i), Sch 11, Pt 3, column 2A.

[69] Drugs, Poisons and Controlled Substances Act, s 70 (1) "traffickable quantity" (c)(i), Sch 11, Pt 3, column 3.

[70] Drugs, Poisons and Controlled Substances Act, s 70 (1) "traffickable quantity" (c)(i), Sch 11, Pt 3, column 3.

[71] Drugs, Poisons and Controlled Substances Act, s 70 (1) "traffickable quantity" (c)(i), Sch 11, Pt 3, column 3.

[72] Drugs, Poisons and Controlled Substances Act, s 4 (1) "drug of dependence" (b), Sch 11, Pt 2, column 1.

[74] Notice of Intention to Call Additional Evidence dated 17 June 2020.

[75] Drugs, Poisons and Controlled Substances Act, s 73 (2).

[76] Drugs, Poisons and Controlled Substances Act, s 73 (2).

[77] Drugs, Poisons and Controlled Substances Act, s 73 (2).

[78] Drugs, Poisons and Controlled Substances Act, s 5.

[79] Crimes Act 1958, s 193 (1) "deal with".

[80] Crimes Act 1958, s 193 (1) "deal with".

[81] Firearms Act 1996, s 3 (1) "prohibited person" (c)(i).

[82] Firearms Act 1996, s 3 (1) "possession" (b).

[83] Crimes Act 1958, s 193 (1) "deal with".