DPP v Summerville

(a) From under the driver's seat, a black toiletries bag containing various drugs of dependence in individual zip-lock bags: methylamphetamine 103.1 grams, 1.5 grams, 14.0 grams, 14.1 grams, 10.5 grams, 1.7 grams and .9 grams. The purity ranged from 83 to 86 per cent and there was heroin 2.5 grams and .1 grams, and the purity ranged from 74 to 75 per cent, and 1.1 grams of cocaine that was 77 per cent pure; a small quantity of cannabis L; a small quantity of Diazepam and Alprazolam tablets; and two Buprenorphine strips. Your DNA was located on the large zip-lock bag containing 103.1 grams of methylamphetamine.

(b) Also seized were two mobile phones, one set of digital scales, one ice pipe and one set of false registration plates.

1. On 26 February 2024, at approximately 3:30am, police observed a grey Dodge RAM driving fast along the South Gippsland Freeway. Police later located this vehicle in the driveway of an address in Rowville, and you were found hiding in the roof of the house. Police persuaded you to descend from the roof space. You were arrested and taken to Narre Warren police station. A further search warrant was executed at your Cranbourne address and the Mercedes Benz involved in the 1 January 2024 offending was found located out the front.

1. The charge of trafficking a drug of dependence is a serious offence as reflected in the maximum penalty of 15 years' imprisonment. The Court of Appeal has consistently stated that the sentencing regime for drug trafficking offences is quantity based and while the quantity trafficked is not determinative of the court's assessment of the objective gravity of the offence, it will always be of importance. All things being equal the greater the quantity trafficked or possessed the more serious the offence. There are, however, other important indicators of offence seriousness such as the role of offender, the duration of the offending and the motivation behind the offending.
2. In your case you have pleaded guilty to one charge of trafficking which is rolled up to include a variety of drugs in varying amounts. The most serious aspect of your offending is the amount of methylamphetamine you possessed for sale, being a total of 145.8 grams. It is accepted by the prosecution that you did not intend to deal in a commercial quantity and so you fall to be sentenced for a charge of trafficking simpliciter only. However, objectively the quantity makes it a more serious example of such trafficking. Your offending is limited to a single date with no evidence of ongoing trafficking and sales over and above the items found by the police. The primary motivation of your offending was to feed your drug addiction, which you have suffered for many years.
3. In the past you have received significant gaol terms for commercial and simpliciter drug trafficking, and you are not to be sentenced again for your prior convictions, however, they do inform an assessment of your moral culpability, your prospects of rehabilitation and the increased need for protection of the community and specific deterrence.

1. Mr Summerville, at the time you offended you were 47 years old, and you have recently had your 49th birthday.
2. You were born and raised in Caulfield. Your parents were both police officers and were strict disciplinarians. You have one younger sister and when you were around 13 years old your parents separated and eventually divorced. Both your parents considered you to be responsible for their separation and you suffered consequently. Each of your parents eventually remarried.
3. Post separation, you and your sister remained in the care of your mother. At the age of 14 your mother assaulted you on the way to school and you did not return home. You stayed with various friends for a period of six months before your father 'found you' and convinced you to return to his care. You now have a good relationship with your parents and maintain regular contact with your mother.
4. In terms of your education, you attended a primary school in the south east suburbs of Melbourne, and you were a good student. In Grade 6 you were elected school captain and were offered a half scholarship to Haileybury College. Notwithstanding this generous scholarship, your family were unable to afford the school fees and so you attended a public Secondary School. You did not find school difficult or note any challenges with literacy or numeracy.
5. It was during your early secondary schooling your behaviour changed significantly. You began absconding, getting into trouble with the police and your long history of alcohol and polysubstance use began. You consumed your first alcoholic drink at the age of 12 and became a regular consumer by the age of 13. You were an intermittent binge drinker throughout your twenties, however, you have been mostly abstinent since 1998.
6. At 13 you also started smoking cigarettes and cannabis which quickly progressed to daily use. At the age of 14 you first used amphetamine (speed) which progressed to regular use at 15. At 15 you first used Benzodiazepines, ecstasy and heroin, and you used ecstasy weekly from the age of 16 through to your late teenage years. You would typically use one to two pills on each occasion, and you progressed to regular heroin use by the age of 17.
7. You repeated Year 10 and completed Year 11 before leaving school at the age of 18. You began an electrical apprenticeship. You completed four years of the apprenticeship but were unable to sit your final exams as you were arrested for drug related matters. You were never formally qualified as an electrician but have been employed as an electrical subcontractor. You have also worked as a fork-lift driver, roof tiler, plasterer, supermarket worker and landscaper. In addition, you have volunteered your time at RSPCA. Your numerous periods of incarceration and debilitating drug addiction have impacted your ability to progress in your education and occupation.
8. As I have indicated, you have a significant forensic history spending considerable time since 1994 in custody. Most of your offending has been either directly or indirectly related to drugs with your largest sentence spanning five to six years for trafficking drug offences.
9. You have had several romantic relationships throughout your life. A brief relationship in 2007 resulted in the birth of your daughter who is now 18. Your daughter's mother suffered mental health and substance abuse problems. Neither her nor her family were in a financial position to support your child. As a result, your daughter lived with your mother from around the age of three or four. Your mother became her legal guardian. You believe you have a second daughter from a recent relationship. She would be two years old. You have not confirmed paternity as your former partner has moved to Queensland.
10. You have enjoyed social support from a group of close friends who have had similar life experiences to yourself who have taken steps towards reformation. You have enjoyed assisting your friends with home renovations and have other hobbies such as running, mountain bike riding and attending the gym.
11. Throughout your life you have sustained several head injuries. A number of these have occurred during police arrests and minor motor vehicle accidents. You have lost consciousness 'hundreds of times' from playing football, fighting and car accidents resulting in 'blackouts and lost time'. In 2009 you were involved in a car accident that resulted in you being put in an induced coma for a week.
12. In late 2016 a neurologist diagnosed you with seizures. Initially these seizures caused you to lose consciousness and convulse. They were not deemed as being epileptic in nature. In 2017 you were ultimately diagnosed by Dr Loretta Evans with a mild acquired brain injury, primarily affecting your memory. Your mildly reduced cognitive functioning is combined with your longstanding history of anxiety, depression and low mood and accounts for your poor mental health. You were initially diagnosed with anxiety and depression by a psychiatrist at Fulham Correctional Centre when you were 24 years old.

1. Your counsel, Mr Clamart, submitted that due to cognitive impairment the Verdins[5] principles are enlivened in your case. Mr Clamart referred to the neuropsychological reports from Dr Loretta Evans and Dr Laura Scott in relation to your background and your diagnosis of an ABI and the report of Dr Sami Yamin, to make good his submissions as to the application of Verdins. Each of these reports were tendered at your determination hearing.
2. In your neuropsychological assessment by Dr Loretta Evans in June 2017, you reported enduring substance use and numerous occasions where you experienced loss of consciousness due to playing football, car accidents and engaging in fights. You have also experienced seizures in the past for which you were prescribed medication but were not entirely compliant. During the assessment, Dr Evans observed you in a brief state of non-responsiveness.
3. Dr Evans assessed that because of your history of head trauma, seizure activity and excessive alcohol and substance use, namely heroin and cannabis, your memory systems have been compromised. Informed by your history of substance use and head trauma, Dr Evans found the decline to be consistent with a mild acquired brain injury.
4. In the subsequent neuropsychological evaluation conducted by Laura Scott on 31 August 2018, you presented with an ABI of mild severity. Ms Scott observed you to have mild impairments in domains including basic working memory, attention to detail, accuracy of memory recall and some areas of executive functioning consistent with mild ABI. Ms Scott opined that the ABI might present difficulties in your daily life in ways such as distraction, disorganisation and poor planning in your approach to complex problems. In high-risk situations you would be susceptible to rash choices and Ms Scott opined that cognitive difficulties may have contributed to your offending.
5. Ms Scott also found your cognitive functioning to be 'remarkably well preserved'. There were significant improvements in cognitive functioning observed relative to your 2017 assessment, especially on measures of memory function. Ms Scott found that such improvements were most likely attributable to your abstinence from substance use for about a year while you were in custody.
6. In both neuropsychological assessments you scored in the high average range of premorbid IQ, displaying relatively sophisticated literacy skills and sound average verbal and nonverbal abilities.
7. Most recently you were assessed by senior clinical neuropsychologist, Dr Sami Yamin, on 31 March 2024. This assessment occurred two to three months after the offending currently before the court. The results of your assessment were largely consistent with previous results gathered in 2017 and 2018 and you have maintained an average range of intellectual functioning with your visual skills, a relative strength compared to that of your working memory. Your reduced working memory has resulted in you becoming easily overwhelmed with detailed information despite repetition. You demonstrated mild to moderate executive dysfunction and poor attention to detail.
8. Dr Yamin opined that the underlying cause of your cognitive impairment in areas of memory and learning are consistent with deficits seen in a mild ABI, secondary to serious assault and drug use. Your situation is further complicated by the early age you started consuming drugs and alcohol, potentially interrupting key processes in brain development. It is this history of drug dependence that is largely the trigger for your offending behaviour. At the time of your assessment your symptoms also met the criteria for major depressive disorder of moderate severity and general anxiety disorder of moderate severity.
9. As to your offending, Dr Yamin opined that your substance use and resulting cognitive deficits impair your ability to exercise appropriate judgement and self-control, making you more likely to engage in risky or illegal activities. Further, you are likely to have been disinhibited at the time these offences were committed with your drug use exacerbating these tendencies. Dr Yamin recommended intensive drug and alcohol rehabilitation and psychotherapy to maintain abstinence and minimise your risk of reoffending.
10. The prosecutor, Ms Stevic, argued that Verdins was not enlivened in your case. Ms Stevic submitted that the evidence before the court was insufficient to allow the court to find the appropriate causal nexus between the offending and your mental impairment. Ms Stevic also submitted that your mental impairment is complicated by your drug use and the two cannot be separated from a causal perspective.
11. I agree with Ms Stevic that your mental impairment is complicated by your drug use. In the circumstances, I do not find that a sufficient causal nexus exists in your case. I do, however, consider your mental health to be highly relevant to the sentencing exercise as you suffer from an ABI, anxiety and depression and have done so for several years. Clearly, your mental state and the drug use are connected, and you need intensive support to assist your reform.

1. You formally entered a plea of guilty at your Drug and Alcohol Treatment Order (DATO) determination hearing. The prosecution submit this was not an early plea. However, I accept the submission of your counsel that you entered a plea after significant negotiation resulted in the withdrawal of the most serious charge of trafficking in a commercial quantity. In such circumstances, I do consider yours to be an early plea. Further, you have accepted responsibility for the offending where there was some argument as to the potential involvement of the other occupants of the car. I consider through your plea you have demonstrated your desire to facilitate the course of justice. Your plea has considerable utilitarian value, and you have spared the court the time and expense of a trial. Your plea is also demonstrative of remorse, and I propose to allow a significant discount for your plea of guilty.

1. Mr Summerville, you have a considerable prior history. You have attempted reform in the past including a Magistrates Court drug treatment order and have not been able to sustain abstinence or lasting change. I accept your evidence that you have recently spent time at Harmony House, that you had complied with bail safe for a time, that you have been abstinent in custody and you are now on monthly depot buprenorphine injections. You have motivation and support in the form of your 18-year-old daughter, and I accept you require extensive support in the community if you are to achieve your goal of becoming offence and drug free.
2. In all the circumstances, I consider your prospects of rehabilitation to be somewhat guarded but certainly not extinguished, and a DATO is an intensive order for people in your situation.

Matters relevant to the Drug and Alcohol Treatment Court Determination Hearing

1. Your counsel, Mr Clamart, submitted that the court should impose a DATO. He argued you have a long-standing drug addiction; you require intensive support if you are to reform; and a DATO can provide the level of support you need. Mr Clamart also submitted that you have now been abstinent in custody for more than 400 days, as evidenced by clear urine screens conducted whilst in prison. At the further determination hearing on 6 August 2025, Mr Clamart advised the court that all outstanding matters, except for one more minor case, have been dealt with in the Magistrates Court. You were sentenced to 400 days of imprisonment which has been satisfied by 396 days of pre-sentence detention and a further four days you have served.
2. The prosecution opposes the making of a DATO. The prosecution submit that it is not open to the court to impose such a sentence as there is insufficient sentencing scope to give proper effect to the necessary sentencing principles. Further, the prosecution raises your lengthy prior history and previous unsuccessful attempts at community-based dispositions, including a Magistrates Court drug treatment order (DTO) as a cause for concern. Ms Stevic referred to your previous dishonesty in falsifying urine samples and the use of fake appendages on more than one occasion.
3. The purposes of a DATO are to facilitate your rehabilitation, take account of your drug or alcohol dependency, to reduce the level of criminal activity associated with drug or alcohol dependency, and to reduce your health risks associated with drug or alcohol dependency.[6] Importantly, if I am considering making such an order, I must regard your rehabilitation and the protection of community from you, achieved through your rehabilitation, as having greater importance than the other sentencing purposes such as denunciation and general deterrence. The principles of general and specific deterrence, denunciation and community protection remain important sentencing considerations.
4. The criteria for the making of a DATO are set out in s18Z of the Sentencing Act 1991[7], and I am satisfied on the balance of probabilities that you are dependent on drugs or alcohol and that your dependency contributed to the commission of the offences now before me. In making these findings, I have had regard to your viva voce evidence on this point, the circumstances of your offending, your prior history, the neuropsychological reports, and importantly, the Drug Court assessment reports. This aspect of the criteria was not challenged by the prosecution.
5. The real issue in contention is whether it would be appropriate for the court to impose a sentence of imprisonment of no more than four years duration. The prosecution submit that in all the circumstances of your case, that is, the nature and features of the offending, current sentencing practices and your extensive criminal history, a term of imprisonment not exceeding four years would be inadequate.
6. Your counsel referred to several comparable cases and sentencing statistics which he submitted demonstrate, notwithstanding your prior history and the nature and circumstances of this offending, current sentencing practices are such that a sentence of less than four years is more than adequate for your offending.
7. I have considered the cases provided by your counsel and I have also considered other comparable cases. I have had regard to the sentencing statistics, mindful of the limitations of using such data. This review has assisted me to gauge the sentencing landscape for offending of this nature.
8. Your previous poor performance on community-based dispositions and the Magistrates Court DTO are cause for concern. However, I accept that you have now been in custody for a considerable period and you are currently abstinent and motivated. Further, I consider that your state of mind is different, and you now appreciate that to be successful on a DATO you must remain abstinent. Importantly, I think you now realise, given your past performance and experience, that you must be honest with not only the Drug Court team but yourself. I will say more about this in a moment.
9. My decision has been informed by the assessment reports provided by the Drug and Alcohol Treatment Court clinical adviser and case manager. Both have assessed you as suitable for a drug and alcohol treatment order.
10. In your assessment with clinical advisor Nicky Luo, you expressed motivation to participate in the treatment program. You expressed your desire to engage in employment and be available for your daughter. In your assessment you demonstrated insight into the consequences of your substance use, which has contributed to a long history of offending. Your reflections on your previous DTO, which you found to support positive change, indicated a strong motivation to break the cycle of reoffending and a readiness to engage in the structured support offered through the program. Ms Luo found that the treatment and supervision components of a DATO would be appropriate intervention to address your substance use disorder. While you may initially require additional transitional support and flexibility because of your cognitive and executive functioning challenges, there are no significant concerns regarding your capacity to participate in a DATO.
11. Case Manager Georgia Blyth found you suitable for a DATO despite concerns around your history of non-compliance with community-based orders attributed to your substance use, your long-term untreated anxiety and your ability to attend DATO commitments from your proposed accommodation. Ms Blyth found that you were able to reflect meaningfully on past challenges and demonstrate insight into factors influencing maladaptive patterns and relapse into drug use. You expressed genuine motivation to succeed on a drug and alcohol treatment order and you are prepared to utilise supports available to you. You identified your daughter as your primary protective factor, followed by pro-social connections, particularly that of a close friend who has successfully completed a DATO. Ms Blyth recommended that you would benefit from intensive structured treatment from the outset to address your anxiety and to mitigate your reliance on substance use as a form of

self-medication. 12. Mr Summerville, I have carefully considered the nature and gravity of your offending, the reports of Laura Scott, Loretta Evans and Sami Yamin, the assessment reports from the Drug Court team, the written and oral submissions of both your counsel and the prosecution, your letter to the court, your viva voce evidence and the current sentencing practices to which I have referred. I am satisfied on the balance of probabilities that it would otherwise be appropriate to impose a sentence of imprisonment of no more than four years, and I propose to impose a drug and alcohol treatment order in your case.

1. In relation to the charge of trafficking in a drug of dependence and the summary related offences of driving whilst disqualified and false use of number plates, you are convicted and you are placed upon a drug and alcohol treatment order, and that order will commence today.
2. You will be accompanied to Drug Court House this morning by Edward Day from VLA. Mr Day is in court, he is one of the Drug Court team, and you may see him from time to time in reviews. Also present in court is Helena, and Helena is also one of the Drug Court staff, she will be your case manager.
3. A drug and alcohol treatment order has two parts: there is a treatment and supervision part and a custodial part. The treatment and supervision part has two parts, and these are as follows:
4. There are core conditions - these are that:

(a) You must not commit, whether in or outside of Victoria, another offence punishable by imprisonment during the time of the order;

(b) You must attend Drug Court when required to do so;

(c) You must report to the Melbourne Drug Court House within two clear working days after the order is imposed,

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

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

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

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

(h) You are to obey all lawful instructions and directions from the Drug Court team.

1. So those core conditions will operate for 38 months or until further order.
2. The program conditions are as follows: so, you must

(a) comply with the individual treatment plan which is dated 15 August 2025;

(b) submit to drug and alcohol testing as directed;

(c) submit to detoxification or other treatments specified in the order as directed;

(d) attend vocational, educational and employment programs as directed;

(e) submit to medical, psychiatric and psychological treatment as directed;

(f) reside at accommodation as directed by the Drug Court team;

(g) comply with a curfew that you remain at your address between the hours of 9.00 pm and 6.00 am;

(h) you must not drive a motor vehicle;

(i) You are not to use a drug of dependence without lawful authorisation;

(j) You are to abstain from alcohol; and

(k) You are to do, or not do, anything else that the Drug Court considers necessary or appropriate concerning

(i) your drug and alcohol dependency, and

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

1. These program conditions will operate for two years or until further order.
2. The custodial part of the DATO is the term of imprisonment that I would have imposed had I not placed you on a drug and alcohol treatment order, and it is a term of three years and two months, or 38 months, and it is made up as follows:
3. Charge 1, the rolled-up charge of trafficking in a drug of dependency, you are sentenced to three years and two months' imprisonment.
4. The related summary offences - Charge 8, a charge of driving whilst disqualified, and Charge 9, using false registration plates, you are sentenced to an aggregate term of two months' imprisonment, and this is to be served concurrently.
5. Further, I declare that you have served, 18 days in custody by way of pre-sentence detention and this will be declared as time served and entered into the records of the court.
6. Pursuant to s6AAA of the Sentencing Act[8], if you had not pleaded guilty and been found guilty after trial I would have imposed a total effective sentence of five years with a non-parole period of three years.
7. I will make the disposal order sought by the Crown.
8. That is the formal part of the sentence. Congratulations, and I just want to formally welcome you to Drug Court.
9. OFFENDER: Thank you.

[4] s82 Drugs, Poisons and Controlled Substances Act 1981 (Vic).

[5] R v Verdins [2007] VSCA 102.

[6] Sentencing Act 1991 (Vic) s18(1).

[7] Sentencing Act 1991 (Vic) s18Z.

[8] Sentencing Act 1991 (Vic) s6AAA