IN THE COUNTY COURT OF VICTORIA	Revised
Not Restricted
Suitable for Publication	
AT Melbourne
Koori Court Division
CR-19-02048 

DIRECTOR OF PUBLIC PROSECUTIONS		
		
v		
		
JAYSON MUIR		

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JUDGE:	His Honour Judge Johns 	
WHERE HELD:	Melbourne	
DATE OF HEARING:	4 April 2023 	
DATE OF SENTENCE:	14 April 2023	
CASE MAY BE CITED AS:	DPP v Muir	
MEDIUM NEUTRAL CITATION:	[2023] VCC 611		

REASONS FOR SENTENCE

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Subject:		CRIMINAL LAW SENTENCE
Catchwords: 	Koori Court Jurisdiction – Trafficking in a drug of dependence – Possessing a drug of dependence – Aboriginal Community Justice Report – Genuine rehabilitation – Bugmy factors – Aboriginal disadvantage and intergenerational trauma.
Legislation Cited:	Aborigines Protection Act 1909 (NSW)
Cases Cited:	Bugmy v The Queen (2013) 249 CLR 571
Sentence: 	164 days’ imprisonment in combination with a two-year community corrections order

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APPEARANCES:
	Counsel	Solicitors	
For the Director of Public Prosecutions	Ms A. Walker	Office of Public Prosecutions	
			
For the Accused	Mr G. Chisholm	Victorian Aboriginal Legal Service	

HIS HONOUR:

1	Jayson Muir, you have pleaded guilty before me in the Koori Court at Melbourne to a charge of trafficking methylamphetamine, a charge of possession of 0.6 grams of heroin which I am satisfied was for your own use, and two summary offences in committing each of the above offences whilst on bail.  The maximum penalty for trafficking methylamphetamine is 15 years' imprisonment.  The maximum penalty for possess heroin in the circumstances I have found is five years' imprisonment or a fine of up to 400 penalty units.
2	You have admitted relevant prior convictions.  You have been sentenced to community corrections orders, suspended sentences of imprisonment and short terms of imprisonment to be served between 2001 and 2014.  I accept that the dishonesty and drug offences for which you have been sentenced in the past are indelibly connected to your substance abuse.  
3	Your vulnerability to substance abuse sits on top of its underlying causes; childhood trauma and abuse, dysfunction and self-esteem issues related to these experiences, and poor education experiences.
Circumstances of Offending
4	The circumstances of your offending are set out in the Summary of Prosecution Opening which was Exhibit A on the plea and forms part of these reasons for sentence.  
5	You trafficked methamphetamine by way of five sales to police covert operatives on the following dates:  
•	15 September 2017, 28 grams sold for $5,300;
•	23 November 2017, 56 grams sold for $9,500; 
•	6 December 2017, 43 grams sold for $7,250;
•	14 December 2017, 56 grams sold for $9,500;
•	 27 December 2017, 112 grams sold for $17,600.
•	The total is somewhere in the region of 293 grams and the total sum is $49,150.
6	The details of your trafficking are set out in the Summary of Prosecution Opening which was Exhibit A and, as I say, forms part of these reasons for sentence.  I will not repeat that detail.  
7	Two prominent features related to the circumstances of your offending are:
i) your trafficking involved your role as a go-between in sourcing methylamphetamine in response to requests from covert police officers; and 
ii) your offending for the most part occurred five and a half years ago.  
Objective Seriousness of Offending 
8	Trafficking of drugs in the quantities you did is inherently serious.  As was pointed out in the sentencing conversation by your Elders, when you participate in the dissemination of such a harmful substance into the community you have no control or knowledge of where it ends up and the lives it destroys.  It was pointed out to you by Uncle Trevor Gallagher that despite you not being an individual who would sell such harmful substances to children, your participation in the traffic of these substances makes that social evil possible.
9	You have a 2014 prior conviction for trafficking methylamphetamine.  The circumstances of that matter and the sequence of events that followed are referred to in the Aboriginal Community Justice Report exhibited on your plea.  It was also referred to in your Counsel's written submissions and touched upon by you during the sentencing conversation.  
Progress towards Rehabilitation
10	What is most significant to me in this case from a sentencing perspective is the progress you have made towards genuine rehabilitation since you were incarcerated for the matters that are now before me.  That phrase 'genuine rehabilitation' is a simple one, but for you and for your story it contains many threads.  You spent 164 days in custody before being bailed in relation to this matter.  On my reckoning that is the longest period in custody you have ever served.  
11	You were bailed to The Cottage residential rehabilitation program where you stayed for 12 months, becoming a leader in your environment and a leader among Koori men there.  You were under the supervision of the highly respected Dr Edward Ogden who provided reports to this Court.  Amongst many positive reports on your commitment and engagement toward rehabilitation before me, one paragraph from Dr Ogden struck me as conveying your fundamental good nature and your appropriate response and remorse to the charges.  He writes:
Since I have known him, he has been mildly depressed and anxious about the outcome of the forthcoming court proceedings.  He has consistently expressed guilt and regret over past behaviour.  He has consistently taken pleasure in helping others.
12	The Aboriginal Community Justice Report, or ACJR as I will refer to it, also contains references to your guilt and shame over dishonesty offending in the past to fuel your drug use, as well as signs of your good nature through your connections with others over the years, such as Mrs Corben who is referred to in the report, and your connection with her and other people in times when you were not consumed by trauma, shame, drug use, crime and negative peers.  
13	The better side of you also emerged in your engagement during the sentencing conversation.  You had relapses during your attempts at rehabilitation, but you did not ‘throw in the towel’ and you sought help.  This is a significant aspect of my finding as to your prospects of rehabilitation.  
14	You continued after the 12-month residential period at The Cottage to engage in two days residential rehabilitation spread out over a two-and-a-half-year period.  I received reports from Maria Hutchison who also sat alongside you and participated during the sentencing conversation.  Her engagement with you and your engagement with her, and what is reported to me through her attendance at court and participation in the sentencing conversation, has reinforced my confidence that you have made great progress in addressing your drug use problem and its underlying drivers-  the traumas you have experienced and inherited.
15	You have also drawn on your heritage and your culture as a source of strength and resilience and it is very clear how dear your history and connection to culture and country is to you.  The way you have opened up about childhood trauma and related experiences, your dyslexia and other matters deeply personal to you, is another thread of your story since incarceration that is important.  
16	An important aspect of your rehabilitation and your genuine desire to leave the drug lifestyle behind you is your willingness to delve into deeply painful experiences for the ACJR and in your counselling, and also in the sentencing conversation.  
17	Your partner supported you in court.  You spoke highly of her with warmth. Her presence in your life is another thread that gives me confidence you are well on the way to permanent change, as is your desire to stay in Shepparton and to bring your mother to residential care in Shepparton.  
18	Your daily visits, or near daily visits, on the long journey from Shepparton to Melbourne is a powerful indication of your strong bond with your mother, as well as your underlying character and your priorities in life.
Personal Circumstances
19	I am not going to go into great detail as to your personal history.  Those matters are set out in very fine and eloquent detail in the ACJR, but also in very helpful detail in your Counsel's written submissions which, as I say, were detailed, and contain a lot of material which I accept and have relied upon but I will not be referring to herein.  You had a very traumatic childhood.  I have no difficulty accepting that your problems in life, in particular your uncontrolled substance use in times of stress and trigger, have their roots in the terrible experiences you suffered.
20	Your father had his own demons no doubt.  Like you he is a Barkindji man.  His mother was born and lived on a mission near Coomealla I was told.  He was also a police officer in Victoria before moving to Western Australia where you were born.  I was told he was an alcoholic and a violent one at that.  The violence you witnessed against your mother and experienced yourself at his hands is set out in the materials and, as I say, I will not go over those matters again, and also the deeply affecting and traumatic abuse you suffered during your childhood years.
21	You report in relation to your father that he did not embrace his Aboriginal culture and heritage in your youth when you were growing up.  This was not unusual at that time and is another consequence of the colonial history - the colonial experience so eloquently set out in the ACJR with forensic precision.  
22	I will depart from your personal history for a moment and just touch on some of the matters raised.  On the topic of history in the ACJR, you speak with great emotion and clearly with deep connection to Barkindji country.  You have said - and I quote from the report – ‘your heart is always with the Murray and you feel like you are with your grandmother when you visit.’ Unfortunately, since 2018 you have not been able to return to Barkindji Country and when you are released on this community corrections order that I intend to give you today it will be with a recommendation that, as much as possible, Corrections are to comply and to cooperate with you and your right to be on Country.
23	Some understanding of the history of the Barkindji nation assists me in understanding you and your circumstances and the forces that have shaped your circumstances and experiences. I will not do justice to the ACJR, but I will touch on some of the matters raised therein. In 1839 massacres took place and records indicate the recording of deaths where 46 Aboriginal people were killed by Europeans along the river division in Wentworth.  Your grandparents used to talk about these massacres with you and it is a matter that has clearly been carried down through the generations and the impact upon them was apparent to you as a young person.  
24	The establishment of the Aborigines Protection Act and the consequences of that, living under those conditions, having lives controlled, and not in a beneficial way, are also matters set out in the report.  The Aborigines Protection Act was only repealed in 1969.  One example offered in the report was that people subject to the Act were unable to seek medical attention without police permission, and the report notes that even into the 1990s you recounted how there was a black pub and a white pub that symbolised the segregation in Coomealla, and it was clear to you that racism had deep roots that continues to manifest itself today in the town.
25	The misguided policy of assimilation and the enduring trauma of the stolen generations which is set out in the Bringing Them Home Report was a matter that was central to the Barkindji experience as well.  The report writes, 'The impact, however, has been to subject Aboriginal families to generations of State institutional interventions, such as Jayson's removal from his kin throughout his childhood', referring to your own periods in foster care in your formative years.
26	The report goes on and says:
For the Barkindji people colonisation has contributed to overwhelming loss of culture which has led to sew anger and enmity within the community.
27	And it goes on.  The report also notes the strength and resilience of Barkindji people in retaining connection to culture, which is strongly expressed through artistic endeavours, familial ties and knowledge of country, and this is something that is apparent throughout the ACJR and through your participation in the sentencing conversation..  You have a connection to your culture and country essentially through your grandparents and, as I noted, you have not been able to be on your country for these past five and a half years and I can see what that means to you.  Your return to country will be a powerful experience for you and provide another strong thread for your rehabilitation and transformation.  
28	There is no dispute in this matter that the trauma and abuse you experienced in your formative years were extreme.  It had an impact upon your school experience.  You suffered shame and humiliation and, together with your literacy difficulties, it contributed significantly to your education being terminated in Year 8.  Notwithstanding those difficulties, you have had periods of productive and impressive employment particularly during an 11-year period of sobriety.  The details of these, as I say, are also set out in the ACJR and in your counsel's helpful written submissions, and I am not going to reproduce them now, but, in particular, your involvement with your company, Indigenous Sports Management, and your presidency of Brunswick Power, the football club, your involvement with Michael Long and the walk to Canberra, along with Alan Thorpe and others, are all matters that are noted in the ACJR and your Counsel's written submissions, which are to your great credit.  Despite the difficulties you have had you have managed to find ways for your intelligence to shine through and to engage in a positive way with the community.  
29	You have worked with Melbourne University's Academy of Sport, Health and Education, which has the acronym ASHE, in the past and it is hoped that you are going to return to involvement with ASHE in the near future.   
Aboriginal Community Justice Report
30	The Aboriginal Community Justice Report has been a significant exhibit in your case which has informed the court in a very detailed way and I cannot do justice to it by summarising aspects of it in these reasons for sentence. Aboriginal Community Justice Reports provide a holistic view of someone appearing before the court. The sitting elders in your case, Uncle David Farrell and Uncle Trevor Gallagher, were very impressed with the contents of the report and its authentic Aboriginal voice. They were also impressed with the amount of work that went into it, and in particular the amount of work in which you participated for the production of that report. 
31	ACJRs provide a wider lens that brings perspective on the collective experiences of the individual before the court, their family and community, as well as the relevant history of colonisation and its impacts, as well as providing an outline of contemporary intervention, circumstances, policies and laws that have impacted Aboriginal people and communities. It also provides a much broader and in-depth understanding of you as an individual and the sorts of services that are available and will benefit you in your ongoing rehabilitation.  
32	I have had regard to all of the matters raised in the ACJR.  It has provided a far deeper insight into your past, your strengths, your resilience and the positive features of your personality than I would otherwise have.  The struggles of your mother, and your deep respect and connection with her and all she has had to deal with through her life, is also a matter that comes through clearly in the ACJR.  It is a very useful document from a sentencing perspective, and I am far better informed about you as an individual and the factors relevant for my consideration than I would otherwise be and, as I have observed, that is due to the willingness you have showed in opening up and discussing difficult topics.
Participation in the Sentencing Conversation 
33	You participated fully in the sentencing conversation.  The ACJR and its contents were discussed in the sentencing conversation also and, as I have noted, Uncle David and Uncle Trevor were impressed with the document.  Uncle Trevor spoke to you in stirring and powerful terms about your Barkindji history and the inherited trauma.  
34	On the day of the hearing by coincidence I came across a quote attributed to the late famous American author William Faulkner who said, 'The past is never dead.  It's not even past'.  And it resonated with me, having just heard you talk about Barkindji culture in connection to country with Uncle David and Uncle Trevor, and having read those passages from the ACJR, of course.  The Faulkner quote emphasises for me how your personal trauma relates to your drug use and its triggers.  You carry it with you and you have had to struggle with it and you are making great progress in doing that.  The full quote reads:
The past is never dead.  It's not even past.  All of us labour in webs spun long before we were born.  Webs of heredity and environment, of desire and consequence of history and eternity.  Haunted by wrong turns and roads not taken we pursue images perceived as new, but whose provenance dates to the dim dramas of childhood which are themselves but ripples of consequence going down the generations.
35	I think it is a pertinent quote when we are considering the holistic approach to you and you as an individual which necessarily involves consideration of your circumstances, your family's circumstances and that of your people.  You spoke in the sentencing conversation about how you do not want to go back to a lifestyle you have well left behind you.  You spoke openly about your battles with addiction and your battles in understanding yourself and your triggers and your past.  You spoke about how motivated you are to settle in Shepparton and provide a better place for your mother and to put back into the community.  
36	You spoke about your hopes for marriage and settling there.  You spoke of your connection to country and the fond memories you have of spending time with grandparents on the Barka.  You spoke of your hopes in the future and for further education and work opportunities and, as I have touched on, marriage with your partner and continuing on a life with her.  You have an impressive business history given your disadvantage and, as I have noted, you are clearly an intelligent man and that is one of the factors I take into account in assessing your prospects of rehabilitation as very good.
	Further Matters in Mitigation
	Delay
37	Turning to significant matters in mitigation, delay and the effects of delay are a very significant matter in your case.  It is similar to genuine rehabilitation.  It is a simple phrase 'delay and the effects of delay'.  Under that heading a lot comes under it in your case over the past five and a half years.  Significant gaol time for you.  Also, the Akoka time which has been referred to by your counsel which I accept is in the order of some 17 months.  
	Application of Bugmy
38	Another significant matter is the effect of the Bugmy v The Queen (“Bugmy”) principle which has full effect in your case, but also the huge efforts you have made in working on yourself and addressing underlying trauma, and working with Maria Hutchison and Dr Odgen in trying to lessen the impact of what we in the courts refer to as Bugmy factors in your life.  
39	The support of your partner and motivation of your mother, your participation in the sentencing conversation and in the ACJR, your plea of guilty and its facilitation of the administration of justice, in particular in times where trial lists are in the state that they are in this State, and your remorse, these are all factors which I give significant weight to in the sentencing exercise.  And in your case, notwithstanding the important considerations of general deterrence and denunciation, the sentencing considerations in respect of drug trafficking in your case, in my synthesis of these factors, justify a combination sentence which does not see you return to custody.
40	The prosecution's submission acknowledges that a combination sentence is within range.  I had you assessed for a community corrections order.  Mr Goodwin from Corrections was present throughout the conversation and this greatly assisted his assessment and preparation of his report.  I will refer to one aspect of his report where he writes:
He has a very supportive therapeutic team and the support of loved ones.  Corrections would not look at changing anything that is in place and would work collaboratively with the appropriate stakeholders and continue to deliver a strong therapeutic alliance.
41	And I endorse that and what the court wants to see is more of the same, 
Mr Muir, and a continuation of what you have been doing and where you are at.
Sentence
42	In turning to sentence, I am going to impose an aggregate sentence given the connection of the matters on the indictment and the relevant summary offences.  On the two charges on the indictment and on the two relevant summary offences you are sentenced to 164 days' imprisonment in combination with a two-year community corrections order.  Special conditions of the community corrections order are 75 hours community work, drug treatment and rehabilitation, mental health treatment and rehabilitation, programs to reduce offending, supervision.  Sixty hours of treatment conditions can be credited towards work hours.
43	I have not set out in terms the recommendations from the Aboriginal Community Justice Report which Corrections have also had access to and considered.  I will just read these out now.  The recommendations were:
That Jayson visit the cottage weekly in Shepparton for between 
six to 12 months; that Jayson continue to attend drug and alcohol counselling at Rumbalara; that Jayson get culturally appropriate health management through Rumbalara; that Jayson regularly attends his appointments with healthcare professionals; that following exit from 
The Cottage he attend the Dardi Munwurro Men's Healing and Behaviour Change Program; he pursues educational opportunities with the Victorian Aboriginal Education Association; and that he pursues employment, providing support to Aboriginal youths through ASHE and the participating weekly men's groups; and an Aboriginal gathering at a place of his choice such as Dardi Munwurro.
44	Deliberately, I have not put those recommendations into the community corrections order document, but Corrections understand what those recommendations are.  I have put in a condition that you attend programs to reduce offending, which should encompass any gatherings or supports that might become available through Dardi Munwurro or other like organisations.  And I am confident that with Mr Goodwin's guidance, particularly given the participation during the sentencing conversation and the statement that the therapeutic approach that is currently in place is to continue, I am confident that Corrections can work with you and can continue to provide support for your ongoing rehabilitation.
45	I declare that you have served 164 days as pre‑sentence detention in relation to this matter.
46	Pursuant to s 6AAA of the Sentencing Act I declare that if it were not for your pleas of guilty, I would have sentenced you to a total effective sentence of three years with a non‑parole period of 18 months.
47	Now, you have already indicated your consent to a corrections order, but given we are not all in the same room I will not be able to get you to sign it today in front of me, I will just ask for your oral consent now, Mr Muir.
48	OFFENDER:  Yes, Your Honour.
49	HIS HONOUR:  Thank you.  All right.  Well, those documents are going to be prepared.  Firstly, Ms Walker or Mr Chisholm, is there anything I've overlooked that I need to address?
50	MS WALKER:  Your Honour, just in relation to the maximum penalty for the possession of heroin, I just wanted to confirm that the maximum penalty in this case would be one year imprisonment.
51	HIS HONOUR:  One year.  All right.  Sorry, yes, I did - I must have - I think that was in a document somewhere and it did jar with me a bit, but I've given an aggregate in any event.  Thank you very much for drawing that to my attention.
52	MS WALKER:  Thank you.
53	HIS HONOUR:  Were it not for the sentence I've imposed and the aggregate nature of it I wouldn't have imposed gaol in relation to that possession.
54	MR CHISHOLM:  Your Honour, for Your Honour's assistance, if Your Honour's associate was able to email through the documents for Mr Muir to sign I could have him sign those in chambers and return the - - -
55	HIS HONOUR:  If that's convenient for everyone it's probably a better way to do it than to try and organise that over the next few days.
56	MR CHISHOLM:  Because then he can report on Monday as required to Shepparton.
57	HIS HONOUR:  Yes, and get it going.  Yes, yes.  All right.  Well, if there's nothing else, I wish you well, Mr Muir, in your ongoing efforts and my associate will have those documents emailed through.  The court won't be officially adjourned until we've arranged all of that, but I will be standing down now.
58	MR CHISHOLM:  Sure.
59	MS WALKER:  If Your Honour pleases.
60	MR CHISHOLM:  As Your Honour pleases.
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