DPP v Micallef [2020] VCC 728 (28 May 2020)

Last Updated: 4 June 2020

IN THE COUNTY COURT OF VICTORIA

Revised Not Restricted Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR-19-01088

Indictment No. C1812246.1

DIRECTOR OF PUBLIC PROSECUTIONS
v
JOSEPH MICALLEF

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JUDGE:	HIS HONOUR JUDGE TINNEY
WHERE HELD:	Melbourne
DATE OF HEARING:	27 May 2020
DATE OF SENTENCE:	28 May 2020
CASE MAY BE CITED AS:	DPP v Micallef
MEDIUM NEUTRAL CITATION:	[2020] VCC 728

REASONS FOR SENTENCE

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Subject: trafficking in methylamphetamine, 27 years old now. One prior conviction for trafficking. Some CCO breaches. Offence whilst on CCO. Very strong evidence of rehabilitation in period of close to 12 months on bail.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms C Foot	Office of Public Prosecutions
For the Accused	Mr M Sturgess	Emma Turnbull

HIS HONOUR:

1. Joseph Micallef you have pleaded guilty yesterday to a single charge of trafficking in a drug of dependence. The maximum penalty is 15 years imprisonment.
2. You were born on 15 January 1993 and are 27 years of age. You have a short but relevant criminal history. You were, after all, on a Community Corrections Order at the time of this offence.
3. The matter was opened to me yesterday by Ms Foot who appeared to prosecute in this case.
4. She opened in accordance with an amended written summary dated 31 March which was marked as Exhibit A. Your counsel Mr Sturgess informed the Court that it was an agreed summary.
5. I have seen that summary previously as I sentenced your co-accused

   Mr De Ocampo in April.

6. I am not going to set out the full details of your offending in my reasons. You know what you did. I will not stray beyond those agreed facts and of course there is much material within the opening that has no relevance to you or De Ocampo, for that matter, as there is another accused in this case, a man by the name of Byrne who is yet to be dealt with.
7. As there was in the plea of De Ocampo, the prosecutor provided information from the certificate of analysis as to the purity of the drug that was seized at the Quest Hotel up in Mildura, and no issue was taken with that information being provided to me.
8. As I said when dealing with De Ocampo, neither he nor you were the target of this police operation. Byrne was the target. As often happens though, in such a targeted operation, other people come into view. You and De Ocampo came up on the telephone intercepts. You were actively involved in trafficking in methamphetamine on the occasions and in the manner described in the summary. The trafficking was between dates and plainly your trafficking was not isolated. In that relatively short period, you trafficked approximately 5 ¾ ounces of methylamphetamine. A feature of the transactions was that you were liaising with customers and De Ocampo was sourcing the drugs. So you had those separate roles.
9. The trafficking came to an end up in Mildura as you well know. You and De Ocampo had driven up to Mildura in De Ocampo’s car and that was to supply drugs to Byrne. You had been liaising with Byrne and then arranged for De Ocampo to source the three ounces of methylamphetamine. Once in Mildura you contacted Byrne and arranged to then meet. You were arrested in the vicinity of the Quest Hotel where you and De Ocampo had a room for the night. De Ocampo drove off from police but was later arrested.
10. A large array of paraphernalia including scales, cash and a small handheld digital cash counting machine were located in the room that had been booked by him. Also a little over 82 grams (by way of mixed weight) of methylamphetamine. The bulk of that had a purity averaging out at 82%.
11. None of the other drugs covered by the between dates charge to which you have pleaded guilty had ever been seized of course. I know the weights because they are taken from the intercepts, but not the purity level of those drugs.
12. You were arrested and you made a no comment interview as was your right. A very brief contested committal was conducted in May 2019. Again, that was your right. Only the informant was called and at that stage, there was a more serious charge laid against you. You had, prior to the committal, offered to plead to a simpliciter charge of trafficking though not the Giretti type between dates charge which ultimately you have pleaded to. The case actually settled in mid-November 2019.
13. You were in custody for 224 days until you were bailed on 31 May 2019. Your co-accused De Ocampo remained tucked away in custody up until I sentenced him in April of this year and by then he had done 529 days by way of presentence detention. He still remains in custody of course. I sentenced him on 2 April 2020 and in relation to the trafficking, the only difference in terms of the drugs trafficked was the 3/4 of an ounce that he had actually trafficked to you. See para 19 of the opening. Otherwise you really fall to be sentenced for the same transactions though Mr Sturgess asserted that you had a slightly lesser role in all of this. Your plea was to go ahead on the same date as De Ocampo’s but could not, owing to the COVID-19 issues in play in this State.
14. Trafficable quantity for this particular drug was three grams. Commercial quantity was 250 grams by way of mixed weight or 50 grams pure. The prosecutor, Ms Foot, told me that given the analysis of the drugs found in the hotel room, that that quantity alone contains an amount over the commercial quantity. That of course is only a portion of the drugs that you trafficked covered by this charge. You do not however fall to be sentenced by me for commercial quantity trafficking and that is important that I not lose sight of that. I am dealing with you for the lesser crime with the lesser penalty. That was the same position for your co-accused and he received a three year term on the trafficking charge and with a non-parole period fixed of 21 months. There was also in this case a 14 day period cumulated, on top of that three years, in relation to the aggregate prison term that I imposed on his two summary driving offences. Those sentencing reasons will be marked as an exhibit on this plea. They will be Exhibit C. He had a lengthy and pretty disturbing criminal history which included no less than three separate offences of trafficking in drugs, many breaches of Community Corrections Orders and there was also a suspended sentence that was breached, as well as entry onto a Community Corrections Order literally days before the serious trafficking that he was involved in. He had been sent to prison on a number of occasions in the past, but very evidently had not been deterred. Your history, although it is relevant, is far less serious and you have made very strong gains in the period whilst you have been on bail. I will discuss these matters in due course.

In Mitigation

15. Mr Sturgess conducted the excellent plea on your behalf. Now the very best winemaker cannot make a great wine with very poor grapes, and even the best barrister can only work with what he or she has served up to them. As with most excellent pleas, it was founded on some strong materials. I don’t know who has had the carriage of the matter at the firm of solicitors who instruct Mr Sturgess, but if I may say so, the matter could not have been any better prepared. Someone has obviously thought through deeply about your case well in advance of the plea date and obtained all the materials that have been placed before me. Of course none of that material would even exist if you had not made the very strong efforts that you have made since you were bailed about a year ago.
16. Mr Sturgess’ written submissions on the plea dated 23 May were marked as Exhibit 1. There was an array of impressive material placed before me as to your response since being placed into custody in October of 2018 and since being bailed last May. That included a letter from your sister, one from her brother in law, a work reference, two letters from a pastor connected with your church, a letter from a drug and alcohol counsellor, some drug screens and other certificates. There was also an enrolment confirmation in relation to your tertiary studies. Mr Sturgess made some submissions as to the offending and how it might be characterised and your role.
17. He relied mainly upon;
    • The guilty plea and stage of that plea;
    • The presence of remorse; and
    • Your favourable or positive prospects into the future;
    • An increased burden in custody arising from COVID 19;
    • The mitigatory weight to be given to the unusual circumstances of your drug use commencing as it did upon the tragic death of both of your parents when in your final year of school;
18. Whilst accepting that this was serious offending and falling above street level trafficking, as plainly it did, he submitted that you ought not be returned to prison. That you had made genuine and powerful efforts to rehabilitate and were a very different person to the person who committed this serious offence back in late 2018. He argued really that to send you back to prison would be a backward step. Your ongoing rehabilitation, he argued, was important, but not just for you but also actually for the broader community. It is for those reasons that he argued that a combination type sentence was open here, with a prison term equating to your pre-sentence detention of 224 days combined with a Community Corrections Order and that such an outcome, he said, would not infringe the principle of parity of sentence in operation in this case. There were after all meaningful differences between you and De-Ocampo with a much more positive outlook in your case, owing to the sizeable efforts that you actually have made over about the last year. You also had a far less serious criminal history and have far better rehabilitative prospects, he argued, and hence there was less need to pay regard to specific deterrence and community protection in your case.

Prosecution

19. The prosecutor, Ms Foot, conceded on behalf of the Director that a combination type order was open in this case, but so too of course was an immediate term with a non-parole period. The prosecution are not free to make submissions as to the actual periods of imprisonment and so they did not convey one way or the other whether the Director was suggesting that you had to be returned to custody. That probably is beyond the parameters of submissions that can be made. However, Ms Foot made it plain that the submission as to the availability of a combination type order in your case, recognised that I would have at my disposal as the sentencing judge, a period of 12 months over and above your pre-sentence detention of 224 days. The prosecution recognised that there were differences between you and De Ocampo which justified differing sentences. Indeed, Ms Foot appeared to prosecute De Ocampo and the prosecution in his case had called for an immediate term and a non-parole period.
20. Ultimately though, it is for me to determine what the appropriate sentence is. I am not bound by submissions made by either your counsel or for that matter by the prosecution.

Background

21. I am going to turn to your background. Your personal history is detailed in the written submissions as well as a letter from your sister and I will not repeat it all. There is no need to. I have no reason to doubt what I have been told. You were 25 years old at the time of this offence and you are 27 years of age now. You came from a close, small and loving family. Tragically, you and your older sister lost both of your parents within the space of about 8 weeks in your final year of school back in 2011. There had been a period of serious illness in the lead up to each of their deaths. So it was a wretched year for you, serving up such a devastating blow for you and one that really until quite recently you have not even started to process or to deal with. Your older sister’s letter is most informative. It is an excellent letter really, and it is informative as to the sort of person that you were in the lead-up to that tragedy and as to the impact upon you of the loss of your parents and the failure at the time for either of you really to work through any of those issues. Well, of course, it turned your lives upside down. There is no question about that.
22. You lost your way very quickly and started to use drugs as a means of coping with what had occurred. I suppose everyone who uses drugs has some reasons to start using them. Your behaviour deteriorated to the point where your sister then had to ask you to leave the home. By that stage you were living with her and her partner. You used drugs for many years and along the way no doubt, as is the custom with people who use drugs, you have burnt a lot of bridges. There were periods of homelessness and your life was, I take it from the materials, aimless and just had no purpose at all. You have known De Ocampo for many years as I understand it, in the drug milieu and you fell in to step together. The offence was committed in October of 2018 and you were then arrested and, unlike De Ocampo, who had previously spent time in custody, you spent your first time in prison. Even at that stage when you were in custody, you were doing what you could to improve your position by way of courses and programs, and you were actually were getting something out of them. It is not just the certificate that is placed before me. Mostly that is all I ever see, but there are also some notes about your progress and those documents make it clear that you were actually trying to get something out of the course and were getting something out of it. You were also mending relationships whilst you were in prison and perhaps for the first time, speaking about your loss and grief for those events back in 2011.
23. You were bailed to live with your sister and her husband and that has been a great success. That letter of your sister, and all the other material placed before me spells out the extent of the success. You have been drug free for a significant period. You attended a number of sessions of drug counselling. You have found your first meaningful job and you are doing excellently at that job. You have also been doing work experience with your wife’s brother in law. You have totally re-engaged with your family in a way you have not done before. You are making up for lost time and I suspect making amends for your past bad behaviour. You have in fact become a valuable member of the family and a loved uncle as well. You are doing a certificate course in building and construction and wish to do a diploma. You have engaged openly and honestly with a pastor at your sister’s church. You have become a valued member of the community, even being baptised recently. The pastor has evidently a very high opinion of your efforts and has worked with young people before. You have not shied away from the seriousness of your past offending and I am sure you feel some level of shame for it. You have new friendships, new networks and hopes and goals that you really have never previously held. You have supports and structure in place. You also have an insight into your reasons for using drugs and some of the triggers. You have really in short then emerged from the wilderness you have lived in over perhaps the last several years since the death of your parents as an 18 year old. You are far better equipped than you have ever been to step out as a contributing member of the community. Being bailed back in May 2019 could easily have gone badly astray had you for instance continued using drugs or continued to offend or to live the same aimless existence that you had lived for many years. But you have made ‘every post a winner’ since your release. However being bailed always carried with it the risk that you may be required to return to prison when it came time to be sentenced. That is just the reality of this Court having to pass an appropriate sentence for your crime, which after all was serious.
24. Going to prison I am sure has shaken you up. It is just possible that going to prison was the best thing that could have happened to you at the time that it happened, as strange as that might sound to say. It is equally possible that being sent back there after such efforts at rehabilitation could dent your spirit and undo all that good work but I am required to pass an appropriate sentence in this case. I cannot just focus on your rehabilitation to the exclusion of the various other sentencing purposes that have importance in a case such as this.
25. You have a relatively short criminal history. It has some relevance to my task. I cannot ignore the prior matter for trafficking though given what I was told of it and the without conviction disposition imposed, it is evidently at a very different level to the offence that I am dealing with. You have had three Community Corrections Orders and failed on each occasion with the final breach waiting in wings. You were on that order at the time that you chose to commit these serious offence, but your failures on that order are very much consistent with the sort of life you were then leading. You are surely a much ‘better bet’ now on such an order. Corrections seem to think so, but it all comes down to whether such an order falls within my available range of sentences here. I cannot just select the sentence and work my way to it. It has got to be appropriate.
26. I am required though to make some judgment about your prospects of rehabilitation and your risk of reoffence and the extent of my need to deter you. If I was basing that on your short criminal history, and your lack of compliance with those court orders and offending whilst on the order, I could only hold a quite guarded view. I prefer though to look at what has happened more recently and I have set those various favourable matters out. Your process of change started in prison and has strongly progressed upon your release from prison and I think it is far better for me to focus on that than on your past failures.
27. I have set out to deal with your background and I thought I would being so quite briefly but have in that task disclosed my views about many aspects of the plea that has been conducted before me. I am for instance prepared to give some limited weight to the McKee Brooks [2003] VSCA 16 point raised by your counsel in paragraph 37 of his written submissions. Your drug use cannot be greatly mitigatory but it can have some mitigatory value given the traumatic events that led into your drug use and your age when you started using drugs. You were obviously labouring under the massive strains of losing your parents, and started using drugs in such a setting as that and your life altered very drastically. You could never have envisaged the change in the trajectory as brought about by that drug use, that you would be sitting in the dock years later in relation to a serious enough instance of trafficking. There is an aspect of committing this particular crime in part at least so as to be in a position to use drugs. So there is some mitigation to be had but not a lot.
28. I have also I am sure disclosed my favourable views as to your future prospects of rehabilitation. Had you not been bailed, it really would have been impossible for a court to hold such a favourable view as you could not really have ‘put the runs on the board’ so to speak. Instead you have done all that you have done. What more could you really have done in that period? I believe you have favourable prospects of rehabilitation. If pressed to apply a further adjective to describe them, I would say they are good if not very good and with a relatively low risk of reoffending. The task is not over though for you. You are a work in progress. Things can swing back in the other direction very easily when drugs have been in play. But you are a very different person indeed to the person who committed this crime, living a very different style of life. You have a job, you have interests, you have family support and structure. If you can remain abstinent, and there is no reason to think that you cannot, why would you be troubling the police or the Courts again? Remain abstinent and your prospects will be, in my view, excellent.
29. I turn then to some of the other matters that have been raised in mitigation.

Guilty plea

30. You have pleaded guilty and I will treat it as a very early plea notwithstanding the brief committal that was conducted. You have admitted your guilt and in doing so you have taken responsibility for your crime. The letters placed before me describe your acceptance of blame and responsibility as well. You have by pleading guilty facilitated the course of justice. The community has been saved the time, cost and effort associated with a trial in this court. Witnesses have been spared the experience of giving evidence at trial before a jury. So I take into account your early guilty plea and it must lead to a reduction of sentence.

Remorse

31. You have pleaded guilty and done so at an early stage. That is often indicative of some remorse. Further, here I have the various letters, some of which comment on your sense of shame or regret for involving yourself in a crime as serious as this. You are, unlike some, in no way revelling in your offending and you have worked hard to alter your life. You regret the offence. I believe you are remorseful and I will take that into account in your favour.

Increased burden

32. I accept that the COVID 19 virus and the response to it by those running the prisons does increase the burden upon prisoners. It causes stress for them. If sending you to prison, it will increase your burden to some extent though it is terribly difficult to know precisely how it would impact upon a given prisoner. There are some lockdowns and visits have been suspended and so too some courses and programs. New prisoners also have a period of 14 days isolation which is a pretty tough start to the commencement of a sentence. I do accept then that there is an increased custodial burden in this case but cannot dominate my task. I turn now to the offence and make some general comments.

The Offence

33. I say now what I said to your co-accused, Mr De Ocampo. The trafficking was no minor crime. Nor does your counsel suggest that it was. It was not spontaneous. It was planned deliberate and serious offending. It is for a limited period as covered by the dates on the indictment, but there were a number of individual transactions, though less in your case than in De Ocampo’s. As I said, the conduct in paragraph 19 does not apply to you. In fact that was him selling you drugs which was part of his trafficking charge.
34. I am dealing with you for a non-commercial quantity, but there were a number of separate acts in that confined period. You were in this up to your neck. There was ample opportunity for you to pause for thought, to reconsider being engaged in such serious conduct as this. In common with De Ocampo you were also on a community corrections order though in your case, for less serious offending than his.
35. This was not street level trafficking, as serious as that is. Yours was far more serious than that, and your counsel concedes that. It is serious conduct to traffick in drugs at any level. I do accept that it was not particularly sophisticated.
36. Drug trafficking is almost always connected up to the hope of a person obtaining some financial gain as it obviously was here. Though this is a quantitative-based regime and I am not to consider the particular harmful qualities of the particular drug trafficked, it is well known that drugs have a disastrous impact upon so many in the community and you must know that. You were one of those under the grip of them and yet here you were selling them and not at street level.
37. Trafficking always involves the offender taking a calculated risk. There is the reward and that is why the risk is taken on. It is a serious crime to traffick in drugs, and here there was planning and effort and expense incurred. The two of you travelled from Melbourne to Mildura by car, renting a hotel room, all to supply drugs into regional Victoria. De Ocampo sourced the drugs, and you sourced the buyer. You were a team and you were in business together.
38. As I say, this is a quantitative based regime. Your offending was of a sizeable enough quantity when regard is had to the commercial quantity thresholds that are in play here. It is a long way removed from the lowest levels that can be brought before the court. The trafficking relates after all to 5 ¾ ounces in a quite short period of time.
39. I am not attracted to the suggestion of you having a lesser role than De Ocampo. You had different roles, that much I do accept. You sourced or knew and liaised with the buyers. He obtained the drug. You were in this business together, each dependent on the other and, as we know, sharing equally in the biggest of the transactions that I am dealing with. There is not any suggestion though of you, or him for that matter, living an extravagant lifestyle and it seems plain that it was in part connected up to your desire to get money to use drugs. As I have said, there can only though be quite modest allowance for that in your case.

Purposes

40. I have to consider a number of purposes of sentencing and I must pay regard to your prospects of rehabilitation. That is one of the purposes of sentence. Your prospects are vastly superior to Deocampo’s. I view them very favourably.
41. I am required to punish you for your crimes. I must do that justly and proportionately. I am required also to denounce your conduct. This was serious criminal conduct. You know that.
42. I must pay appropriate weight to specific deterrence. That purpose really relates to the need to deter you from offending into the future. I believe that this purpose can be moderated in your case owing to the excellent efforts you have made over the last year. But for those, I would attach far greater weight to this sentencing purpose. Whilst I cannot ignore this purpose in your case, I give it nothing like the weight that I gave to it in De Ocampo’s case given his far more sizeable criminal history and his far less favourable prospects of rehabilitation. Community protection is in the same position. I cannot ignore it but I have in your case reached these favourable views and it stands to reason that community protection has a much lesser role to play in your case.
43. General deterrence is a highly relevant purpose of sentencing in this case as it was in De Ocompo's case. This Court must send a clear message to others in the community who may think it worth considering trafficking in drugs. Drug trafficking is just pernicious. It attacks the very fabric of our society. See Zarghami [2020] VSCA 74.
44. The Courts must convey a loud and clear message through the sentences imposed that traffickers when brought before the court will be dealt with in a serious fashion. It is hoped that that message will neutralise the seductive lure of easy financial gain and cause other like-minded people to actually rethink their involvement, to do what you should have done, to rethink and not persist. Again though in your case, I think there can be some moderation of this purpose. It is still important here, but your efforts over the last 12 months must surely lead to a stronger focus on rehabilitation in your case and placing that to some extent more to ‘the fore’. In doing that, it follows necessary that there must be less weight placed on general deterrence. It should not be forgotten but often enough is, especially in the popular media, that someone who is rehabilitated will pose no future risk to the community at all. It seems to me that you are well on the way along that path of rehabilitation and to haul you back in by placing great weight on general deterrence would actually devalue your efforts, but it is still an important sentencing purpose here.
45. I must have regard to the maximum penalty. I also have to pay regard to current sentencing practices. That is not a single controlling factor. As I did in your co-accused’s case, I have looked at the relevant Sentencing Snapshot (No. 218 of 2018) as well as overviews of cases from the new Judicial College of Victoria sentencing manual (7.4.1.1). I have also looked at the three cases referred to by your counsel. They don’t take me anywhere really. They are just examples of other sentences in other cases. Other offenders, other backgrounds, other crimes, other considerations. The fact that they received the dispositions they received says nothing at all about what I must do in this case. I am exercising a sentencing discretion in your case, not in theirs, and there is no such thing as one correct sentence. Another judge in those other cases may have imposed a quite different sentence. I am sentencing you for your crime and no amount of looking at other cases or statistics, for that matter, will provide the answer to me. Those other cases are not precedents and statistics have inherent limitations. They tell me nothing about the particular features of the crime. They tell me nothing about the particular features of the offender. They tell me nothing about the particular matters in mitigation.

Parity

46. There is though, one past sentence which I cannot ignore. The sentence imposed on Mr De Ocampo. That is because there is a concept in our law referred to as parity of sentence. It was mentioned in the course of submissions by your counsel yesterday and it had to be. He had to grapple with it. In the broadest sense, and this is very much a gross simplification, parity speaks of the notion that like offenders will be dealt with in a like manner.
47. Ordinarily then, if there are no points of distinction between the actual offenders or their roles or their background, then the same or, at least, very similar sentences are expected to be imposed. I repeat that is a gross simplification of the principle, but it suffices. It is a principle which makes pretty good sense. It is hoped that by applying this principle, any justifiable sense of grievance as between like offenders can be eliminated.
48. It is not part of my task though to try to prevent a person holding an unjustified grievance. I just cannot stop someone from having unjustified feelings. That is an impossible thing for a court to do. All I can do, is try to explain the disparities of sentence so that all who are concerned will hopefully understand. That is you. That is De Ocampo for that matter.
49. I have said in the past that this principle of parity is easy to state in the hypothetical but it is much more difficult principle to grapple with when passing sentence as a judge in the real world upon real people and that is because, of course, there is almost never such a thing as a like offender or like backgrounds. There are far more commonly differences in the individual features of the offenders or in their role or most often in both of those things.
50. Well, as a matter of luck I dealt with Mr De Ocampo first. That is just the way the cards fell. In fact you had hoped to have your plea get on at the same time. It could not and you have had to wait in suspense which I do take into account but that is not a large matter on the plea obviously.
51. The fact is even had your matter been heard at the same time as De Ocampo’s, I still would have had to consider the parity principle when dealing with each of you. If I had sentenced you first, I would have needed to have had regard to it when dealing with him. In that setting though, your counsel would not have hanging over your case, the dark shadow presented by the disposition imposed on De Ocampo. But as I say, as luck would have it, he has been sentenced first. I made a number of findings as I was required to in his case. I made judgments as to the weight to give to the various sentencing purposes. I passed what I regarded as the appropriate sentence upon him. I cannot ignore that sentence when I come to sentence you.
52. The reality is either he may be faced with a lesser sentence imposed upon you and ask why, or for that matter the sentence I impose on you may cause you to wonder why it is not significantly different owing to the differing personal circumstances or findings in each case, and your more favourable position.
53. It is plain to me that if I imposed the same sentence upon you as he received, I would be falling into error. You would then have an entirely justifiable sense of grievance. There has to be significant disparity here in your favour and that is to recognise the differing circumstances that have been placed before me. Your counsel points to differing criminal histories, differing roles and prospects of rehabilitation, the differing weight to be given to various sentencing purposes including specific deterrence and community protection. Mr Sturgess argues then that there has to be a sentence in your case which is significantly less than that imposed upon De OCampo to recognise the many things running in your favour. Well, he is of course right when he makes that submission.
54. I am not impressed by the claim as to your having a lesser role, as I think I have announced earlier in these reasons. You were a team. You had differing roles but each role was critical. I do not think there is much in that argument at all, though, of course his trafficking had that extra limb involving selling drugs to you. Every other aspect of your counsel’s argument is entirely valid. De Ocampo’s prior criminal history is far worse and that alone would not only justify, but would require sizeable disparity in your favour. De Ocampo’s criminal history, I am not going to set it all out there, I have looked at it again, is far more serious with many more appearances including three for trafficking, many breaches of orders and many visits to prison. Many failures to honour court obligations even CCOs in combination with prison terms and with entry on to the most recent Community Corrections Order taking effect, even as he committed the trafficking.
55. But the difference in criminal history is not the only difference between you. There are many others. It was not even suggested on his plea that he had much by way of remorse and he did not. His prospects of rehabilitation were assessed by me. I have read my reasons again of course, and I have marked them as an exhibit in these proceedings. He had some or limited or fair but guarded prospects. That was as high as they rose. The need to deter him and to protect the community from him were very sizeable purposes of sentencing as I made plain in my sentencing remarks. As against those findings, I have the findings made in your case which I have already announced. So the existence of remorse, very favourable prospects, a long track record of good effort both in prison and then in the community, even some mitigatory value in your drug use given the tragic events which befell you towards the end of your schooling, when you lost both of your parents. That was a massively destabilising event and really it was no wonder that you went off the rails. Your being back on the rails now is a big gain for you and potentially for the community. I believe you have a relatively low risk of offence and so in your case there can and must be a greater focus on your rehabilitation and less weight paid to specific deterrence and community protection. As I said a moment ago, there can even be some modest moderation of general deterrence owing to the added harshness of sending someone who has done as well as you have back to prison. The recognition in your case that you served 224 days before being bailed, then did so well whilst on bail and the impact upon those gains of sending you back to prison is something that I keep in mind.
56. Plainly then, all things are not equal. There must be sizeable disparity in your favour. The question for me though is the extent of the difference. Can it really lead to a setting where you do not return to prison for offending as serious as this? Your counsel submits that it can. That is his argument. But I am not bound by his argument. I have had my doubts on that score and I have considered them overnight.
57. I am endeavouring really to explain not so much to you, but to De Ocampo, why you will get a lesser sentence. It is not one sentence fits all. That is not the way it works, unless of course there are no differences at all in conduct or background and that virtually never occurs. Even in that setting, there need not be identical sentences. But here there are differences everywhere I look. I am very confident that you will not be left with any justified sense of grievance by the sentence which I will shortly pass. It will be less than he received and that has to be so. What about Mr De Ocampo though? The fact is had there been a joint plea conducted, his own counsel would have been driven to concede the need for sizeable disparity in your favour. It just could not be sensibly resisted by anyone.
58. What happens if and when he learns the details of the sentence that I impose upon you? No doubt he may wish that he had received a lesser sentence. People tend not to want to get a higher sentence. I cannot stop him from holding unjustified grievances. All I can do is what I am doing and that is to explain the reasons for the differences in sentences. If he reads these reasons and reflects on them, he would surely see why you had to do a good deal better by way of sentence than he did. He really shouldn’t even need to read the reasons to know that. He knows of his own serious criminal history and his complete failure to take the very many chances offered to him by the courts since 2013.
59. As I hope is obvious I have done my level best to apply the principle of parity to my task. It is never easy.
60. I take into account then all of the submissions that have been made by your counsel. I take into account all of the many written materials placed before me. There are some excellent letters placed before me.
61. Prison is always a disposition of last resort. Your counsel conceded the inevitability of a prison sentence here, and there is no doubt that concession is well made. Even with all the progress you have made, I could not impose a stand-alone Community Corrections Order for an offence as serious as this. Prison is obviously warranted. However Mr Sturgess argued that it was open to impose a prison term in combination with a Community Corrections Order. The Director of Public Prosecutions, through Ms Foot, conceded such an outcome was open. Mr Sturgess took it a step further though, and argued that the term of imprisonment could equate with the amount of time that you had previously spent on remand and so 224 days, and that that prison term could then be combined with Community Corrections Order, this would have you being released immediately onto such an order. He argued that such a disposition could achieve all the purposes of sentencing in this case and that you should not be sent back to prison. To do so would be to not truly recognise your serious efforts at reform over a sizeable period. That your ongoing rehabilitation would be better served in the community and that both you and the community would be the winners in the event of you continued good performance. That was the argument. A similar argument actually was placed before me by Mr De Ocampo’s counsel, which of course I rejected. If I thought that such a disposition as that could achieve the various purposes of sentencing in your case, then the law would require me to impose it. That is a reflection of the fact that confinement, in this case sending a person to prison is always a matter of last resort. I can only imprison a person if a lesser alternative does not achieve the various purposes of sentencing. If I must imprison, it can be for no greater time than is required to achieve the purposes of sentencing. If a suitably conditioned Community Corrections Order in combination with a term not exceeding your pre-sentence detention would pay adequate weight to the various sentencing purposes, then I would be prohibited from imposing a more onerous sentence upon you.
62. I have had you assessed and you are suitable for such a Community Corrections Order. What I did of course is I provided off to the Corrections crowd the various reports and letters that were placed before me, to at least give them a sense of what you are like now, compared to what they might have found on their records in terms of the past non-compliance. They say yes, you are suitable. They go further and suggest that you have a low risk of reoffending and I am sure that is right, subject to continued abstinence. It is a favourable report. But I have told you to take no comfort from the fact that I was calling for the assessment. I told you it did not mean you were across the line in relation to this matter and I meant what I said.
63. This was a serious crime. You have a relevant prior appearance for trafficking. You have failed on three Community Corrections Orders. Still, it is a reasonably short history. It strikes me when I reflected on the materials late into the night last night, that you may well be at the crossroads. That term is often used before the courts, but you have truly been lost in the wilderness for a number of years. You have emerged from the wilderness even before being bailed and ever since, and there is a sense in my mind, that you may easily be back on the rails and resuming the trajectory of your life that was so deeply affected by the untimely death of your parents back in 2011. To interfere with that forward progress at this point has a real danger I believe. For a start it sends a pretty dismissive message to you. It does not reward you for your strong efforts. It also runs the risk of disturbing, if not halting that forward progress. That would of course be a shame for you and for your sister. It would also I think be a shame for the broader community who always has a large interest in the rehabilitation of any offender. A rehabilitated offender is no longer an offender and such a person poses no future risk. I think that state is easily achievable with you. To reward your efforts by slapping you back into prison would in my view be very much a retrograde step and it is for these various reasons that I believe it is open to pass the disposition which your counsel urges upon me.
64. So you need to listen very carefully. It will be one chance for you and one chance alone. I am going to have to go through and explain to you the ins and outs of this order and then I will ask if you consent, and then I will place you on the order if you consent.
65. But you need to know what you are getting in to. I need to know that you are giving informed consent. I don’t want you or anyone else that I place on an order, coming back in breach of order saying, 'I didn’t know what I had to do or what could happen if I breached the order.' You will know as I am telling you. I have never had someone do that, because I always explain these orders in great detail, which is what I am doing now. So you need to listen very carefully. What I intend to do is, on this charge of trafficking in methylamphetamine, Charge 5, I intend to convict and sentence you to a term of 224 days imprisonment. You have served that period already.
66. In addition though, I am going to impose a Community Corrections Order. It is going to be on conviction obviously and it is going to be for a period of two and a half years. So it is going to run right to November of 2022. So if you leave this court today thinking the case is all over, it is not. All right? It just is not. It is over your head. You have got this order for two and a half years.

Explain mandatory terms

67. Now you have had these orders explained to you on a number of occasions, and you either have not listened very carefully or you must have not actually cared, because you have breached them. But I still have to explain this order to you so that you understand.
68. You will need to report within two clear workings. I think that is probably done these days - there is a phone number on the form and you will need to ring that and work out how you are going to be inducted into the order, because of this COVID-19 issue. There are some issues in terms of physical attendances. But you are going need to turn up at the Sunshine Community Correction Office but ring them today I think and work out how you are going to be inducted. You need to essentially report within two clear working days. That may be by phone and you will get a copy of this. Now these are the mandatory terms. You know that. They have been explained in the past. Well, the first of the mandatory terms, it is a pretty obvious one.

Mandatory Terms

69. That you not commit any offence for which you could be imprisoned. It is pretty straightforward. You stay out of trouble. That is the very thing that I am sure back as an 18 year old there would never have been any expectation that you would be getting into the strife that you have got into, and then things changed very drastically in your life. Well, they have swung back in a very different direction now, all right? You need to stay out of trouble. That should not be a problem for you, it really should not. Let me just look at this. Yes, well so you are not to commit another offence for which you could be imprisoned.
70. Now, do not just think that means really you are not allowed to traffick in drugs, and that if you do not traffick in drugs you are past the post. You are not. If you commit any offence for which you could in theory be imprisoned, you breach this order. If you went into a newsagent and stole - I am not suggesting you are going to, but if you went and stole a copy of the Herald Sun, no-one in their right mind is going to lock you up for theft of $1.50 or whatever it is, but theft is punishable by imprisonment, it would breach the order and in the same way, I am just looking at your history, you have got, you had some issues in terms of driving for instance. Fail oral test and I think maybe unlicensed driving and nothing desperately serious there, and I think I read somewhere in one of the letters the fact that you had got your licence back I think, and hopefully that is true.
71. But if you are driving under the influence, that is punishable by a term of imprisonment, you would breach the order. If you did not have your licence and you drove unlicensed, you would be breaching this order. That is not to say - it does not require a Magistrate to lock you up. If you commit an offence that could, in theory, be rewarded with a term of imprisonment you have breached the order. Do you understand? In other words, stay out of trouble. It should not be a problem. If you relapse in terms of drug use though, if you possess drugs, well you can only use drugs by possessing them and possession of drugs is punishable by a term of imprisonment, okay. You would breach the order. So stay out of trouble.
72. You have got to comply with your obligations under the sentencing regulations. That means you have got to turn up, totally unaffected by drugs or alcohol, on time, in a fit state to do any work or any condition of the order. You also have to, I think, have a photograph taken for record keeping purposes.
73. You have got to report to and receive visits as they direct. You have got to let them know within two clear working days of any change of address or job. So just keep them abreast of any change, all right? There is talk of perhaps you at some stage moving away from your sister. That presents a risk for you obviously, you know that. But if you move, let them know, and let them know, not three months down the track, let them now before you do it, then you have complied.
74. You must not leave Victoria without first getting permission to do so. Now that is not to say they will not give you permission, but mind you at the moment it would be a bit hard to get out of the State, but you do not just get up and leave, all right? If there is a particular reason why you need to travel, well you raise it with them and if you have been performing well on the order, no doubt they will consider it and maybe even grant you leave to do it. You get up and leave, you will breach the order. So they are really the mandatory terms. I have seen virtually every imaginable breach under the sun for people that I have placed on these orders. You would not believe it and - well maybe you would - because you have breached three yourself, and you know how easy a number of those orders were, but you could not comply.
75. I have seen people who have not even turned up at the induction, they have not turned up at any of the treatment and I come back and deal with them for breach and I look at the breach report and Corrections have never even seen them. It is incredible really. Do not put yourself in that position.

Tailored conditions

76. There are then the tailored conditions and, I mean this is all part of the punishment as well of course, the very fact of being on the order for two and a half years is an aspect of punishment there, but there is also that aspect of treatment really. Corrections seem to think that because everything has gone so well that you are a low risk of reoffence and you do not need these various other treatment and rehabilitation conditions that I asked them about.
77. In particular, the mental health condition. I mean you have obviously had some significant issues in your earlier life and you have never really grappled with them but I think you are grappling with them perhaps in a way that makes that sort of condition unnecessary for me to impose. As for supervision, it seems to me whatever I say in terms of supervision, if they form the view that you are a low risk offender as they have, they are not going to supervise you anyway.
78. I have considered whether I should monitor you and have you come back in front of me. I am not going to. You have got the runs on the board. If you let it all slip away, then we will meet again. Simple.
79. But I am going to impose two conditions. One of them is unmistakeably punitive, and that is the unpaid work. It is being kept within a reasonably manageable level and I will obviously have regard to the need to impose a proportionate sentence here and I have got the prison on the one hand that you have already served and I have got the unpaid work. You must perform 300 hours of unpaid work. That is over the full period of the order.
80. Let me give you some advice, and there will problems with that is in the short term I think, again because of COVID-19 but as soon as there is unpaid work available for you to do, get it done. I have seen so many offenders who do not do that, who let it wait in the wings, and then it puts great pressure on them in the course of the later stage of the order. Get it done as soon as you can. Then that weight is off your mind. It will not be fun. You will not enjoy it, and you are not meant to. This is unmistakeably a punitive condition. I have considered it. One of the concerns about that sort of condition is that it potentially places you back in connection with, or in the company of other offenders. Well, I cannot avoid that here. You need to be further punished I think with this particular condition, but you are just going to have to be strong in terms of that. Do not slip back in the way that you had lived in the past, or we will meet again.
81. The other condition is, despite the recommendations, I am going to place onto the order a drug assessment and treatment and testing condition, okay?
82. So you must undergo assessment and treatment including testing for drug abuse or dependency as directed by the regional manager. Now, they may look at what you have done, they may look at the efforts that you have taken, they may look at your very settled position and they may take the view that you do not need anything more. If they take that view, that is fine, but they may also take the view that I take that a person who has had such significant issues in their life by virtue of drug use, whose trajectory has been totally lost for so many years, you can slip back in the other direction. So that is there, and it is there for you to use actually. So they are the full suite of terms and conditions on this order. So it is for two and a half years, 300 hours of work and assessment and treatment including testing for drug abuse or dependency.
83. I have had, as I say, many people I have placed on these orders. A disturbing number of them breach them. I do not know why, they just do. Often it is the drugs. If you are using drugs you will offend. It is very simple. You necessarily will offend if you are using drugs.
84. I have had people who have made sizeable gains in the lead-in to a court case. It is pretty rare to see someone that has done as much as you have, but I have seen it once or twice before, and I never expected that I would see those people again, I really did not. I put them on orders, they consented to orders, their life had been turned around and yet I saw them again, and when I did, out that door they went, the door to your right, which leads to prison. They had gone out the door to your left, when I had last seen them and out into the community, I thought I would never see them again. I saw them again in the dock, and they went to prison. Do not be one of those.
85. If you need help along the way, you have had lots of assistance from a lot of people, I am sure you needed assistance back as an 18 year old, no question about that, so did you sister actually, but if you need help you grab it okay. You have got a Corrections officer. The best way you are going to comply with this order is probably to do what you did not do on the last three. Form a decent relationship with your Corrections officer, do not muck them around, do not play any sort of games. If you have got a particular reason why you cannot turn up under the order or not turn up for unpaid work, do not just tell them about it three weeks after the failure, get on the line to them. Ring them up, tell them. If there is an inconvenience, if there is a clash, you let them know. They are not going to want to be interfering with your paid work. Your paid work is a significant protective factor for you. You have got a job. You have what most people who sit where you are sitting, do not have. You have got the support of your family. You have got on top of some very significant issues, you have got employment, you are back in the real world, but if there is any sort of relapse, just raise it with them, for heaven sake. If you need help, you grab it.
86. Your Corrections officer is not a member of the police force, they are not going to arrest you, okay? They are not going to charge you, they are not going to censure you or judge you. They are not going to rush the matter back before me saying we need to tell you that he has been using drugs. I hope you do not use drugs. You have not for a long time, and you are well on the way, as I say, to success. You are well on the way to being a contributing member of the community for the rest of your days, but if you are having any issues of relapse, do not be shy about raising it with them. I have got that condition on the order, and they can activate it. That is really important.

Breach

87. Well if you breach this order of course, breaching is itself a criminal offence of breaching an order. I think it is punishable by a term of three months' or so imprisonment but that is not the real sting to it. The sting is you come back to court and you come back in breach of the order, and you do not go back to the Magistrates' Court. You had a bit of luck with the Magistrate, and I do not know which Magistrate you scored, but you had a CCO which you breached, you got another one, you breached, you got another one you breached, then you have breached it again of course. Do not think that is going to happen in this court. It just will not.
88. If you breach this order, you come back before this court and this judge. That is what we do, we deal with our own breaches, so you will be down in the dock, there will a knock on the door, in I will come, I will be carrying my pink book where I have made all the notes. I will be carrying a copy of my sentencing remarks. I will have listened to the audio of me telling you what I am telling you. I will be very surprised to see you again. If I do, well I do. I am not going anywhere and I will be the judge who will come in and deal with you on the breach.
89. A judge dealing with someone on a breach of this order has only very limited options open to them. I am not sure if you necessarily understand that. You have been very fortunate on those past occasions I think to have struck a Magistrate who may have exercised appropriate leniency in your case. It was a less serious offence and they had all your personal circumstances and you did not go further up the hierarchy okay?
90. But this is a different kettle of fish here. I am dealing with you for a serious instance of trafficking in drugs. I am dealing with you by way of a combination type order and you come back before me I have only got a few options and the most commonly exercised option when a matter comes back by way of breach is for me then to cancel the order. If I cancel the order, you are down there awaiting sentence for this offence. I will

    re-sentence you. Now please, do not place yourself in that position. There is no need for you to do that and no desire for you to do that. I do not want to see you again, I really do not, and I am pretty confident you do not want to clap on eyes on my face again. You should not want to, but if you clap eyes on me in a court it will mean you are sitting down in the dock and I am sitting up here as the judge, and you would have breached this order, an order which on any view of it, might be judged to be lenient. It is the appropriate order in my view, given the very unusual setting in this case. If you comply with this order, well that is it. You do not come back to court. We do not see each other. You comply with this order and it will really be self-evident then that the order was exactly the right disposition to impose in this particular case.

91. As I have said, a large number of people I place on these orders breach them. They do not think they are going to. None of them want to, none of them intend to. All of them, because they are sitting in this court, generally on pretty serious offences, they are all pretty relieved to walk out of the dock under their own steam and they never need to go back into that dock again, but a number of them do. Well, if you put yourself in breach of this order, by breaching any of the mandatory terms or conditions, you will be sitting back in that dock, and you know where that might well lead, because you have been to prison before. You do not want to go back there. In the course of this order, it is a lengthy order, of two and a half years, and as I say, people when they leave court and they think the case is over, it is not of course. They give great priority to the case until the case is heard and then there has been this great happy outcome and off they go and they lose their focus. If you do that, you will breach this order.
92. Now, in the two and a half years of this order, if you start, as I say, having any sort of issues with drugs, deal with it. Do not just push it away - You deal with it. That is the only thing you should be doing on this order. Do the work, comply, deal appropriately with your Corrections officer and we will not meet again.
93. But, if we do, then I will do what I have to do. Now what I have to do as the judge is to come onto the Bench and make judgements about the nature of the breach and then work out what is the appropriate response. I cannot say exactly what I will do to you. How could I? But I think you are best to work on the theory that if you breach this order, you are going to be sent to prison of a duration where I will be fixing a non-parole period in your case, so do not be thinking it is just a matter of months. It would not be.
94. So if at any stage you start slacking-off in terms of your attitude to the order or you think it is just too hard, and you think maybe you will not turn up at the unpaid work or you will not turn up when you are told to turn up, turn you mind then back to the uncertainty you probably felt the night before last or last night. Were you going to be going home or going to prison? You did not know and nor frankly, did I, until I read through all the materials late last night and again very early this morning. So do not breach this order.
95. Do not work on the theory that because you breached an order and got another chance, then another chance, and then another chance in the Magistrates' Court that is what is likely to happen. It will not. This is your last chance. So really it is comply or else. I hate to put it so starkly, but that is the reality.
96. Mr Sturgess, I think I am probably going to be getting informed consent. Do you want to go down and just have a quick chat to your client or not.
97. MR STURGESS: I've had that discussion with him about the possibility of an order being imposed and he gives that consent, Your Honour. He understands.
98. HIS HONOUR: Yes, okay, all right. Let me just have a look at it then. Yes, all right, I have that taken that down to your client for a signature please.
99. Well, Mr Micallef, just remain seated then. Do you confirm then that you have signed this community corrections order.
100. OFFENDER: Yes.
101. HIS HONOUR: And you consent to entry onto this order, then you understand the obligations under the order and the potential applications if you breach it?
102. OFFENDER: Yes.
103. HIS HONOUR: Yes, okay. Well then what I will do then, is I will formally pronounce the sentences then.
104. On Charge 5 on the indictment which is the only charge relating to you of course, you are convicted and sentenced to 224 days. In addition you are convicted and released onto a Community Corrections Order in the terms which I have described for two and a half years, 300 hours of unpaid work in that period, and treatment and rehabilitation, being assessment and treatment including testing for drug abuse or dependency as directed.
105. I need also then to say that you have already served 224 days of this sentence by way of pre-sentence detention and that declaration is entered into the records of the court. In other words you will be coming out of the dock and heading home under your own steam obviously given that declaration.
106. I have taken into account your guilty plea and I am meant to tell you what sentence I would have imposed if you had gone to trial on this charge.
107. It is difficult at the best of times. It is also impossible to do that here in a trial setting. So many of the mitigatory matters of real importance that have been placed before me simply would not have arisen. But doing as best I can, if you had pleaded not guilty and been found guilty of this offence, I would have convicted and sentenced you to a term of three years and eight months' imprisonment. I would have fixed a non-parole period of two years and four months.
108. There is a 464ZF that I need to sign as well, actually. It is a non-custodial one.
109. MS FOOT: Your Honour, may I seek to be excused. I just got to do my other matter in another court room, given the orders have been pronounced.
110. HIS HONOUR: I've got to do - I've got to do the 464 don't I? You're not - you're just next door, aren't you?
111. MS FOOT: I am next door, yes. I'm just concerned about setting up and so forth, but if Your Honour's orders are about to be made.
112. HIS HONOUR: Just give us a moment. I will just - - -
113. MS FOOT: Thank Your Honour.
114. HIS HONOUR: Application is made for a 464 forensic sample in this case. There is no opposition to making of that order. I have signed the order.
115. I order pursuant to the relevant provisions of the Crimes Act that you undergo a forensic procedure for the taking of a scraping from your mouth until a sample of sufficient standard is obtained for placement on the data base. I order that to undergo this procedure, you report to the officer in charge of the Sunshine Police Station in the next little period, the period of four weeks commencing 28 days after the day of sentence. I consider that it is appropriate to make this order. It is justified owing to the seriousness of the offence and the relevance of the prior convictions, the lack of opposition to the making of the order and that it is in the public interest. I am authorising a scraping from your mouth. What you will need to do is you will need a copy I think of this order to turn up in the relevant time frame at the Sunshine Police Station with the document and they will know why you are there.
116. I am not quite sure what is being done in relation to these things in terms of COVID-19 though, so you would want to ring in advance I think. They are just going to run a swab around the inside of your mouth. It is not a particularly invasive process. I have not authorised the blood sample which is more invasive, but do not forget about it. You need to do that, so ring them sooner rather than later and work out how it is to be complied with, but I have signed that order and I believe it is appropriate to make that order. They can use reasonable force to do that. It is not a problem. It should not be an issue for you and if it presented an issue then no doubt the authorities would be back before me making application for the more invasive process being a blood sample, but nonetheless, I have signed that order.
117. MS FOOT: As Your Honour pleases.
118. HIS HONOUR: Are there any other matters that I need to deal with then or not?
119. MS FOOT: No, Your Honour.
120. MR STURGESS: No, Your Honour.
121. HIS HONOUR: All right, well you will get a copy of that order then Mr Micallef and good luck on it. Just keep doing what you are doing, and we will not see each other again, but get whatever assistance you need to make sure that does not happen. Yes, ten o'clock tomorrow. Thank you.

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