Director of Public Prosecutions v Aitchison

[2016] VCC 2053

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
 Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR -11-02171

DIRECTOR OF PUBLIC PROSECUTIONS

v

LEITH AITCHISON

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JUDGE:	HIS HONOUR JUDGE MAIDMENT
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	20 December 2016
CASE MAY BE CITED AS:	DPP v Aitchison
MEDIUM NEUTRAL CITATION:	[2016] VCC 2053

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr S. Moglia
For the Accused	Ms. N. Sheridan-Smith

HIS HONOUR: 

1Leith Aitchison, you pleaded guilty to an indictment charging you with importing a border controlled drug on ten occasions, during the period between
29 November 2010 and 18 February 2011, and also with attempting to possess a border controlled drug on 7 February 2011.  The maximum term of imprisonment for Charge 1 is ten years, and that for Charge 2 is two years.

2You have admitted prior court appearances and convictions, although it is not submitted that those are of any particular relevance to this sentencing exercise. 

3The prosecution tendered and relied upon a summary of the opening. That was read to the court a short time ago.  I am not going to read it again.  It sets out of course of conduct on your part in which you imported varying quantities of the drug 3,4-MDMC during the period covered by the indictment on ten separate occasions. 

4The total quantity of 3,4-MCMC that you imported, pursuant to Charge 1, was 2,849.5 grams pure.  I understand that there was no provision for charges of trafficking commercial or marketable quantities at the time that you engaged in this conduct, but that had you been charged with the offence in Charge 1 now, it would be well and truly above the commercial threshold. Indeed you would be what, three or four times the commercial threshold or thereabouts. The sentencing regime involves a maximum term of imprisonment of ten years for that, which is considerably less than it might be had you been charged with that offence now.

5The offending conduct was persistent, not particularly sophisticated, shows little attempt to conceal your identity as the recipient of these packages, which supports the proposition that this was an attempt by you to obtain a substance which was a synthetic compound, comparable with a drug used in Africa, which was a substitute for amphetamines, which you had used over
a significant period of time, starting in childhood to deal with your ADHD.  

6Turning to matters personal to you.  The offending obviously occurred a very long time ago now.  You certainly have, it is true, contributed to the delay, in the sense that you have challenged the charges, taken legal issues, absconded for a period. However that is of less significance than the fact that there has been a delay.  The matter has been hanging over your head for a long time.  In the main, at least, your legal challenges to the charges were perfectly reasonable and legitimate challenges. Though they were not successful, they were reasonable actions for you to take with no doubt a good deal of legal advice. 

7The important feature of the delay is that it has enabled you to take a good hard look at yourself and where you are going in life.  It is clear from the psychological report and the catalogue of your life, that your life has been dominated by drug abuse, that it has affected your mental health and that there are other issues which have also exacerbated your mental health issues. It has been a blight on  the first part of your life. 

8However, being incarcerated gave you the opportunity, it seems, to take stock, to reconsider where you are going, to find religion. It seems that you have assisted with your inclination towards Islam. You have embraced that religion and married somebody who is clearly within that religion.

9It seems to have given you the strength to turn your back on drugs. It is to be hoped that that enthusiasm and the community that has embraced you and in which you are a significant participant, will help you through the difficult times. Because it seems to me that it would be naïve to think that you will not have some difficult times with the kind of history that you have had in drug abuse over the years and the effects that it has had on your mental faculties. 

10There is a good deal ahead of you, in terms of rehabilitating yourself, but there is no doubt that what you have done in the last three years or thereabouts, has been very significant and enables me to take a view about sentencing you, which is very different from that which I would have been forced to take had you not embarked on that rehabilitation process.

11This is the kind of offending that would attract sentences of imprisonment of five years or so, maybe more, even with some of the features that I have already identified.  These offences are often difficult to detect.  There is a very strong public interest in deterring others from committing offences of this kind and therefore, it is incumbent upon the courts to impose sentences that have the capacity to achieve that.

12However, it is also important for the courts to recognise the need to rehabilitate. It is particularly important where community protection can better be achieved by continuing that rehabilitation process, than by interrupting it with
a further term of imprisonment. 

13You have already served, it is agreed, 360 days in custody, almost a year. It is submitted by your counsel and accepted by the prosecution that the sentence I impose should not require you to serve any more time. I propose to accede to that submission. 

14It is necessary for me to ensure that I comply with the Commonwealth legislation on sentencing and I have been greatly assisted by the written submission on sentence produced by the learned prosecutor. That has identified, it seems to me, fully the matters that I need to be cognisant of and take into account in determining an appropriate sentence.  I do not propose to go through that document, but I do adopt it.  I adopt that document, as well as the prosecution opening, and incorporate both of those documents into these reasons for sentence.

15It is not suggested by your counsel that the prosecutor has made any error in presenting the facts, or indeed in presenting the submissions on the plea and
I accept those submissions. 

16As to the need to deter you from further offending, it is, I think, fair to say that your prospects of rehabilitation have to be regarded with some degree of concern. Therefore one has a guarded view about those prospects, because it is still early days for somebody who has had such a drug history as you have.

17Your psychologist, or the psychologist who provided the report, identified a legitimate concern arising from the fact that you are now very motivated by a new-found religion and the enthusiasm of being part of a new community. There will come a time when the level of enthusiasm wears off, inevitably and you may well find that that is the most difficult period for you to negotiate, because there will be almost inevitably, a temptation to revert to the kind of drugs that you have used in the past to self-medicate to deal with your mental health issues. For that reason, there is still some concern about your prospects for rehabilitation or continued progress within the rehabilitation you have already embarked upon.

18That said, I am satisfied that the kind of sentence that has been proposed and the salutary experience you have had of spending 360 days in custody, will have had a very significant influence upon your future and will operate to deter you from further offending of this kind, or any other kind for that matter. 

19You now have the benefit of a wife and a family.  You have the benefit of strong community.  Some members of the community have come here today to support you and I accept that you are on the right road and I do not propose to interfere with that progress that you have made.

20In all the circumstances, therefore, I think that the proposed course, being
a sentence which would involve a sentence of less than three years' imprisonment in total, with an order that you be released after serving 360 days and declaring pre-sentence detention of 360 days as time to be reckoned as served on the sentence, would result in your immediate release. 

21I would propose that the order for your release be conditioned upon you being of good behaviour for a period of three years, and that it would involve you being subject to a recognizance of $2,000, which you would not have to pay, but you would be liable to lose if you committed any other offence punishable by imprisonment during the next three years.

22I need your consent to place you on that order.  Are you willing to consent to be placed on that order? 

23OFFENDER:  Yes. 

24HIS HONOUR:  Yes, all right.  The order will be drawn up, but I am going to pass sentence before I ask that that be done.  Would you please stand.

25Leith Aitchison, on Charge 1 on the indictment of importing a border controlled drug, I convict you and sentence you to imprisonment for a period of two years and ten months. 

26On Charge 2 on the indictment of attempting to possess a border controlled drug, I convict you and sentence you to imprisonment for a period of six months. 

27Both of those sentences are to commence today, therefore they are concurrent.  The total effective sentence is two years and ten months.  I order that you be released after serving 360 days of that sentence.

28I declare 360 days pre-sentence detention as time to be reckoned as served on the sentence that I have imposed and deducted administratively and I order that that be noted in the records of the court.

29You will be released upon a recognizance that you be of good behaviour for
a period of three years from today's date, on your own recognizance of $2,000. 

30Now, but for you pleas of guilty, I would have sentenced you to four years' imprisonment, with a non-parole period of three years. 

31Are there any other orders that I need make? 

32MS SHERIDAN-SMITH:  No, Your Honour.

33HIS HONOUR:  No?

34MR MOGLIA:  No, Your Honour. 

35HIS HONOUR:  No?  All right.  Take a seat whilst that order is being drawn up, Mr Aitchison.

36MS SHERIDAN-SMITH:  My instructor's just attending to the order now.  It won't be a moment, Your Honour. 

37HIS HONOUR:  Yes, all right, thank you.

38MS SHERIDAN-SMITH:  I apologise for the coughing. 

39HIS HONOUR:  No, you are doing all right.  I hope you are not making any public speeches in the next day or two. 

40MS SHERIDAN-SMITH:  Unfortunately it's a busy week.  It is hard to make submissions by whispering.  I have got the (indistinct) of the orders.    

41HIS HONOUR:  Thank you.

42MS SHERIDAN-SMITH:  (Indistinct words) signature.

43HIS HONOUR:  Yes, Mr Moglia, would you mind accompanying my associate to your client?

44MR MOGLIA:  I will, thank you. 

45HIS HONOUR:  Thank you.  Yes, all right, well that is now complete and I do not know whether there are any other formalities.  Can he be released from the dock.  Thank you.  Yes, thank you.                     

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