DPP v Moran

"I just got a strange delivery in the mail. It had car shit. It was strange. I do not know where it is. Obviously I brought it inside. You guys know that. You delivered it to me. It was in somebody else's name, [Brody]. I knew something like this would happen."

1. When asked whether there were other drugs or weapons at the premises, you said,

"'There is a few points of shard [reference to methamphetamine] here. I've just smoked some five minutes ago. Am I going to get much jail time? I'm fucked, aren't I?"

An apt and succinct description of your predicament Mr Moran, if I may say so.

1. You were taken to Box Hill Police Station and you gave a no comment Record of Interview, as you were entitled to do. You did, however, provide your address as Roseland Grove, Doncaster.
2. The consignment seized by Australian Border Force was later examined by a New South Wales illicit drugs analysis unit. Each of the 44 bottles were confirmed to contain 1,4-butanediol. The total weight of the bottles was 52.8 kilograms. The bottles were subsequently examined by the Victorian Forensic Science Department who estimated that, in terms of the decanted content, there was a total of 48.7 kilograms of 1,4-butanediol. The large commercial quantity threshold for 1,4-butanediol under the Drugs, Poisons and Controlled Substances Act 1981 is 20 kilograms.
3. During a search of your home address, a number of items were seized, including 551.6 grams of 1,4-butanediol and 2.8 grams of methylamphetamine (Charges 2 and 3), two registration plates, a Medicare card in the name of Brody Charles (the consignee name in Charge 1), various identification cards, a drivers licence in the name of Mr Chin, a passport in the name of Mr Emerson, and a Victorian drivers licence without a name.
4. Police also seized your mobile phone, and you were asked to provide the PIN number, but replied that you did not know the number (Summary Charge 7). I am told and accept that resolution discussions commenced immediately. The matter was committed by straight hand-up brief to this Court while discussions continued. The matters resolved at a Case Conference held on 26 August 2021. I view your guilty plea as being entered at the earliest opportunity.
5. On 20 September 2021, the matter was adjourned into the Drug and Alcohol Treatment Court (DATC) and assessment reports were ordered.[3] The Determination Hearing was heard by me on 4 November 2021.
6. I turn now to your personal circumstances.
7. You were born to your parents, Arnold[4] and Michelle[5], in January 1996. You are now 25 years of age and you were aged 24 at the time of this offending. You were raised in Melbourne and you grew up in material comfort. Your father is currently a Chief Operating Officer for an IT company. You have one younger sister, Mia[6], with whom you are, and have always been, particularly close. You were privately educated.
8. Material comfort and attendant privilege, however, did not make you immune to family dysfunction. Your parents separated when you were young and you and your sister split your time evenly between their respective households. Your father re-partnered to Eileen[7], and you have a strong and positive relationship with both of them. You describe, "No real relationship with your natural mother."
9. Your mother struggled with substance abuse, and it seems you were exposed, not only to her behavioural dysfunction and co-occurring mental illness, but also to the multiple co-dependant relationships she formed with other substance users, some of whom you describe as, "Trying to get violent with you." You report that you had many fights with your mother's long‑term partner.
10. Your father, apparently unaware of the dysfunction to which you and your sister were being exposed, continued to financially support your birth mother. You report that she, "spent all the money on drugs and drinking," and has subsequently lost everything. It seems that, nonetheless, you continued to live with your mother part time in order to protect your sister. You told Ms Reece (Exhibit 4) of an occasion when you were about 16 years old when you performed CPR on your unresponsive mother, following a suspected overdose on her part, and your feelings around that event. Following that incident, you did not speak to or see your mother for three years.
11. Unsurprisingly, your family problems impacted upon your education. You were asked to leave school during Year 11, following multiple suspensions due to your behavioural issues. You and your sister moved into a rental property, paid for by your long-suffering father. Your behaviour and escalating drug use, however, led to Mia moving out because she wanted to continue with her education. This left you entirely on your own.
12. You commenced an apprenticeship as a carpenter after leaving school, which was derailed by your drug use. You secured an apprenticeship as a plumber, which again, you lost due to your drug use. You then secured a roofing apprenticeship, which you quit after three years to start up your own business. This start-up failed within a short period of time, leaving you unqualified and without work. Thus, unemployed, it seems that you immersed yourself in the drug world, which immersion led to this and to other offending.
13. You had several prior intimate relationships, one of which ended whilst you were on remand for an earlier matter. This separation has left you with unresolved feelings of anger and betrayal. You have now spent almost 14 months on remand, since 1 October 2020, and in the custodial setting you have detoxed. You have been fined on three occasions in governor's hearings, which you disclosed to Ms Reece, and also other incidents.
14. You have provided clear urine screens (Exhibit 8DO) and I accept that you have, in the main, remained drug free in the custodial setting. You have also completed several courses, certificates of which were tendered (Exhibit 9DO).
15. Exhibit 3 on the Determination Hearing was a clinical advisor assessment report by Mr Harry Howe, dated 11 October 2021. Exhibit 4 was a case management assessment report by Ms Chloe Reese, dated 14 October 2021. Both reports identified your challenges, but both concluded that you were a suitable candidate for a Drug and Alcohol Treatment Order (DATO) and set out treatment plans for your engagement, supervision, and for therapeutic intervention.
16. Neither party filed a notice of intention to dispute the court ordered assessment reports and I proceed on the basis that no challenge is made to the contents or their conclusions of those report. Also tendered was a report from Mr Tim Watson-Munro, consultant psychologist, dated 20 October 2021 (Exhibit 5DO). Together these reports noted your personal narrative, your substance and forensic history, including your non-compliance with previous court orders.
17. You first smoked tobacco at the age of 12 and you first used alcohol when you were aged 13, with a pattern of binge drinking between the ages of 16 and 21. You used cannabis from the age of 13, reporting unpleasant side effects of anger and paranoia. You began to use ecstasy, MDMA and speed (amphetamine) at the age of 16. You first smoked methamphetamine a week prior to your 16th birthday, progressing to daily use by the time you were aged 20. At the time of your arrest on this offending, you were using up to a gram of methamphetamine per day.
18. More recently, you began to use GHB, reporting an overdose on that drug when you were living on the streets. Emergency services were called and you were hospitalised and then discharged into the care of your father. This was not your only hospital admission linked to your substance-driven anger issues. You identify methamphetamine as your primary substance of concern.
19. You have relevant prior and subsequent criminal matters. In May 2018, for offences including theft, possession of a weapon, possession of drugs of dependence and driving matters, you were convicted and fined $2,000. In February 2019, you received a short prison sentence combined with a 12-month Community Corrections Order (CCO) for offending including handling stolen goods and dealing with proceeds of crime. You contravened that CCO by non-compliance and by further offending.
20. The further offending included trafficking methamphetamine, possession of various drugs of dependence, obtaining property by deception and breaches of bail. These matters were dealt with in May 2019 by a short-term of imprisonment (time served) and a further 12-month CCO. Your response to that leniency was to then contravene the CCO again by further offending. So you were back in Court in September 2019 for possession of a drug of dependence and handling stolen goods. A pattern emerges Mr Moran.
21. Post your remand on this matter in October 2020, you have had three court appearances in 2021 for possession of illicit substances, driving related matters and negligently dealing with proceeds of crime. You were on bail for this last matter at the time of this offending. Whilst you do not fall to be sentenced again for those matters already dealt with by the courts, your prior criminal history informs my assessment of your moral culpability, meaning the extent to which you can be held responsible for your actions and for their consequences, the need for specific deterrence, that is the need to deter you from any repeat of your offending, the need for community protection, that is to protect the community from you, your prospects of rehabilitation and the appropriateness, in all circumstances, of a DATO in your case.
22. It seems that, despite court ordered alcohol and other drug (AOD) counselling, you have never really attempted to stop using and your abstinence has only been achieved during periods of incarceration. You partly put this down to having experienced, "relatively little drug-related harm." A measure, perhaps, of your past lack of insight as to the impact of your drug use. However, the absence of sustained AOD treatment is noted by all the three report authors.
23. Mr Howe finds a probable diagnosis of substance use disorder. He notes some residual ambivalence in you about the benefits of abstinence and the challenges presented by your association with substance-using peers, your unstable interpersonal relationships and limited coping skills. Mr Howe does identify a strong protective factor in your family support, as witnessed in the bundle of references from various family members and friends tendered on your behalf (Exhibit 6DO). All those references spoke of a past side of you that is not reflected in your criminal history and your drug use.
24. Most significant and persuasive is the preparedness of your father, Arnold, and his partner, Eileen, to have you living with them. Thus, you have access to a stable family environment, secure housing and to the prospects of future employment. And that is wealth indeed, Mr Moran. Mr Howe notes:

"Mr [Moran] is still young and hence his substance use history is relatively short. He has therefore had limited exposure to treatment, meaning he does not have a history of unsuccessful engagement and [he] may be more receptive to new interventions."

1. Mr Watson-Monroe noted your express remorse.
2. Ms Watson, on behalf of the Director, accepted your dependence upon methamphetamine and accepted that there was a contribution of that dependence to your offending. She submitted in strong and concise terms that your offending was too serious for you to be placed upon a DATO. In support of that submission, she drew attention to the recent increase in the maximum penalty in respect to the trafficking of large commercial quantities from 25 years to life imprisonment. Sentencing statistics, she reminded me, revealed that since 2015 no one had received a term of imprisonment of less than four years for large commercial quantity trafficking.
3. Mr Gurvich, senior Counsel on your behalf, submitted to me that your circumstances and the circumstances of your offending did make it appropriate for you to be placed upon a DATO. In support of that submission, he pointed to your early plea of guilty, to your relative youth, to your genuine remorse, to the ongoing support of your family, your upbringing of dysfunction, your exposure at a young age to a world of drugs, your developing insight and your willingness to engage in treatment. He submitted that you were highly motivated, not just to get out of gaol, but rather to change your life and to get your life back.
4. You told Mr Gurvich that you wanted to work at regaining your family's trust. You want your father to be proud of you. You want your sister Mia to be proud. You want a girlfriend, a stable life and a healthy mind. "He does not want a life in and out of gaol," said Mr Gurvich.
5. As to the adequacy of sentence, Mr Gurvich submitted that none of the cases to which Ms Watson was referring were sentences in the time of the COVID-19 pandemic, passed upon a man as young as you, for trafficking in 1,4-butanediol, and where a DATO was available. Those are persuasive submissions.
6. Mr Moran, those of us who sit in the criminal court day after day are aware of this simple truth; drugs are tearing out the heart of our community. And those who participate in what can only be described as an evil trade can expect to be severely punished if and when they come before the courts. Our community is losing a generation. What might start out as a fun Saturday night, what might be regarded as recreational consumption that can be controlled, can quickly spiral into the horrors of dependence. In that dependence, many lose everything, including their lives. Your own experience must show you how close you have come to losing everything, though you are truly fortunate to have maintained the support of your family.
7. The offending to which you have pleaded guilty is serious offending. It was also aggravated by the fact that it was committed by you whilst you were on bail.
8. Charge 1 is a most serious offence, as is made clear by the maximum penalty which Parliament has seen fit to impose of life imprisonment. You heard the submissions of Ms Watson that, in short, your offending is just too serious for a DATO. What she was submitting was that four years imprisonment, the maximum custodial sentence permitted under this legislation, was simply not enough.
9. However, the maximum penalty is not the end of the matter. Every offence sits on a spectrum of gravity. Quantity, role, the duration of offending, the motivation for the offender's involvement in the offending and the likely profit deriving from the criminal enterprise are all important indicators of offence seriousness.
10. The quantity of 1,4-butanediol that you attempted to traffic was nearly two and a half times the threshold for a large commercial quantity. Notwithstanding the recent increase in the maximum penalty and notwithstanding the quantity-based regime for offences of trafficking drugs of dependence, observation of the President in the case of Maxwell[8] are still of relevance and have particular application in your case.
11. Yours was not spontaneous offending. There was clearly some preparation, as is demonstrated by your willingness to use a false identity, supported by a false drivers licence, so as to avoid detection. However, I could not find that you intended to onwardly sell the consignment in units of millilitres and Ms Watson did not seek to press that point. You told Ms Reese that you had paid $7,000 for the consignment. It is well established that 1,4-butanediol can be purchased online and that it has a legitimate as well as an unlawful use.
12. You may have been less than frank about the circumstances surrounding the payment of $7,000, but I am satisfied to the requisite standard that you would have sold the drugs in wholesale amount and not to end users in units of one millilitre. A litre of the drug would sell for up to $1,000. And that, to my mind, puts your potential profit in a proper context, although it cannot be precisely quantified on the material in front of me.
13. Yours was not the kind of large-scale commercial operation so often in front of the courts. You were running, effectively, a one-man operation out of the front room of your then home which, perhaps, can be best described as an ill-kempt and untidy drug house. Serious offending, nonetheless, and sentencing purposes of general and specific deterrence and protection of the community must all have a role to play.
14. The particular purposes of a Drug and Alcohol Treatment Order are:

(a) to facilitate the rehabilitation of the participant (offender) by providing a judicially-supervised, therapeutically oriented and integrated drug and alcohol treatment and supervision regime;

(b) to take account of the participant's drug or alcohol dependency;

(c) to reduce the level of criminal activity associated with drug or alcohol dependency; and

(d) to reduce the health risks associated with drug and alcohol dependency.

1. Mr Moran, in sentencing you I must have regard to a range of different factors. I must give effect to the principle of general deterrence, that is to deter others from behaving as you did, and to specific deterrence, that is to deter you from any repeat of such offending. I must consider the need to protect the community and express the community's denunciation of your conduct. I must take into account the effect of your crimes upon the community and must have regard to current sentencing practices and statutory maximum penalties for the offence to which you have pleaded guilty. I must ensure as far as possible that you are rehabilitated and reintegrated into society.
2. In short, I must try to balance your personal circumstances with the circumstances of your offending and I must also pass no greater sentence than is necessary in all the circumstances of the case, as I find them to be.
3. These sentencing purposes are set out and identified in s 5(1) of the Sentencing Act 1991 and are all enlivened in your case. There is a clear need to send anyone tempted to traffic drugs of dependence that they will be punished if they come before the courts. And you need to understand that message. Community protection does loom large.
4. However, if the Court is considering a DATO then your rehabilitation and the protection of the community (achieved through your rehabilitation) have greater importance than those other sentencing purposes.
5. On all the material in front of me, I am satisfied on the balance of probabilities that:
   • you are dependent upon methylamphetamine;
   • your dependency contributed to the commission of the offending in front of me;
   • that otherwise it would be appropriate to impose an immediate sentence of imprisonment no more than four years; and
   • you are not charged with offending, nor are you subject to any order that would make you ineligible for a DATO.
6. My reasons are as follows. Your young life has been framed by the fractured attachments of your family setting; by your mother's longstanding drug use, her inappropriate partners and the lifestyle of drug use to which you were exposed from a young age. You state that you were introduced to drugs by your mother. How such exposure was permitted to continue is beyond me.
7. I do not understand how you and your sister were exposed to that dysfunction, but we do not deal with the past, we deal with the present. From your personal narrative, it is clear that dysfunction and toxic dependency is not the sole preserve of the economically disadvantaged.
8. As Mr Howe noted: "it is hypothesised that the history of substance use within the family, poor role-modelling, disrupted attachments and exposure to violent and traumatic events during his childhood may have contributed towards a pre-disposition to problematic substance use." By the age of 16, you were using methamphetamine. Your use escalated swiftly thereafter.
9. Your father who, together with his wife Eileen, remains a strong and stable support for you, has in the past set very firm boundaries. That did not stop your using. You have been in front of the Court on multiple occasions and sentenced to short terms of imprisonment and CCOs. However, no past disposition has impacted upon your drug use or your connected offending.
10. In a very short time, your life was overtaken by your drug use with catastrophic effects for you, your family and for the community at large. You have been itinerant, homeless, have overdosed on GHB, have had episodes bordering on psychosis and, at the time of this offending, you were living in what could best be described as a drug house. I have seen the pictures Mr Moran, and they are not a pretty sight.
11. You lack the skills to form respectful and healthy relationships. In your own words you have, "always been cooked". You have never applied yourself to any rehabilitation programs, despite court orders, and, as you told Mr Howe, you have never really wanted to be rehabilitated until now.
12. You have been drug free for a period of nearly 14 months. Whilst in custody you have been able to at least begin to make the connections between your drug use and your offending. You have also gained some clarity as to the impact that your drug use has had on you, your family and the community at large.
13. From that perspective, you now seek a different life to the one you have been living, which, if you had continued, could only result in longer and longer terms of imprisonment and potentially an early death. It is true that the penalty for Charge 1 has recently been increased to life imprisonment; clearly there was profit to be made on which you could live, but the profit and your criminal enterprise was not, in my view, of a scale or nature so as to render a DATO an inappropriate disposition.
14. You pleaded guilty to this matter at the earliest opportunity. Such a plea has a significant utilitarian benefit, in that it saves the community the time and the expense of a trial. Your plea also has particular value to the courts and to the administration of justice at the time of the COVID-19 pandemic, when people are having to wait for trials for a very long time, as you would no doubt have learnt during your long period on remand. In the time of a pandemic, a plea of guilty can secure sentencing outcomes that otherwise would not be available.
15. I accept you are remorseful. I accept that you are still a youthful offender. You have strong family support, noting how painful it must be to watch their son descend into the fog of drug dependency. It is like watching a child drown in a swimming pool, where you cannot reach out and pull them out.
16. As Ms Reese noted, you have had limited historical opportunities for community-based dispositions, and the two that you have been afforded you have been unable to successfully complete. However, she says:

"Mr [Moran] is yet to be afforded the opportunity to engage in a drug and alcohol treatment order which provides both forensic intervention and intensive therapeutic treatment to support the process of positive behavioural change."

1. Your future, Mr Moran, is not without its challenges. You could clearly benefit from the intensive structure and oversight, that the DATC program can provide, to break the cycle of offending and substance use. After some long consideration, I have decided to provide you with that opportunity. Having regard to all the matters above, I am satisfied that in the circumstances of your case it is appropriate to place you upon a DATO.
2. On Summary Charges 2 and 7, you are convicted and discharged.
3. On Charges 1, 2, 3 and 4, you are convicted and placed upon a Drug and Alcohol Treatment Order (DATO).
4. A DATO has two parts: the treatment and supervision part and the custodial part. The treatment and supervision part itself has two parts, which are as follows.
5. The core conditions, which are that:

(a) you must not commit, whether in or outside of Victoria, another offence punishable on conviction by imprisonment during the time the Order is in force;

(b) you must attend Drug Court when required by the Court to do so;

(c) you must report to the Melbourne Drug Court House within two clear working days after the Order is imposed;

(d) you must report to and accept visits from members of the Drug Court;

(e) you must undergo treatment for alcohol and drug dependency as specified in the Order or by the Drug Court;

(f) you must give notice of any change of address, at least two clear working days before the change, to a specified Drug Court officer;

(g) you are not to leave Victoria without the permission of the Drug Court; and

(h) you are to obey all lawful instructions from the Drug Court Team.

1. The core conditions will operate for 46 months, or until further order.
2. The program conditions, which are that:

(a) you must submit for drug and alcohol testing, as directed;

(b) you must submit to detoxification or other treatments specified in the Order, as directed;

(c) you must attend vocational, educational and employment programs, as directed;

(d) you must submit to medical, psychiatric and psychological treatment, as directed;

(e) you must reside at [address omitted] South Melbourne for the duration of the Order or until further Order;

(f) you are subject to a curfew that you must remain at [address omitted] South Melbourne between the hours of 9:00 pm and 6:00 am, which is required until further order;

(g) you are not to use a drug of dependence without lawful authorisation;

(h) you are to abstain from alcohol; and

(i) you are to do or not do anything else that the Drug Courts consider necessary or appropriate concerning:

(i) your drug and alcohol dependency; and

(ii) the personal factors that the Drug Court considers contributed to your criminal behaviour.

1. These program conditions will operate for two years, or until further order.
2. The custodial part of the DATO is the term of imprisonment that I would have imposed had I not placed you on a DATO, and it is a term of imprisonment of 46 months.
3. In practical terms, you do not serve the custodial part until such time as the Court orders. That means that should there be an application to cancel your Order, and should that application be successful, the Court will then move to consideration of what part of that custodial term you should serve.
4. I have arrived at the custodial part in the following way:
   • On Charge 1, there is a term of imprisonment for three years and six months.
   • On Charges 2 and 3, there is an aggregate term of imprisonment of nine months.
   • On Charge 4, there is a term of imprisonment of five months.
5. I order that three months of the aggregate sentence on Charges 2 and 3 and one month of the sentence on Charge 4 be served cumulative to each other, and cumulative to the sentence on Charge 1.
6. Now, I assume that you agree to the making of the order Mr Moran?
7. OFFENDER: Yes.
8. HIS HONOUR: One thing I need to make clear to you is that when you are on the Order and when you sign up for it, you are waiving all rights of confidentiality and communications between, on one part, this Court and those who work for the Court and, on the other part, all treatment providers and all government agencies, authorities and departments. You are formally waiving your rights to privacy in all of this treatment field. Do you understand that?
9. OFFENDER: Yes.
10. HIS HONOUR: Pursuant to s 18(4) of the Sentencing Act 1991, I declare that you have serve 410 days in Pre-Sentence Detention.
11. Pursuant to s 6AAA of the Sentencing Act 1991, had you not pleaded guilty to this matter you would have been sentenced to a Total Effective Sentence of five years and nine months, with a non-parole period of four years.

[3] Sentencing Act 1991 (Vic), s 18ZQ.

[8] DPP (Cth) v Maxwell [2013] VSCA 50