Director of Public Prosecutions v Ajanaf
[2016] VCC 900
•28 June 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-15-02134
Indictment No. F11633846
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| IMAD AJANAF |
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JUDGE: | HIS HONOUR JUDGE PARRISH | |
WHERE HELD: | Melbourne | |
DATE OF PLEA HEARING: | 10 June 2016 | |
DATE OF SENTENCE: | 28 June 2016 | |
CASE MAY BE CITED AS: | Director of Public Prosecutions v Ajanaf | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 900 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – trafficking in a drug of dependence in a quantity that was not less than a commercial quantity – four charges of possession of drugs of dependence – jury verdict
Legislation Cited: Drugs, Poisons and Controlled Substances Act 1981, s71AA, s71AC and s73; Sentencing Act 1991; Crimes Act 1958, s464ZF(2); Confiscation Act 1997, s32(1), s77(1)
Cases Cited:Wong v R [2001] HCA 64; R v Vo (2000) 118 A Crim R 320; Markarian v R (2005) 228 CLR 357; Yardley v Betts (1979) 1 A Crim R 329; R v Piercey [1971] VR 647; Moran & Byrnes v R (1987) 31 A Crim R 248
Sentence: Total effective sentence of 4 years’ imprisonment with a non-parole period of 2½ years.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr K Doyle | Solicitor for the Office of Public Prosecutions |
| For the Accused | Mr S Grant | Tricarico & Marcevski Lawyers |
HIS HONOUR:
1 In respect of Indictment F11633846, you, Imad Ajanaf, were charged with the following offences:
(a)Charge 1
That you, at Lalor on 8 May 2015, trafficked in a drug of dependence, namely Methylamphetamine, in a quantity that was not less than a large commercial quantity applicable to that drug of dependence.
Such offence of trafficking in a large commercial quantity is contrary to s.71 of the Drugs, Poisons and Controlled Substances Act 1981.
(b)Charge 2
That you, at Lalor on 8 May 2015, trafficked in a drug of dependence, namely Cocaine.
Trafficking in a drug of dependence is contrary to s.71AC of the Drugs, Poisons and Controlled Substances Act 1981.
(c)Charge 3
That you, at Lalor on 8 May 2015, trafficked in a drug of dependence, namely, 3,4-methylenedioxy-N-methylamphetamine (“MDMA”).
Trafficking in a drug of dependence is contrary to s.71AC of the Drugs, Poisons and Controlled Substances Act 1981.
(d)Charge 4
That you, at Lalor on 8 May 2015, trafficked in a drug of dependence, namely, Amphetamine.
Trafficking in Amphetamine is contrary to s.71AC of the Drugs, Poisons and Controlled Substances Act 1981.
(e)Charge 5
That you, at Lalor on 8 May 2015, had in your possession a drug of dependence, namely, 5-methoxy-N,N-methylisopropyltryptamine, an analogue of 5-methoxy-N,N-dimethyltryptamine.
The offence of being in possession of such drug of dependence is contrary to s.73 of the Drugs, Poisons and Controlled Substances Act 1981.
2 At your arraignment on 31 May 2016, you pleaded guilty to Charge 5. You pleaded not guilty to Charges 1, 2, 3 and 4 and stood your trial in relation to those offences.
Jury verdicts
3 On 3 June 2016, a jury gave the following verdicts:
(a)In relation to Charge 1, that you were guilty of the alternative offence of trafficking in a drug of dependence, namely, Methylamphetamine, in a quantity that was not less than a commercial quantity of that drug;
(b)In relation to Charge 2, that you were guilty of the alternative offence of possessing a drug of dependence, namely Cocaine;
(c)In relation to Charge 3, the jury found you guilty of the alternative offence of possessing a drug of dependence, namely, MDMA;
(d)In relation to Charge 4, the jury found you guilty of the alternative offence of possessing a drug of dependence, namely, Amphetamine.
4 The offence of trafficking a drug of dependence in a quantity not less than a commercial quantity (Charge 1) is contrary to s.71AA of the Drugs, Poisons and Controlled Substances Act 1981 and carries a maximum penalty of 25 years’ imprisonment. The offences involving the possession of drugs of dependence (Charges 2, 3, 4 and 5) each carry a maximum penalty of not more than four penalty units, or five years’ imprisonment, or both.
The circumstances of the offending
5 At 7.05 am on 8 May 2015, police executed a search warrant at the premises of your parents situated at 19 Mackey Street, Lalor. At that time you lived in the bungalow at the rear of such premises and were present in such bungalow with the door locked when the warrant was executed.
6 A search of the bungalow revealed the following:
(a) In an orange “Nike” shoebox on top of speakers there was situated one large Snap Lock bag and two small Snap Lock bags containing white powder (referred to as Items 7 and 8);
On a bedside table in the bungalow there was found a Snap Lock bag containing white powder (referred to as Item 15).
Items 7, 8 and 15 were confirmed on analysis to contain Cocaine with a total combined weight of 40.8 grams, with the trafficable quantity of Cocaine being 3 grams (Charge 2);
(b) In the top drawer of a bedside table in the bungalow, there was found in a Snap Lock bag 41 blue tablets (referred to as Item 12).
Furthermore, in the pocket of a Country Road jacket, there was found two small Snap Lock bags containing brown crystal substance (referred to as Item 17).
Items 12 and 17 were confirmed on analysis to contain MDMA (Ecstasy) with a total combined weight of 16.5 grams, with the trafficable quantity of MDMA being 3 grams (Charge 3);
(c) Also found in the Country Road jacket was one small Snap Lock bag containing brown compacted powder (referred to as Item 16).
Item 16 was confirmed on analysis to contain Amphetamine with a total combined weight of 4.1 grams, with the trafficable quantity of amphetamine, being 3 grams (Charge 4);
(d) Also in the top drawer of the bedside table there was found a Snap Lock bag containing four white tablets (referred to as Item 13).
Item 13 was confirmed on analysis to contain 1.1 grams of 5-methoxy-N, N-methylisopropyltryptamine which is an analogue of 5-methoxy-N, N-dimethyltryptamine which is listed as a drug in column 1 of Part 1 of the Schedule 11 to the Drugs, Poisons and Controlled Substances Act 1981 (Charge 5).
Analysis of jury verdict
7 As I have already recorded, you pleaded guilty to Charge 5 at your arraignment.
8 In relation to Charges 2, 3 and 4, your counsel, during the course of the trial, asserted that although you were not guilty of trafficking each of the drugs relevant to Charges 2, 3 and 4, you were guilty of the offence of possessing such drugs. Furthermore, you gave direct evidence that you possessed such drugs but at no time did you intend to, or had, trafficked in such drugs.
9 Police also located in the bungalow a blue Reebok shoebox on the top of speakers which contained a Snap Lock bag containing large crystals, and two Snap Lock bags containing small crystals (referred to respectively as Items 9, 10 and 11). Also in the top drawer of the bedside table, there was found one Snap Lock bag containing brown crystals (referred to as Item 14).
10 Furthermore, police also found, in an air-conditioning duct in the bungalow, two large Snap Lock bags containing white crystals (referred to as Items 3 and 5) and also inside a black “Milu” shoebox under the bed in the bungalow, four large Snap Lock bags containing white crystals (referred to as Item 1). Items 1, 3, 5, 9, 10, 11 and 14 were confirmed on analysis to contain Methylamphetamine (“Ice”), with a total combined weight of 2,446.2 grams, with a large commercial quantity constituted by one kilogram or more.
11 In relation to the total amount of Methylamphetamine found in the bungalow on 8 May 2015 – that is to say the 2,446.2 grams – the vast bulk of Methylamphetamine was made up of Item 1, being the four bags found in the Milu shoebox (1,757.3 grams) and by Items 3 and 4, being the two bags of Methylamphetamine found in the air-conditioning duct (648.3 grams). The total amount of this Methylamphetamine was 2,405.6 grams, with the balance of 40.6 grams made up by Items 9, 10, 11 and 14 found in other parts of the bungalow.
12 The Methylamphetamine constituting Items 1, 3 and 5 was contained in six Snap Lock bags emblazoned with the words, “Angry Bird”. It was this Methylamphetamine which the prosecution alleged was the basis for Charge 1 – that is to say, trafficking in a drug of dependence in a quantity that was not less than a large commercial quantity. The prosecution accepted that the Methylamphetamine made up by Items 9, 10, 11 and 14 was for personal use.
13 In relation to Charge 1 the prosecution alleged that you intentionally committed the act of trafficking by one or more of the following means:
(a) that you were in possession of Methylamphetamine with the intention to sell; or
(b) was complicit by way of assisting to sell the drugs of another person by holding or minding the Methylamphetamine, knowing it was to be sold; or
(c) you were intentionally participating in the movement of the drug, Methylamphetamine, from source to consumer in a commercial setting.
Of these, emphasis was placed by the prosecution on (a) and (b).
14 You gave evidence during the course of your trial that you commenced using drugs from the age of 18 or 19 for recreational purposes, and such drugs consisted of MDMA pills, Cocaine and Cannabis. You asserted that at some time between three-quarters of the way through 2014 and some time towards the end of 2014, you became an every day user of drugs.
15 Furthermore, you gave evidence that at or around May 2015, you were using Methylamphetamine, or Ice, every day, and would use a couple of grams “easily” every day.
16 In relation to the Methylamphetamine made up by Items 9, 10, 11 and 14 found around the bungalow (that is to say, the Methylamphetamine not contained in the Milu shoebox or the air-conditioning duct), you asserted that such drug was for personal use.
17 In particular, you gave evidence that the black Milu shoebox was given to you by someone you referred to as “Moe”, only a few days before the execution of the warrant. You described “Moe” as being a casual acquaintance met through other friends. You described how Moe came to your bungalow and put the shoebox under your bed, advising you that he would leave something there and come back in a couple of days. At that time you described that you were smoking drugs with Moe.
18 You gave evidence that you did not enquire of Moe what was contained in the shoebox. At the time of the execution of the warrant, when the police were banging on your bungalow door, you described that you panicked and thought maybe someone was coming to steal the drugs in your bungalow. You stated that you remembered the box that Moe had delivered a few days earlier and stated to the Court, in part:
“I honestly don’t remember too much but I remember, like, walking up and down the room and then I remembered the box. I remember seeing the box and I just, like quickly lifted the lid and grabbed what was there. I seen what was there, grabbed what was there and it all – to be honest, it all happened so quick.”
(Transcript 52, Lines 18-24).
19 You also gave evidence that you did not open the whole lid, only lifted it off and just grabbed two bags, which you jammed into the air-conditioning duct.
20 On your behalf, it was put by your counsel that you had no knowledge of the contents of the shoebox dropped off at your premises by Moe a few days prior to the execution of the warrant, and only became aware that there were two bags of Methylamphetamine in the shoebox when you grabbed two bags from the shoebox and took them over to, and put them in, the air-conditioning duct.
21 You were extensively cross-examined about the circumstances which you alleged “Moe” brought the shoebox to your premises and your knowledge as to what was in the shoebox prior to the execution of the warrant.
22 During the course of your plea it was submitted by your counsel that the jury verdict in relation to Charge 1 should be construed to mean that the jury accepted that you had no knowledge of the Methylamphetamine contained in the Milu shoebox until that time when you saw fit to remove what you say you saw – the top two bags of Methylamphetamine which you placed in the air-conditioning duct.
23 In this sense, it was put on your behalf that any knowledge of the Methylamphetamine contained in the shoebox only occurred when you became aware of banging on the bungalow door to enter the bungalow. It was submitted that such knowledge was limited to the two bags removed by you and was very short lived, being the time between when the two bags were removed from the shoebox and placed in the duct. In support of such a submission, your counsel highlighted that the jury found you guilty of the lesser offence of trafficking a drug of dependence in not less than a commercial quantity of the drug (that is, being 500 grams or more) rather than the original charge of trafficking in a drug of dependence in not less than a large commercial quantity of the drug (that is, being one kilogram or more).
24 In response, counsel for the prosecution submitted that the jury verdict should be construed to mean that you were aware that the Milu shoebox did contain Methylamphetamine from the time when it was delivered to you in circumstances where you were holding or minding such drug, knowing it was to be sold by a third party. In such circumstances, the jury accepted that you might not be precisely aware of the actual weight of the drug, given the shoebox size, but were satisfied beyond reasonable doubt that you had knowledge that there was at least 500 grams or more which constituted a commercial quantity.
25 Such submission accepts that you were complicit by way of assisting to sell the Methylamphetamine of another person by holding or minding the drug, knowing it was to be sold rather than you having the intention to sell it yourself.
26 After a consideration of all of the evidence I am satisfied beyond reasonable doubt that the jury verdict in relation to Charge 1 should be construed consistent with the submission of counsel for the prosecution.
27 It must be borne in mind, that on the basis of the submission made by your counsel, your knowledge of the Methylamphetamine would have been limited to two bags for a matter of seconds from shortly after when the police began knocking to the time they entered, during which time you removed two bags from the shoebox and placed them in the air-conditioning duct. I do not consider such a set of circumstances to be plausible.
28 Obviously enough, the jury accepted, in relation to Charges 2, 3 and 4,that the drugs in your possession, relevant to each of those Charges, were for personal use and not trafficking in those drugs.
Your criminal record
29 Counsel for the prosecution tendered your criminal record (Exhibit 1) which revealed that you have not been convicted of any drug offences but were convicted of an armed robbery on 18 May 2010 and sentenced to 33 months’ imprisonment with a non-parole period of 12 months.
30
Counsel for the prosecution also informed the Court that you were on remand from when you were arrested on 8 May 2015 until you were bailed on
2 September 2015, a period of 124 days. I also note that you have been on remand since the date of the jury verdict – that is 3 June 2006 – to this date.
Your personal circumstances, educational and vocational background
31 Your counsel tendered the following documents:
(a) Defence submission on plea (Exhibit “A”);
(b)
Report of the clinical counsellor, Mr Neil Sanderson, dated
24 November 2015 (Exhibit “B”);
(c)
Report of the forensic psychologist, Dr Aaron Cunningham, dated
16 June 2015 (Exhibit “C”);
(d) Report from the counsellor, Mr F J Coughlan, of the Marble Arch Counselling and Consulting Services, dated 1 June 2015 (Exhibit “D”).
32 For convenience, I will also add the further documents tendered by your counsel:
(a) Sentencing Snapshot dated August 2014 pertaining to trafficking in a commercial quantity of drugs over the period from 2008-2009 to 2012-2013 (Exhibit “E”);
(b) Letter from your solicitors dated 14 July 2015 to the relevant authorities complaining about the regime that you were experiencing at the Metropolitan Remand Centre during your period of remand at that prison (Exhibit “F”).
33 Partly on the basis of such documents and partly on the basis of further submissions made by your counsel, I set out details of your personal circumstances, educational and vocational background.
34
You are presently 27 years old, having been born on 24 October 1988. At the time of the offending you were 26 years old. You were raised in the northern suburbs of Melbourne, being one of four siblings, with you being the second oldest and having an older brother and a younger brother and sister. Your parents came to Australia in 1986 or 1987 from Morocco, where there is still a very large extended family. You described your mother and father to
Mr Coughlan as “honest, hardworking people, who have never been in any kind of legal trouble”.
35 You attended a local primary school and described yourself as a “fairly good primary school student” and experienced no particular problem. You then attended the Lalor High School from Year 7 to Year 10, and during Year 10, you became involved with alcohol, which ultimately impacted significantly on your capacity to achieve at school. You left Lalor High School in Year 10 and then attended a variety of schools until your attendance at the Peter Lalor Secondary College, where you undertook Year 12 and ultimately passed the requirements of that year.
36 On leaving school, you went to work in the construction industry and performed a variety of labouring positions, including plastering and concreting. You also worked in the area of telephone sales. According to the history given by you to Mr Coughlan, you last worked several months prior to your arrest on 8 May 2015.
37 You are a single man with no children. You did inform Mr Coughlan that over the period from 2011 to 2014 you had a relationship with a young woman which unfortunately broke down in 2014, causing you to feel very hurt and betrayed by her actions.
38 Prior to your arrest you had been living at your parents’ home in a bungalow at the rear of the premises. You also informed Mr Coughlan that you had an extensive forensic history, commencing in 2005, and which was mainly dealt with in the Children’s Court – such offending was always drug related. You also confirmed that pursuant to your conviction for armed robbery on 18 May 2010 you served a period of incarceration of 12 months, after which there was a lengthy period of parole.
39 Seemingly, you met with Mr Coughlan on a number of occasions shortly after you were arrested in May 2015. At that time Mr Coughlan obtained the following history in relation to your alcohol and drug abuse:
(a)although a heavy drinker of alcohol from the age of 16 years, there had been a dramatic reduction in alcohol use over the past five years;
(b)you commenced to use amphetamines from about the age of 20 until the age of 23, and at your peak, would ingest up to 2 grams per week, mainly on weekends. You continued to use amphetamines until the time you were arrested. Your use of such drug diminished as a result of you using Methylamphetamine more regularly;
(c)you commenced to use Methylamphetamine at about the age of 20, after which it rapidly escalated to the stage where you were using such drug on an almost daily basis, which was the case when you were arrested on
8 May 2015. At that time you reported that you were using in excess of 0.5 grams per day;
(d)you reported that you commenced using MDMA – that is, Ecstasy – at about the age of 19, that such use was limited for the purposes of attending various “rave parties” and that your last use of Ecstasy was about two weeks prior to your arrest;
(e)you reported that you commenced using Cocaine at about the age of
19 years and your use of this drug has continued, with you last using Cocaine about a week prior to your arrest. You informed Mr Coughlan that at the peak of your use of Cocaine, you would use up to 2 grams of Cocaine per day;
(f)you reported that you had used Cannabis from the age of approximately 23 years and had become a “chronic” Cannabis user and that you would smoke Cannabis in order to counteract the effects of the “psycho-stimulant” drugs that you were using – that is, Ice and Cocaine;
(g)in particular, you informed Mr Coughlan, and your counsel submitted, that on his instructions, you had not used any drugs since you were remanded in custody after your arrest. In his general comments Mr Coughlan noted that you requested to engage in formal drug treatment and indicated a willingness to make positive changes to your drug lifestyle. He also noted that you had been attempting to undergo urine analysis when in prison but the authorities had yet to accede to such request;
(h)furthermore, you also informed Mr Coughlan that in June 2015, that you reported no physical health issues and that, with the exception of suffering asthma, were generally in good health. Furthermore, you had not been diagnosed as suffering any serious mental health issues, but did report that when in custody you had been experiencing both depression and anxiety, causing difficulties with sleep;
(i)in particular, Mr Coughlan was of the opinion that you were suitable for long-term formal drug treatment which would involve, in part, in-depth psychosocial counselling.
40 You were assessed by the psychologist, Dr A. Cunningham, on 2 June 2015 at the Melbourne Remand Centre. Seemingly, the main purpose of such assessment was to assist in a then scheduled bail application. Dr Cunningham, in particular, obtained a history of the breakdown of your long-term relationship which caused you emotional difficulties. Furthermore, Dr Cunningham obtained the further history that at about this time,that is in 2014, your mother was diagnosed with breast cancer, your grandfather died and, at the funeral, your older brother first experienced seizures, which all caused your drug use to escalate. Dr Cunningham was of the opinion that when he assessed you, you were suffering from an Adjustment Disorder with Depressed Mood resulting from your relationship breakdown.
41 One of the terms of being bailed on 2 September 2015 was that you enter the DayHab Addiction Treatment Centre in Glen Waverley as a full-time inpatient client. I refer to the report from Mr Neil Sanderson, clinical counsellor with the DayHab Centre, wherein he noted that you presented with the classic signs and symptoms of chronic addiction and anxiety. During the program you attended all program activities and engaged in the therapeutic processes of addiction treatment. In particular, Mr Sanderson states:
“In addition, he has responded extremely well to treatment and has made enormous strides towards his recovery. Imad might have gained a valuable insight into addiction and addictive behaviour. Imad has expressed genuine remorse for his drug use. Importantly, Imad accepts responsibility for the actions he has taken and now accepts responsibility for his ongoing recovery.”
42 Mr Sanderson notes in his report, dated 24 November 2015, that you were going to exit the program at the completion of the treatment on that date, having completed all aspects of your treatment program successfully.
43 Conditions of your bail included you returning to the family home and to live in the home rather than the bungalow, and furthermore, you to be subject to a curfew to be home between 9 pm and 6 am.
Submissions made by your counsel in support of your plea in mitigation
44 Your counsel accepted that the only available sentence in relation to Charge 1, trafficking in a commercial quantity of drugs, is an immediate term of imprisonment. Your counsel did not concede that the other charges, that is Charges 2, 3, 4 and 5, which involved possession of various drugs, required an immediate prison sentence. However, if a prison sentence was to be imposed in relation to any or all of those Charges, such sentences should be concurrent with each other and concurrent with the sentence in relation to Charge 1, bearing in mind the principles of proportionality and totality.
45 Although accepting that the weight of the drugs has some relevance, reference was made to Wong v R [2001] HCA 64, wherein it was made clear that the selection of weight of narcotic as the chief factor in fixing the sentence represented a departure from fundamental sentencing principles, as it did not take account of the fact there are many conflicting and contradictory elements which bear upon sentencing an offender and did not address considerations of proportionality. (See also R v Vo [2000] 118 ACrimR 320 at 32; Markarian v R [2005] 228 CLR 357).
46 Your counsel highlighted your prospects of rehabilitation. In particular, he noted that one of the conditions of bail was that you attend the DayHab Addiction Centre and participate in that program for a period of three months, which you undertook. As noted, a further condition of bail was that upon your completion of the three month program you were to reside in the house of your parents (not the bungalow) and a curfew was placed on you from 9 pm to 6 am. In particular, your counsel highlights that you have been drug free for a “considerable period of time”. In particular, your counsel referred to the matter of Yardley v Betts [1979] 1 ACrimR 329 at 333, where King CJ stated:
“The protection of the community is also contributed to by the successful rehabilitation of offenders. This aspect of sentencing should never be lost sight of and assumes particular importance in the case of first offenders and others who have not developed settled criminal habits. If a sentence had the effect of turning an offender towards a criminal way of life, the protection of the community is to that extent impaired. If the sentence induces or assists an [offender] to avoid offending in future, the protection of the community is to that extent enhanced. … .”
47 As I have already recorded, your counsel urged that given the jury verdict in relation to Charge 1 of finding you guilty of the alternative charge of trafficking in a commercial quantity, the jury was satisfied that you had knowledge and thus possession of the two bags that were found in the air-conditioning duct. Such possession was of short duration. I have rejected that particular assertion.
48 However, your counsel also submitted that it was open to the Court to find you to be the minder of the drugs, but was complicit in the future sale of the drugs by minding them and knowing that they would be sold in the future. As I have already indicated earlier in this sentence, I accept that the jury verdict should be construed in such a way.
49 In this sense, it was submitted on your behalf that in evaluating the objective seriousness of the offending, you should not be considered as a “principal, ringleader or organiser, but rather a temporary storeman”.
50 Taking all of these matters into account, it was submitted that the following matters were relevant in coming to an appropriate disposition:
(a) your age at the time of offending;
(b) the “minor role” played by you as the temporary safe-keeper of the drug which was performed for a limited period of time with no evidence of any actual reward and only performed because of a mutual friend;
(c) lack of any prior relevant history;
(d) “specific deterrence” is lessened by reason of time on remand; and
(e) there were good prospects of rehabilitation since you have been engaging in drug rehabilitation.
51 Your counsel also highlighted the principle of parsimony, which requires the selection of the least severe sentencing option open to a sentence which achieves the purpose or purposes of punishment in any particular case, and so achieves the ultimate aim of protecting society.
52 Your counsel also referred to the following matters as mitigating factors:
(a) During your period of remand after initially being arrested, you were subject to the riots occurring at the Metropolitan Remand Centre in late June 2015, resulting in an onerous regime being introduced involving, at least initially, 24 hour lockdown. Your counsel tendered a letter from your solicitors dated 14 July 2015 (Exhibit F) to the appropriate authority setting out the various matters that you were subjected to after the advent of the riots in June 2015. That situation continued until you being bailed on
2 September 2015;
(b) Furthermore, your counsel submitted that it was appropriate to also take into account the terms of your bail, which he described as onerous, as a mitigating factor in your sentence. When queried as to whether there was any relevant authority to support such a submission, no such authority was cited. I find such a submission a curious submission, given the terms of bail were largely directed to assist you in overcoming your drug habit by requiring you to undergo rehabilitation, live with your parents and have a curfew to avoid old habits. Indeed, your counsel has referred to these matters, in part, in support of his submission that you have made real and genuine attempts to rehabilitate yourself.
53 Ultimately, your counsel submitted that an appropriate sentence should be a low “head sentence” with a longer than usual parole period, given that you could be described as having “better than normal prospects of rehabilitation” and you would be under supervision when on parole.
54 Your counsel also submitted that very shortly prior to the trial commencing, he had indicated to counsel for the prosecution that there was a prospect that you would plead guilty to Charge 1 if it could be resolved that the charge was that you trafficked in a drug of dependence, namely Methylamphetamine, in a quantity that was not less than a commercial quantity (rather than not less than a large commercial quantity). Counsel for the prosecution accepted that such a concept was “floated” immediately prior to the trial but there was no real discussion. He noted that the trial was essentially about Charge 1, the trafficking charge, and that in any event, the trial was of a very short duration, only involving one police witness and the accused.
55 Your counsel also referred to the Sentencing Snapshot in relation to sentences of imprisonment for trafficking in a commercial quantity of drug over the period from 2008 to 2013. (See Exhibit E). In particular, he submitted that the Snapshot revealed:
(a) A decrease in sentences of imprisonment for trafficking in a commercial quantity of drugs, both in the principal sentence and the non-parole period over the period from 2011-2012 to 2012-2013;
(b) The average “mean” length of imprisonment term imposed, that is to say the head sentence, in 2011-2012 was three years and eleven months, which decreased in 2012 to 2013 to three years and one month. The most common range of imprisonment length was three years to less than four years;
(c) There had also been a decrease in the non-parole period. In 2010-2011 the average length of the non-parole period was two years and nine months, whereas in 2012-2013 this decreased to two years and two months, with the most common range of non-parole period imposed being two years to less than three years. It was ultimately submitted that a non-parole period of less than two years is not outside the “sentencing range” and reflects the principles of general deterrence, denunciation, proportionality and totality.
56 Counsel for the prosecution highlighted that general deterrence and denunciation are significant sentencing considerations, as well as specific deterrence. He accepted that although there were some signs showing that you seek to rehabilitate yourself, he noted that you had received a significant sentence for the armed robbery offence, and had gone on and committed these offences shortly after completing your parole period for the armed robbery. In this sense, I did not understand counsel for the prosecution to be submitting that the prior offence of armed robbery in itself was an offence to be taken as an antecedent in determining the length of the sentence.
57 Counsel for the prosecution noted the high maximum penalty in relation to Charge 1 which reflects Parliament’s view of such offending. Counsel for the prosecution also accepted that, in relation to the possession charges, any sentences of imprisonment should be concurrent rather than cumulated.
Conclusion
58 As long ago as R v Piercey [1971] VR 647, the then Victorian Court of Criminal Appeal stressed that drug offences were a substantial social evil. Since then, the view expressed by Winneke CJ has been restated in a variety of ways in a large number of cases involving drug use and in particular, the trafficking of drugs.
59 I also refer to the comments of Tadgell J in Moran & Byrnes v R,[1] wherein the Criminal Court of Appeal of Victoria, stated (at page 254):
“… Drugs of addiction - wantonly produced, distributed and used - continue to present to a modern civilised society an increasing burden both monstrous and intolerable. It is a monstrous burden in the sense that it is unnatural and evil. … .”
[1](1987) 31 A Crim R 248
60 The offence of trafficking in a drug of dependence in a quantity that was not less than a commercial quantity is manifestly a serious offence, given that the legislature has seen fit to allow a maximum penalty of twenty-five years’ imprisonment.
61 A perusal of the authorities makes clear that general deterrence, denunciation and specific deterrence are important sentencing considerations for such offending.
62 Consistent with the submission of both counsel for the prosecution and your own counsel, I have formed the view that the offence in relation to Charge 1, involving trafficking in a drug of dependence in a quantity that was not less than a commercial quantity, must attract an immediate prison sentence.
63 Of course, the act of trafficking can be constituted by a variety of means. As I have already recorded, I consider that the jury verdict should be recorded to mean that it accepted that you were complicit by way of assisting to sell the drugs of another person by holding or minding the Methylamphetamine knowing it was to be sold. Such a form of trafficking must be contrasted with you being in possession of the Methylamphetamine with the intention to sell it yourself.
64 These two types of trafficking are different in the degree of criminality, and in the circumstances of this matter, I accept that your degree of criminality is less, compared to the person in possession of Methylamphetamine with the intention to sell. Furthermore, although holding the Methylamphetamine knowing it was to be sold by another, there was no evidence before me that you would financially benefit from such sale.
65 However, it must always be borne in mind that you were holding such drug, well knowing it was going to be sold within the community.
66 I also accept that at the time of the offending you were an every day user of drugs, including Methylamphetamine, and were clearly mixing with others involved in the drug world. I also accept that you commenced as a recreational drug user, your drug use markedly escalated after the occurrence of various events in late 2014 involving the breakdown of a long-term relationship which upset you, the diagnosis of breast cancer involving your mother, the death of your grandfather and the commencement of your older brother experiencing seizures.
67 Clearly enough, you have no prior convictions for drug offences. I do make reference to your earlier conviction for armed robbery, only to note that it would appear that you did complete a fairly long period of parole without incident following the 12 month non-parole period in relation to that sentence.
68 I also accept that since being initially bailed on 2 September 2015 in relation to the subject offences, you have made good efforts to rehabilitate yourself out of the drug world by attending a rehabilitation course, and complying with the bail conditions of living with your parents in their house and adhering to a curfew. You have instructed your counsel that you have been drug free from when you were arrested and remanded in prison on 8 May 2015. The report from the drug counsellor, Mr Neil Anderson, notes that you have expressed genuine remorse for your drug use, taken responsibility for your past actions and accept responsibility for your ongoing recovery. Although I consider it still early days in relation to overcoming what can only be viewed as a significant drug problem at and around the time of the offending, I consider your prospects of rehabilitation to be reasonable.
69 I accept, to some degree, that your time in prison, particularly the time in the Metropolitan Remand Centre from late June 2015 (when the riots occurred) to when you were bailed on 2 September 2015, over which time there was a particularly onerous regime, has mitigated to some extent the need for specific deterrence. However, specific deterrence is a relevant consideration in the disposition of this matter given the serious nature of the offending.
70 I also accept that given your age, your efforts to rehabilitate yourself to date, and seemingly, your incident-free period of parole following the armed robbery, it is appropriate to give you a slightly longer than normal period of potential parole to allow you to be supervised back into the community.
71 Your counsel referred to the Sentencing Snapshot dated August 2014 pertaining to trafficking in a commercial quantity of drugs over the period 2008-2009 to 2012-2013. Although such Snapshot is of some assistance, it makes no distinction between sentences following a plea of guilty and sentences given after a jury verdict of a finding of guilt. Furthermore, the Snapshot gives no general circumstances of the particular offending in relation to any particular sentence save for some breakdown on the age and gender of the offenders.
72 In relation to Charges 2, 3 and 4, which involved the jury finding you guilty of possession of each of the relevant drugs, I intend to imprison you for a modest period in relation to Charges 2 and 3, and fine you in relation to Charge 4.
73 In relation to Charge 5, to which you pleaded guilty, I intend to fine you.
74 I am conscious that there was some attempt on the part of your counsel to negotiate a resolution in relation to Charge 1 and most probably in relation to the other Charges but unfortunately this was left until very late and really did not get that far. Although I accept this may be interpreted to show some willingness on your part to facilitate the course of justice, it must be noted that the trial was only very short and such a plea would have had little utilitarian value.
75 I also note that counsel for the prosecution sought a forensic sample pursuant to s.464ZF of the Crimes Act 1958, which is opposed. As I understood the situation, your counsel opposed such order on the basis that a forensic sample had been taken earlier (most probably in the armed robbery proceeding) and further, it was submitted that given your prospects of rehabilitation, such is not necessary. The position of the Director of Public Prosecutions is that although there may have been an earlier sample obtained, it was deficient compared to what can be obtained if a sample was taken now.
76 Given the seriousness of the offending in relation to Charge 1, I propose to make an Order that such a sample be obtained from you.
77 Please be upstanding:
(a) In relation to Charge 1, that on 8 May 2015, you trafficked in a drug of dependence, namely Methylamphetamine, in a quantity that was not less than a commercial quantity applicable to that drug of dependence, you are convicted and sentenced to a period of imprisonment of four years.
(b) In relation to Charge 2, that on 8 May 2015, you possessed a drug of dependence, namely Cocaine, you are convicted and sentenced to a period of imprisonment of one month. Such sentence is to be served concurrently with the sentence imposed in relation to Charge 1.
(c) In relation to Charge 3, that on 8 May 2015 you possessed a drug of dependence, namely 3,4-methylenedioxy-N-methylamphetamine (MDMA), you are convicted and sentenced to a term of imprisonment of one month. Such sentence is to be served concurrently with the sentence imposed in relation to Charge 1.
(d) In relation to Charge 4, that on 8 May 2015, you were in possession of a drug of dependence, namely Amphetamine, you are convicted and fined $300.
(e) In relation to Charge 5, you are convicted and fined $200.
(f) I declare that you have served 143 days as pre-sentence detention in relation to these offences and such period is to be administratively deducted from this sentence as time already served.
(g) The total effective sentence is four years’ imprisonment and I order that you serve two-and-a-half years before becoming eligible for parole.
(h) Further, in relation to Charge 1, I order that pursuant to s.464ZF(2) of the Crimes Act 1958, that you undergo a forensic procedure for the taking of a scraping from the mouth until a sample of sufficient standard is obtained for the placement on the database. I must inform you that if, at the time of the request, you do not consent to the taking of a mouth scraping under the supervision of an authorised member of the police force, then the sample to be taken will be a blood sample and police may use reasonable force to enable that forensic procedure to be conducted.
(i) Pursuant to s.32(1) of the Confiscation Act 1997, I order that the cash located in your bungalow when apprehended be forfeited.
(j) Pursuant to s.77(1) of the Confiscation Act 1997, I order that the drugs found in your bungalow at the time of the execution of the warrant be disposed of.
78 Yes, thank you.
79 MR DOYLE: Thank you, Your Honour.
80 HIS HONOUR: We have to deal, just briefly, with - you will recall there was a summary matter to be referred back to the - - -
81 MR DOYLE: Yes, Your Honour.
82 HIS HONOUR: Notwithstanding the prisoner's state, as it now stands, it is necessary, apparently, that I will have to make a bail order.
83 MR DOYLE: Yes, Your Honour.
84 HIS HONOUR: In relation to that particular returning to the summary court.
85 MR DOYLE: The prosecution just seeks an own undertaking bail with a condition that - and this seems highly unlikely - but in the event that he was released from prison, he notify the informant of any proposed address.
86 HIS HONOUR: Yes. Anything to say about that?
87 MS RISTIVOJEVIC: No, Your Honour.
88 HIS HONOUR: Yes.
89 MR DOYLE: Your Honour, perhaps just make an own undertaken in these circumstances.
90 HIS HONOUR: Yes.
91 MR DOYLE: There does not seem to be any realistic prospect.
92 HIS HONOUR: Yes, very well, and I think I made the order here earlier, did I not, to refer it back to the Magistrate - - -
93 MR DOYLE: You did, Your Honour, yes.
94 HIS HONOUR: Yes. Yes, anything else to add?
95 MS RISTIVOJEVIC: No, Your Honour.
96 HIS HONOUR: Yes, thank you. I'll allow the family to briefly talk to the prisoner before he is taken.
97 MS RISTIVOJEVIC: Thank you, Your Honour.
98 HIS HONOUR: Then after that. Yes, thank you, ladies and gentlemen. We will adjourn sine die.
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