DPP v Money [2021] VCC 1982

3 On 9 January 2020, you and your co-accused Madeline Henry, drove to Mariner's Cove Apartments in Paynesville. You checked in and paid for two nights of accommodation. Later you were driving in Paynesville when your car was seen by police on patrol. You drove away from the police to avoid being intercepted. The two police officers, Constable Easton and Senior Constable Bunawan, then engaged in outstanding police detective work, together no doubt with colleagues from the local area. They were able to locate your car at the Mariner's Apartments.

4 They sensibly searched the nearby area and found a bag in the bushes with your keys to your apartment, or the apartment you were staying in. On this basis a warrant was secured to search your apartment and your car.

5 In the apartments and the car the police found large quantities of many different drugs and a colossal amount of cash, together with all the accoutrements for preparing and selling drugs, being two sets of scales, small weights, multiple deal bags and a grinder.

6 Also found were personal items belonging to you, or belonging to, and identifying both you and your co-accused Ms Henry.

7 The total amount of drugs and money found in your car and accommodation in Paynesville on, as it turned out, from the 9th into the 10th January 2020, were as follows.

8 There was 282.25 mixed methylamphetamine, which on analysis was

220 grams - .3915 grams pure methylamphetamine. This is a commercial quantity and was Charge 1.

9 1,4-Butanediol, a liquid. What was found was 4,503.4 grams all over four and a half kilograms. This is a commercial quantity of that substance and was Charge 2.

10 Charge 3 was trafficking in a drug of dependence MDMA. There was found 19.9 grams of mixed powder, which was on analysis 14.92 grams pure MDMA.

11 Charge 4, is related to heroin, what was found was 67.4 grams mixed and approximately 46.314 grams pure.

12 Charge 5, related to cocaine. There was 22.96 grams mixed and

13 Charge 6, related to cannabis. Charge of possession, that drug and it was

14 The money that was found was $318,445, this was Charge 7, knowingly deal with the proceeds of crime. There was another charge relating to handling stolen goods which arose out of that search.

15 You and Henry then escaped as it were, escaped the Paynesville area that night, so obviously with the help of others. The police work located a phone which you had deliberately thrown in a drain which revealed messages on it too, that revealed your involvement in the drug trade and what was done to try and distract the police from locating you on that night.

16 The police continued to search for you and Henry. On 6 February 2020, information was obtained that you and Henry were in a B & B in Maffra. You and Henry were followed in a car from there to Cranbourne, where after some failed attempt to run away, you were arrested by the Special Operations Group and the police dog.

17 The car was searched and again significant amount of drugs and money were found together, with jewellery and cards belonging to various victims of thefts from their cars in the proceeding weeks. Total amount of drugs found on 6 February 2020, were methylamphetamine, 63.5 grams, which was 50.655 grams pure. The 1,4-Butanediol amounted to 588 grams. The MDMA was small, 1.7 grams, being .935 pure.

18 This was charged as a single as it were rolled up count of trafficking in drugs of dependence Charge 9.

19 The money found at this point amounted to $11,790, and you were charged with knowingly deal with the proceeds of crime, Charge 10. There were as I said, handling stolen goods, those charges are Charge 11.

20 The crimes that you committed in particular the offence involving trafficking in a commercial quantity of methylamphetamine, Charge 1, and 1,4-Butanediol, Charge 2, and the knowingly deal with the proceeds of crime, being $318,445 in cash, Charge 7, are grave examples of very serious crimes.

21 The other drug offences make it plain that you were deeply involved in entrepreneurial trading in all range of drugs.

22 The other offences of trafficking in drugs, Charges 3-6 and 9, involve significant quantities, but below, or just below the commercial quantity.

23 As the Court of Appeal has made clear, the seriousness of drug crimes is very much related to the quantities involved. In a series of cases, being Gregory,[1] Fernando,[2] Condo,[3] and Lytras,[4] the Court of Appeal has with respect, carefully analysed the principles both general and particular that relate to the crime of trafficking in a commercial quantity. In each of those cases, the main drug involved, at a commercial quantity was methylamphetamines. However of note, those cases involved Giretti between dates type counts,[5] with evidence of many transactions, and in the Gregory case accompanied by violence and serious intimidation.

24 What is a common theme, indeed, it has been for many years, even before those cases I have just referred to, has been a common theme in drug offending, is the imperative that sentencing judges give paramountcy to the sentencing purposes of denunciation, punishment, protection of the community and deterrence.

25 While an offender's rehabilitation is not to be overlooked, that sentencing purpose must yield to the weight to be given to the other sentencing purposes I've just mentioned. The reasons for the importance of punishment and deterrence are obvious enough, drugs including methylamphetamine or ice, they are a scourge, they beget further crimes and ruin the lives of users and also the families of the users and those around them. There are wider impacts which are considerable within our communities.

26 None of this is particularly controversial, nor is any argument to the contrary put forward on your plea. In Gregory,[6] it was recognised that drug trafficking offenders can and often do involve hierarchies with different roles from the controlling person at the top, down to the courier at the bottom. Also, within those quantities, in a particular case, some may be close to a large commercial quantity, or at the other end just above the commercial quantity.

27 Further, other cases such as Maxwell,[7] have made clear, that while impacts of a particular drug, it's purported potency, or it's harm is not a matter for sentencing judges, commercial factors, such as the profit margin, are a relevant consideration. So, for 1,4-Butanediol is accepted, that the profit margins involved in that drug are not as they might be for other drugs such as methylamphetamine and cocaine for example.

28 What was said in Gregory,[8] was that a non-exhaustive list of features could if present, elevate the gravity of the offending, such that significant sentences, well into double figures, could be warranted. The Court of Appeal said the following, at paragraph 98:

It would therefore be expected and parliament must be taken to have intended that there would be a spread of sentences across the statistical range. In particular, sentences well into double figures, would have to be expected for commercial quantity trafficking offences where one or more of the following features was present: the quantity involved approached the large commercial quantity threshold; the offender was in charge of the trafficking business; the business was conducted for a substantial period; the offender pleaded not guilty; and/or the offender had relevant prior convictions.[9]

29 As will become clear, some, but certainly not all of those features are present here. As I have mentioned Gregory and the cases that follow, were in the main between dates trafficking, established by sales. Here the trafficking is possession of large quantities of drugs for the purposes of sale. The evidence of the accoutrements and some, but few, text messages on 9 January, found on your phone, make it clear, that quantities of drugs you were caught with, were in your possession because you intended to sell them, hoping for significant profits.

30 Large amounts of cash also indicate the significant entrepreneurial nature of this offending. In your case, the one feature mentioned in Gregory that is concerning, is that you do have relevant prior convictions.

31 You are currently 34 years old. Your offending started at age 20, but relevantly by age 22, in 2009, you were sentenced to an intensive corrections order for trafficking in MDMA, methylamphetamine and cannabis and dealing in the proceeds of crime.

32 Less than a year later in 2010, you were given a partially suspended sentence for trafficking in amphetamines and cannabis. This breached your intensive corrections order, though it was extended by the magistrate.

33 Further a possession of cannabis charge was dealt with by fine in 2013. In August 2014, you were sentenced by Judge Lawson of this court, for two charges of trafficking in a drug of dependence; two charges of possession of a drug of dependence; one charge of possession; possession of precursor chemicals.[10] Her Honour also dealt with you for three summary offences of dealing in the proceeds of crime.

34 Her Honour in dealing with your prior convictions up to that point that I have mentioned, said the following, and I make clear I completely agree with Her Honour's description of the merciful sentences imposed upon you in the past, she said this:

In the past courts have been very generous to you. You've received a variety of dispositions, including adjourned undertaking and partially suspended sentence and intensive corrections orders. You breached the intensive corrections order imposed on 8 April 2009. On 4 March, 2010, the Magistrates' Court at Frankston found the breach approved and placed you on a further intensive corrections order that you were able to complete without further incident.[11]

35 The trafficking charges before Her Honour were based on what was found in a hotel room you were occupying at the time, and your home - that premises being searched. Charge 1, was 1,119 grams of 1,4-Butanediol. Charge 2 was a 112 grams of methylamphetamine. Your phone also revealed messages relating to drug trafficking and details of substantial amounts owed to you in these drug debts. You had $78,000 in cash.

36 Her Honour imposed a total sentence of five years with a non-parole period of two and a half years and relevantly imposed three years for a charge of trafficking in 1,4-Butanediol, two and a half years for Charge 2 on that indictment relating to methylamphetamine, and 12 months, for the $78,000 proceeds of crime.

37 Your prior criminal history reveals your entrenched propensity to engage in increasingly more serious drug trafficking offending. Your escalating and repeated drug offending, must be met with stern punishment which at a minimum will protect the public from your drug trafficking behaviours, as you will be, to use an old-fashioned sentencing term, but a relevant one, you'll be incapacitated while serving a lengthy term of imprisonment.

38 Plainly deterrence to you looms large as a sentencing purpose. You are not to be repunished for your previous crimes, and they do not make your current offending more objectively serious, rather it makes your moral culpability, that much higher. You of anyone knew what you were doing was serious criminality with dire consequences if detected, but you went ahead anyway. That is added to, that is your moral culpability, by the fact that your business was seriously damaged by the seizure of drugs and money on 10 January 2020. But by

6 February, you were stocked up again with a range of drugs and had large amounts of cash on you - that is, $11,000. Bear with me.

39 It seems to me an old-fashioned term, but it seems to me you never learn. It makes the prospect of rehabilitation truly grim. Little justification can be given for striving to establish conditions to facilitate your rehabilitation, save that it would seem once you were granted parole in 2017, you did not breach or you did not have your parole breached.

40 I have made what I think are appropriate comments and given appropriate consideration to your prior convictions as Gregory's case made specific mention of relevant prior matters in assessing the appropriate sentence. There are other matters that bear upon the gravity of your offending. You are the one who was in control. They were your drugs for you to sell for profit. There is nothing in the evidence, or nothing was said on the plea, to contest the proposition that it was your money and your drugs.

41 Your role, as it were, is as a controlling one, with respect to the drugs, you were the drug trafficker and the possessor of the proceeds of crime. It could not be said that your co-accused was at the same level, or much less, to say that she was at a level higher than you or was in control.

42 The quantities involved, though not as substantial as in some cases, and not approaching large commercial quantity in the case of Charges 1 and 2, but nonetheless, what is clear is, on the evidence, that your offending was a serious example of the trafficking charges as set out in trafficking not less than a commercial quantity, Charges 1 and 2, and to a varying degree the trafficking simplicita charges set out in Charge 3, 4, 5 and 9.

43 I have considered each of the quantities specifically and not as a job lot. The fact that you had an array of different drugs, almost all of the drugs that are readily seen in this court as drugs of dependence, also indicates the scope of your engagement in drug trafficking. Quantities of cash speak for themselves. Seems to me you were in greedy pursuit of the quick and lucrative profits that could be made from drug trafficking.

44 As the Court of Appeal in Lytrus made clear,[12] you must assess the particular or unique circumstances of the offending and you as the offender in conformity with the High Court's concept of individualised sentencing.

45 I also turn to your personal circumstances. They were concisely summarised by your counsel Mr Page in his well-considered and helpful plea. As stated, you are now 34. You were one of four raised in the Chelsea area. In your family life you saw and experienced violence meted out by your father. You left home at 16. Your schooling was disrupted being expelled in Year 9 from the local high school. You went to a local technical school but it didn't work out and you left at the end of Year 9.

46 You moved into working, a trucking company for 12 months and from there to many other jobs mostly short-term. You started using drugs in your early teens progressing up to using ice, in your mid-20's. This use escalated and it was said that you began trafficking to support your habit. This coincides with your Magistrate Court convictions in your 20's.

47 After your ICO was imposed you began a relationship and remained drug free it was said until 2014. You and your partner moved back to the suburb around this time where you had drug associates, in the Frankston area, and you returned to drug use and trafficking which followed. This led to the crimes and the sentence that was imposed by Judge Lawson in 2014.

48 After your release, you moved with your partner to the Bairnsdale East Gippsland area where you worked as a furniture removalist. In 2019, your partner's father died and the relationship faltered as you were unable, due to your parole, as I understood it, to be able to travel to New South Wales, but in any event the relationship faltered.

49 You went to Melbourne and fell into drug use and then quickly into trafficking leading to this offending. Your counsel submitted that your plea of guilty in these COVID times must be given greater weight, I agree. Your plea came after sensible negotiations, led to a revised indictment. All of this was in a time when jury trials were suspended. The slow return of jury trials now, does not mean that the increased utilitarian benefits of a plea have evaporated. A long backlog of cases to be tried in the County Court and indeed in other courts means your plea remains of real value. As was said by the Court of Appeal, an important decision on this topic of Worboyes,[13] said the following,

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.[14]

50 Further, your time on remand since February 2020, has been when prisons are far more onerous due to the restrictions on visits and programs because of the fear of the spread of COVID-19 into the prisons. It seems you have re-established your relationship with your previous partner, but you are unable to have family visits or they are restricted. I have factored that into the sentencing equation. The simple fact is that prisons are, and remain, more onerous than they were before COVID times.

51 I need to ensure the proper application of totality for the various crimes committed by you. In the end, the sentence must be proportionate to your offending, no more, no less. I've considered concurrence in cumulation, then revisited the overall sentence and adjusted to ensure that what I have done can be seen to be done in terms of the total sentence for all your offending.

52 Your recidivism makes, amongst other things, the fixing of a non-parole period, more problematic. I do want to encourage you to break this drug use and drug trafficking cycle with a lengthy parole period. But a lengthy parole period allowed for, the lengthy parole period, that was allowed for by Judge Lawson in her sentence, while not breached did not bring about permanent reform. There are no fixed formulas in setting a non-parole period and whether and when you are again paroled of course is for others, not the court.

53 Though your sentence, which I'll shortly announce is a stern one, it would have been I assure you, years longer, but for the Worboyes plea of guilty factor as I have endeavoured to make clear in my reasons,[15] and by the s 6AAA declaration that I will make.[16]

54 Doing the best I can with this, 11 count indictment, I impose the following penalties.

55 Charge 1, trafficking in not less than a commercial quantity of methylamphetamine, six years.

56 Charge 2, trafficking in 1,4-Butanediol in not less than a commercial quantity, four years.

60 Charge 6, the possession of cannabis, six months.

61 Charge 7, the proceeds of crime, being the $318,000, three years.

62 The handling stolen goods, Charge 8, four months.

63 Charge 9, the trafficking of the drugs that were found on 6 February, three years.

64 For the proceeds for the crime matter, the $11,000, Charge 10, 12 months.

65 And Charge 11, the handling of stolen goods, three months.

66 I make the following orders for cumulation. One year of Charge 2. Two months of Charge 3. Three months of Charge 4. One month of Charge 5. One year of Charge 7. And one year and six months for Charge 9. They are cumulative upon each other and on Charge 1, which is the base sentence, all other sentences of imprisonment are concurrent. If my mathematics is right and I do hope that the parties will quickly check, the sentence that I seek to achieve is a sentence of 10 years, with a minimum term of seven years.

67 Had you pleaded not guilty to these offences, I would have imposed 13 years and six months, with a non-parole period of 10 years and six months. You have already served 666 days in custody. This figure having been reckoned, I now declare it's part of the sentence that I have just imposed.

68 I ensure that declaration is entered into the records of the court, so the authorities are left in no doubt that you have 666 of the sentence that I have just imposed.

69 There are other orders that I have to make relating to forfeiture and disposal and I will sign those orders. Is there anything else that I need to do

70 MR McCONAGHY: No, Your Honour, and I've calculated 10 years, with cumulation.

72 MS STANLEY: Your Honour can I just flag we haven't been served with any forfeiture or other ancillary orders, so if my friend's instructor could email those through to me, I'd be most grateful.

73 HIS HONOUR: No worries, all right. Is there some reason for that Mr - it might because of Ms Henry not being arraigned as yet.

74 MR McCONAGHY: Yes, Your Honour, I'm just getting an update from my instructing solicitor on that, they were filed, I'm surprised, she's very, very efficient, that they weren't served.

75 HIS HONOUR: Yes, all right. They'll be sent to you. I never make orders unless - I sign the orders on one co-accused until the other one's arraigned, because as soon as you make the orders and then things are disposed of, they become evidence that's unavailable because it's been destroyed. You have got to be careful about that, so thank you for raising that. You'll be served with that. I will - unless there's some objection that requires the further litigation I'll sign those orders, once Ms Henry's matter is included in the sense that she is arraigned. We might do the disposal forfeiture prior to her being sentenced, but certainly she's got to be arraigned.

80 HIS HONOUR: Ms Stanley, all right. I've got the other matter to move through, I assume you would need some time to discuss things with Mr Money, but I think the better course is to arrange conference with him at a later point. We've got another matter shortly. So, I'm just going to remain online, unless you say look it's very urgent that I have a quick discussion with him, utilising this - - -

81 MS STANLEY: No, not at all Your Honour. We should be able to get a conference tomorrow I would think, because it's still before 2 o'clock.

82 HIS HONOUR: All right, thank you kindly. We'll finish this hearing, move to the next one at two and - but I'll remain online, talk to my staff about where we're up to generally. Speak to and do other matters. Thank you very much for your very - well Mr Paige's very considerable assistance and Mr McConaghy's as well. Thank you.

[1] Gregory (a pseudonym) v The Queen [2017] VSCA 151.

[2] Fernando v The Queen [2017] VSCA 208.

[3] DPP v Condo [2019] VSCA 181.

[4] Lytras v The Queen [2020] VSCA 150.

[5] R v Giretti (1986) 24 A Crim R 112.

[6] Gregory (a pseudonym) v The Queen [2017] VSCA 151.

[7] DPP (Cth) v Maxwell [2013] VSCA 50; 228 A Crim R 218.

[8] Gregory (a pseudonym) v The Queen [2017] VSCA 151.

[10] DPP v Money [2014] VCC 1207.

[12] Lytras v The Queen [2020] VSCA 150, 57.

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

[16] Sentencing Act 1991 (Vic) s 6AAA.