Director of Public Prosecutions v Barbier

[2018] VCC 1759

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 18-01408

DIRECTOR OF PUBLIC PROSECUTIONS

v

DEREK BARBIER

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JUDGE:	HIS HONOUR JUDGE M. P. BOURKE
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	26 October 2018
CASE MAY BE CITED AS:	DPP v Barbier
MEDIUM NEUTRAL CITATION:	[2018] VCC 1759

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 N. Cescato
For the Accused	Mr. T. Bevan

HIS HONOUR:

1Derek Barbier, you are to be sentenced for one charge of trafficking a drug of dependence in a commercial quantity.  The maximum sentence is 25 years' imprisonment. 

2You pleaded guilty before me on 17 October 2018.  When interviewed by police on 1 February 2018, you admitted the offence.  The committal went by hand-up brief on 5 July, after which you entered a plea of guilty.  The matter was then listed for plea hearing in this court.  You pleaded guilty before me only eight and a half months after your arrest. 

3You receive the benefit of your plea of guilty and that cooperation, both at an early stage.  You have facilitated the interests of justice.  I accept that you are remorseful. 

4At your plea hearing, which also ran on 17 October, Mr Livitsanos for the Crown tendered a written summary of prosecution opening.  Mr Barton, for you, tendered the psychological report of Gina Cidone, dated 12 October 2018,  and a number of certificates related to programs undertaken by you in remand custody. 

5The circumstances of your offending are comprehensively set out in the Crown opening, which is Exhibit A.  My own summary may be short.

6At time of offending, you were 41. Between 28 November 2017 and 1 February 2018, you sold about 630 grams containing the drug 3,4-methylenedioxy amphetamine, also known as ecstasy.

7Your main co-offender,  and apparent partner in this, was a Steven Celona.  His plea before me has been adjourned.  He is aged 20.  Other lesser players were your respective partners, Melissa Wozniak and Stephanie Jarvis.  They have been convicted and fined for related offences.

8Over the relevant period there were seven sales to a covert police operative.  As is typical in such an operation, there were sales of progressively higher quantities.  Paragraph 35 of the Crown opening sets out a schedule of purchases.  You were personally involved on all seven occasions.  Quantities ranged from 40 to 1,000 tablets on the seventh,  prospective sale.  Price ran from $480 to prospectively $6,200.  The seventh sale did not come off.  You were arrested and over 1,000 tablets were seized. 

9The schedule sets out your involvement in 630.7 grams of tablet purity  it was from eight to 37 per cent.  The legislative commercial quantity threshold is 500 grams of, as here, a mixture containing the drug.  Total moneys paid over on the sixth successful sales I make to be $11,455.  Tablets sold were or contained small quantities of other related drugs or substances.  You purported to sell or try to sell a total of approximately 715 grams of ecstasy tablets. 

10You are a 42 year old man awaiting this sentence in remand custody.  You were born in the Seychelles.  You came to Australia with your family when aged ten.  Your parents are supportive of you and attended the plea hearing.  You are able to live with them when you leave prison.  You describe your parents and upbringing as caring, although your mother has suffered long-term depression. 

11As to yourself, you reported to psychologist, Gina Cidoni, suicidal ideation from your youth and an occasion of pill overdose when 22. 

12You left school at or after Year 10.  Employment was consistent for many years.  You worked at a diecast business for ten years and then as a storeman and manager for several years.  You have not worked now for about two years. 

13At 19 you began a relationship which lasted 15 years.  You have three children, now aged 21, 19 and 13.  This relationship ended in the context of your drug use.  You have contact with your children.  The oldest two visit you in prison.  Mr Barton told me that you have recontacted with your family and have hope of reconciliation. 

14In my view, substance abuse has badly affected your life.  You have told psychologist, Gina Cidone, that you began drinking at 13, used cannabis at 14 and smoked heroin between 16 and 21.  It was at that time you began using ecstasy.  This continued over years.  You state that you were using every second day up to your arrest.  I accept that you were selling the drug, at least in part, to fund that use.  It was put to me that you do not see yourself as an addicted person, that is, in the sense of physical craving.  Your life’s course and now present predicament emphatically states to me that you have a serious drug use problem.  You are said to be drug-free in prison.

15Your criminal record reveals three prior court appearances.  Two are in 2005 and 2007.  In June 2014, you were sentenced to a community corrections order for recklessly causing injury.  There are no prior drug offences.  You have not been to prison before.

16There are unusual aspects to the psychological report tendered on your behalf.  It records extremely odd,  abnormal sexual experiences as a child.  Your overall IQ score is at 81, within the below average range.  The report states this, as to your presentation when examined, a two hour interview at Ravenhall Prison.

"The Minnesota Multiphasic Personality Inventory-2 was employed for the purpose of assessment.  His MMPI-2 profile was valid and there were no indications of malingering.  Taking this into account, the overall observation seems very disturbed and distressed.  He reported some bizarre sensory experiences that have abated since he ceased drug use, but are present in a milder degree.  He has impulsive tendencies and has had difficulty planning ahead or considering the consequences of his actions.  He endorsed items reflecting impatience and being easily frustrated.  He has poor judgment that can result in risk taking behaviour.  He can be aggressive, he is prone to temper outbursts and he has difficulty concentrating and he finds it hard to settle down or calm himself.  His symptoms also include confused, bizarre thoughts and hostile effect.  He is highly paranoid and anxious in a ruminative way.  Depression was mildly elevated.  Hypomania was elevated reflecting impatience, over activity and being easily frustrated.  He can experience euphoria, grandiosity, irresponsibility, have rapid speech and movements and destructiveness.  He has poor judgment that can result in risk taking behaviour.  There is often expenditure of great deals of energy without much by way of positive gain."

17Under “opinion”, the report states a number of what I see to be possible mental health factors without, to my mind, conclusive findings.  Ms Cidone speaks of you presenting with apparent early sexual abuse trauma having the effect of promiscuity and abnormal sexual behaviour;  also with "effects of chronic mental illness, with the assessment supporting a diagnosis of schizoaffective disorder and substance abuse disorder in enforced remission." 

18The report goes on to discuss symptoms of schizoaffective disorder without, it seems to me, very specific reference to you or the behaviour and experiences you described or indicated on testing.  It states as to possible mental states as follows.

"Schizoaffective disorder may be triggered by substance abuse.  It involves the experience of a combination of schizophrenia symptoms and unstable mood.  The course of schizoaffective disorder usually features cycles of severe symptoms, followed by periods of less severe symptoms.  Symptoms include delusions, having false fixed beliefs despite evidence to the contrary, hallucinations, depression, mania, problems with communication and impaired occupational and social functioning.  There are difficulties in thinking and bizarre behaviours.  The condition of stimulant intoxication seems to also be operating at the time of offending and this is associated with increased autonomic activity, perceptual disturbances (delusions, hallucinations, bizarre mentation and behavioural and psychological changes), agitation, effective blunting and impaired judgment that would disturb usual thought processes and judgment.  Due to his impairment and drug use, it is apparent he was unable to make good decisions or excessive exercise appropriate judgment and there would be phases of acute psychosis where he wouldn't be aware of what he was doing."

19Mr Barton did not press argument as to Verdins principles related, for example, to diminished moral culpability.  The report, in my opinion, does not provide a satisfactory foundation of evidence to do so.  I find, in a broad sense, mental health symptoms and also depression which is treated by medication.  These are properly a part of the relevant personal context of your sentence.  It is also likely to make imprisonment more difficult. 

20That trafficking in a commercial quantity is very serious offending  is exemplified by the high maximum sentence.  You do not present as a major player in the drug trafficking world and the business was not elaborate or very sophisticated.  However, over a two month period, ended by your arrest, you played an important role in selling a substantial quantity of drug; as put by
Mr Livitsanos for the Crown.  Over that time there was a capacity and willingness to increase the quantity.  The total was at least significantly beyond the legislative threshold.  Drug trafficking is seen to be highly damaging to our community.

21The circumstances of your offending make important considerations of deterrence, your moral culpability, the need to sentence in a way to condemn the offending and properly punish it.  There must be a sentence of imprisonment of some significant length. 

22I take into account moderating factors which should,  to some extent, reduce the length of that.  They include the following. 

(1)  Your plea of guilty and cooperation.

(2)  Your personal history and circumstances.  This would include the                    difficulties of your early life and the mental health factors, as I have earlier              stated.

(3)  You are capable of rehabilitation.  Until drug use appears to have got the             better of you, you had a good work history.   You have family support               and the aim of reconciliation, at least with your children. Although   guarded, given your long drug use history, I find genuine prospects for          rehabilitation.  Much will depend on your ability to maintain abstinence             after leaving prison.

23I have had regard to current sentencing practices and also to the guidance of the case The Queen v Gregory to which I was referred.  In saying this I should note that the trafficking in Gregory can be seen as a much more serious example than here.  I also recognise the need to sentence individually to your case. 

24After considering and weighing what I see to be the relevant matters, I sentence you as follows:

25Stand up please.

26You are sentenced to five and a half years' imprisonment, with a minimum term before eligibility for parole of three and a half years. 

27Under s.18 I declare ‑ ‑ ‑

28MR CESCATO:  Your Honour, I've come up with a figure of 267 days.  I wasn't here on the last occasion obviously, but nine days have passed since we were here ‑ ‑ ‑

29HIS HONOUR:  Well 258 was what was contained in the ‑ ‑ ‑

30MR CESCATO:  Yes, well that's my ‑ ‑ ‑

31HIS HONOUR:  Well you will need - I mean, I would have thought you could just work out what the days are.  He did not get - he was remanded on
1 February, was he not?  Do I really have to do this?  Just work out the days from 1 February.  Am I right about that? 

32MR CESCATO:  That is what I've done, Your Honour.

33HIS HONOUR:  I see, you have, I'm sorry.

34MR CESCATO:  I drafted the ‑ ‑ ‑

35HIS HONOUR:  I did not realise that.

36MR CESCATO:  Yes, I drafted the original memorandum.

37HIS HONOUR:  I see.

38MR CESCATO:  But as I said, that may - that figure may not have been agreed on at the plea, because I wasn't here.

39HIS HONOUR:  Well if it is 267 days since 1 February, that is the right period, unless he had bail at some stage. 

40MR CESCATO:  That is right.

41HIS HONOUR:  Or was serving a sentence at some stage.  That does not apply, does it?

42MR CESCATO:  No, so it's 267 days, not including today, that's my calculation.

43HIS HONOUR:  Well I make it 268, that is what I usually do.  What do you want to say?

44MR BEVAN:  Your Honour, I was instructed it was 285 and that was agreed, but given the other figure is 258, it seems like ‑ ‑ ‑

45HIS HONOUR:  I think somebody has inverted the eight and the five, I think. 

46MR BEVAN:  It seems that's the case, doesn't it? 

47HIS HONOUR:  Yes.  All right, well if I am wrong about it - I am going to declare 268 days, which is set off against the minimum term and the head term.  If I am wrong, you need to notify me and I - 268, yes.  All right.

48Now what are the other orders that I need to make, if any?  There is a s.6AAA indication, is there not?

49MR CESCATO:  Yes, Your Honour.

50HIS HONOUR:  Yes.  What are the other orders?

51MR CESCATO:  There was a disposal order that I believe's been - was e-lodged and emailed and whatever ‑ ‑ ‑

52HIS HONOUR:  No, well, no, I never take them on day of plea.  I can assure you of that. 

53MR CESCATO:  All right. 

54HIS HONOUR:  If you send it to my chambers, I will sign it.

55MR CESCATO:  All right.

56HIS HONOUR:  Yes.

57MR CESCATO:  Yes, Your Honour.

58HIS HONOUR:  We will look for it in the electronic system. 

59MR CESCATO:  Your Honour, I - there may have been an application for a DNA sample, but I have a memory of Mr Barbier perhaps providing one during the course of the investigation, in which case it gets retained automatically.

60HIS HONOUR:  I think I was told that, so I presently will not make that order. 

61MR CESCATO:  If Your Honour pleases.

62HIS HONOUR:  What else is there? 

63MR CESCATO:  I believe that's all, in terms of orders, Your Honour.

64HIS HONOUR:  Yes, thank you. 

65MR CESCATO:  There is no forfeiture.  That applied to Mr Celona.

66HIS HONOUR:  Yes. 

67I indicate under s.6AAA that had you not pleaded guilty, I would have imposed a sentence of eight years, with a minimum of six years. 

68Nothing else to do? 

69MR CESCATO:  No, Your Honour. 

70HIS HONOUR:  Now people have come to support Mr Barbier.  I will permit them to speak to him briefly.  You will need to supervise that.  It has got to be brief and I will remain on the Bench whilst it happens.  So you may speak to him now, but it has got to be quick, all right? 

71MR BEVAN:  Thank you, Your Honour.

72MR CESCATO:  If Your Honour pleases. 

73MR BEVAN:  You would like me to supervise?  

74HIS HONOUR:  Yes, yes, from a respectful distance.  It is just to let them know when the time - well indicate to them. 

75I said it has got to be short, I am sorry.  Mr Barbier needs to be taken into custody now.  Thank you.  Thank you. 

76We have got a disposal and a forfeiture order.  I will sign those in chambers. 

77MR CESCATO:  Yes, Your Honour. 

78HIS HONOUR:  Yes, thank you. 

79MR CESCATO:  Thank you, Your Honour.

80HIS HONOUR:  Good, thank you, you are both excused now.

81MR BEVAN:  If Your Honour pleases.

82HIS HONOUR:  And I will wait until the next person is brought up.  Good, thank you. 

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