DPP v Serevetas [2019] VCC 2253

Objective gravity of your offending and moral culpability

1. The maximum penalty for the offence of trafficking or attempting to traffick a commercial quantity of a drug of dependence is 25 years' imprisonment. This reflects the seriousness with which Parliament regards the offence.
2. The statutory sentencing regime for all drug trafficking offences in Victoria is quantitative rather than qualitative, that is, it is based on the quantity of the drug trafficked, rather than any sort of subjective assessment of its deleterious effects. This means, for example, that trafficking in a commercial quantity of ice is no more serious than trafficking in a commercial quantity of cannabis, all other things being equal. It also means that the greater the relative quantity trafficked the more serious the offence, again all other things being equal.
3. Whilst not cavilling with those general propositions, your counsel submitted, that in this case, the precise drug trafficked was relevant in two ways. First, he argued that the ease with which BD could be imported meant that you were not required to mix in the drug milieu or go to any great lengths to obtain it. Secondly, he relied on an argument, advanced in other cases, that drugs such as BD and GBL, both precursors to the drug GHB, are less profitable than some other drugs and therefore should attract a less severe sentence for the same relative quantity of drug.
4. The authorities make it clear that whilst the weight of the drug is a very significant consideration, it is not the principle sentencing factor in assessing objective seriousness.[1] Amongst other relevant factors, is the anticipated reward from the crime, meaning that those who deal in drugs that are less profitable are generally less culpable than those dealing in other drugs.[2]
5. Although it was a case involving the offence of importing, rather than trafficking, and the drug was GBL, rather than BD, in 2013, the Court of Appeal in

'The offending in the present case, may be contrasted with offences that involve complex international operations and millions of dollars of expected profits. This importation involved an online purchase at low cost and with low returns.'[3]

1. I was informed the prosecution did not know the purity or street value of the BD you imported and I have no information, other than the gross quantity, by which to measure the seriousness of your offence. However, because it has been accepted in other cases that BD has a lower profit margin than other drugs of dependence, I am prepared to accept that this is so, a fact that reduces your culpability.[4]
2. I also accept that it was relatively easy for you to import the BD and that there were aspects of your offending that were quite naïve, such as using your home address.
3. At the time of your offending, Parliament had not prescribed a large commercial quantity in respect of the drug BD. This means that when you offended there was no quantitative ceiling to the offence of trafficking a commercial quantity of BD.
4. The court in Maxwell also said,

'Since importation can involve many multiples of a commercial quantity of the drug in question, it is quite correct to say that an importation which involves only one or two multiples is at the bottom end of the quantitative scale.'[5]

1. There are certainly many cases of trafficking much greater commercial quantities of BD than yours. Such as, for example, in Arici v R [2019] VSCA 228 and Director of Public Prosecutions v Fatho [2019] VSCA 311, involving 37 and 700 times the commercial quantities respectively.
2. In the 2017 case of the Director of Public Prosecutions v Bugeja,[6] the Crown submitted, and the sentencing Judge accepted that trafficking almost six times the commercial quantity of BD in a single transaction, was at the lower end of seriousness for the offence of trafficking in a commercial quantity of that drug. Similarly in 2018, the Court of Appeal in Ellis appeared to accept that if not for the presence of other aggravating factors, trafficking in 1.5 times the commercial quantity of BD would have been at the lower end of the range of seriousness for that offence.
3. By contrast in Sharbell, another 2018 case, an attempt to traffick three times the commercial quantity of BD, even if it was a somewhat amateurish enterprise, was not described as low level.
4. On the basis of the authorities I have cited, I accept that the amount you attempted to traffick, being two and a quarter times the commercial quantity of

2 kilograms of BD, is towards the lower end of the quantitative scale for this offence.

5. I note that Parliament has since prescribed 20 kilograms as a large commercial quantity of BD. Even with that cap, an amount of 4.5 kilograms could still fairly be regarded as towards, but perhaps not so much, the lower end of the quantitative scale for commercial quantity.[7]
6. The motivation for your offending was to pay off debts. They were not drug or gambling debts, although paying them off would free up money to spend on gambling and drugs.
7. You intended to traffick a large quantity of an illicit drug for profit with callous indifference to the harm that drugs of dependence, such as BD, cause to those who are dependent on them and to the wider community. Further, your crime was planned and premeditated. What you did was undoubtedly serious. However, having regard to the relatively low quantity of the drug and relatively low anticipated profits, I consider your offending and moral culpability to be at the lower end of the spectrum of seriousness for the offence of attempting to traffick a commercial quantity of a drug of dependence. That is not to say that what you did is not serious, rather it is to rank your offending on the scale of seriousness for the offence.

1. One and one only, of the matters to which I must have regard in arriving at an appropriate sentence for you, is current sentencing practices. This is to promote consistency of approach in sentencing and in particular in the application of relevant sentencing principles. Whilst no two cases are the same, sentences imposed in comparable cases may provide a convenient yardstick against which to measure any sentence proposed in the instant case.
2. I have had regard to the sentences imposed in past cases involving a commercial quantity of BD.[8] Given that BD only became a prescribed drug of dependence on 13 December 2012 there are not as many cases involving that drug as there are cases involving other drugs of dependence.
3. I am cognisant of the need for caution in considering sentences imposed for offending prior to 20 March 2017 as the mandatory sentencing provisions contained in sections 5 (2H) and following of the Sentencing Act 1991 did not then apply. Clearly it is offending at the lower end of the spectrum of seriousness, such as yours, to which section 5(2H) is most relevant as it is really only low end offending that might otherwise have attracted the type of disposition that section was designed to defeat. I have also had regard to the 2017 cases of Gregory (which concerned sentencing for high end commercial quantity trafficking) and Fernando (which did not).[9]
4. In dismissing an appeal against a sentence of four years imposed on a 25 year old offender for trafficking in 3.5 kilograms of BD with aggravating features, the Court of Appeal in the 2018 of Ellis noted that sentences in the range of 2.5 to five years had generally been imposed for offences of trafficking in a commercial quantity of BD, albeit, usually of a greater quantity than 3.5 kilograms. This trend appears to have continued post Ellis save that recently the Court of Appeal significantly increased sentences imposed on two offenders who had engaged in trafficking hundreds of multiples of the commercial quantity of BD.[10]
5. The Court in Ellis referred to two cases where the offender had received a corrections order and no immediate imprisonment. On my review of the cases, these two cases are factually the most similar to your situation. However, both can be distinguished not the least because in neither case did s 5(2H) of the Sentencing Act apply.
6. The first of the cases is Bugeja, to which I have already referred. That involved the trafficking in six times the commercial quantity of BD in a single transaction in one day. At the time of sentence the offender was 32, had only one prior conviction, which was essentially irrelevant, and had served 44 days pre-sentence detention. His offending had occurred in the context of a drug addiction and he had demonstrated rehabilitation by the time of sentence. The sentence was handed down prior to Gregory and the offending occurred prior to the operation of s 5(2H).
7. The second case of Muthia[11] involved a 21 year old who had imported 4.9 kilograms of BD into Australia but after a controlled delivery, was charged only with attempted possession, not trafficking. Significantly, the sentencing Judge emphasised that he was not sentencing on the basis that the offender intended to sell the 4.9 kilograms that he was attempting to possess.
8. I have only been able to find one other case where a corrections order was imposed in respect of a commercial quantity of BD and that was a case of DPP v Huynh to which I was referred by Mr Saunders, who appeared on your behalf.[12] Mr Huynh was charged with conspiracy to traffick a very large amount, being 262 times a commercial quantity of BD. Although the date of the offending was subject to the operation of s 5(2H), the actual charge, being a conspiracy, was not.[13] The Court of Appeal dismissed a Crown appeal in respect of the sentence of 139 days imprisonment and a three year corrections order because Mr Huynh, who was 25 at the date of the offending, had no priors, had not offended on bail and had shown 'remarkable progress in his rehabilitation'. I have already noted that Crown appeals in respect of the sentences imposed on two of Mr Huynh's co-offenders were allowed.
9. Section 5(2H) of the Sentencing Act 1991 requires a term of imprisonment to be imposed for the offence of trafficking a commercial quantity of a drug of dependence, unless certain exceptions apply. As it applies to you, s 5(2H) means that unless there are substantial and compelling circumstances which justify not doing so, I must sentence you to a term of imprisonment.
10. Whilst the length of the term is not specified, it must not be imposed in addition to a community corrections order, which suggests, and I do not decide, that Parliament intended the term of imprisonment to be greater than one year. You are not subject to amendments which came into force on 28 October 2018 which further restrict a court's ability to impose a non-custodial disposition.
11. I will return to consider whether there are substantial and compelling reasons, within the meaning of s 5(2H) after I have considered your personal circumstances and other mitigating factors.

1. Your background and personal circumstances were set out in the Defence Outline of Submissions tendered on your plea (Exhibit 1) and in a report of a psychologist, Ian McKinnon, who saw you on 3 December 2019 (Exhibit 2).
2. Very briefly, you were born in Australia, initially residing in Coburg with your biological parents. You are now 23 years of age, having been born on 29 February 1996. You have one younger sister, as well as two half-sisters on your father's side and twin half-brothers on your mother's side. Your father was imprisoned for 18 months when you were three years old and after being released from prison your parents separated.
3. You initially lived with your mother, sister and maternal grandmother. Later your mother's new partner replaced your grandmother in the family unit. You were told your father was a 'bad man' and were forbidden from having contact with him. You describe your maternal grandmother as a 'bad influence' who stole to sustain a gambling habit. You were scared of your stepfather, who you described as 'abusive'. This was a difficult time in your life.
4. From the age of 16, you started to associate with people who were from a different socio-economic background. You aspired to be like them and would sneak out to gamble at the casino. By the time you were 18, you were gambling regularly and using cocaine.
5. You attended three different primary schools and two high schools. You completed Year 12 at St John's Greek Orthodox College in Preston.
6. You reportedly 'love the classics' and are considering tertiary studies.
7. As soon as you left school you started work in car yards selling cars.
8. When you were 19 you reconnected with your biological father. However, you continued to gamble and use drugs. You moved to live with your paternal grandmother in Reservoir, and then six months later you went to live with your father in Olinda. After two months you moved again to live with a cousin in Reservoir. You stayed with this cousin for nine months before moving again.
9. At the start of 2018 you had debts of about $70,000 comprising a car loan, personal loan, credit card debt and fines. You told Mr McKinnon:

'I wanted to make money, that's when I ordered the [BD] from China.'

1. You are currently living with your father and his family in Montmorency. You opened a café with your father and a friend in 2018 however that business was closed down after eight months. You are currently working for your father on a full-time basis doing building, restoration and repair work. Your father, a tiler, has taught you various skills. You recently tried to contact your mother without success and have not spoken to her for four years.
2. You are single and have no children.
3. You have several health issues, including asthma and difficulty breathing due to a cartilage bowing in your nose when you were 11. Further, you have always struggled with your body weight, apparently weighing 210 kilograms when you were gambling and working at the car yard.
4. You attended a clinical psychologist, Judye Margetts, on 29 July 2019, pursuant to a mental health plan instituted by your general practitioner. Based on that initial assessment, she considered that you were experiencing a depressive episode with anxiety and that you needed to attend therapy at least fortnightly if you were to change your life. By the time of the plea you had seen her on two further occasions.
5. Mr McKinnon diagnosed you as suffering from a Mixed Anxiety and Depression Disorder, called 'MADD' for short, albeit at a 'mild level of intensity' at the time he saw you. He considered it to be a longstanding condition with its origins in your troubled childhood. At the time of your offending he opined that you were suffering from both MADD and Problem Gambling Disorder which he considered probably made a significant contribution to your offending. Whilst you had used cocaine and alcohol in the lead up to the offending, he did not consider it was at a level to warrant a diagnosis of substance use disorder.
6. Mr Saunders, quite rightly in my view, specifically disavowed any reliance on the principles of Verdins as reducing your moral culpability. However, he did argue and I accept to a slight degree, that prison would weigh more heavily on you given your psychological state. I also accept that in a general sense your difficult upbringing and psychological issues are relevant to your moral culpability. However, in my view they are not such as to significantly reduce it.

1. You are to receive a discount in your sentence for the fact you have pleaded guilty to the offence. The discount will be significant but not as much as it would be if you had pleaded guilty at the first opportunity. You entered a not guilty plea at the time you were committed to this court for trial and the matter resolved after the initial directions hearing in this court.
2. You told Mr McKinnon that you 'feel sorry for what you did' and that after being on bail for an extended period, you have had a long time to think about it and how many lives you could have ruined. You expressed similar sentiments to a friend and two former employers, each of whom have provided character references for you.
3. I accept that your plea of guilty is accompanied by some remorse and for that you are entitled to a greater discount.

1. You have admitted a history of illicit drug taking but have no prior convictions.
2. You have a good work history and you certainly have the capacity to be a worthwhile and contributing member of society. The character references tendered on your behalf attest to that.
3. I am told that after the offence you ceased gambling and illicit drugs. You also attended a counsellor at a local community health organisation and the clinical psychologist Ms Margetts. I do note however, that your first appointment with each person, was more than a year after your offending and you have had only a few appointments with each.
4. You have the support of your father and his extended family, some of whom supported you in court for your plea.
5. Mr McKinnon considered that you demonstrated 'very good insight' into your personal history, difficulties and challenges. He considered that your long term prospects for rehabilitation to be very good and your risk of reoffending in 'any serious manner' to be low. He attributed your offending to a 'very direct response' to significant psychological problems that had not, at that time, been addressed. He described you as having made enormous rehabilitative progress since your arrest.
6. All these matters are cause for optimism for your future as is your youth, remorse and plea of guilty. I consider your prospects of rehabilitation to be good.

1. In addition to specifying matters to which I must have regard in arriving at an appropriate sentence, the Sentencing Act 1991, prescribes the purposes, indeed, the only purposes for which a sentence may be imposed. These are just punishment, deterrence, rehabilitation, denunciation and protection of the community.
2. Community protection and general deterrence feature highly in the sentencing of offenders for drug trafficking. Although these factors may be less significant in cases with low anticipated financial reward, such as trafficking in BD[14], that is not to say they are not important, just that they are not as important as they are when there is a heightened financial incentive to commit the crime and a corresponding need for more severe punishment to achieve deterrence.
3. The number of cases of trafficking of BD in this court make it obvious that trafficking in BD is an attractive proposition despite its lower profits. Whether that is because the ease with which it can be sourced makes up for the lower profit margin, I do not know, but it is obvious that general deterrence is still an important sentencing consideration.
4. The principle of parsimony requires that a custodial sentence only be imposed as a last resort, however, overlaying that principle in your case are mandatory sentencing provisions.
5. I was informed by counsel and my investigation has not revealed otherwise, that the words, 'substantial and compelling' have not been considered by the Court of Appeal in the context of s 5(2H). They, have, however, been considered in the context of a different but analogous section of the Sentencing Act, namely s 10A(2)(e). This was in the case of DPP v Hudgson [2016] VSCA 254 where the court said that 'the word 'compelling' connotes powerful circumstances of a kind wholly outside what might be described as 'run-of-the-mill' factors typically present in offending of this kind'. Since s 5(2H) was introduced into the Sentencing Act after s 10A(2), and was clearly modelled on it, I see no reason not to follow the Court of Appeal's reasoning in Hudgson.
6. Your counsel submitted that there exists in your case a combination of factors, which together, amount to substantial and compelling reasons not to impose a custodial sentence. In particular he relied on your youth, prospects of rehabilitation and troubled background and also the characteristics of BD, being less profitable and easier to obtain than other drugs. I accept that these matters are relevant to the sentence I impose. However, in my view, they do not amount either individually or in combination to substantial and compelling reasons within the meaning of s 5(2H), particularly having regard to s 5(2I) and the decision of Hudgson.
7. This finding means that I have no option but to sentence you to an immediate term of imprisonment, but I would have done that in any event. In my view, the purposes of sentencing, particularly just punishment, denunciation and general deterrence, demand the imposition of a term of imprisonment quite apart from s.5(2H). Your offending is just too serious and the mitigating factor not sufficient to justify any other disposition.
8. You trafficked BD in the hope of easy money. In so doing, you took a calculated risk. Whilst I think it is unlikely you would do it again, it is important that the sentence I impose on you operates as a deterrent to others who are similarly tempted.
9. I do not consider your youth eliminates the need for general deterrence however, I have decided to moderate its application to some extent in your case. This is because I also regard your youth and prospects for rehabilitation as very important. I have also taken into account, as I have already said, that your psychological state means that you will find your time in prison slightly harder than would a person of normal mental health. What this means is that your sentence will be less than it would be otherwise. Because of your youth and prospects of rehabilitation I have also imposed a lower non-parole period than I otherwise would have done.
10. My finding that there are no substantial and compelling reasons within the meaning of s 5(2H), also means that I am prohibited from sentencing you to a term of imprisonment in combination with a community corrections order. This is more significant than the requirement that I impose an immediate term of imprisonment as it is something I would have considered in your case. Instead your punishment must be comprised entirely of incarceration and your rehabilitation must be facilitated by the setting of a non-parole period.

1. If you could stand please Mr Serevetas.
2. Weighing all the matters in your favour and against, as best I can:
3. On the charge of trafficking in a commercial quantity of a drug of dependence, I convict and sentence you to one year, eight months, that is 20 months, with a non-parole period of 10 months.
4. I declare that you have served a total of two days pre-sentence detention, not including today, in respect of this sentence and order that this declaration be entered in the records of the court and that the period be deducted administratively.
5. If you had not pleaded guilty to this charge and been found guilty by a jury, I would have sentenced you to a term of imprisonment for three years with a non-parole period of two years.
6. The prosecution have made applications for ancillary orders which were not opposed by the defence. I am satisfied it is appropriate to make each of those orders in the circumstances of this case. Accordingly, I order as follows:
7. In relation to the drugs, I order pursuant to s 78(1) of the Confiscation Act that they be forfeited to the state and placed in the custody of the Chief Commissioner of Police, until 28 days from this date or the conclusion of any appeal proceedings.
8. And in relation to the application for a forensic procedure, pursuant to s.464ZF(2) of the Crimes Act 1958 I order that you undergo a forensic procedure for the taking of a scraping form your mouth in accordance with sub-division 30A Part 3 of the Crimes Act 1958, until a sample of sufficient standard is obtained for placement on the database.
9. I make that order because I am satisfied it is appropriate in the circumstance, given the seriousness of the circumstances of this offence. The orders are not opposed. And I'm satisfied it's in the public interest to make the order.
10. I also need to inform you that if you do not consent to the taking of a mouth scraping under the supervision of an authorised member of the police force, then the sample that will be taken will be a blood sample and police may use reasonable force to enable that forensic procedure to be conducted. So do you understand the sentence I have imposed?
11. OFFENDER: Yes, Your Honour.
12. HER HONOUR: And do you understand the two orders I've just made?
13. OFFENDER: Yes, Your Honour.
14. HER HONOUR: Yes. Are there any other matters that I need to attend to or any matters that counsel want to raise with me at this stage?
15. MR SAUNDERS: No, Your Honour.
16. MS WORRELL: No Your Honour.
17. HER HONOUR: Yes, thank you. If you could adjourn the court.

[1] Director of Public Prosecutions v Maxwell [2013] VSCA 50 at [13].

[2] Ibid at [20] and Director of Public Prosecutions v Fatho & Ors [2019] VSCA 311.

[4] Ellis v R [2018] VSCA 221, cf Sharbell v R [2018] VSCA 324 where it was not mentioned.

[5] Ibid at [20]. Maxwell involved the importation of approximately 3kg, being three times the Commonwealth prescribed commercial quantity of GBL (1 kg) and one and a half times the state prescribed commercial quantity (2kg).

[6] Director of Public Prosecutions v Bugeja [2017] VCC 782

[7] Like the prescribed amount for a commercial quantity, this is the gross quantity of any mixture of BD and other substance.

[8] Although a different drug and a different offence, the sentence imposed in DPP v Maxwell is also instructive. Apart from the matter of DPP v Fattho & Ors, counsel appearing did not refer me to any of these cases.

[9] Director of Public Prosecutions v Gregory [2017] VSCA 151 and Director of Public Prosecutions v Fernando [2017] VSCA 208.

[10] DPP v Fatho & Ors [2019] VSCA 311. In doing so, the Court applied Gregory. The sentence imposed on Fatho for trafficking was increased to 8 years.

[11] Director of Public Prosecutions v Muthia [2017] VCC 1549.

[12] Mr Saunders referred me to the sentencing remarks in this court [2019] VCC 1062 . At that time the Court of Appeal had not yet handed down its judgment in Director of Public Prosecutions v Fatho & Ors [2019] VSCA 311. Huynh was a co-offender of Fatho and Van.

[13] Whilst I have not researched it comprehensively, certainly conspiracy to traffick in not less than a commercial quantity of a drug of dependence was not treated as a category 2 offence in the sentencing of Huynh at [189] and [191] and the Court of Appeal did not say any differently.

[14] Director of Public Prosecutions v Maxwell [2013] VSCA 50 at [34] and [35].