[2019] VCC 1098 (03 July 2014) (Her Honour Judge Hampel)
[2014] VCC 1098
•4 July 2014
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-13-00241
| DPP |
| v |
| MICHAEL BOYES |
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JUDGE: | Her Honour Judge Hampel | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 4 July 2014 | |
DATE OF SENTENCE: | 4 July 2014 | |
CASE MAY BE CITED AS: | ||
MEDIUM NEUTRAL CITATION: | [2019] VCC 1098 | |
REASONS FOR SENTENCE
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Catchwords:
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr A. Moore | OPP |
| For the Accused | Mr C. Farrington | Balmer and Associates |
HER HONOUR:
1 Michael Boyes, you have pleaded guilty to three charges of trafficking in a drug of dependence, four charges of possession of a drug of dependence and one charge of possession of a precursor chemical. These offences carry maximum penalties of 15 years imprisonment, one year and five years respectively.
2 On 11 May 2012, your apartment on St Kilda Road, including the car park and storage cage in the basement, were searched under warrant. The search revealed, amongst other things:
13.4 grams of ketamine found in your fridge in seven separate plastic bags and one glass vial. Purity of the content in the bags varied between 80 and 90 per cent. The content of the vial was more diluted, being only 35 per cent pure. A trafficable quantity is 3 grams. This is the subject of charge one, the first trafficking charge.
18.1 grams of MDMA was found in seven plastic bags, in various places around your apartment. The purity varied between 35 and 60 per cent. Again, a trafficable quantity of that drug is three grams. It is that that is the subject of the second trafficking charge, Charge 2.
106 grams of methylamphetamine in a variety of packaging, 18 plastic bags, a plastic container, a glass container and in separate capsule form. Purity varied between 50 and 100 per cent. All the methylamphetamine was found in the storage cage. Again a trafficable quantity of that drug is three grams, and this forms the basis of Charge 3, the third trafficking charge.
These three charges are all punishable by the maximum of 15 years imprisonment.
3 Charges four to seven are possession of drug of dependence charges. The first, Charge 4, relates to the finding of 14 milligrams of LSD in a plastic bag. The second, Charge 5, relates to the finding of .4 of a gram of cocaine in two plastic bags. Charge 6 relates to the finding of 35.6 grams of testosterone found in four glass sealed vials, and Charge 7 relates to .8 of a gram of methorphan in the form of three tablets in one plastic bag.
4 The quantities found and your history of drug use, indicate these drugs were likely to be for your own use, although the onus is on you under s.73(1)(b) of the Drugs, Poisons and Controlled Substances Act to satisfy the court your possession was not for a purpose related to trafficking. The prosecution rightly acknowledges that I should sentence you on the basis that your possession of these four substances was for your own use. As such the maximum penalty for each of these charges is 12 months imprisonment or three penalty units.
5 As I indicated in the course of a hearing, given that these charges, had they been dealt with on their own, would have been able to be heard summarily and came to this court because of the more serious charges you faced, I propose to impose fines in respect of those four charges.
6 Police also located 500 millilitres of 1,4-butanediol in two different glass bottles. This is the subject of Charge 8, possession of a precursor chemical. I am told it is a precursor for yet another drug, that is in addition to the seven, the subject of the earlier charges, and that is it is a precursor chemical for GHB. Possession of a precursor chemical is punishable by a maximum term of imprisonment of five years.
7 You were arrested, charged and remanded on the date of the search, and you spent 19 days in custody before being released on bail.
8 You were 44 years of age at the time, and are now 46. You have a troubling history of convictions for drug related offences. You have been convicted before of two charges of trafficking in ecstasy and eight of possessing various drugs, ecstasy, cocaine, amphetamines and cannabis. In total, you have been before courts on five occasions, including an unsuccessful appeal to this court for a total of 12 drug related charges, and you have variously been fined, sentenced to a Community Based Order and sentenced to a term of imprisonment which was fully suspended.
9 You have also been sentenced to a term of imprisonment, again fully suspended for driving whilst disqualified, and in your early 20s you were on two separate occasions, dealt with for dishonesty offences. The trafficking charges, charges 1, 2 and 3, are brought by reason of the quantity of each of the drugs, the subject of those charges, which were found in your possession. They are deemed traffickings. Apart from the quantity of the drugs, well over the threshold for deemed trafficking in respect of each of them, and the fact that they were stored, each of them in a variety of separate smaller packages, concealed in various ways and in various places in your apartment and the storage cage, there is no other evidence of actual trafficking, nor is there evidence affirmatively satisfying me on the balance of probabilities that possession of any of these three drugs was solely for your own use.
10
No explanation was advanced for your possession of the precursor chemical. I make no findings aggravating or mitigating about its intended use. The quantity of the amphetamine is significant, even if all of it were only
50 per cent pure, that the lowest percentage purity of that which was found, the quantity would still be close to 20 times the traffickable quantity. Although the quantities of the other two drugs the subject of the trafficking charges, were substantially less, they were still in multiples of three grams, the trafficable amount. You had three different drugs of dependence in amounts well over the trafficable quantity in your possession and smaller, non-trafficable quantities of four other drugs of dependence in your possession, and as I have noted, your possession of the precursor chemical, or the reasons for it, is unexplained.
11 You have significant prior convictions. Your previous court appearances and the previous sentences imposed upon you have not deterred you. You have increased the level of your offending. It is clear that subject to consideration of matters personal to you, the sentences to be imposed upon you for the more serious charges, the traffickings and the possession of the precursor chemical, must reflect deterrence, both general and specific, as well as denunciation and just punishment.
12 Consistently with your criminal history, you report a long history of poly drug use, which I am told ceased on your arrest.
13 I am going to give you some time to compose yourself, because if you keep on breathing like that you will start to hyperventilate. So just take some time. Yes, all right, well take some time and tell me when you are ready.
14 After your 19 days in custody, you were bailed to the Raymond Hader Clinic, where you remained for three months until the end of August 2013. I was told that you were discharged from there after being found in possession of substances not permitted under their rules for those undergoing residential rehabilitation. They were not illicit drugs, but coffee and moisturiser. As a result, your bail was varied so that you no longer had to stay at the Raymond Hader Clinic. You spent the next six weeks at Refocus, another residential treatment provider. You continued to attend Refocus for what was described in their report as an aftercare program for a further three months. You have since then, I am told, attended in excess of 200 Narcotics Anonymous and Alcoholics Anonymous meetings following completion of the Refocus residential program.
15 You provided to Refocus during treatment, and again on five occasions during the last month to your GP, clean urine screens. Consistently with what I am told are your instructions, this indicates that you have remained drug free since being arrested and charged. The psychologist Mr Crewdson, whose oral evidence and report were relied upon on the plea by your counsel, described you as a poly substance user with a degree of psychological dependence, but significantly, Mr Crewdson said he would not have regarded you as being addicted. In fact in another part of his report, he said that your need to be in control of yourself and what was happening around you, would guard against injudicious use of drugs.
16 The evidence of your long term general practitioner, Dr Lee, who also provided a report and gave evidence on the plea, was consistent with that. He has treated you for your anxiety condition since he became your GP in 2005. It would appear that the existence of that condition predated your therapeutic relationship with Dr Lee. Dr Lee has never had any concern that you were abusing the Xanax that he has been prescribing you for your anxiety condition. It would appear that he had no knowledge of your illicit poly substance use, and there was no indication from his report that he considered that any illicit drug use was interfering with your health or wellbeing. In fact Dr Lee said that your anxiety condition had been stable for many years up to the time that the charges were laid two years ago.
17 I accept that you have a long standing, pre-existing and previously diagnosed anxiety condition, and I accept that as Dr Lee said, it has been well managed for many years. Not surprisingly, since you have been charged, your anxiety levels have increased. According to Mr Crewdson, linked with your anxiety disorder, is obsessive compulsive disorder. In his opinion, you have in the past managed your anxiety by obsessive compulsive behaviours. In particular, excessive hand washing, immaculately ordered clothing and possessions, over supplies of clothes and household goods and relentless cleaning of windows and arranging things in perfect order in your apartment. Your increased anxiety since being charged is no longer in his opinion able to be contained by those habitual obsessive compulsive behaviours.
18 He described you in his report as being extremely egocentric, narcissistic, histrionic and highly anxious. He said your anxiety is overwhelming you when you contemplate what you believe to be your likely fate if you were to be sentenced to a term of imprisonment. You are gay and you have earned a very comfortable living working as an escort for the last 15 years. You feel both your sexual orientation and your occupation will inevitably become known if you are incarcerated and that you will therefore be exposed to pack rape. Your anxiety about this, indeed what Mr Crewdson describes as your excessive rumination about it, has led him to opine that you are suffering from what he describes as pre-traumatically referenced adjustment disorder, and it is that which he says overwhelms you.
19 Not surprisingly in his opinion, this will subside if your fears are not realised in sentencing, but in his opinion your general anxiety will remain and if anything your OCD will be likely to worsen without skilled treatment. He describes your current state as one of moderate, though fluctuating intensity. Dr Lee is also of the opinion that your anxiety has been aggravated by the consequences of being charged and that a custodial sentence would further aggravate it. He expresses concern about your ability to cope should you be sentenced to imprisonment, and expresses the view that it may well lead to a severe breakdown of your psychological and emotional wellbeing.
20 I accept that you have a long term anxiety condition and that not surprisingly, it has been exacerbated since the execution of the search warrant discovered the cache of illegal drugs, which led to your facing and ultimately pleading guilty to these charges. I also accept that, like many people who are forced to face the consequences of their criminal activity, you fear those consequences. I accept that your anxiety condition would make imprisonment more onerous for you than for somebody who did not suffer from such a condition, and I accept that that brings into operation the fifth and sixth limbs of Verdins.[1] However I do not accept that your fear of going to gaol and the anxiety related to that, should excuse you from the proper consequences of your conduct.
[1]Verdins; Buckley; Vo (2007) 16 VR 269 (‘Verdins’).
21 You are a mature adult, you are intelligent and you are well resourced. On the material before me, you have a large circle of loving and supportive friends, whose love and trust has continued around you during the last two years as you have endured these years waiting for this court hearing. You made conscious choices in relation to this drug related activity. You were, or should have been, well aware of the consequences as a result of your previous experiences of being charged and sentenced by courts. You cannot now seek to be excused from the proper consequences of your conduct because you are afraid of going to gaol and of what you fear might happen there. It is trite to say you should have thought of all of that before.
22
It is just over two years since you were arrested and charged. I accept that for any person having matters hanging over their head unresolved for two years, that is stressful and productive of anxiety. I accept that because of your
pre-existing anxiety disorder this has been more stressful for you than for somebody who does not suffer from your anxiety condition. You also have physical health issues which are relevant. You suffer from hypertension and irritable bowel syndrome. Although with careful supervision, each condition is manageable, they are both problematical and are liable to flare up. They are much more likely to flare up when a person is under stress, and I accept that they have both caused you more distress or more discomfort or flare ups over the last two years and, whilst you are under stress, will continue to do so.
23 I was also provided with a report indicating that you suffer from a chronic inflammatory condition in your nose, which requires injection with a localised type of cortisone every four to six weeks. It appears, you have been having this treatment since 2012. Whilst I am told that you fear you will not be able to obtain appropriate treatment of this condition in custody, there is no evidence that such treatment would not be available to you through Justice Health. Whilst you may have an anxiety about that, on the material before me, it is an anxiety that is in your mind, rather than one that is related to objective evidence.
24 You have pleaded guilty to these charges and I accept that I should in the circumstances treat the pleas in respect of all of them, as being entered at an early stage. You are entitled to a reduction in your sentence of the utilitarian value of those pleas and the early stage at which they were entered. I also accept that they evidence remorse, and the evidence of remorse goes beyond the fact of the guilty pleas and beyond the evidence that you are remorseful in the sense that you are distressed by the circumstances in which you find yourself. Although the evidence that I have recounted already does not suggest that you were physically addicted to any of these drugs, psychological dependence to drugs can be significant and you have shown an ability notwithstanding the anxiety or the additional anxiety you have suffered over the last two years, to engage actively in drug rehabilitation and to provide evidence from a range of sources that you have remained drug free since being charged.
25 I take into account not only the period of residential treatment and the period of post residential care provided by Refocus, but also the evidence of your attendance at Narcotics Anonymous and Alcoholics Anonymous, and the provision of the clean urine samples during your period of outpatient treatment with Refocus and again in the last month. You have not been charged with any further offences and this too, I take into account in your favour as evidence of your remorse and desire to change your ways and also obviously as counting towards your prospects for rehabilitation.
26 Just give yourself some time again to refocus on your breathing. You tell me when you are ready Mr Boyes.
27 Mr Farrington submitted that the combination of these matters justified the imposition of a sentence which did not require any component of imprisonment immediately served. I disagree. Whilst I accept your anxiety condition would make imprisonment more onerous for you than it would for somebody without such a condition, and that imprisonment is likely at least in the short term to exacerbate that condition, I do not think it alone or in combination with the other matters relied upon, are such as to justify departing from what is in my view the only appropriate sentence in the circumstances and having regard to your previous history, namely one involving a term of imprisonment immediately served. Consistently with the fifth and sixth principles in Verdins, I reduce the sentence that otherwise would have been appropriate by reason of those factors.
28 I accept that but for the matters to which I have referred which warrant the giving of weight to specific as well as general deterrence, that you have good prospects for rehabilitation. Whilst I have come to the view that no sentence other than one of imprisonment with a component immediately served is appropriate, having regard to the other matters I have found in your favour and to the weight I have given to your prospects for rehabilitation, I have come to the view that I should partially suspend the term of imprisonment that I am about to impose, rather than impose a term of imprisonment and fix a non-parole period.
29 That way, by imposing a partially suspended sentence, you get the benefit of certainty as to your release date. You do not have to apply to the Parole Board and see whether they agree to release you upon that earliest fix date. Not only do you get the certainty of knowing your release date, given your history of seeking appropriate medical or psychological attention when you need it, and the commitment you have shown to remaining drug free, I do not consider that you need the support that parole can offer to those who are less well circumstanced and less advantaged than you.
30 Could you now please stand Mr Boyes.
31 Michael Boyes, on the eight charges to which you have pleaded guilty, you are convicted. On Charge 1 of trafficking in ketamine, you are sentenced to be imprisoned for a period of 12 months and I direct that three months of that be served cumulatively upon the base sentence in the other partial cumulation orders. On Charge 2 of trafficking in MDMA, you are sentenced to be imprisoned for a period of 12 months, and again I direct that three months of that be served cumulatively. On Charge 3 of trafficking in amphetamines, you are sentenced to be imprisoned for 18 months, and I declare that to be the base sentence. On each of Charges 4, 5, 6 and 7 you are fined an amount of $500, and on Charge 8 of possession of the precursor chemical, you are sentenced to be imprisoned for nine months, and again I fix three months as the time that is to be served cumulatively.
32 That makes a total effective sentence of two years and three months. I direct that 15 months of that be suspended. That means you must serve 12 months and the balance of 15 is suspended. There is an automatic stay of one month on the $2000 total fines and your counsel will explain to you the options open to you if you wish to apply to serve time in default or to convert those fines to unpaid community work.
33 You have spent 19 days in presentence detention and I direct that that be counted and reckoned as part of the sentence already served.
34 Pursuant to s.6AAA of the Sentencing Act, I declare but for your pleas of guilty, I would have imposed a total effective sentence of three years and six months on charges 1, 2, 3 and 8, and I would have fixed a non-parole period of two years. I have been asked to make ancillary orders for the disposal of the items seized and for the taking of a forensic sample. I propose to make both of those orders, noting that both of them are consented to. Sofar as the taking of a forensic sample, I do so because of your history and the seriousness of the offending, as well as noting that it is by consent. I am going to make that order for the provision of a forensic sample, directing that it be taken by a buccal sample, that is a scraping from the inside of your mouth on a swab like a cotton bud.
35 I must inform you that if you do not consent to the taking of that sample and cooperate in its provision, then an authorised member of the police force is entitled to use reasonable force to obtain that sample and may well use the more invasive method of taking a forensic sample that is available, namely the taking of a blood sample. Do you understand that?
36 ACCUSED: (Indistinct) .
37 HER HONOUR: All right. I have directed that a forensic sample is to be taken from you and I note that you have consented to it. There are two ways a forensic sample can be taken. One is by, in effect, a saliva sample which is obtained by the rubbing of a swab like a cotton bud, on the inside of your mouth until a sufficient sample has been obtained. That is the way I have directed your sample be provided. If you do not consent to and cooperate in the provision of that buccal sample, the law permits the police to use reasonable force to obtain a forensic sample. They are entitled to obtain it by the more invasive means for taking a forensic sample, namely a pin prick to take a blood sample. Do you understand that now?
38 ACCUSED: Yes.
39 HER HONOUR: All right. Mr Farrington will no doubt explain it to you further again when he sees you. Now do the orders I have declared reflect what I said I intended to do?
40 MR MOORE: Just one query. I may have missed it Your Honour, but the period of suspension - suspended ‑ ‑ ‑
41 HER HONOUR: I'm sorry, 15 months suspended for a period of 15 months. Thank you Mr Moore.
42 MR MOORE: Thank you Your Honour. Other than that, I have no queries Your Honour.
43 HER HONOUR: Thank you. There are - Mr Farrington, orders sofar as you're concerned, correct and no further orders required to be made ‑ ‑ ‑
44 MR FARRINGTON: That all adds up Your Honour, yes.
45 HER HONOUR: All right, thank you. I'll make sure that copies of the reports of the general practitioner and of Dr Mendelson are sent with - with Mr Boyes now ‑ ‑ ‑
46 MR FARRINGTON: Thank you Your Honour. I was going to ask that that occur ‑ ‑ ‑
47 HER HONOUR: - - - and ask that he not be removed from the cells until those two medical reports have been provided. I'd like you to give some consideration to whether you want the report from Mr Crewdson provided to the prison authorities. There are some matters that - one particular matter, the reference to Mr Boyes' employment history that he may not want to have revealed in a report like that.
48 MR FARRINGTON: I was going to request that Your Honour provide the two doctor reports and not the report of Crewdson.
49 HER HONOUR: Right, that will be done, and I will not - if there's a request to provide Mr Crewdson’s report to prisoner management, I won't do that until there's been contact with you or your solicitors and consideration given to whether he wishes to consent to its provision in those circumstances.
50 MR FARRINGTON: Thank you Your Honour.
51 HER HONOUR: Could you please remove Mr Boyes.
52 ACCUSED: (Indistinct).
53 HER HONOUR: You have to serve 12 months and 15 months is suspended.
54 ACCUSED: (Indistinct).
55 HER HONOUR: Mr Farrington will come downstairs and explain it to you. Remove the head sets.
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