DPP v Muthia [2017] VCC 1549

a drug of dependence, the relevant Act in this area, that is the Drugs, Poisons and Controlled Substances Act 1991, sets up two penalty provisions and which one applies will depend on whether an offender can bring themselves within the lesser penalty provision by satisfying the court on the balance of probabilities that the possession, or attempted possession, was not committed for any purpose related to trafficking in that drug.

4. Your own counsel, Ms Fox, concedes that she cannot discharge that burden in relation to Charge 1. It was an obvious enough concession, given the quantity of the drug. I am satisfied that the higher penalty provision applies to that charge, that is, Charge 1. Ms Fox contends that the lower penalty provision applies to Charge 2 and the Crown accept that that is the position. Of course, ultimately it is for me to make the decision, but given the concessions and the small quantity of the drug involved, in relation to Charge 2, I do accept that submission. So then the lower penalty provision applies to the possession charge, the subject of Charge 2 on the indictment. I will return to the ramifications of the concession made in relation to Charge 1, as whatever else I may do, I must be astute not to then sentence you for the offence of trafficking in relation to the amount that you attempted to possess. You are not charged with trafficking in relation to that consignment. I will come back to that later in my reasons

1. The prosecutor, Mr Saunders, who appeared on the last occasion, opened this matter to me in accordance with an agreed written prosecution opening. That was dated 11 October 2017. It was an agreed summary, so I do not see any need to describe the full factual setting in these, my sentencing reasons. I will not stray beyond the agreed facts. Ms Fox did raise a couple of matters in relation to the summary, just to ensure that the court only sentenced in relation to the appropriate material. There is reference in the summary to the fact of other earlier consignments of 1,4-Butanediol, which I will refer to by the abbreviation BD from this point onwards. You are not charged with any of that, so I put that aside. Likewise, there is reference to text material recovered from your phone, displaying some level of sale and distribution of 1,4-BD.
2. Mr Saunders conceded that he could not place a date when that material was sent and so he discouraged the court from any reliance on that material. You are, after all, charged with trafficking, based on your possession for sale on 20 October 2016 and that is of the amount found in the mineral water bottle, not any instance of earlier trafficking. I suppose if there was a live issue as to the nature of the relevant penalty provision applicable in relation to Charge 1 and you were, for instance, trying to bring yourself within the lower penalty provision and claiming that the attempted possession was in no way connected to any purpose related to trafficking in that substance, then this sort of material might have some relevance to the consideration of any such suggestion, but that is not the position. So, in my view, it is simplest to put it aside altogether, which is what I do do.
3. Finally, though there is reference in that summary to the value of this drug and there are a range of valuations, dependent upon the nature of sales into the future. Well that sort of material is always inherently uncertain and in this case, it proceeds on an assumption that the amount that you attempted to possess would be on-sold. Well, of course, I cannot act on that basis for the reasons

I hope I have already made plain. If I did, I would essentially then be sentencing you on Charge 1 for trafficking, which is not what you have pleaded guilty to. As to Charge 3, though you admit possession for sale and hence the crime of trafficking, it is not as simple as looking at the quantity and then looking at the figures for potential sale and calculating what you stood to gain, because engaging in that process would assume that the entirety of the drug in the mineral water bottle was to be on-sold, which I am sure was not the case. You used that drug yourself.

4. Well with those issues now behind me, I will say something briefly about this offending. It was serious, as your counsel correctly concedes. An obvious feature of aggravation is that at the Melbourne Magistrates' Court on 30 October 2015, you were placed on a 12 month undertaking to be of good behaviour for two offences of trafficking and one charge of possession of a controlled weapon. On that occasion, you were trafficking ice and ecstasy and possessed a flick knife.
5. The offending for which I must pass sentence occurred towards the end of the period of that undertaking and had you in possession of, attempting to possess and trafficking in 1,4-BD. It is serious stuff indeed.
6. Charge 1 relates to approximately five litres, which is 4.9 kilograms, which was shipped from Hong Kong on 11 October or thereabouts and was selected for inspection by Border Force officers in Australia on 17 October. Police became involved and a controlled "delivery" took place with an inert substance having been substituted, hence the charge of attempting to possess. I say "delivery", but you in fact collected that package yourself and you were arrested at the TNT depot doing so.
7. Charge 2 on the indictment pertains to a small amount of 4.7 grams, I think it was, of the same drug found in your car.
8. Charge 3 pertains to the search of your house and some 825 grams of

1,4-BD found in a mineral water bottle. You co-operated with police, in that you consented to the search. You had also alerted them to the presence of the small quantity of drug in the car. You chose, for whatever reason, to make

a "no comment" interview when the police asked questions, but that was your right, so I cannot hold that against you. You pleaded guilty at the earliest opportunity.

1. I turn to the actual drug that you either possessed, attempted to possess or trafficked, that is, 1,4-Butanediol. There was a notice of additional statement or evidence from a member of the drug taskforce commenting on this particular drug and it goes some way to explaining why it is that we, as judges, are seeing so much of the drug 1,4-BD before the courts. I want to make plain that, though I will go into that statement, I am not taking into account the harmfulness of the particular drug alleged here. That is not something that a court can have regard to. This is a quantity based regime, set up in the Drugs, Poisons and Controlled Substances Act, as the case of Pidoto makes plain enough.
2. 1,4-BD is sold on the black market and it is sold as the drug, GHB, but it is in fact not that drug. GHB is Gamma Hydroxybutyrate. It is a a quite different drug. That drug, GHB, is referred to under a number of street names, such as GBH, Liquid E, Liquid ecstasy or Liquid fantasy. There are many other names as well. GHB is a prohibited import under the Customs regulations and so possession of it is unlawful. So far so good.
3. Enter the drug, 1,4-BD. That drug is not a prohibited import under the Customs regulations. It has some industrial applications, including as a solvent. It has an exemption clause under the Drugs Poisons & Controlled Substances Act, making its possession lawful when used for a lawful industrial purpose and not for human consumption. The problem is that 1,4-BD has a relationship to the much sought after drug, GHB. In fact when taken, 1,4-BD metabolises in the body into GHB, hence producing the same or similar desired or sought after effect. It would appear then that 1,4BD is uniformly being passed off as GHB and sold under the same street names as apply to that other drug. In the three year period from a date nominated in 2014, the Victorian Police Forensic Services Department has analysed only 13 grams of seized actual GHB. In the same period, they have analysed over 18 and a half million grams of 1,4-BD.
4. There is obviously a desperate need for legislative reform to close off this loophole. There is other material in that statement dealing with the small margins between normal and excess doses and the average personal use dose, which is germane, I suppose, to the consideration of the amount that you possessed for sale. The valuations referred to in the summary come from that statement and I have said what I have said in relation to them. Again, perhaps I would spend more time in this area if there had been any attempt to discharge what is sometimes referred to as your Pantorno burden under the Act for Charge 1, but there is no such endeavour. It is accepted that the higher penalty provision applies to Charge 1.
5. As I have said, your counsel concedes the seriousness of your conduct. It is hardly surprising. You were on a court order and you were trafficking in this drug, based on the possession for sale of the quantity in the mineral bottle. The amount you attempted to possess was more than twice the commercial quantity. The commercial quantity is fixed at two kilograms.

1. Well, there are no victim impact statements in this case, though your mother, in fact, correctly and astutely puts her finger on the monstrous social problem posed by drugs in our community. Unfortunately you were part of that problem, trafficking drugs, not just using them.

1. Your counsel, Ms Fox, raised a number of matters in mitigation. She relied chiefly upon:

• Your guilty plea and the co-operation with the police;

• She relied upon a report and evidence from Ms Abadee, as well as the references from your mother and one of your sisters and a neighbour, as suggesting that you had quite positive prospects of rehabilitation;

• Really, the thrust of the plea was that, as serious or as bad as your crimes were and as aggravating as it was that you had offended whilst on another court order for trafficking and despite the existence of the subsequent offence, you had taken significant steps in trying to turn your life around. You were employed, you were back at university and there were other indicators of change and that having regard to all this material, it would be open to sentence you by way of a community corrections order, on its own without any term of imprisonment. Failing that, to combine a prison disposition with release upon a community corrections order. But the primary submission was that a community corrections order, on a stand-alone basis, would meet the various needs of sentencing in this case.

1. Mr Saunders, who appeared on behalf of the Director the other day, argued on behalf of the Director, that such a disposition was simply not open to the court and that was owing to the serious nature of the offending and the unfortunate chronology of offending, both past and subsequent. The Director of Public Prosecutions of this State called for a period of actual imprisonment.
2. Mr Saunders argued that you had not taken advantage of the non-conviction disposition imposed in the Magistrates Court and that you had re-offended in this serious way and even re-offended again, once you had been admitted to bail on these offences, by the possession of the very same drug at the music festival in February of this year.
3. Despite the presence of court ordered counselling, that is, that condition imposed in the Magistrates' Court, requiring you to see Mr Cummins, you had not seen him again at all after the 2015 court appearance and the prosecutor reminded the court that you had only seen Ms Abadee from May 2017 and at the behest of your legal team in the lead-up to court cases. So the Director was calling for an actual term of imprisonment, one for you to serve

1. I turn now to your background and I do so only quite briefly, as I have no reason not to accept the actual family background and the related history that has been placed before me in the plea conducted by your counsel. It is referred to in

Ms Fox's excellent written outline and is also referred to in the report from

2. You are now 21 years of age. You were 20 years old when you committed these offences. Your parents divorced quite some years ago now, back in 2004, as I understand it. You have three older sisters and it would seem that all are evidently high achievers and very much contributing members of the community.
3. You were educated to really a quite decent pass, probably better than that really, in Year 12, that was in 2013 and you went on to tertiary education in 2014, initially at Monash University. You had mucked up your preferences and as a result, you enrolled in a Science Course that you seemingly were not greatly interested in.
4. You were very interested in sport, but you had a nasty knee injury in 2014 that disrupted that year and a bit of the next and it still has some impact upon you, even to this point.
5. You transferred to Deakin late in 2014 and in 2015, you transferred within the same university to commence a Bachelor of Commerce at Deakin. You have had a number of part-time jobs in the past. You are still at University at the moment and of course these proceedings have cast something of a dark shadow over your future and it makes it pretty difficult to engage with confidence with university and beyond university actually. But you are in your second year. You have been working part-time for Telstra. You have been offered a job at the National Australia Bank, one that you believe will be lost to you, owing to your need to declare convictions. You wish to go on to obtain your degree and work in the field of commerce, maybe in banking or finance, but you are realistic about the way that a conviction may handicap you in the job market in the future.
6. As I have said, an unfortunate aspect of your background is that you have committed offences previously. The offences for which you were placed on the undertaking in the Magistrates' Court, occurred in April 2015. You were then only 19 years old. The undertaking commenced in October 2015, with

a condition that you continue to see Mr Cummins. You did not see him again, not once. I was puzzled by the submission that was made as to you and your mother having an understanding that you would only need to see Mr Cummins if he contacted you. Puzzled, as that was seemingly not the intention of the Magistrate, or the effect of the words selected by the Magistrate as a special condition attached to the undertaking, which you, after all signed.

7. However, your understanding has to be seen in light of an extraordinary letter sent to you from your solicitors on the very day of that appearance, conveying that very fact. A letter that said, essentially, these words, "Please note that you only need to attend Mr Cumins if directed to by Cummins". You received that letter and you acted on it. That is hardly your fault. That letter should never have been sent. I am highly critical of both your then solicitor for sending it and equally critical of Mr Cummins for not taking any steps to engage in that court ordered condition, but the blame for those matters does not rest at your feet or the feet of your mother.
8. Still, of course, quite independent of Mr Cummins contacting you, you had knowledge of Mr Cummins' details and for whatever reason, you chose not to contact him for any counselling, even when it became apparent that the wheels were falling off and you were recommencing drug use in the currency of that undertaking or "bond". You continued to offend, as these offences makes plain.
9. Regrettably, even after being charged with these offences and then being admitted to bail, you continued to offend on one occasion. You were arrested in February 2017 at a music festival and dealt with at the Melbourne Magistrates' Court in June of this year for possession of the same drug, 1,4-BD.
10. You have only been seeing Ms Abadee since late-May 2017 and you saw her at the direction of your legal team and only a fortnight shy of the listed appearance for the music festival possession charge. Too little too late it might be said. So your descent into drug use in the course of that court undertaking, did not prick you in to seeking counselling or obtaining any help.
11. The events of the October of last year, that is, being arrested, produced no immediate desire for counselling or treatment, nor even being charged in February this year. You only commenced counselling in the immediate run to the court case for that charge of possession, which happened to coincide with the procedural mentions of this matter as well.
12. There is every reason for me to doubt the genuineness of your initial motivation in seeing Ms Abadee and I do doubt it. However, that does not lay waste to her evidence or what to what she says has been achieved since, whatever might be said of your initial motivation. There is the evidence of Ms Abadee. Though I do doub the genuineness of your initial motivation, I have no reason not to accept her evidence and her report, even though, of course, so much of her opinion is based on your account to her.
13. In her report, she speaks of the frequent and random and clean drug tests. She really should have made plain in the body of the report that the various urine tests shed no light at all on the issue of whether or not you were using 1,4-BD, as that drug is not or cannot be screened for and she accepted that criticism when I made it in court.
14. Whilst I do accept the validity of the prosecutor's querying of your motivation leading you to Ms Abadee's door, ultimately I have no reason not to accept the evidence of Ms Abadee as to the progress that you have actually made since she has seen you and her sense that you have been open with her and that you are developing an insight into the seriousness of your conduct and the need for change. Court attendances and the threat of going to gaol, well they probably are powerful motivators and so they should be. It would be sad and very strange indeed if they were not and whatever your motivation, even if as

I believe, you had initially attended out of some desire to provide window dressing for the Magistrates' Court plea, or even this plea, the fact is I have not just her evidence, but also the account of your mother and your sister and that is suggestive of there being some genuine steps taken by you and some changes in the way you are living your life.

15. So the dubious motivation, it seems to me, has likely been outstripped by your actual performance. Some real headway has been made. I think it is open for me to reach that conclusion and I do. It is still early days, so late was your approach to Ms Abadee, but I am not in a position to just reject the evidence of Ms Abadee, or thrust it aside, because I have good reason to doubt the genuineness of your original motivation. She has some pretty impressive experience in this area and she is impressed by your efforts and by your prospects looking into the future. So I do take into account her evidence and that report in your favour

1. I turn then to consider some of the other submissions made on your behalf and I turn firstly to your guilty plea.
2. You have pleaded guilty. You have done that at the earliest stage and that, of course, is a significant mitigatory matter. You have taken early responsibility for your offending. There is a utilitarian value which must be recognised. The community has been saved the time, the expense and the effort associated with the conduct of either a committal hearing in the Magistrates' Court and/or a trial up in this court. You have facilitated the course of justice and I must reward you for your decision to plead guilty and at the early stage which you did. I must pass a lesser sentence upon you than would have been imposed, had you been found guilty following a trial. I also do pay regard to your level of co-operation with the authorities. You consented to the search of your car and home and you had alerted the police to the presence of the small amount of the drug in the car. So I take your level of co-operation into account in your favour as well.

1. I turn to the issue of remorse. You have pleaded guilty. You have done it at the earliest stage and that is usually evidence of at least some remorse. But there are also, in this case, expressions of remorse to be found in other materials, including the report of Ms Abadee and the references of at least your mother and sister. So I am prepared to find the presence of remorse here and I take that into account in mitigation.

1. I turn now to your youth. You were only 19 when you committed the first offences dealt with in the Magistrates' Court. You were just shy of your 21st birthday when you committed the crimes for which I must pass sentence. You are now only 21. You are still so very young and I do not and cannot lose sight of that fact.
2. Your counsel, unsurprisingly, emphasised your youth. Not just your youth though, but youth, in combination with the suggestion that you were in the process of changing for the better. Youth is ordinarily a very important factor in the sentencing exercise, as it should be. We have, all of us, been young. It is obvious that young people are more likely to commit errors of judgment, sometimes very bad ones indeed. They can be impulsive, they can be rash. They do not always consider the consequences. Part of the reasons for that, is that they are not fully developed. They can lack insight, they can lack judgment and they are generally less culpable as a result of these things, so says the case law in this area. Importantly, because they are young, they are correctly viewed as being more amenable to change for the better. That is, more capable of actually achieving rehabilitation. It follows then that the benchmark for sending a young or youthful offender to prison is a high one indeed and for good reason.
3. So rehabilitation generally has a strong added emphasis in the case of a young or youthful offender, especially one with no or limited criminal history. Rehabilitation is usually more important than general deterrence and punishment. It can easily be forgotten and so often is in the popular media, that rehabilitation of such a young person actually serves to protect the community best. We, as judges, also know that prison can and does corrupt and damage, rather than rehabilitate, especially youthful offenders. So when it can be avoided, it is obvious enough that confinement must be avoided. It is after all, always a disposition of last resort. It is for these and very many other reasons that youth is ordinarily a very powerful factor indeed. So ordinarily, less weight is attached to general deterrence and to punishment and a greater emphasis placed upon rehabilitation.
4. But these principles that are set out in many of the cases in this area, including the cases of Mills and Azzopardi and in the case of Boulton, they do not apply equally in every case where there is a young or youthful offender. Sometimes a young or youthful offender, even a young first offender, someone who has never been to court, must be sent to prison. The weight to be given to youth necessarily will vary from case to case. The more serious the crime, the more likely it is that greater prominence will be given to deterrence, to protection of the community, to denunciation and to punishment. As the level of seriousness of criminality increases, there is therefore, generally speaking, a corresponding reduction in the mitigating effect of youth.
5. It is a rare case indeed where the mitigatory consideration of youth are all but extinguished and this is certainly not such a case, not by a long shot. However, a significant aggravating feature here is that, for whatever reason, you chose to commit these serious offences for which I must pass sentence, whilst on the undertaking to be of good behaviour for past offences of trafficking in drugs.

I cannot just ignore that fact. It is a matter of real significance. Specific deterrence is important here and general deterrence has a prominent role in this case as well. I will not and do not lose sight of your youth, it is very important, but it is not the only matter for me to consider.

1. I have set out the chronology of the offending, including the prior matter and also the subsequent matter. It is hard not to be at least slightly guarded as to your prospects of rehabilitation, given your past offending, this offending, occurring in the currency of the undertaking and then even the subsequent offence committed whilst on bail. It is a pretty strange and unfortunate chronology for an intelligent and well supported young man to create. You have done yourself really no favours at all. Still, there is no other criminal history and you are still very young. You are intelligent, obviously so. You have a good and supportive family, but of course, that has seemingly always been the position and still you have offended.
2. You have been undertaking treatment. You have your studies, you have employment beckoning. There are signs that your life is well and truly getting back on track. You lost your way, it would seem, upon leaving school and for whatever reason, you jumped off the tracks that were seemingly leading into the same sort of valuable and contributing life as has been led by your sisters. Sport, education, qualification, career, it all lay ahead for you.
3. There is an aspect of some events in your life which perhaps destabilised you. The leap from school to university can be a big one for any young person. The selection of a course of little real interest and then the suffering of an injury and loss of sport in that same year, were all setbacks and that was the context leading in to the initial offending, previously dealt with in the Magistrates' Court. You had already headed off into drugs, to some extent, whilst at school. You got the wake-up call, being arrested in relation to the Magistrates' Court matter and then you went to court in 2015. You were dealt with in a most lenient fashion, without conviction and you could have mended your ways. You chose not to. No one was forcing you to re-offend. You chose to.
4. You were shocked at the time of your arrest in October 2016 at the TNT depot and expressed that shock in a way that spells out to me that you are a very long way removed from being a hardened criminal. You were worried about your mother finding out.
5. One would hope that the process of being arrested, charged with these offences and then brought before the courts, would have had a sizeable impact in deterring you from committing crimes such as these in the future. Well one would hope that. Yet, of course, none of that deterred you from the February 2017 offending at the music festival.
6. I am prepared to accept that there perhaps have been, at points since being charged, a sense of hopelessness in your life. Maybe a dark pessimism as to what lay ahead at this court, which might explain that sort of slip up in February. Your future has genuinely been up in the air with prison not a remote possibility, not by a long shot, but a real and distinct probability. That could hardly not affect a person of your age. I am sure that the sentence which I will soon pronounce will also have a deterrent effect upon you into the future.
7. So despite the unhappy chronology, despite the commission of these offences whilst on the undertaking imposed in the Magistrates' Court and despite the commission of the subsequent offence whilst on bail for these offences,

I assess your prospects of rehabilitation as being really quite good. That will be subject to continued abstinence and treatment and counselling. The only reason I qualify my assessment in that way, is owing to the unhappy chronology and the recency of Ms Abadee's intervention.

1. I have mentioned the report and the evidence of Ms Abadee and the way in which I take it into account. I do take into account that report and the evidence in the ways I have identified, which essentially was consistent with the submissions being raised by Ms Fox.
2. Indeed, I really should make plain, if I have not already, that I have taken into account all of the materials placed before me by both parties, including, of course, the documents tendered, as well as the oral and written submissions. That includes the recently filed letter from the knee specialist that I have marked this morning as Exhibit 6

1. As to the offences themselves, your counsel conceded that this was serious offending and that concession was undoubtedly correct. Whatever else may be said of your offending, this was not spontaneous offending. As to Charge 1, you must have sourced, ordered and paid for that drug. You were attempting to possess it. There was close to five litres and even as you endeavoured to possess the consignment on the 20 October, you already possessed for sale the 825 grams in the mineral water bottle, which is the subject of the actual trafficking charge.
2. This was serious offending, but I do accept that it was hardly sophisticated. The parcel was addressed to you at your home address. It is a real worry that

a person in Australia can order online this drug with the click of a mouse and that its entry into the country is not prohibited. You admit trafficking in relation to Charge 3. You concede that you cannot satisfy the court that the attempted possession was not connected to a purpose related to trafficking, hence as

I have said, the higher penalty provisions applies.

3. Again I must be very careful here. That concession, which was correctly made by your counsel, does not mean that I can then sentence you on Charge 1 on the basis that you attempted to possess for sale. For to do that, would be tantamount to dealing with you for trafficking. Possession for sale is trafficking. That is it is not open to me to find that the purpose related to trafficking was to possess for sale, as that would actually amount to my dealing with you for trafficking, not for attempted possession of that drug and that is what I must not do. I simply find that the lower penalty provision does not apply, the higher one does, this is to Charge1 and I go no further in terms of any finding of a feature of aggravation in relation to purpose. See the cases of Wylie, Morgan 2016 VSCA 143 para 48 and also Doble 2007 VSCA 47.

1. I have to consider a number of purposes of sentencing and they are not limited only to your prospects of rehabilitation. If that was all I had to consider, sentencing would be quite easy. But it is not. There are other sentencing purposes which I must give weight to. I am required to punish you. That is

a significant sentencing purpose here. I must also denounce your conduct and I do. That is an important matter as well. This was serious criminal conduct.

2. There are other purposes of sentencing and one such purpose is the need for this court to seek to deter you from offending in the future. Well of course I must give that principle of specific deterrence real weight in my sentencing task. The chronology spells out that need and that is so, notwithstanding the evidence of Ms Abadee and your family. You are an intelligent man and yet a very slow learner. It was quite incredible that you chose to commit these serious offences whilst on another court order for trafficking in drugs. It is incredible that you then offended whilst on bail, having been charged with these offences.
3. It is also, if I may say so, incredible that you, an intelligent person, would use

a drug such as 1,4-BD, which is a cleaning or an industrial solvent and ingest it. You have been a science student at some stage in your life. Look at the pharmacology, look at the contra indicators. That is the drug that you were using, but that is the drug that you were trafficking as well. You must understand that you must never do anything like this ever again. I believe it is open to me to moderate the weight to be given to specific deterrence, to

a degree at least, given your youth and my quite favourable findings as to your prospects. I must obviously give some weight to community protection and there is a bit of a conflict in that area. Community protection sometimes is not best addressed by confinement. Sometimes confinement may do exactly the opposite and in fact fail to protect the community, other than for the limited period of the confinement.

4. General deterrence is another important purpose of sentencing in this case. This court must send a loud and clear message to other individuals in the community who might be minded to commit these sort of serious offences. We are heartily sick of the trade in drugs. Drugs have changed our community. Your mother was right. They cause untold misery to many who fall under their spell. Those who peddle the drugs really can expect little by way of leniency when they come before the courts. The courts have a role to play by conveying the message through the sentences imposed at court. We must seek to deter future likeminded offenders from committing these crimes. Again though, it is not open for me to just ignore your age at the time of the offending or the seemingly positive signs since May of this year.
5. I also have to have regard to current sentencing practices and I do. But every case and every offender is very different. What I have got to do, is pass an appropriate sentence in your case

1. I have taken into account all of the materials placed before me and the submissions made by counsel. Your counsel argued that it would be open to admit you to a suitably conditioned community corrections order. She referred to the Court of Appeal decision of Boulton. The Crown say you must go to prison, such is the serious nature of your crimes and the chronology of offending. Well each party make those submissions as to the available penalty or disposition. But, of course, I have to exercise my own discretion in this case. I do not just fall into step behind one practitioner or the other. They are putting arguments to me, but the court has to reach its own view as to the appropriate exercise of the sentencing discretion in this case.
2. I was taken to the case of Boulton, a decision of our Court of Appeal from

late-2014. If only I had a dollar for every time I had been taken to this case by defence counsel since it was published. I would be a wealthy man. Well, there has been much water under the bridge since that decision with enough criticism by other members of the Court of Appeal, as to the way in which the courts have imposed these orders. See, for instance, the case of Basic. There has been also legislative amendment to alter and to limit the disposition.

3. Ms Fox places great store on the reasons in that case of Boulton. Well defence counsel always do. But there is nothing in that case obliging a sentencing judge to actually reach a particular conclusion in a particular case, as the Court of Appeal made plain enough in the decision of Boulton itself and saw the need to remind the profession of in very many cases since, including amongst others, the cases of Hutchinson, Scammel and McGrath.
4. The community corrections order disposition is not some "get out of gaol free card". The Court of Appeal have reinforced that on a number of occasions. It is obvious enough that not every offender for every crime can or should be admitted to such an order. There are some crimes where the purposes of sentencing simply cannot be given adequate weight by use of such an order, even in combination with a prison term.
5. One thing though remains constant. Locking someone up is a matter of last resort for any court. It always has been, it always will be. Section 5(4C) of the Sentencing Act prohibits the imposition of a sentence of confinement, unless the court concludes that the purposes of sentence cannot be achieved by

a suitably conditioned community corrections order.

1. I am require to take into account the principle of totality and I do. I have to consider whether the effect of the sentences I am about to pronounce is just and appropriate and commensurate with your overall criminality. That requires me to engage in a last look at the sentences imposed by this court and the total effect of them, in endeavouring to guard against a crushing outcome upon you.

1. I have been requested to make a forensic sample order. That application is not opposed and I pronounce the order in the terms in which it is sought. I will deal with that. Likewise, I will deal with the disposal order in due course as well.

1. I have had you assessed for your suitability for a community corrections order. I told you to, quite explicitly, to take no comfort at all from that assessment occurring, or from the fact that I was extending your bail. I meant what I said.

I made plain that neither of those things in any way should suggest that there was a positive outcome lying ahead for you. They did not. What I wanted to do, was to read all of the submissions and the materials placed before me and consider what I could do in the sound exercise of my discretion. Prison was by no means off the table. Far from it. You would find prison difficult.

2. What then is the answer in this case? Is it really open to the court not to confine you here? That is answered by posing and then answering the following question: Can a suitably conditioned community corrections order achieve all the needs of sentencing in this case? For if it can, then as a matter of law,

I must not confine you. Prison will not assist you. Prison will not make you

a better person. But it very seldom does either of those things and I have sent enough people there, even youthful first offenders. People sometimes must be sent to prison, such is the gravity of the crimes committed by them.

3. Undoubtedly there is something of a public clamour for punishment in this State. We see on a regular enough basis newspaper articles which focus on the crimes and on the penalties, often with very little said as to the particular circumstances of an offender and virtually nothing as to what a judge said as to why he or she passed the particular sentence in the particular case. Even though in every case, we as judges are required to furnish such explanations. The solution, at least in some parts of the popular media, is for the courts to lock up more and more people for longer and longer, which is actually what is happening in the courts as a matter of reality. Our prisons are full to the brim.
4. Well, sentencing is not a "one size fits all" approach. There are always differences between crimes and between offenders with things which must be recognised in one case, which may have no application in another. There is

a discretion still at play and I am glad there is. Your age is a significant feature of this case. So too the steps that you have taken since linking in with the counsellor earlier this year. You may very well be back on the right tracks.

I believe you likely are, with university ahead, with a qualification beckoning and

a job and hopefully a future free from offending and free of the courts.

5. I do not believe this is some wild guess on my part. These are, I believe, realistic assessments of your future prospects at this point. I seriously wonder how those prospects might be altered or dimmed, if in the name of punishment, or retribution, or deterrence, or community protection, you are now sent to prison. Who or what might emerge? How will sending you to prison protect the community? Might it in fact do exactly the opposite? These are some of the tensions in this sort of exercise and it is not easy.
6. I quote from a judge of some considerable distinction.

"I think it should be remembered that in the long run, the community is better served and better protected if a young offender is rehabilitated and led away from a life of crime, than if after a short or long gaol sentence imposed to satisfy a public clamour for retribution, he is taught the ways of the criminal"

1. This was not some "new-age" latte-sipping liberal judge speaking last week or last month at some fancy conference. These were the words of Sir John Young CJ, the Chief Justice of this State, uttered in the case of The Attorney General v Chmil and Zanoni, in a judgment delivered in August of 1977. Over 40 years ago. What he was doing was highlighting the importance of youth in the sentencing exercise. There is nothing new about attaching great significance to youth in these courts. We, as judges, have done it for many decades and for good reason.
2. Your counsel argues for a community corrections order and says that it is available without your serving any term of imprisonment. The Director argues that you must be locked up in prison.
3. Well, there has hardly been a flood of Directors' Appeals to the Court of Appeal arguing against the inadequacy or leniency of my sentences in the seven or so years that I have been a judge. Hardly even a trickle. In fact, at last count, unless I am mistaken, there have been none. In the same timeframe, there have been plenty enough appeals brought by others, arguing as to the excessive nature of sentences that I have imposed. Well I do not ignore any of the submissions placed before my by either party. I do not ignore the Director's submission. I just do not accept it.
4. Ultimately, and I can tell you, it has been a close run thing, as I think you are probably picking up, by the very barest of margins, I believe that I can place you on a community corrections order in the sound exercise of my sentencing discretion and I believe I can do so without imposing an immediate prison term upon you.
5. My selection of this disposition is really entirely dependent on your ability to perform a large number of hours of unpaid work. That is a critical condition to this order and is fundamental to my view that such an order can adequately achieve the purposes of sentencing, including punishment, general deterrence and specific deterrence. If you do not believe that you will be fit to work, this is the time to tell me and I will not admit you to such an order. As far as I am concerned, without the work component, I simply could not place you on such an order, so you need to think long and hard before you sign this order and longer and harder still before you raise any issue, in terms of any future unfitness for work under this order.
6. You have had the general gist of these orders explained to you. I know that because there is a document that has been signed to that effect. I am still required to explain the nature of this order to you and the reason I have to do that is, I need to be satisfied that you are consenting to this order. So I am going to spend a bit of time going through the nature of the order, the mandatory terms and the tailored conditions and I will ask you at the end of it to speak to your counsel and then I will ask you whether you are consenting to this order.
7. I am spending this sort of time because I am never wanting to have a person back sitting in court, not understanding the ramifications of the order or what could happen if it was breached and I will not, because I spend this time going through these matters.
8. As you understand, these orders have mandatory terms. Firstly, obviously,

I am convicting you of the three offences, that is, the attempt to possess, the possession of Butanediol and also the trafficking. So on these three charges, you will be convicted. I am going to admit you to a three year community corrections order. That is its duration. It expires in October 2020.

9. You will be required to attend, within two clear working days, at the Dandenong Community Corrections Services in Walker Street, Dandenong. You will get

a copy of this order with everything on it, including the address, which will be there for you to see.

10. As you understand, these orders, they have mandatory terms that apply to every person who is admitted to one. You are getting one, so they apply to you.

• The first of those is that you must not commit another offence for which you could be imprisoned during the time the order is in force. That is pretty straightforward. You have got to stay out of trouble. That should not really be a problem for you. It has not been for so much of your life, it has been a real issue in recent times. But if you commit any offence for which you could be imprisoned, you will breach the order. And I should tell you, virtually every offence these days is, in theory, punishable by a term of imprisonment. And that is all you need to do. Any offence that could be punished by imprisonment, that will breach the order.

To give a further illustration of it, I have no reason to think that it is going to apply, but I want you to understand what it really means. I am sure you are not going to do it, but if you went into a newsagent and pocketed a Freddo Frog and left without paying for it, that would be a charge of theft. I do not think there would be a Magistrate in their right mind who would be sending a person to prison for theft of a 50 cent Freddo Frog, I might be wrong about that, but the commission of an offence that could, in theory, be punished by a term of imprisonment, will breach the order. So virtually any offence, any criminal offence has a period of imprisonment specified and that is the critical thing. You stay out of trouble, that is fine. You commit any offence in the period of this order, punishable by imprisonment, and you breach the order.

Possession of drugs would carry with it, generally, a term of imprisonment. Very straightforward.

• Anyway, you must comply with your obligations under the Sentencing Regulations, and what is that all about? It is your obligation to turn up for any attendance under this order, totally straight, totally clean, totally unaffected by alcohol or by drugs and they will take a photo, I think, for record keeping purposes.

• You will need to report to and receive visits from the Community Corrections officer. The document keeps referring off to the Secretary, or delegate, but there will be a Community Corrections officer assigned and that is the person you will be reporting to and getting visits from.

• You have got to report within two clear workings day.

• You have got to let them know within two clear working days of any change of address or job.

• You must not leave Victoria without first getting permission to do so from the Community Corrections officer. Now that is not to suggest they would not let you go for a particular reason, if there is a particular reason, but you would ask, you would make application and they would probably consent to you going for a holiday or something like that, I am sure they would. But if you get up and just leave, you are in breach of the order.

• You have got to obey all their lawful instructions.

1. So they are the mandatory terms. They are pretty straightforward. You are an intelligent person, you understand what they mean. You have got to do what they ask you to do. Turn up when you are told to turn up and stay out of trouble. All right? Well, for someone such as you, it really should not be a problem.

1. Then there are conditions that I tailor to the particular needs of the order, in terms of your needs, rehabilitation needs, but also the needs of sentencing, the purposes. These are orders that operate by way of punishment as well and they can deter. The reason they can serve as punishment and deterrence, is because they are onerous orders. They are not that easy. So I tailor conditions. One, unashamedly punitive condition is unpaid work.

• You must perform 500 hours of unpaid work over the period of this order.

• You will be under supervision. You must be under supervision of

a Community Corrections officer for the full period of this order, three years.

• Drugs have been obviously a sizeable issue for you and you need treatment. You need counselling, so says Ms Abadee, so you must undergo assessment and treatment, including testing, for drug abuse or dependency, as directed by the Regional Manager.

• You must participate in programs and/or courses that address factors relating to the offending, as directed by the Regional Manager.

• I am going to monitor this order. I am pretty unimpressed by what happened in the Magistrates' Court. I never want that to happen again. You will be seeing me again. We are going to put a little date in the diary and you will know it and that will be by way of my monitoring this order. You must attend for review of this order on 9 February of next year at 9.30 am.

Now, typically - it is entirely up to you, but I have monitored a few orders in recent times and hopefully things will be going very well on that occasion and often people turn up unrepresented. There is not any particular need to be represented for a monitoring, but you make your own judgment about that.

• I am making one other condition, even though I have made a treatment and rehabilitation condition, in terms of assessment and treatment, including testing for drug abuse. I do not want any sort of gap in that.

I have had experience in recent times of that order, or that condition being imposed and there being waiting list. You do not need a waiting list. You have got a person who is treating you,

a person who I am told you want to keep seeing and a person who tells me she needs to keep seeing you. So I am going to make a special condition that you keep seeing Ms Abadee and the special condition is part of this order. I do not care what letter comes from your solicitors about this, this is a condition. Breach it at your peril. Breach any of these conditions or terms at your own peril.

I am ordering that you must continue to see Ms Abadee, or her nominee for drug counselling and treatment, at least once a month in the first

12 months of this order, or more frequently as directed by Ms Abadee or her nominee and for Ms Abadee or her nominee, to provide a written report to the court at the time of any judicial monitoring, the first such monitoring being on 9 February 2018. So it is a court mandated requirement that you keep seeing Ms Abadee, you see her at least once a month. You have been seeing her more than monthly, but that is a special condition.

1. So they are the full suite of mandatory terms and conditions that attach to this three year order.

1. What I have not told you is what happens if you breach the order. Well, I should say this, you should treat this as your one chance and one chance alone. You should not have any expectation of breaching this order and getting any further opportunity, given the chronology placed before me.
2. Well, you breach this order by breaching any of the mandatory terms or any of those conditions. I do not have the slightest idea what directions they will give you, in terms of where you go for the unpaid work or what you do, or where you should be going, in terms of assessment and treatment for the drug abuse. It is highly likely, it seems to me, that - if they see that you are seeing Abadee, they will probably engage her in this part of this order. But whatever they tell you to do, in terms of treatment, in terms of work, in terms of supervision, you just comply with it. It is pretty straightforward.
3. Most of the people who are placed on these orders, there are a fair proportion of them, I should say, who breach them and there are a fair proportion of them who breach them comprehensively. People have a way of being greatly relieved to be placed on these orders. You will be relieved. You would not have known today whether you would be going down that door to your right, down into a cell, into a prison van and out to prison. You did not know. Well, you know now. But you will be putting yourself in that same position if you breach this order. But people have a manner of thinking that the court case is over. It is a great relief. It will be a great relief for you and for your family that you are not going to prison today, of course it will.
4. But the court case is not over. This is a three year order and I have seen enough people who breach these orders who are happy to get them, they consent to them, they are happy not to be going to prison and they had avoided going to prison, yet they get out into the community and there is always something they might prefer to do. Unpaid work is inconvenient. They do not turn up at unpaid work. Turning up for supervision or for alcohol or drug treatment or counselling, that is inconvenient. They do not turn up. Or they concoct excuses. Some of them just lose contact with their Community Corrections officer, they do not advise of change of address or change of job and truthfully, a large proportion of the people who are sitting in the dock have great difficulty complying with the structure of these orders, because they have got lives that are totally unstructured. Well you do not.
5. A lot of them do not have houses to live in, they do not have family who support them, they do not have jobs, they do not have employment. They have got nothing to do, they have got shocking backgrounds, shocking addiction, mental health issues. Complying with this sort of order is a bridge too far for so many of them. It should not be for you.
6. So do not lose sight of the way you felt when you came to court the other day and today. The uncertainty as to what existed in your life. Would you be going to prison? How would that be? All right, well, you are not. You will be heading out the door to your left, rather than the door to your right and you never need come back, unless, of course, you breach this order. And if you breach it, you will come back. You breach any of these terms or conditions and you would breach this order. And if you breach this order, that itself is an offence, punishable by a term of imprisonment. Something like three months, I think, is the maximum for the offence of contravening a community corrections order.
7. Well that is bad enough, I guess, but that is not the real sting. The sting to it is this. If you come back, you get brought back to court for breach and it is not the Magistrates' Court, it is not just any judge in this court, you get brought back in front of the judge who placed you on this order. So you breach this order and we will meet again. You do not want to see me again and I really do not want to see you again. I do not think I will. I think you will comply with this order. And if you do, it would demonstrate that the decision to place you on it was entirely the correct decision, given your youth.
8. I cannot tell you exactly what I would do if you are foolish enough to breach this order and that is because a judge would have to come onto the Bench and make some assessment of the nature of the breach. Well I would just be guessing at the moment. There is no point in doing that. A judge would need to hear how the offender was going, what efforts the person had made on the order. Was it a defiance of the order, was it a small slip-up, was it

a comprehensive breach of the order? What was the nature of the breach offence? When did they occur? It is these and many other things that a judge would need to take into account and indeed, I would need to take into account.

9. So I cannot give you any chapter and verse prediction as to what would happen if you come back in breach of this order. I would need to assess the breach and make judgments. But I give you this very strong piece of advice. Do not put yourself in that position. Do not put me in that position. Because the most commonly exercised power by judges when a person is brought back for breach of one of these orders, is that the order is cancelled. And if the order is cancelled, the judge then has to re-sentence in relation to those very same offences. You work on that theory. Work on the theory, if that was to occur, you would not be heading out the door to your left, you would be heading out the door to your right to commence a lengthy term of imprisonment. All right?
10. You should work on that theory. Bear in mind the way you felt coming to court today. Never place yourself back in that position again. You should have no expectation of getting a further order from me, in the event of breaching this one. I am extending leniency to you. The Director of Public Prosecutions of this State argues that you should be sent immediately to prison. I am not doing that. I am placing you on a community corrections order. I am extending leniency, owing to the various matters raised by Ms Fox in her excellent plea. But if you breach this order, do not expect any further leniency. All right?
11. Ms Fox, are you satisfied that I have adequately explained the terms of the order?
12. MS FOX: Yes, Your Honour.
13. HIS HONOUR: Let me just see if we have got a version of it. All right, I will have that order come down just at the Bar table, if you could - both of you just look at it and make sure it mirrors my stated intention please.
14. MS FOX: Yes, Your Honour, I'm - - -
15. HIS HONOUR: I was going to send you down there, but you have got your crutches, so I will
16. MS FOX: No, I can, Your Honour, and I can get there without crutches.
17. HIS HONOUR: Well get there without crutches and I am just going to ask whether he is consenting to it and you ask that and then I will get him to sign it.
18. MS FOX: Yes, Your Honour. Yes, Your Honour.
19. HIS HONOUR: Yes, all right.
20. MS FOX: He consents.
21. HIS HONOUR: Thanks. Look, I will get you - come out of the dock then, I think, Mr Muthia. Just come down towards the Bar table please. Just grab a seat there. I will come back to the order in a moment.

1. There is also application made for a disposal order in this case, disposing the various items referred to in the schedule, including the Apple iPhone and the items in the certificate analysis. There is no opposition to the making of the order. I am satisfied that it is appropriate to make that order under the provisions of the Confiscation Act. I order the forfeiture to the State of the property referred to in the schedule and I direct that it be held and dealt with in the manner described in the order. I have signed that disposal order.

1. In terms of the 464ZF, I am going to make the order. I have just - you have got to report to Dandenong. He lives in Whellers Hill though, Ms Fox, so it is

a matter of which police station, whether we do Dandenong or whether we do Glen Waverley.

2. MS FOX: Well he has to attend Dandenong Community Corrections Centre.
3. HIS HONOUR: Well do that in the one hit then, I guess and - - -
4. MS FOX: So the Dandenong Police Station would be
5. HIS HONOUR: I will make it the Dandenong Police Station.
6. Application is also made then for you, Mr Muthia, to undergo a forensic procedure for the obtaining of a sample to go onto the database. There is no opposition to the making of that order. I am satisfied that the order ought be made by the court, owing to the seriousness of the nature of the offending, the prior appearances that are placed before me, the fact that it is not opposed and that I judge it to be in the public interest that you undergo this procedure. So I order, pursuant to the provisions of 464ZF of the Crimes Act that you undergo

a forensic procedure for the taking of a scraping from your mouth. That is what I am authorising, in accordance with Sub-Division 30A of Part III of the Crimes Act, until a sample of sufficient standard is obtained for placement on the database.

7. I order further that, for the purposes of that procedure, you report to the officer in charge of the police station, at the Dandenong Police Station at 50 Langhorne Street, in the period covered by the order, to have that sample taken. You will take a copy of the notice. It is not a particularly invasive process. I am not authorising a blood sample, there is no need for that. I will select the least invasive process, which is a scraping from your mouth by way of a swab. It is not difficult, but that is what you will have to attend to do. So I have signed that order. Grab a seat again.
8. I have also told you that I have taken into account your early guilty plea and that I have reduced your sentence by virtue of it. In some cases I am then required to actually tell you exactly what would have occurred to you, by way of years or months, or a particular number. I do not need to do that in this case, given that

I have placed you on a community corrections order. But I am happy to tell you this. But for your guilty plea, I would have sent you straight to prison. No question about it. If you have pleaded not guilty and been found guilty. Indeed, I should add, that is exactly what I would have done, even on a guilty plea, had you been an older man.

9. Anyway, I am placing you on the community corrections order. The ball is now entirely in your court. You should want to comply with this order. It should not be difficult for you to comply with this order. But if you do not, I am going nowhere. The last I looked, I think I was nine or so years off retirement, so if you breach this order, we will have another meeting and you should work on the theory that it would be very likely to end far less happily than today's hearing.
10. All right, any other matters that I need to deal with at all, or not?
11. MS DOYLE: No, Your Honour.
12. HIS HONOUR: No. Ms Fox?
13. MS FOX: No, Your Honour.
14. HIS HONOUR: All right, well thanks for your assistance. All right, I have got a plea listed about 20 minutes ago actually. I will go down to my chambers, I will get the material and come back onto the Bench.