DPP v Scott [2020] VCC 1729

1,4-Butanediol. A commercial quantity is 2 kilograms. And you had 6.5 grams of pure methylamphetamine. A traffickable quantity is 3 grams. A commercial quantity is 250 grams.

6. When police interviewed you, you admitted the items found in your car were yours. You confessed to selling GHB and ice. You said in relation to selling ice if you had more of it than other people who were around you and wanted to buy from you, you would sell some of yours to them. You did not make a profit from it but sold it to fund your own ice habit. In relation to selling GHB you said you sold more of it than the ice, that you dropped bottles of it to people's houses. You could profit from it but you did not think you made that much and you had just bought the bucket in the boot for about $2000. In relation to the cash in your handbag you said the majority of it would have been from selling drugs.
7. Police interviewed you again two days later. You admitted you had melanotan without a prescription and you identified one of the bottles found in your car as your personal bottle of GHB. You said it probably had little bits of ice in it. In relation to the bucket of GHB you said, 'The only reason I had that much on me is because it's so far away to go and get. I thought I might as well just get it now and I don't have to keep going back and forth'. In relation to your drug trafficking you said you sold 20 ml of GHB for about $50 and you had been selling GHB and ice for the past month or so. Messages on your telephone indicated you had been trafficking drugs since 6 November.
8. You were remanded in custody on 18 December 2019. It is your first time in custody.
9. You have no criminal record.
10. Your counsel, Mr Cenacchi, in comprehensive written and oral submissions, relied upon a chronology and an outline of submissions, a psychological report dated 5 August 2020 of Dr Aaron Cunningham, drug urine analysis screenings, certificate of your completion of an in-house prison drug treatment program, and supporting documents and a letter dated 11 May 2020 of Sandra Cairn, a prison drug counsellor.
11. You were born on 22 September 1997. You were 22 years old when you offended. You are now 23.
12. Your personal circumstances are set out in Dr Cunningham's report. He assessed you on 14 July and 2 August 2019.
13. You are the younger of two siblings. Your parents separated when you were four. Your father was violent and abusive. Your brother and you continued to see him after the separation. When you were eight or nine years old he committed suicide. Although you hated him you felt guilty because, before his death, you had fought to stop seeing him.
14. When you were in Year 7 your mother repartnered. You said you had an all- right relationship with your mother and your stepfather. You achieved a VCE enter score in the high 80s and began a commerce degree at university but you did not like studying as your classmates were older and you could not drive to university. You were working for your mother in her business when you moved out of home to live with your boyfriend. He introduced you to methylamphetamine and cannabis and you became addicted. He was physically abusive and controlling, emotionally and financially. When your relationship ended you feared further abuse and wanted control of your life back. You decided to sell drugs to regain control and independence.
15. Dr Cunningham spoke to your mother. She said your father exposed your brother and you to severe trauma. She described you as an intense and bright child who was emotionally closed down. She said your partner was abusive in a manner similar to your father.
16. As a teenager you had suffered from anorexia and, in 2019, after a drug overdose you went into a drug rehabilitation centre for four to six weeks. You continued working for your mother until October 2019, shortly after you committed these crimes. You will have a home and a job with your mother when you are released from prison.
17. In Dr Cunningham's opinion you meet the diagnosis of post-traumatic stress disorder. He said, 'In combination with your early childhood trauma the abuse from your partner caused a deterioration in your mental health that resulted in post-traumatic stress disorder'. He continued, 'Common to trauma victims, you recreated your early childhood trauma by forming a relationship with an abusive partner. Your offence was partly motivated by a misguided attempt at guarding against future abuse. Your reckless and self-destructive behaviour and motivation to avoid future abuse are consistent with a trauma response. Further, your drug abuse was partly motivated by escape from your negative emotions'.
18. In his opinion, while your drug addiction was the main factor contributing to your offending and if drugs were removed you would not have offended, your trauma also contributed to your offending. In his view, long term imprisonment would reduce your prospects of rehabilitation because of the potentially corruptive influence of other prisoners.
19. I accept his opinions, which were unchallenged.
20. In prison you have undertaken a voluntary, intensive six-month residential drug and alcohol treatment program. It includes random twice weekly drug screenings. The program coordinator, Sandra Cairn, wrote you were motivated to make positive change and have complied with all the program requirements, which include drug abstinence.
21. Mr Cenacchi acknowledged the seriousness of your offending. He submitted its gravity was limited by its relatively short duration and your motivation to support your own heavy drug habit rather than to profit financially.
22. He relied on a number of factors in mitigation of penalty: your cooperation with investigators, your early guilty plea entered at committal mention, your genuine remorse, your lack of any criminal history, your significant childhood trauma, your PTSD, and because of its link to your offending, your reduced moral culpability, your very good prospects of rehabilitation and the impact of COVID-19 on prisoners.
23. He submitted those factors in combination constitute substantial and compelling circumstances under s.5(2H)(e) of the Sentencing Act that justify not making an order for imprisonment alone. He submitted, if I am satisfied such substantial and compelling circumstances exist, I should impose a combination sentence with a term of imprisonment which would allow for your early release from custody with a community correction order tailored to reduce the risks of you reoffending.
24. He submitted if I am not so satisfied, I should impose a prison term with a lengthy period of parole to allow for your continued rehabilitation in the community after you have served your minimum term.
25. Mr Davison, who appeared on behalf of the prosecution, in thoughtful and helpful submissions, submitted your offending was deliberate and persistent over a period of time.
26. He accepted you have a number of mitigating factors in your favour, including your early guilty plea, your lack of any criminal history, your reduced moral culpability, to the extent that your PTSD was a contributing factor to your offending, and your favourable prospects of rehabilitation.
27. As he pointed out, for an offence of commercial quantity drug trafficking, parliament intends a custodial sentence should be imposed and the test for any exception is stringent. He submitted the factors your counsel relied on do not justify a departure from the legislative intention.
28. He also submitted because the second charge of trafficking in a drug, methylamphetamine, involved a different drug, it is open for the court to direct a period of cumulation between the sentences for the commercial quantity trafficking charge and the trafficking of methylamphetamine charge.
29. Trafficking a commercial quantity of a drug of dependence is a Category 2 offence under the Sentencing Act. Section 5(2H) of the Act provides:

'The court must impose a custodial sentence other than a sentence of imprisonment imposed in addition to a community correction order unless an offender proves, on the balance of probabilities, specified circumstances exist'.

1. In your case, to depart from the legislative norm, I must be satisfied there are substantial and compelling reasons that are rare and exceptional and justify not making a custodial order without a community correction order. Relevantly, in determining whether there are substantial and compelling circumstances, I must regard general deterrence and denunciation of your conduct as having greater importance than your rehabilitation. I must give less weight to your personal circumstances than to the seriousness of the offence you have committed and I must not have regard your previous good character, your early guilty plea or your prospects of rehabilitation.
2. Recently in Andrew Farmer v The Queen the Court of Appeal said at paragraphs 51 and 52:

'Within the context of s.5(2H) (e) is a residual category of limited scope. On any view, it is a very high hurdle that will not often be surmounted. The legislative norm is that Category 2 offences will attract an immediate term of imprisonment. Importantly, community correction orders or a combined community correction order and a term of imprisonment are not available. In many cases, given the type of offences within Category 2, a term of imprisonment will be inevitable. In some cases the operation of s.5(2H) will be harsh. In other cases a term of imprisonment would be entirely unjustified, counterproductive from the viewpoint of rehabilitation and work to a serious injustice. That may be particularly so for young offenders. To a degree, paragraph (2H)(e) guards against the risk of injustice, but the stringency of the test cannot be avoided'.

'Although each of the aspects on which the applicant relies fit within the category of type that is common, in our view, the accumulation of detail was exceptional and compelled the conclusion that the mandatory detention provision should not be applied'.

1. Disregarding your previous good character, your early guilty plea and prospects of rehabilitation, as I must, I am not satisfied the accumulation of the detail of your circumstances meets the very strict statutory test. Accordingly, I cannot impose a community correction order or a composite sentence on Charge 1. I must impose only a custodial sentence.
2. The maximum penalty for trafficking in a commercial quantity of a drug of dependence is 25 years' imprisonment. The maximum penalty for trafficking in a drug of dependence is 15 years' imprisonment. They demonstrate the seriousness of your offending.
3. You were dealing in 1,4-Butanediol and methylamphetamine, to people you knew, in small quantities, from your car, over a six-week period. You had

2.9 kilograms of the drug in the boot of your car, 1.45 times the commercial quantity threshold. It had cost you $2000. By selling it in smaller quantities you might have grossed $5000. You had 6.5 grams in your handbag with $1360 in cash, largely from drug sales.

4. You were homeless and selling drugs for a small profit to support your own heavy addiction. Your offending was at the low end of the range for crimes of the type. You cooperated with police when they intercepted you and you gave them information about the extent of your drug trafficking which they otherwise would not have discovered. You entered your guilty plea at the earliest opportunity. I am satisfied you are genuinely remorseful. You are otherwise a person of good character.
5. You were suffering from PTSD as a result of early childhood trauma and the abuse of your partner. You were using drugs in part to escape negative emotions and you were dealing in drugs in part to try to obtain some financial security. Because your PTSD was a contributing factor to your offending, your moral culpability is reduced and general and specific deterrence are to be moderated.
6. You are a first offender. You were financially and emotionally vulnerable when you offended. Were it not for your own addiction you likely would not have offended. You have been in enforced remission while you have been in custody and you have completed a voluntary and intensive in-prison residential drug and alcohol treatment program.
7. You are still young. You have your mother's support on your release.
8. I accept you have very good prospects of rehabilitation. In the case of a relatively young first offender, rehabilitation is an important sentencing consideration. Your rehabilitation benefits the community as well as you. I have moderated both your head sentence and the non-parole period to take into account all these factors.
9. Considering your relative youth and your encouraging potential for rehabilitation, I am of the view that it is appropriate to impose a longer than usual parole period to allow for your continued reformation under supervision in the community after you have completed your minimum term.
10. In Gregory [2017] VSCA 151; [2017] 268 ACrimR 1 the Court of Appeal called for an increase in sentences for the upper category of offences of commercial quantity trafficking, with consequential change in other categories. I have had regard to Gregory and two post-Gregory Court of Appeal decisions, Ellis v The Queen [2018] VSCA 221; and Sharbell v The Queen [2018] VSCA 324, which involved commercial quantity trafficking of 1,4-Butanediol.
11. In Ellis, the court reviewed commercial quantity 1,4-Butanediol trafficking sentences which ranged from two and a half to five years' imprisonment.

Ms Ellis had three and a half kilograms of 1,4-Butanediol with $3405 in cash in her bedroom. Like you, her offending was low end for the crime of that type. Like you, she had had a traumatic life, and was still young: she was 24 when she offended, and 25 when sentenced. She had pleaded guilty early and the potential rewards for her trafficking were not great.

12. Six months prior to her offending she had trafficked in methylamphetamine and dealt with property suspected of being proceeds of crime. She was on bail for those charges when she offended and less than two weeks prior to her offending she was released on a community correction order for trafficking methylamphetamine and other drug offences.
13. As the court observed, a review of eight sentences of this court revealed sentences well below four years' imprisonment might be imposed where there were no relevant prior convictions or where there are unusual mitigating features. Otherwise the sentences ranged with from two and a half years to five years' imprisonment, generally for larger quantities than you trafficked.
14. The court held, considering Ms Ellis was on bail for similar offending and also subject to a community correction order again for similar offending, which had been imposed very shortly before she committed her crimes, a sentence of four years' imprisonment for commercial trafficking of 1,4-Butanediol was not manifestly excessive. The significant aggravating circumstances of similar earlier offending is absent in your case.
15. Mr Sharbell attempted to traffic 6.1 kilograms of 1,4-Butanediol. The drug in the form he had prepared it could not be sold. In support of an argument that a sentence of four years for the crime was manifestly excessive, chief emphasis was placed on the amateurish nature of the attempt to traffic and the impossibility of success. The court said in that case what mattered was his criminal intent. The court held, taking into account the range of two and a half to five years identified in Ellis, the sentence of four years was not outside the available range in circumstances where Mr Sharbell had attempted to traffick a quantity of the drug three times the commercial quantity threshold.
16. Making appropriate adjustments for the difference in the circumstances of the offender and the offending in those cases, I have used them as a yardstick to guide me in the sentence I should impose upon you.
17. By this sentence I must denounce your conduct. I must punish you and deter you and others from committing crimes of the same or similar kind. I must also look to protection of the community as well as your rehabilitation.
18. Taking into account the circumstances of your offending and its effects, your personal circumstances and antecedents, and endeavouring to produce a sentence which reflects and promotes the purposes of sentencing in a manner appropriate to you, I sentence you as follows:

On Charge 1, trafficking in a commercial quantity of a drug of dependence, 1,4-Butanediol, you are convicted and sentenced to three years' imprisonment.

On Charge 2, trafficking in a drug of dependence methylamphetamine, you are convicted and sentenced to three months' imprisonment.

1. Because Charge 2 involved additional offending it is open to order some cumulation. However it was very low-scale offending, and having regard to the principle of totality, I direct the sentence on Charge 2 be served concurrently with the sentence I have imposed on Charge 1.
2. On the summary charge of dealing with property, $1360 in cash, suspected proceeds of crime, you are convicted and sentenced to one months' imprisonment. Because that was largely proceeds of your drug trafficking, I order that a sentence of one month be served concurrently with the other sentences I have imposed.
3. Accordingly, your total effective sentence is three years' imprisonment and I fix a period of one year and six months before you are eligible for parole.
4. I declare you have served 317 days of your sentence by way of pre-sentence detention.
5. And I declare but for your plea of guilty I would have sentenced you to five years' imprisonment and fixed a non-parole period of three years.
6. In relation to the other summary offence, possession of a Schedule 4 poison, melanotan, which, as I understand it is a peptide used as a tanning agent, you are convicted and fined $200.
7. I will make the orders for its forfeiture and disposal in the terms of the orders filed.