Director of Public Prosecutions v Austin & Buttenshaw
[2022] VCC 2039
•21 November 2022
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
CR-22-00440
CR-21-02657
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| KIM AUSTIN and MARTIN BUTTENSHAW |
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JUDGE: | HIS HONOUR JUDGE MAIDMENT | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 16 November 2022 | |
DATE OF SENTENCE: | 21 November 2022 | |
CASE MAY BE CITED AS: | DPP v Austin & Buttenshaw | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 2039 | |
REASONS FOR SENTENCE
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Subject:Plea – sentencing
Catchwords: Traffick drug of dependence large commercial quantity - traffick drug of dependence - fail to comply with direction to assist - deal in property suspected proceeds of crime
Legislation Cited: Sentencing Act 1991
Cases Cited:
Sentence:Austin: 10 years and 3 months' imprisonment,
6 years and 10 months non-paroleButtenshaw: 11 years and 9 months' imprisonment,
7 years and 8 months non-parole
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms F. Holmes | Office of Public Prosecutions |
| For the Accused Austin For the Accused Buttenshaw | Mr I. Polak Ms J. Ball | Law and Advocacy Centre for Women Emma Turnbull Lawyers |
HIS HONOUR:
1Kim Maree Austin, you pleaded guilty to Charge 1 on the indictment of trafficking in a drug of dependence in a quantity not less than the large commercial quantity applicable to that drug of dependence, being methylamphetamine. The maximum penalty for that offence is life imprisonment.
2You have also asked me to take into account and have pleaded guilty to one related summary offence, being a failure to comply with an order that you supply information to allow access to your mobile phone for which the maximum penalty is imprisonment for five years.
3You have also admitted prior convictions.
4You, Martin Buttenshaw, have pleaded guilty to Charge 2 on the indictment, being an offence of trafficking in a drug of dependence, namely methylamphetamine, in a quantity not less than the large commercial quantity for that drug of dependence. The maximum penalty for that offence is life imprisonment.
5You have also pleaded guilty to Charge 3 on the indictment of trafficking in a drug of dependence, namely 1,4-Butanediol, for which the maximum penalty is imprisonment for 15 years.
6You have asked me to take into account and have pleaded guilty to one related summary offence of dealing in property reasonably suspected of being the proceeds of crime in the sum of almost $4,600 in cash. The maximum penalty for that offence is imprisonment for two years.
7You have admitted your criminal record.
8The prosecution tendered and relied upon Exhibit A, which is a summary prosecution opening for the plea. It sets out details of a police investigation which involved a telecommunications warrant being obtained in respect of your mobile phone, Martin Buttenshaw. That phone was monitored by the police between 18 March 2021 and the date of your arrest, being 19 April 2021.
9That monitoring process enabled police to obtain evidence of an ongoing drug trafficking enterprise which involved you and your co-offender Ms Austin, and which revealed that there was trafficking of the drug methylamphetamine between you, Ms Austin and others for the period set out in the indictment. That trafficking involved not just trafficking in relatively small quantities, but the obtaining by the two of you of approximately 1 kilogram of methylamphetamine, which you were able to access and purchase with the assistance of finance provided initially by your father, Mr Buttenshaw, from contacts in Sydney. You brought that quantity of methylamphetamine back from Sydney. Your father was reimbursed the $90,000 that he had put up for the purchase of the methylamphetamine, plus another $10,000 as a reward, of which you, Mr Buttenshaw, took $5,000 for yourself.
10Police attended an address in Mooroopna at approximately the same time as you and Ms Austin were arriving at the property. Your vehicles were searched. In the footwell of the passenger seat of your vehicle, Ms Austin, was found a Coles bag with two large Ziplock bags containing a further Ziplock bag containing two bags of a white crystalline substance which turned out to be methylamphetamine. The substance was analysed and found to be methylamphetamine with a purity level of 84 per cent. The total weight was 986.2 grams.
11The methylamphetamine was a mixture. Therefore the threshold for large commercial quantity of that drug of dependence is 750 grams. That amount, coupled with evidence of other dealings in methylamphetamine during the periods relevant to the charges against each of you, supports the charges of trafficking in methylamphetamine in a quantity not less than the large commercial quantity. In your case, Ms Austin, you had trafficked during the period covered by the indictment, namely between 18 March and 19 April 2021, a total of 1,322.2 grams of methylamphetamine mixture which is something in the order of 1.6 times the threshold for large commercial quantity.
12In your case Mr Buttenshaw, examination of your mobile phone as well as the communications that had been intercepted by police revealed that you had trafficked in a total, including the 986.2 grams, of 1,248.21 grams during the period between 5 January 2021 and 19 April 2021. Those amounts are the foundations of Charges 1 and 2 respectively on the indictment.
13As a result of monitoring your mobile phone Mr Buttenshaw, it also revealed that between the 26th and 27 March 2021 you had trafficked in a total of 25 litres of 1,4-Butanediol, said to be valued at approximately $25,000. It turned out that the quantity you obtained and were in the process of seeking to sell was contaminated and unsaleable.
14You were both interviewed by police and made no comment to questions asked. The foundation for the related summary charge against you Mr Buttenshaw, alleging that you were dealing in property reasonably suspected of being the proceeds of crime, arose from finding in your possession cash totalling $4,593.70.
15You, Ms Austin, were required to provide details of the access code to your mobile phone. You refused, and that is the foundation for the related summary charge to which I have already referred.
16Turning to matters personal to you and dealing first with you, Ms Austin.
17You have admitted a number of prior convictions. You are now 47 years of age, having been born in June 1975. I was greatly assisted by the tendering of the report from Ms Alison Mynard, psychologist, dated 30 October 2022, which sets out a deal of information about your background and about your family, your children and the hardships that you have undergone in your early life. It also describes your descent into drug abuse. It refers to a period of abstinence following your conviction in 2017 at the Shepparton Magistrates' Court for possessing amphetamine for which you were ordered to undergo a Community Correction Order for a period of 12 months.
18I can only assume from the absence of any record of any breach that you successfully navigated that order. It seems that that court appearance marked the commencement of the period of your abstinence from methylamphetamine. However, it is apparent from the submissions of your counsel that you had descended back into methylamphetamine abuse by the time of this offending.
19Your counsel also provided me with certificates of completion of courses that you have undertaken whilst you have been in custody, which is Exhibit 3-A; a letter from you which is Exhibit 4-A; a letter from your paternal aunt, Cheryl Murray, which is Exhibit 5-A and a letter from your younger three children, which is Exhibit 6-A.
20Your counsel placed significant emphasis on the hardships that you suffered as a child, the deprivation of emotional and physical stability in your upbringing, the abuse you suffered at the hands of various relatives, the disruption to your schooling and your home life and to the consistency of care to which you should have been entitled. I do not think it is necessary for me to go into detail about it, save to say that it does underscore the submission by your counsel that you have been the victim of profound, serious deprivation through your upbringing, which no doubt contributed to you becoming involved in the abuse of amphetamines from a young age. That has no doubt in turn contributed to the quite significant number and variety of the offences for which you have been convicted.
21They are mostly of a relatively minor nature. But they do include drug offences and offences of dishonesty. I infer that those, at least in significant part, arise as a result of the drug addiction that you fell into during your upbringing at a relatively young age. It does seem to me there is a link between those factors and the offending in the sense that the drug addiction which you fell back into at or about the time of the offending contributed significantly.
22In addition, your counsel relied upon the mental impairments from which you have also suffered, complex post-traumatic stress disorder, as well as other drug associated conditions. I accept that those impairments will make it more difficult for you to cope with your incarceration.
23In addition, I accept that the fact that you are separated from your children, are naturally concerned about their care and the capacity of your aunt to continue to care for them during the period of your sentence, will also make it more difficult for you to cope with the sentence that I am bound to impose for this serious offending.
24I need to take all of those matters into account. They will result in a reduction of the sentence which you might otherwise have had to face.
25I am not usually swayed by letters that come from an accused person. I have no doubt that you spent a good deal of time composing this letter, but I think that many of the sentiments that you express in the letter do stack up against the objective facts. I accept that you now have considerable remorse for your offending. I take that into account in your favour also.
26To the extent that more corroboration of the hardship of your childhood is required, the letter from your aunt, Cheryl Murray, supports the material contained in the report of Ms Mynard. I accept that Bugmy principles apply. It does not necessarily follow that the application of Bugmy principles arising from profound deprivation will necessarily reduce sentence significantly. There may not have been a sufficient nexus between that deprivation and the offending conduct. But it does seem to me in this case that the use of drugs and your addiction to them has arisen from that deprivation and for that reason I find that there is a relevant nexus.
27You have pleaded guilty and you have done so in COVID times when I am bound to give you a substantial reduction in sentence for the saving of court time in running a trial and other utilitarian benefits of the plea. I also take into account that you have been in custody for 581 days and that you have had to undergo that period on remand in difficult conditions. That that too needs to be factored into determining an appropriate sentence. Indeed, the pandemic has continuing effects in the prison system and will at least for the foreseeable future make it more difficult to serve your sentence. I take that into account also.
28You have never had any work to speak of, apart from some cleaning work in more recent times. It is difficult to be optimistic about your prospects of rehabilitation. One hopes that the effects of the long-term separation from your children will have a profound effect on your future willingness to engage in criminal activity and risk further terms of imprisonment.
29At this stage I cannot be any more optimistic regarding your prospects of rehabilitation than being guarded. Nevertheless, I think that you deserve a reasonable period on parole and I intend to fix a period that will enable you to apply for parole at a reasonably early stage.
30I am conscious of the need to ensure that the total sentence I impose upon you is appropriate, and to ensure that there is parity between the sentence I pass on you and that on your co-offender. I will deal with that in more detail when I come to deal with his sentencing. But clearly you have committed serious offences. You need to be punished appropriately. The court needs to denounce conduct of the kind in which you have engaged. It needs to deter you from committing further offences of that kind and also, although with reduced force in your case because of your background and matters of mitigation to which I've already referred, general deterrence remains an important feature of the sentencing process. I must give appropriate weight to that principle, albeit with the qualifications that I have already sought to outline.
31Leaving you for the moment - and I will come back and sentence you at the same time as I sentence Mr Buttenshaw - I deal now with Mr Buttenshaw's case.
32Your counsel, Mr Buttenshaw, has provided me with an outline of submissions, dated 15 November 2022, which is Exhibit 1-B on the plea. Today I received the certificate of achievement showing that you have completed the 'Ice and Me' course and also a record of your clear drug screens between 31 May 2021 and 21 September 2022. On each occasion when you have been subjected to random screening, you have shown a negative response to the drug testing analysis.
33I was also provided with a report of Mr Ian MacKinnon, psychologist, dated 5 November 2022, which is Exhibit 2-B. This report shows that you were lucky enough to have a good upbringing and that you have had the benefit and support of loving parents. Indeed, you have maintained contact with your parents up to and including offending, because you involved your father in the financing of almost one kilo of methylamphetamine, which you obtained in Sydney in complicity with Ms Austin.
34Your father is now over 80. Your mother is a little younger. You continue to have her support. You got into the use of amphetamines as a result of being a truck driver. In common with many other truck drivers, you resorted to the use of amphetamines and methylamphetamine in order to assist you with your long distance haulage commitments. As with many others who have followed that course, you ended up seriously addicted to methylamphetamine and were using on a daily basis.
35It is put on your behalf that the offending arose out of that addiction and was, at least in a small part, intended to finance your continued habit. You have a number of prior convictions, including for drug offences and one offence of trafficking in methylamphetamine. You have had plenty of opportunity to consider and re-consider your continued use of illicit drugs and the trouble that that gets you into.
36I am not suggesting for a moment that it was easy to come off an addiction as severe as yours but I think you have had plenty of warning shots across your bow, so to speak, over the years. You have not had many convictions in recent years. The last of the drug convictions was in 2016. But I accept that you continued to be a regular user of methylamphetamine in the intervening period and that your continued use is relevant at least in the contextual sense to the offending for which I have to sentence you.
37You are not married. You have what seems to be a blossoming relationship. You do not have any children. Unless you deal with your drug habit in an effective way, your prospects of rehabilitation cannot be anything other than poor. It is naïve to suggest that illicit drugs cannot be obtained if you are determined to obtain them through the prison system. That said, it is to your credit that you have stayed drug-free for a substantial period of time whilst you have been on remand. So there is, I think, a residual hope that you may have reasonable prospects of rehabilitation in the longer term.
38You have pleaded guilty. For the same reasons as I indicated in dealing with Ms Austin's case, you must receive full credit for that in these COVID times and I am required to give you a substantial reduction in sentence by reason of your plea for the utilitarian benefit it has for the justice system during the period of the pandemic.
39Your counsel, I think rightly, accepted the seriousness of the offending conduct. She submitted that the offending was not at the higher end in the sense that it did not show a great deal of sophistication and was not part of some major organised crime syndicate, rather a small undertaking between you and your co-offender which seems on the face of it to be somewhat haphazard, albeit that it was able to secure a large commercial quantity of the drug for the purposes of trafficking and to enable you to obtain potentially substantial profits.
40It was submitted that you engaged in the offending principally to support your own drug addiction, rather than for profit. I am inclined to accept that there was a substantial element of that. But one cannot ignore that for such a large quantity of the drug which you obtained in Sydney, you must have expected a substantial return from the on-sale of that quantity. For you to have engaged your father to provide the finance for the purchase suggests that there was an intended profit element in it.
41You have been on remand for 581 days not counting today. I acknowledge that was during a part of the pandemic when lockdowns and other restrictions were unduly burdensome and that you will continue to suffer similar burdens in the prison system whilst the pandemic continues and the restrictions continue.
42As to rehabilitation, I think that your counsel's submissions are reasonable. Given that you do have a strong work history and because you have also completed the ‘Ice and Me’ course and have been drug-free during the period of your incarceration to date, your prospects are reasonable. I take that into account and will take that into account in determining the non-parole period.
43Your counsel quite rightly accepts that I must punish you appropriately, denounce the offending and that the principle of general deterrence does loom large. You do not have the same background as your co-offender, therefore the sentence that I must impose upon you cannot be reduced for the same reasons that I have indicated I propose to reduce the sentence that might otherwise be appropriate for your co-offender, Ms Austin.
44So, whilst parity of sentence between two co-offenders who are, I think it is conceded by all parties, equally involved in the offending conduct and equally culpable in a general sense for the offending conduct should ordinarily result in either the same or sentences that are on a par with one another, to the extent it might seem that the sentences are disparate in this case it is because of the absence of the same mitigating factors which I have been endeavouring to outline in Ms Austin's case.
45Specific deterrence does play a part in the sentencing process against you as well as general deterrence, particularly given that you have a conviction for trafficking in methylamphetamine in the past, albeit some time ago.
46
Your counsel points out that there needs to be a measure of concurrency between the sentences that I impose upon you. Clearly, the offence the subject of
Charge 2 is significantly more serious than the offence the subject of Charge 3, or the related summary offence. I take that into account in determining the individual sentences and the degree to which there is overlap between the offending, including the related summary offence. It would seem likely that a substantial if not whole part of the cash was derived from the transaction involving the almost one kilo of methylamphetamine.
47You, like your co-offender, are 47 years of age. When you finish your sentence you will still have a fair bit of life ahead of you, and the extent to which you stay out of trouble in the future will depend very much upon your capacity to return to the community avoiding any further drug abuse, particularly in relation to amphetamines, and methylamphetamine in particular.
48Doing the best I can to apply the sentencing principles to each of you, I am now ready to pass sentence upon each of you, starting with you, Ms Austin.
49In relation to Charge 1 of trafficking in a large commercial quantity of methylamphetamine, you are convicted and sentenced to imprisonment for 10 years.
50Pursuant to s.89DI of the Sentencing Act 1991 I declare that as a result of your conviction for that offence you are now a serious drug offender. I make it clear that I am not sentencing you as a serious drug offender, just declaring the fact that you are now a serious drug offender.
51In relation to the related Summary Charge 2, to which I have already referred, you are convicted and sentenced to imprisonment for a period of six months. I order that three months of that sentence be served cumulatively upon the sentence of 10 years that I have imposed on Charge 1.
52I regard that offence as a serious offence. It carries a maximum of imprisonment of five years. It is very much in the public interest that people do not commit that offence when they are faced with a requirement to allow access to their data on their mobile communications devices.
53The total effective sentence is imprisonment for 10 years and three months.
54I set a non-parole period of six years and ten months.
55I declare 581 days pre-sentence detention as time to be reckoned as served on the sentence that I have imposed and order that that be deducted administratively. I further order that those facts be noted in the records of the court.
56But for your pleas of guilty I would have sentenced you to imprisonment for a period of 15 years and six months with a non-parole period of 10 years and six months.
57In your case, Martin Buttenshaw, in relation to Charge 2 on the indictment you are convicted and sentenced to imprisonment for 11 years and three months. I declare that you are now a serious drug offender as a result of that conviction.
58
On Charge 3 on the indictment, I sentence you to imprisonment for a period of
two years.
59On the related summary offence of dealing with property reasonably suspected of being the proceeds of crime, I sentence you to imprisonment for four months.
60The sentence of 11 years and three months on Charge 2 is the base sentence. I order that six months of the sentence imposed on Charge 3 be served cumulatively upon the sentence imposed on Charge 2.
61Therefore the total effective sentence in your case is imprisonment for 11 years and nine months.
62I order that you serve a period of seven years and eight months before becoming eligible for parole.
63I declare 581 days, not including today, as pre-sentence detention to be reckoned as served on the sentence that I have imposed and deducted administratively from that sentence. I order that those facts be noted in the records of the court.
64But for your pleas of guilty, I would have sentenced you to imprisonment for a period of 17 years with a non-parole period of 11 years and four months.
65I make the ancillary orders of forfeiture and disposal of property in accordance with the drafts that I received.
66Are there any other matters counsel?
67MS BALL: I just wanted to confirm, given the math I think I know the answer, but in terms of the related summary offence, is that wholly concurrent with the base sentence?
68HIS HONOUR: It is, yes.
69MS BALL: Thank you, Your Honour.
70HIS HONOUR: Yes. Anything from you, Ms Holmes?
71MS HOLMES: No, thank you, Your Honour.
72HIS HONOUR: All right, thank you. Mr Polak, anything from you?
73MR POLAK No, Your Honour, no.
74HIS HONOUR: All right.
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