DPP v McCann [2021] VCC 541

3 You have admitted your criminal record. It contains relevant matters including prior convictions for trafficking drugs of dependence.

4 The circumstances of your offending were outlined in the Summary of Crown Opening for Plea dated 13 April 2021, which is Exhibit A on your plea and forms part of these reasons for sentence.

5 Your offending was uncovered as part of the controlled operation, 'King Cobra', when you were identified by another person, who I will refer to as SJ, as a supplier of drugs.

6 You were identified after a covert operative spoke to SJ on 4 September 2017, who was then under arrest in a holding cell. The covert operative asked SJ if SJ could introduce him to any suppliers of drugs and SJ obliged by saying he could supply the covert operative with drugs and that he lived in Frankston and was welcome to attend his home.

7 On 7 September 2017, the covert operative attended SJ's residence and while he was not home a woman was able to provide SJ's number. The covert operative contacted SJ who told him that he could buy a 'ball', being 3.5 grams of methylamphetamine, from his supplier at the cost of $850.

8 SJ told the covert operative that he could not attend the transaction as he had other commitments, however, he had vouched for the covert operative and indicated that the supplier would trust him.

9 I will now outline the eight transactions that took place between you and the covert operative which relates in part to Charge 1.

10 The covert operative contacted you under the alias of 'Billy' in the afternoon of 7 September 2021 via Wickr, which is a messaging service, confirming if the transaction was going ahead in Frankston.

11 You met the covert operative at Keysborough South Shopping Centre. You provided the covert operative with 3.5 grams of methylamphetamine in a Ziploc bag in exchange for $850. The contents of the bag were later forensically examined, which revealed the substance to contain 2.45 grams of pure methylamphetamine.

12 You also told the covert operative that your prices for MDMA were $200 for one gram, $550 for three and a half grams, $950 for seven grams and $1,500 for 14 grams.

13 On 13 September 2017, the covert operative sent you a Wickr message requesting further methylamphetamine. You met at Keysborough carpark. You had Tayla Moore with you.

14 You entered the covert operative's vehicle and you were provided with $850 in cash. You told the covert operative that you had one gram on you. He responded that he wanted a 'ball', which was 3.5 grams.

15 Ms Moore then drove you home, leaving the covert operative in the car park. You went home to retrieve the remaining amount. You and Ms Moore then drove back to the carpark and provided the covert operative with the remaining amount of methylamphetamine in exchange for $850. You asked the covert operative if he would like to purchase MDMA.

16 You later exchanged messages with the covert operative, who thanked you for supplying the drugs and asked if he could buy more on 17 September 2017.

17 The substance supplied to the covert operative in this transaction was forensically examined and found to contain methylamphetamine with a total weight of 3.4 grams, which had a purity of 69 per cent.

18 On 19 September 2017, the covert operative contacted you again via Wickr, asking to meet later that afternoon and bring a sample of 'MD', which is a reference to MDMA. You confirmed you would bring some in addition to a ball of methylamphetamine.

19 Upon meeting at Keysborough South Shopping Centre, the operative gave you $850 cash in exchange for a Ziploc bag filled with a white crystal substance. You then advised the operative of your prices for MDMA: $400 for three and a half grams, $900 for seven grams, $1,500 for 14 grams and $2,800 for 28 grams.

20 You handed the operative a smaller, second Ziploc bag containing a small amount of a darker crystalline substance as a free sample of MDMA, telling him that you had 'bags', being ounces, of MDMA at home prepared for sale.

21 Upon forensic examination, the white crystalline substance which weighed 3.5 grams was found to contain 2.63 grams of pure methylamphetamine.

22 The smaller bag with darker crystals weighed a total of 0.1 grams and included 0.07 grams of pure MDMA.

23 On 25 September 2017, you contacted the operative asking if he needed any drugs. You met again at Keysborough South Shopping Centre.

24 You got out of your car and entered the operative's vehicle. The operative handed you $1,050 in cash, which you counted before handing over a Ziploc bag containing a crystalline substance and a smaller Ziploc bag containing light brown crystals.

25 You told the operative you had a few bags of MDMA at home if he wanted more.

26 Forensic examination found that the medium-sized bag weighed a total of three and a half grams, containing 2.63 grams of pure methylamphetamine. The smaller bag weighed one gram and was found to contain 0.71 grams of pure MDMA.

27 On 11 October 2017, you again met the operative at Keysborough South Shopping Centre. He had messaged asking for 3.5 grams.

28 You entered the operative's vehicle and he gave you $850 in cash. You gave him a medium-sized Ziploc bag. You told the operative that you were able to obtain 500g to one kilogram of methylamphetamine but required 24 hours' notice. You also advised that you could sell an ounce of methylamphetamine for $5,100 and that you normally purchased 92 grams from your supplier and that you would normally be in possession of at least 46 grams of methylamphetamine at any one time.

29 The Ziploc bag was found to contain 2.55 grams of pure methylamphetamine out of the 3.5 grams of the total weight.

30 On 17 October 2017, you sent a message to the operative enquiring if he needed more drugs. The operative asked if he could purchase two bags or 46 grams of methylamphetamine for $9800 every 10 days.

31 You replied that you could only sell that amount for $10,000, however the operative reassured you that he would pay the outstanding $200 with his next purchase and you agreed, driving later that evening to a storage facility in Dandenong to retrieve the drugs.

32 You and Ms Moore met the operative at Keysborough Shopping Centre. You were handed $9,800 in cash. You provided two Ziploc bags to the operative which you retrieved from your underwear.

33 Forensic testing found that the two bags had a gross weight of 28.3 and 28.4 grams respectively, with 19.53 and 20.73 grams of pure methylamphetamine contained in each respectively.

34 On 27 October 2017, the operative contacted you and asked you when you could buy more drugs.

35 After an exchange of messages on 1 November 2017, the operative advised that he would like to purchase two ounces of methylamphetamine and said he would pay the outstanding $200 from the previous transaction, in addition to bringing some money to purchase a firearm.

36 You advised you were not able to obtain a firearm but agreed to meet the operative later that evening at the usual spot.

37 Upon leaving your house to meet the operative, you were surveyed by police as attending a residence in Narre Warren North before leaving and meeting the operative in Keysborough.

38 You entered the operative's vehicle and gave him two Ziploc bags in exchange for $10,200. You had further discussions with the operative about the possibility of obtaining a firearm.

39 Forensic examination revealed that the two bags weighed 56.3 grams in total, containing 39.41 grams of pure methylamphetamine.

40 On Wednesday 22 November 2017, the operative made contact via Wickr asking to meet in the near future to make a purchase.

41 On 29 November, you met with the operative near a chemist in Narre Warren where it was arranged for him to purchase six ounces of methylamphetamine. However, this did not eventuate until 5 December 2017 as you were having problems getting the supplier.

42 On 5 December 2017, you met with the covert operative accompanied by

Ms Moore. The operative handed you and Ms Moore $30,000 in cash. Shortly after, a man known to Ms Moore as Aaron arrived in another car.

43 You asked the operative if you could provide the cash directly to him to ensure the transaction went smoothly. The operative agreed and you left your vehicle to meet Aaron and hand over the money and collect the drugs.

44 You advised upon your return that Aaron had only bought five ounces and you would need to follow him back to his house to obtain the outstanding ounce. You gave the operative the drugs obtained from Aaron and left your vehicle again to travel with Aaron on the condition that the operative could wait with

45 You left in Aaron's vehicle and returned sometime later, providing the operative with small plastic bag containing six smaller bags. All the bags weighed a total of 168.6 grams, which contained a total of 118.02 grams of pure methylamphetamine.

46 After the sale, you and the operative communicated further about purchasing additional methylamphetamine, namely some 5.5 ounces, but this did not eventuate before the search of your home.

47 It is clear from the evidence, and common ground between the parties, that you were a facilitator or an intermediary in every sense in this final transaction. The observed facts support a theory that Aaron supplied the drugs and it is likely he received the bulk of the proceeds.

48 On 29 January 2018, police executed a search warrant of yours and Ms Moore's home in Narre Warren. You were located during the search and arrested.

49 The items found during the search, in addition to relating to Charge 1, also relate to Charges 3 and 4.

50 A safe was located in the main bedroom, which you assisted in opening.

51 There was a snap lock bag containing a white crystalline powder which was later analysed to contain 124.66 grams of methylamphetamine, and two plastic bags containing 46.9 grams of MDMA with a purity of 59 per cent and one bag of 20.5 grams of MDMA with a purity of 84 per cent.

52 There was also a loaded sawn-off shot gun located (Charge 4), 24 shotgun shells and a handgun magazine containing seven rounds of ammunition, which forms the basis of Summary Charge 19, and 13.5 grams of dried brown mushrooms which represents Charge 3.

53 You were taken to Dandenong police station and interviewed. In relation to your interactions with the covert operative you made no comment. However, you stated that you owned the shotgun, the ammunition, the cash in your wallet, the brown pills and the mushrooms found during the search.

54 Over two to three days in 2020 and early 2021, I heard evidence in relation to the covert operation that led to your arrest and prosecution. Pre-trial argument took place which focussed upon the fairness of police conduct via the covert operatives in inducing your criminal conduct.

55 The outline of argument of Ms Randazzo was Exhibit 1 on the voir dire.

Ms Randazzo relied upon common law principle in relation to fairness and public policy with a view to excluding tracts of evidence in your case or alternatively staying particular charges.

56 I ruled upon the matter on 16 March this year, rejecting the application. At the time of my ruling, I observed that significant mitigation was available to you due to the nature of the covert operation, namely the progression from small quantities to a commercial quantity and the upscaling that occurred - in the sense described by the Court of Appeal in the case of Kada v The Queen. I also observed that the moderate extent to which your trafficking exceeded the commercial threshold was relevant to the objective circumstances of your offending.

57 Now, having received the detailed material in relation to your neurodevelopmental disorder, I consider that your vulnerability in the context of this particular covert operation due to your ADHD provides another relevant layer in assessing your subjective culpability for the offending.

58 Drug trafficking in a commercial quantity is a very serious offence - the maximum penalty demonstrates this. The possess prohibited weapon is also a serious offence. You have relevant prior convictions, including for trafficking drugs.

59 Absent other matters, your offending would ordinarily attract a significant head sentence and non-parole period.

60 In her helpful outline of submissions on the plea (Exhibit 1), Ms Randazzo set out a number of matters under the heading 'Submission on the Facts'.

Ms Randazzo made a number of points aimed at mitigating the circumstances of offending and your moral culpability. I will not address each of them. I am satisfied generally that:

• there was no evidence in your case of trafficking prior to the meeting with the covert operative;

• the consistent progression from low-level amounts to the final transaction is apparent;

• the operation was focussed upon obtaining firearms. The drugs were ancillary, it would seem, and may have been a way of keeping you on-line, so to speak, in order to progress the firearms investigation;

• unbeknown to investigators, the commercial quantity threshold was halved during the operation, I was told;

• you were three weeks out from completing a drug treatment order and were doing well when the operation commenced;

• the extent to which the commercial quantity is breached (just by purity alone) is moderate to low and to a significant extent due to the requests made by the covert operative on instruction from his supervisors.**

1. Ms Randazzo referred me to Kada v The Queen[1] and the principles set out therein. I will not examine each of the matters referred to by the Court that are relevant to an assessment of mitigation in these circumstances. To a degree, several of the considerations referred to by the Court in Kada are present in your case. These matters are a question of fact and degree.
2. Ms Randazzo set out a number of submissions in her written outline addressing the Kada criteria. I will not address each of these. My findings above reflect some of the matters Ms Randazzo relies upon but again, the question is one of degree.
3. I have found that, as there often is in cases of this type, a progression to commercial trafficking via the requests, perhaps at times pressure, of the covert operation. These facts are present to a not inconsiderable extent in your case. It is also clear you had to seek out 'Aaron' in order to meet the supply demands.
4. The 'extra' layer I have referred to - being your vulnerability to that sort of operation - is pronounced.

1. You were diagnosed and treated for ADHD from the age of nine. It has impacted your development and your progress through life.
2. Your family has a history of neurodevelopmental disorder and mental illness. There is a history of ADHD on your father's side. There is a history of major affective disorders and transgenerational traumatisation on your mother's side. Your younger and older brothers have been diagnosed with autism spectrum disorder. I was told that your maternal grandmother and great grandmother required psychiatric admissions. One of your maternal uncles has been diagnosed with bipolar affective disorder.
3. Reports tendered on your plea from Dr Das and Dr Riebl confirm the diagnosis of ADHD from a young age, progressing and persisting into adulthood. ADHD, of course, is a significant and serious mental health condition rendering sufferers more vulnerable in particular settings.[2]
4. Dr Riebl opines that those with ADHD "often tend to be gullible, with naïve attitudes towards others" and have "significant and disruptive attention-seeking and need for praise (related to poor self-esteem)" making them subjects of bullying and "particularly easily led astray by those who don't have their best interests at heart."[3]
5. On the final page of his report, Dr Riebl addresses the extent to which your ADHD contributed to the offending in his opinion:

"Conflict avoidance, poor self-esteem, interest in - and potentially 'hyperfocus' on his 'new friends', sensitivity towards their expressed disappointment at him not providing the firearms demanded of him and generally a catastrophic lack of pause and judgment, impulsivity - all well-known characteristics of ADHD and further enhanced by the comorbid conditions as listed would have contributed to Mr. McCann drifting - or being pushed? - into unlawful behaviour."

"When asked whether the mental condition directly caused the offending, the answer clearly has to be 'no'. However, his condition represented most likely a significant contributor towards his sliding into crime, through the characteristic lack of planning, reflection and foresight generally referred to as executive function disorder, as well as the lack of ego boundaries (poor sense of self), which would have made my patient such an excellent target for the skilful manipulation as it might have unfolded. All of the above factors would have been fully operational throughout that period and would have contributed to his unfortunate lapse in judgment"[4]

1. Ms Randazzo submitted on your behalf that whilst the condition did not directly cause the offending, I should find a causal link between your condition and the offending in that it represented a significant contributor to it, thus attracting the first principle in Verdins.[5] In all the circumstances, Ms Randazzo urged a finding that moral culpability is reduced.
2. A further submission based upon Verdins was the hardship in custody point - people with ADHD cope poorly with imprisonment and are likely to deteriorate in "ADHD symptom load".[6] That is a reference to Dr Riebl's report - the final page.
3. Professor Heffernan points out that:

"ADHD, a serious mental health issue, requires Specialist treatment that is not available in the Department of Corrections facilities, and that the person with ADHD, without such treatment has very poor rehabilitation prospects."[7]

1. That was a reference to a report relied upon by Ms Randazzo on behalf of you. There was some contention about that and I was provided with a letter from the Department of Justice in relation to that. What I do accept is that for your period of remand, which was some two years and two months, you did not receive treatment for ADHD.
2. It was submitted that imprisonment weighs far more heavily on a prisoner suffering with ADHD than it does on prisoners generally, thereby calling for moderation in sentencing. I accept that custody is more onerous for you due to ADHD than it otherwise would be.
3. I accept that you served 27 months on remand - or closer to 26 months, I believe, on remand - without any treatment for ADHD. I accept that during that time you experienced a harsher and more difficult period of imprisonment, weighing far more heavily on you than others without your condition.
4. In relation to your subjective culpability, I accept that for the reasons articulated by Dr Riebl, you were more vulnerable in the context of the covert operation and that is a matter relevant to the progression from small quantities to commercial quantities and is therefore relevant to what I will call the Kada v The Queen consideration.
5. I also accept more generally that your ADHD and its particular manifestation in your case has shaped your responses and experience from a young age and has contributed significantly to your drift into alcohol and substance abuse from a young age, as well as your drift toward a negative peer group and criminal milieu.

1. You were born in Dandenong, as I have mentioned, and you have two brothers. Your parents separated when you were aged around 10. Your father lives in Perth and you lived with him for periods of time during your childhood.
2. You finished school at year 10 in order to pursue an electrical apprenticeship. You did not complete that apprenticeship and instead worked with your father who is a boiler-maker.
3. You have a good capacity for work. You are currently employed as a concreter. You are also enrolled in a Diploma of Building at the Australian Building Academy, and both of these matters in combination take up a significant amount of your time.
4. You have achieved a level of stability in your life that has not been present in the past.
5. As I have mentioned, you have a serious criminal history including not just drug matters, but violent offending also. Impulse control has been a problem for you throughout your life.
6. You have spent a significant period in custody prior to your remand on this matter. You were bailed in March last year. You have been on very strict bail since, including curfew and an order not to leave the house unless in the company of your mother.
7. You have done exceptionally well. You have demonstrated significant progress toward rehabilitation whilst on bail.

1. The delay in this case encompasses a period of approximately two years and two months that you spent on remand for this matter in difficult circumstances due to your ADHD being untreated for the duration and following that remand, the strict bail to which I have referred.
2. I received a number of reports authored by Ms Amanda Brown from Lamberti and Associates and I accept the content of those reports. You engaged in Drug and Alcohol counselling with Ms Brown on a regular basis whilst on bail, including twice weekly drug screening, as well as continuing psychiatric treatment for your ADHD with Dr Riebl.
3. Ms Brown reports significant and consistent engagement by you.[8] Drug screens tendered on the plea confirm an ongoing abstinence from all but prescribed drugs. One minor lapse in February, involving a single use of cocaine which was volunteered by you in circumstances where it would have otherwise remained undetected through drug screening, is not a matter of concern in the overall context of your rehabilitation.

**89 I received several character references that confirmed the progress you have made in every aspect of your life over the past 13 months whilst on bail. I accept that with the structures you have put in place, alongside those required by your bail conditions, and together with your growing insight and maturity - your prospects of rehabilitation are good.

90 Dr Riebl recognises the risks that your underlying, lifelong condition presents, but he reports that the:**

"structures of work and career, especially in a setting of constructive life goals and a good relationship - in the absence of drug abuse - would provide the best framework for lasting rehabilitation. Ongoing treatment of his ADHD and its comorbidities will be required for optimal outcome."[9]

**91 I had you assessed for a combined custody and community corrections order. You were assessed as low risk of re-offending, which is a significant finding given your history and the nature of the offending before me.

'With regards to the offending in this context, Mr McCann displayed remorse and accountability by articulating the detrimental impact of trafficking on himself and the wider community. As evidenced by the materials tendered to this service, Mr McCann has continued to engage in therapeutic intervention since his arrest. He is now in receipt of stable employment and resides with his mother in Narre Warren."

**93 Your guilty plea is of significant utilitarian value and accordingly you are entitled to a significant discount in that regard. That utilitarian value is particularly significant in the context of the trial backlog in the list at the moment due to the COVID pandemic.

94 The prosecution submitted that given the objective and subjective culpability involved in your offending, and considering your history, the only sentence that could meet the factors of general deterrence and denunciation was one involving a head sentence and non-parole period.

95 As I have observed, absent the matters in mitigation, and in particular the effects of delay, that submission is reasonable.

96 I have concluded, however, that it would be counter-productive and counter to the community's interests and would not serve general deterrence further, to send you back to jail for a matter of months to a year before being eligible for parole. I have also taken into account that a return to gaol in the COVID-era involves a period of isolation, restricted regimes, and limits on visits. There is also the remaining question of how quickly you would be able to access ADHD medication, if at all.

97 That finding involves a degree of mercy and leniency given the circumstances of your period on remand at first instance and the 13-months strict bail since, but in particular your rehabilitation during the delay.

98 Taking into account the need for specific deterrence, the need to denounce your conduct, the need to deter others, but also considering the objective and subjective culpability of your offending, and your prospects of continuing rehabilitation, I sentence you as follows. Before doing so, I will just also add that, as was ventilated on the plea, I have considered the operation of s.5(2H) of the Sentencing Act 1991.

99 I propose to sentence you to an aggregate sentence given that all charges arise out of your descent into drug trafficking over the period and have an underlying unity in that sense.

100 On Charge 1, I sentence you to be imprisoned for 784 days in combination with a community corrections order of three years' duration. That is an aggregate sentence.

101 Your sentences on Charges 2, 3, 4 and Summary Charge 9 is part of that aggregate sentence.

102 I declare that you have served 784 days as pre-sentence detention. The Special Conditions of the community corrections order are that you perform 140 hours over that period of unpaid community work and that you also engage in drug and alcohol assessment and treatment as directed. Up to 50 hours of therapeutic programs can be credited towards work hours.

103 I make the disposal order sought. I think there was a forfeiture order as well, I make that order. No, there was not, it was all part of the disposal order.

104 MS RANDAZZO: There is a disposal order that can be made. The forfeiture order needs to be left aside for the moment because there are still some matters on that that need to be determined.

105 HIS HONOUR: I have got one here that is just weapons and ammunition.

107 HIS HONOUR: I have got one that has got five items.

109 HIS HONOUR: No, the disposal order relates to scales, registration plates. It has got the mobile phones.

111 HIS HONOUR: So, it is the disposal order that is in dispute?

113 HIS HONOUR: All right, I will not make the disposal order. I will make the forfeiture order and you can come back to me for the disposal order at some time. Pursuant to s.6AAA of the Sentencing Act, I indicate that were it not for your plea of guilty, I would have sentenced you to a total effective sentence of six and a half years with a non-parole period of four years.

116 HIS HONOUR: All right, good. That is going to be prepared. You can take a seat for the moment. That will be prepared and I will sign it and then you will sign it. I listened to what your counsel said at the outset about the commitment involved with the building course. I have taken that into account, but there is still a substantial number of hours of community work, but it is also a long order so there is capacity to spread it out over a long period of time. We will get that prepared now. I am just going to stand down. Is there anything arising?

117 MR GOODENOUGH: I will discuss it with my learned friend, Your Honour, if I may.

118 HIS HONOUR: I might stand down while we get the order printed.

119 MR GOODENOUGH: Your Honour, in terms of the summary offence which only has a maximum penalty of a fine, but if Your Honour made it part of an aggregate sentence, which is imprisonment, whether that is open in the circumstances.

120 HIS HONOUR: No, it is a good point. I have always found it difficult with community corrections orders to sort of make things concurrent. I took the view that a straight sentence of imprisonment for Charge 1 was inadequate and in order to reflect all the general deterrence and denunciation it needed to be a sentence of imprisonment in combination with a community corrections order of some length. That then left the option of, on the remaining charges, I consider that a community corrections order was sufficient, but it does not seem to me that I can simply say a community corrections order on those charges as part of the community corrections order part of the combination sentence, if you follow.

122 HIS HONOUR: I took the view that it made more sense to make it an aggregate order. That is the overall aggregate sentence. I do not think it necessarily follows from that. I do not know, maybe there is a technical - - -

123 MR GOODENOUGH: Out of an abundance of caution I looked at that - pardon me, Your Honour.

124 HIS HONOUR: I might amend the sentence. I am going to stand down at the moment while the corrections order is done, but I will make the aggregate sentence relate to the indictment matters so the aggregate sentence covers Charges 1 to 4, and on the relevant summary offence of ammunition possession, I will convict him and fine him $800 and that avoids any uncertainty in that regard. I will stand down while the papers are prepared.

125 HIS HONOUR: The pre-sentence detention declaration I will change to 787 days. Here is the order, I will hand it down, Ms Randazzo, and then you can approach your client and invite him to sign it.

126 All right, thank you. We will get some copies made of that, Mr McCann, for you. I have to tell you that if you breach the order by non-compliance or reoffending, you will be back before me for dealing with the breach and possibly resentencing.

[1] [2017] VSCA 339 ("Kada").

[2] See: Report of Dr Luis Riebl, Psychiatrist, dated 9/4/2021 at page 5 "Why ADHD makes a person more vulnerable...".

[5] R v Mark Andrew Verdins [2007] VSCA 102; (2007) 16 VR 269 ("Verdins").

[6] See: Report of Dr Luis Riebl, Psychiatrist, dated 9/4/2021 at page 6.

[7] See: Report of Dr Peter Heffernan, Consultant Psychiatrist, dated 26/11/2019 at page 1.

[8] See: Report of Amanda Brown, Senior Clinician, Lamberti Associates, dated 17/2/2020 & 12/4/2021.

[9] See: Report of Dr Luis Riebl, Psychiatrist, dated 9/4/2021 at page 6, "Recommendations" (emphasis mine).