Director of Public Prosecutions (Cth) v Singh
[2019] VCC 2034
•6 December 2019
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
GENERAL LIST
CR 19-01521
| COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| PRABHKIRAT SINGH |
---
| JUDGE: | HIS HONOUR JUDGE HIGHAM |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 2 December 2019 |
| DATE OF SENTENCE: | 6 December 2019 |
| CASE MAY BE CITED AS: | DPP (Cth) v Singh |
| MEDIUM NEUTRAL CITATION: | [2019] VCC 2034 |
REASONS FOR SENTENCE
---Subject: CRIMINAL LAW
Catchwords: Sentence – import a marketable quantity of a border controlled drug –
traffick in a drug of dependence – plea of guilty
Legislation Cited: Criminal Code (Cth), s 307.2(1); Drugs, Poisons and Controlled
Substances Act 1981 (Vic), ss 71AC(1), 73(1)
Sentence: Total effective State sentence of 10 months’ imprisonment
Total effective Federal sentence of 4 years and 10 months’
imprisonment with a non-parole period of 2 years and 4 months---
APPEARANCES: | Counsel | Solicitors |
| For the Commonwealth Director of Public Prosecutions | Ms R Champion | Commonwealth Director of Public Prosecutions |
| For the Accused | Ms M Altman (Plea) Mr L Gwynn (Sentence) | Lethbridges Barristers & Solicitors |
HIS HONOUR:
1Prabhkirat Singh, you have pleaded guilty to three charges of importing a marketable quantity of a border-controlled drug, charges 1, 2 and 5, each of which the maximum penalty is 25 years' imprisonment; two charges of trafficking in a drug of dependence, charges 3 and 4, for which the maximum penalty is 15 years' imprisonment; and three charges of possession of a drug of dependence, charges 6, 7 and 8, each of which the maximum penalty is five years' imprisonment. You have also pleaded guilty to a summary charge of possession of a poison.
2Tendered on the pleas as Exhibit 1 was an agreed Summary of Prosecution Opening. I annex a copy of that document to these sentencing reasons. Briefly stated the circumstances of your offending were as follows.
3On 17 February 2019, Australian Border Force at the Sydney Gateway Facility examined a parcel declared to contain supplemental fitness protein. Concealed within the protein shake powder were the following drugs: 1,007 blue tablets that contained between 203.5 and 243.2 grams of MDMA (charge 1), and 7.2 to 9.3 grams of cocaine (charge 2). The parcel was addressed to your co-accused, Jordan Gelder, at his home address in Truganina.
4On 27 February 2019, police executed a search warrant at Mr Gelder's home address and he was arrested. A hard drive and an Australia Post delivery card dated 27 February 2019 were seized on this date.
5On the morning of 28 February 2019, police attended at the Australia Post Store in Wyndham Village to collect the parcel linked to the seized delivery card. The parcel contained a magazine which concealed two small packing slips, each containing 0.08 grams of LSD in the form of multiple perforated tabs (charge 5).
6Later that afternoon you attended Mr Gelder's address after receiving a message that there was a package in the mailbox for you to collect. This message was sent by police from Gelder's Facebook Messenger account. Police arrested you when you retrieved the empty envelope from Mr Gelder's mailbox. You initially made a number of admissions to police upon your arrest. A conversation was covertly recorded following a caution being given to you. In this recorded conversation, you explained to police that your offending commenced a few months ago. You ordered the drugs through messaging service, Wickr, whereby you paid an unknown person with Bitcoin currency.
7During this record of conversation, you also said that a while ago you had ordered 500 LSD tablets for $15 per tablet and 500 MDMA pills for $20 per pill, both purchases paid for with Bitcoin. You had received the 500 MDMA pills which arrived concealed in protein powder and this is Charge 3, traffick in a drug of dependence. You told officers that you sell MDMA pills to your friends at cost price and that you had about 30 to 40 MDMA pills left from your order of 500 (part of Charge 3).
8You had attended Gelder's house on 28 February 2019 to collect the 500 LSD tabs. You told police that you had also ordered 5 to 10 grams of cocaine at $200 per gram, which was to be delivered to Gelder's house and which was for your personal use. You had made some profit from selling, you told police, but not much. Whilst there was some attempt at minimisation of your involvement, I accept that you made relevant admissions, that you were expressing remorse and regret for your action from the outset, and that you did not seek to blame others.
9At approximately 6:30pm on 28 February 2019, police conducted a search of your bedroom at your parents’ home in Manor Lakes. The following items were seized from under the mattress in your bedroom: 4.5 grams of cocaine contained within five zip-lock bags (this is Charge 4, trafficking a drug of dependence); 7.5 alprazolam tablets contained within a zip-lock bag (Charge 8, possession of a drug of dependence); 4.4 grams of psilocybin green powder contained within a zip-lock bag (Charge 6, possession of a drug of dependence); 1.6 grams of green vegetable matter containing N-dimethyltryptamine (DMT) in a zip-lock bag, (Charge 7, possession of a drug of dependence); 41 blue tablets containing MDMA weighing 20.3 grams (part of further evidence of Charge 3); and, lastly, six sildenafil tablets otherwise known as Viagra, contained in a sealed blister pack (Summary Charge 18, unlawful possession of poison).
10A record of interview was then formally commenced at the Werribee Police Station where you predominately made no comment, which is of course your right. You did, however, make admissions to possession of the MDMA, cocaine and Viagra that was seized by police. Following the conclusion of your formal record of interview you were charged and you were remanded in custody where you have remained to this day.
11A number of Facebook Messenger messages between you, Gelder and a Mr Michael Anania were located by police on Mr Gelder's hard drive. Briefly stated, those conversations made clear that you and Mr Gelder knew your behaviour was wrong and that your illegal packages were susceptible to being intercepted by the authorities. You sought to calm your co-defendant Gelder's worries assuring him that there was one more package to come and then you would cease.
12I turn now to your personal circumstances.
13You were born in Punjab in India on 6 February 1997 and you are now 22 years of age. You were between the ages of 21 and 22 at the time of your offending. Your parents, Archana and Kulwinder were both professionals who immigrated to Australia in search of a better life for their children. Your father was a qualified engineer and your mother a qualified pharmacist, but both found upon their arrival in Australia that their qualifications were not recognised and consequently they had to find other employment. Your father now works as a bus driver and your mother in a factory making blinds. Nonetheless, neither of them complained and they have always lived a law-abiding and respectful life, which values they sought to instil in both you and your younger sister. Your younger sister, Gursimar Kaur is now aged 18 and she has just completed her VCE at Werribee Secondary College where she was vice-captain of the school.
14Your parents have continued, and will continue, to support you as you move through the criminal justice system. Your parents worked long hours, both to provide for you and to be able to send money back to the family in India. Consequently, you and your sister were often left to care for yourselves and you described your childhood as being relatively austere.
15You describe your parents as strict but nonetheless you have a close relationship with both and, indeed, you were living at home with them at the time of your arrest.
16Your upbringing and childhood was otherwise unremarkable. When you arrived in Australia, you had practically no English, although you were fluent in both Punjabi and Hindi. Unfortunately, as a new arrival attending a new school, your physical and ethnic difference made you a target for extensive play yard bullying and harassment.
17Nonetheless you applied yourself, you were a well-behaved student and you worked hard to acquire literacy and numeracy skills. You then attended Werribee Secondary College and for the first three years you continued to experience harassment and bullying and social isolation. From year nine, however, it seems that you became rebellious and at this point you stopped listening to your parents. You continued to do well academically and completed your VCE. At the time of your arrest, you were about to begin the second year of a Bachelor of Applied Science at RMIT. You helped fund your tertiary study by working part-time at Coles.
18It seems that after you left school you began to go to nightclubs and it was in that environment that you first took the drug, ecstasy (MDMA). You liked its effects and thereafter “recreational drug use” quickly became an integral part of your social activities. In that world, I am told, you felt you belonged. You began to use cocaine and you quickly fell under its seductive charms. During this time you formed an intimate relationship with a young woman called Ashley. She was also a drug user. You had placed great hopes on that relationship and when it ended your drug use began to escalate.
19You had already began to source drugs online via the Wickr app. As
Ms Altman, your counsel, correctly noted, the ability to purchase drugs online placed you at one step removed from the grim reality of the business in which you were engaging.20You followed the well-trodden path of many addicts, from using only at weekends, to some weekday nights and then to every day. For a student working part-time at Coles, drug taking is expensive. To lower your costs, you began to purchase not just for yourself but also for your friends. The quantity that you were purchasing likewise escalated. You began to source both from within Australia and from overseas and this is the activity that you were engaged in at the time of your arrest and which forms the subject matter of the charges for which you fall to be dealt with today.
21On remand, since your arrest, you have resolved to remain drug-free. You have recognised that you have become addicted and you have positively engaged with your case worker and begun the steps towards your recovery and rehabilitation. Tendered on the plea as exhibit 3PS, was a report from
Mr Patrick Newton, clinical and forensic psychologist, dated 21 November 2001. You reported the history of your drug use, and you recognised that it had gotten out of control. You noted how drug use had become central to your relationships and to your life during 2018, and you had made a resolution at the start of 2019 to, 'get your life back in control'.22That resolution succumbed to the repeated encouragement from so-called friends to return to drug use. Not wanting to be abandoned by this cohort of friends, you did their bidding. Mr Newton sets out clearly how drug use allowed you to overcome your feelings of insecurity and how the offending:
'… not only allowed him to ingratiate himself with other drug users but also provided Mr Singh with a way of gaining broader kudos: thus enhancing his own status in the group'.
23Your drug use of course led to your isolation and it undermined the very connections that you had with your family and with non-drug-using friends. As a result, Mr Newton stated, 'his drug use actually served to exacerbate the very problems that he was hoping to solve through it'.
24To Mr Newton you expressed remorse and regret for your conduct. You demonstrated insight, stating that your former rationalisations for your conduct now seemed hollow and foolish. Further, you demonstrated an awareness of the risks inherent in your drug use and hence of the risks which supplying your friends with drugs had entailed for them. You also demonstrated an awareness of the gravity of the charges that you are now facing. In
Mr Newton's opinion, your manifest symptoms incorporated both reactive factors related to your legal matters as well as more chronic issues related to your self-esteem and your sense of identity. He states: 'his feelings of shame and embarrassment are contributing to a self-punitive dialogue that feeds his depression'.25Mr Newton's opinion was that your symptoms were sufficiently severe to warrant a diagnosis of an adjustment disorder with mixed anxiety and depressed mood. He also opined that your drug use had been sufficiently severe to warrant a diagnosis of moderate substance use disorder. The choices that you have made since your arrest have placed that disorder in remission and importantly, in my view, you are able to discuss with Mr Newton the connection between your depression and your drug use and the role played by your connection to drug-using friends.
26You have already made progress since your arrest and in Mr Newton's words: 'this progress together with his level of insight augers well for his ultimate prognosis'.
27Mr Newton noted that:
'Mr Singh's current experience of the criminal justice system and remand have been profoundly aversive and would likely act as strong motivators for him to pursue constructive personal change for some time to come. Provided this motivation can be effectively harnessed, the other factors (as stated above) are such that there will be grounds to be positive about
Mr Singh's rehabilitative prospects'.
28I turn now to the submissions of counsel.
29Ms Champion, learned counsel for the prosecution, in her concise, well-presented and helpful submissions, identified the relevant sentencing considerations under both Commonwealth and State law. She reminded me of the quantity-based sentencing regime which attaches to drug-offending and she helpfully expressed for me the quantities of the various drugs imported in the various charges as a percentage of the relevant commercial quantity threshold. This was given to me in the interests of consistency. I note in this regard that in Charge 1, the amount of MDMA that you imported was 40.7 percent of the commercial quantity.
30She reminded me that, of course, quantity was not the sole or determinate factor in assessing the objective gravity of the offending. Regard must also be had to the role and moral culpability of the individual defendant, and to the nature of the enterprise among other considerations.
31Ms Champion submitted that it was you who organised and arranged the deliveries. It was not an entirely altruistic enterprise as you made some profit however she accepted, most fairly, that this was not a fully commercial drug trafficking enterprise where you had a lavish lifestyle, funded by your ill-gotten gains. The use of encrypted platforms to place orders and the arrangement made for deliveries to another address by an Australia Post box that you had been informed would not be running checks on mail, clearly indicated that you knew what you were doing was wrong.
32Ms Champion submitted that the only appropriate disposition was a head sentence with a non-parole period. She further submitted there should be some cumulation between the trafficking and importation charges, subject of course to the principle of totality.
33On your behalf, Ms Altman, as she then was, in her persuasive submissions, conceded that the only disposition was a head sentence with a non-parole period. In mitigation of that sentence, she urged upon the Court your youth and your plea of guilty which was effectively, she argued, entered in the course of that record of conversation at the point of your arrest. Your plea brings with it the utilitarian value of saving the community the time and the cost of a trial. She also submitted that your plea of guilty was an indication of your remorse. As to the objective gravity, she described you as the broker among the friendship group, so that everyone could have a “good time”.
34For a person of your generation, purchasing online enables what she described as a “cognitive dissonance”, meaning that you are effectively that you are removed from the act. You were not, she submitted, the type of importer of drugs of dependence that the courts are all too familiar with, but rather were a young person sitting in your home in front of a screen organising with friends to have a weekend at home taking the newly purchased drugs. She accepted, however, that you were not an exploited courier coerced into bringing in drugs out of financial need. You have been well brought up. You have been given values.
35She also accepted that there was a need for general deterrence that is, sending a message from this Court to the outside world, if online drug purchasing and importation was to become the new model for such offending. She pointed to your admissions in the record of conversation, made when you were unaware that you were being recorded and were therefore speaking frankly and honestly to the police. In that conversation you expressed concern for your co-accused Gelder and you sought to assume all of the responsibility and the blame. She described this as an early expression of your remorse.
36She submitted that the objective gravity of your offending was not such as to entirely displace the importance of your rehabilitation, given your youth, and I agree with that submission. She noted that when you first went into custody, you did not think of yourself as an addict. However, over time you have come to gain insight into your dependence on drugs and to meaningfully engage both with your case management officer and in all available programs. Since your remand you have demonstrated an ability to resist bad influences, to remain drug-free and to engage in programs, taking the most important first steps towards your recovery and rehabilitation.
37She submitted that you are acutely aware of the shame that you have brought upon your family and that she told me that your family remains supportive of you. I note that your father and your sister are here again in Court as is one of your non-drug taking, law-abiding friends. You were someone who had lived a hard-working and law-abiding life, she said, and you were therefore someone who could return to that life. Your prospects of rehabilitation were, she submitted, excellent and she submitted that the need for specific deterrence in your case was moderated in light of your positive engagement.
38Her ultimate submission was that all relevant sentencing purposes could be sufficiently addressed by the imposition of a head sentence and a shorter than normal non-parole period, enabling your rehabilitation to continue in the community, should you obtain parole.
39Mr Singh, those of us who sit in the criminal courts day after day are aware of this one simple truth: drugs are tearing out the heart of our community. Our community is effectively losing a generation. What might start out as a fun Saturday night, what might be regarded as recreational drug consumption that can be controlled, can quickly spiral into the horrors of addiction. Many lose everything and some indeed lose their lives. Your own experience must show you what you have lost.
40You have been fortunate in that you have managed to retain the love and support of your family and your friendship group. Within a short period from your first experiment with drugs you were using drugs on a regular basis. Indeed, it seems to me that your usage had gotten beyond your control. Drugs gave you a sense of belonging but in fact they were separating you from those to whom you belong.
41Drugs elevated your low self-esteem but in fact, as Mr Newton noted, they exacerbated and entrenched your lack of self-worth. You were ill-equipped to deal with a relationship breakup, perhaps a sign of your immaturity and youth. As your use spiralled out of control, you began to purchase drugs online using an encrypted platform. I accept, Mr Singh, that for persons of your generation the virtual world is as navigable, if not more so, than the real world. Purchasing online enables you to be removed from the grim realities of the sordid market into which you have entered.
42It may be that anything can be purchased in the virtual world; that probably is right. But that is why that when you go online you must take a moral compass with you, that is, a sense of what is right and what is wrong. The awful irony of your case - and of which you must be aware is that in your desire to belong you lost yourself. You lost the person of whom your family and your friends have spoken so highly in the material that was tendered before me.
43Over a four-month period you became a participant in this trade sending drugs into our community. As your drug use increased you were drawn into purchasing for others and I accept initially this was to reduce your own cost, although I find that you did make a profit, albeit impossible to estimate. I accept that your customer base was at least initially your friendship circle and that you were not engaged in a brazen and profit-driven commercial enterprise. It was however an enterprise where drugs were sourced in increasing quantities using an encrypted platform to order drugs, at first from within Australia and then from overseas, and you did so with apparent ease. You were the arranger, the person who sourced the drugs from yourself and your ever-expanding drug circle.
44As the demand increased, so did the quantity as can be seen respectively in the difference between Charges 3 and Charge 1, 500 pills to 1,000 pills. The price paid for the drugs was not insignificant: $10,000 for the drugs that are the subject matter of Charge 3 and possibly double that, we do not know, for the drugs that are the subject matter of Charge 1. $7,500 was paid for the drugs which are the subject matter of Charge 5. $1,800 was paid for the cocaine which you told police was for your personal use.
45You arranged a point of delivery away from your home address, involving a friend and now co-accused and when he became reluctant you told him do not worry. You well knew that what you were doing was wrong, Mr Singh. A clear message must be sent those who participate in this evil trade that they will be severely punished if and when they come before the Courts.
46Now, in sentencing you, I must have regard to a range of different factors. I have taken into account the matters set out in section 16(a)(2) of the Crimes Act1914 (Cth) and s 5 of the Sentencing Act1991 (Vic). Among those matters, I must have regard to the nature and circumstances of the offence and any injury or loss that results. I have had regard to the degree of contrition or remorse that you have shown both by your plea, your admissions to the police and the steps that you have taken since your arrest to rehabilitate yourself.
47I must give effect to principles of both general and specific deterrence, that is, I must deter others from behaving as you did and I must consider deterring you from any repeat of such behaviour. I must express the community's denunciation of your conduct and I should promote, if possible, your rehabilitation.
48I must have regard to current sentencing practices as determined and described by the Court of Appeal for the kind of offences you have committed and the maximum penalties imposed by Parliament. In short, I have to try and balance your personal circumstances with the circumstances of your offending. But I am required by law to pass no longer a sentence than is necessary in addressing those circumstances.
49Clearly principles of general deterrence, denunciation and just punishment all have a most important role to play in this sentencing exercise. However, those considerations must be balanced with your youth - you were 21 at the start of this offending - and your prospects for rehabilitation. I find that in your case, the need for specific deterrence, that is to deter you from any repeat offending is diminished, although it is not entirely eliminated. I have had regard to all of the matters urged upon me so ably by Ms Altman, as well as the matters placed in front of me, likewise so ably by Ms Champion.
50For the avoidance of doubt, I have had particular regard to your plea of guilty; to your remorse and your contrition, which I do find to be genuine; to your youth; to your excellent prospects of rehabilitation in light of the continued support that you have and will have from your family; to the burden that you carry of the shame that you have brought upon your family; and to the principle of totality.
51The gravity of your offending calls for a significant and substantial term of imprisonment. However, I have moderated the individual sentences and the orders for cumulation that I would otherwise have made. I have imposed a shorter than normal non-parole period so that should you get parole, you will be able to continue your rehabilitation in the community.
52If you would please stand, Mr Singh.
53On Charge 1, importing a marketable quantity of a border controlled drug, MDMA: you are sentenced to a term of imprisonment of four (4) years and six (6) months.
54On Charge 2, importing a marketable quantity of border controlled drug, cocaine: you are sentenced to a term of imprisonment of twelve (12) months.
55On Charge 3, trafficking in a drug of dependence, MDMA: you are sentenced to a term of imprisonment of eight (8) months.
56On Charge 4, trafficking in a drug of dependence, cocaine: you are sentenced to a term of imprisonment of four (4) months.
57On Charge 5, importing a marketable quantity of border controlled drug, LSD: you are sentenced to a term of imprisonment of fifteen (15) months.
58On Charges 6, 7 and 8, possession of a drug of dependence, namely, psilocybin, dimethyltryptamine and alprazolam: you are sentenced to an aggregate term of imprisonment of one (1) month. I am not satisfied that on the balance of probabilities that the offences in Charges 6, 7 and 8 were not committed for a purpose connected with trafficking in those drugs of dependence.
59On the Summary Charge 18, possession of poison, sildenafil, otherwise known as Viagra: you are convicted and discharged.
60Now, I direct that two (2) months of the sentence on Charge 4 run cumulative to the sentence on Charge 3. This makes a total effective State sentence of ten (10) months.
61I further direct that the sentence on Charge 1 shall commence four (4) months from today. The sentence on Charge 2, shall commence ten (10) months prior to the end of the sentence on Charge 1. This is intended to make two (2) months of that sentence cumulative to the sentence on Charge 1. The sentence on Charge 5 shall commence thirteen (13) months prior to the end of the sentence on Charge 2, making two (2) months of that sentence cumulative to the sentence on Charge 2 and cumulative to the sentence on Charge 1.
62Now, that makes a total effective Federal sentence of four (4) years and ten (10) months. But the Federal sentence begins four (4) months after the commencement of the State offence. I order that you must serve two (2) years and four (4) months of the Federal sentence before you are eligible for parole.
63So it is my intention to impose a total effective sentence, having regard to all the matters which I hope I have clearly set out, of five (5) years and two (2) months. I have set a non-parole period of two (2) years and eight (8) months.
64Pursuant to section 18(4) of the Sentencing Act, I declare that you have served 281 days of the sentence that I have passed upon you and I direct that this be entered into the records of the court.
65Pursuant to section 6AAA of the Sentencing Act, had you not pleaded guilty, you would have been sentenced to a total effective sentence of seven (7) years and six (6) months and a non-parole period of five (5) years and four (4) months.
66Now, I am making a 464ZF forensic sample order, which means in short, Mr Singh, that I am directing that the authorities be permitted to take a DNA sample from you. Now, that is invariably taken by means of a buccal swab, just taking some saliva from your mouth.
67But I have to inform you that when authorities come to take that sample, should you refuse then they are entitled to use such force as is reasonably necessary to take the swab and that may include a more invasive procedure such as a blood sample. I am sure there will not be any issues.
68I am also making an order for forfeiture of a mobile phone and I am also making a disposal order of the matters set out in the schedule attached. Mr Gwynn, I was told by Ms Altman that those orders were agreed to.
69MR GWYNN: Yes, not opposed, Your Honour, yes.
70HIS HONOUR: Thank you. Thank you, Mr Gwynn. Mr Singh, no one in this Court takes comfort in sending someone as young as you to prison. You have on any view made a serious mistake, but you are young and the important thing is to try and learn from your mistakes. There are grounds for optimism, that in time you can put back into the community to which your mother and father have given so much to. Your future lies very much in your own hands. Thank you, Mr Singh. Yes, if you please go with the officers. And to Mr Singh's family, the manner in which you have conducted yourselves in Court at what must have been a most difficult time has not gone unnoticed and I thank you.
71All right, my thanks also to Ms Altman, as she then was, and to you,
Ms Champion. So, thank you. And Mr Gwynn if I may say so, it is a delight to see you in my Court.72MR GWYNN: Thank you, Your Honour.
73HIS HONOUR: All right, so thank you. Have a good afternoon.
74MS CHAMPION: Thank you, Your Honour.
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