Director of Public Prosecutions v Barker
[2013] VCC 1414
•6 September 2013
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No.
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| GEMMA BARKER MOHAMMED OMAR ALLAN BAUSCH |
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JUDGE: | HIS HONOUR JUDGE CARMODY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 6 September 2013 | |
CASE MAY BE CITED AS: | DPP v Barker & Ors. | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1414 | |
REASONS FOR SENTENCE
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Catchwords:
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr K.J. Doyle | |
| For the Accused | Mr B. Schultz (Barker) Mr B. Lopez (Bausch) Mr P. Guggenheimer (Omar) |
HIS HONOUR:
1 In this sentence, I will deal in general with the offending, then each of you individually, sentencing considerations and then announce your sentence at the end.
2 Allan Bausch, Mohammed Omar and Gemma Barker, each of you have pleaded guilty to one charge of possession of substance, material and equipment related to trafficking in a drug of dependence. Parliament has fixed a maximum term of imprisonment of ten years for that charge. Each of you have admitted a criminal record.
3 The offence arises from the interception by Leading Senior Constable McLean of a Magna car driven by Omar when it was speeding. On interception, both Bausch and Barker were in the car. A strong chemical smell drew Constable McLean's attention to the boot of the car. He asked to search the boot of the car and located chemicals, equipment and materials that are used in the manufacture of methylamphetamine. In colloquial terms, a clandestine laboratory was in the boot.
4 The three of you have been charged, interviewed and subsequently pleaded guilty to this charge. As I say, I will deal with the sentence of each of you together.
5 One of the issues I have to deal with is the parity between co-accused. The parity principle is based upon aspects of equal justice. Equal justice requires that like should be treated to like, however if there are differences between offenders, then allowances should be made to reflect the differences in the roles of the offending, different degrees of culpability and the different circumstances of each offender. Equal justice requires that, between co-offenders, there should not be a marked disparity between the sentences that would give rise a justifiable sense of grievance. At the same time, parity does not require that offenders' sentences match or are mathematically proportionate.
6 Mr Bausch, you are now 42 years old. You are the youngest of a six child family. Your father worked as a waterside worker. You grew up in the family home at Tullamarine. I note, from the depositions, that Tullamarine was said to be the destination of your journey on the night of this offence. You were educated to Year 10 at Broadmeadows Tech School. After school, you did a four year apprenticeship as a landscape gardener and I am told you worked for a person by the name of Tim Watson.
7 At the age of 26 years, you started in a landscape business yourself which lasted as a partnership for some two years before it was dissolved. You then worked in a plumbing business, utilising your skills in driving back hoes and other machinery for approximately seven years. At this stage, your life all seemed to be going well. You were married, you had three children, you were a long way along the road to owning a family home in Sunbury.
8 In 2007, you separated from your wife. Separation was a very difficult time for you. Your wife had commenced a relationship with her boss. Your children, who are now 21, 18 and 15, all live with your ex-wife. This event was the beginning of your downward spiral to alcohol and drug abuse. In 2009, you had a motorcycle accident. You have injured your shoulder and have not really been able to work since that time. You have been out of work since 2012.
9 At the time of this offence, you were living with your mother in Wonthaggi. Your prior criminal history extends back to 1993, when you were placed on a good behaviour bond for, as I am told, bouncing a cheque. In 2005, you were convicted of driving-related charges and placed on a Community-based Order. None of these prior court appearances are directly related to the type of offending you have pleaded guilty to in this case.
10 I have been told by your counsel that, since this offence in June 2011, you have been placed on a Community-based Order for theft of a motor car. As I understand it, you did not return a hire car, and was arrested for the theft of that car. A breach of that CBO is currently outstanding.
11
In July 2013, you had a dispute with your mother and as a result, you could not live with her. You, in effect, became homeless. You were charged with theft of a motor car and credit cards, and have been placed in custody on remand for those offences since 17 July 2013. In effect, you have spent
50 days in custody for those offences.
12 In relation to this offence, you have served 86 days' pre-sentence detention at the time of your plea.
13 It was submitted that you had arrangements to live with a friend of yours in Wonthaggi on your release from prison. It was also submitted your mother was supportive of you, despite the dispute you had had with her in July this year. In summary, your life has started to unravel in your late 30s and this offence is but part of your personal downward spiral.
14 In relation to this offence, you were a backseat passenger in the Magna sedan when it was intercepted for speeding. The boot of the car contained equipment in the form of scientific glassware, filter papers, portable gas cookers, a submersible pump, electronic scales, pH test strips, metal retort base and threaded metal rod with a boss head and clamps, all items to be applied in the manufacture of amphetamines. Chemicals in the form of iodine and phosphorous acid, which are precursor chemicals for the manufacture of methylamphetamine were also found in the boot. Other chemical residues were found on the equipment which contained methylamphetamine.
15 Your counsel submitted that the objective seriousness of your offending was not great. He submitted because you were the occupant of the car, not the driver - that was one factor - that there was no evidence that the equipment was a complete laboratory, that it is mostly waste product that was seized at the time, and that at best, only 29 grams of methylamphetamine could have been produced from these items that were seized. All pointed to a lower end of the range of offending. I note, however, your fingerprint was found on equipment within the boot.
16 The offending is serious and requires a sentence to reflect the just punishment and deterrence considerations appropriately. The mobility of a clandestine laboratory or its constituent parts makes the detection of this offence more difficult for authorities. The specific and general deterrence considerations in sentencing are enlivened in this case.
17 As is your right, you made a "no comment" record of interview at the time of your arrest. Your defence response, dated 10 December 2012, clearly set out your defence to this and other charges arising from this incident. Ultimately, you pleaded guilty to Charge 2 on the indictment at the trial court door, basically.
18 Mr Lavery, your counsel, urged me to conclude that the facts of these events mean that you are equally culpable with Omar and Barker. Based on the admissible evidence against each of you, I conclude that you are equally culpable and that there is no appropriate way to determine if there is any hierarchy between the three prisoners.
19 You offended when 40 years old. You have an insignificant criminal history at the time of this offence, however this is a serious offence and, whilst you are entitled to the benefit of your life before offending in this case, the offending at this level of drug trade at your later stage in life calls for specific and general deterrence. The prosecution submitted that an immediate term of imprisonment was not necessary in this case.
20 I find that an immediate term of imprisonment is the appropriate disposition in your case, to satisfy the requirements of deterrence general and specific, just punishment and the protection of the community against the corrosive impact of the amphetamines trade.
21
Mr Omar, you are nearly 41 years old. You are married and have seven children between the ages of 19 and three. You are the eldest of your siblings. Your father came from Lebanon in 1970 and was a factory worker here. He is now dead. Your mother is alive and you have contact with her and, I am told, a close relationship with her. You have described yourself as the "grey sheep" - or you were described as the grey sheep - of your family.
I take that to mean you are the only family member that has got into trouble with the law.
22 You completed Year 11 at Coburg Tech. You then did three years of a plumbing apprenticeship at Howden's in Brunswick until you were retrenched along with others. You then worked as a self-employed plumber for ten years until you injured your knee. You then commenced work at CNN Bricks at Campbellfield, working your way up to forklift driver there. In 2008, you had an industrial accident which resulted in a back injury. You personal injury claim is yet to be finalised. Since 2008, you have been a disability pensioner. You own your own home in Glenroy. Your wife receives family support benefits for your children.
23 Between 2008 and 2011, you used Oxycontin for your pain in your back. It was put that your time in prison for these charges gave you the chance to break your opiate addiction. You currently take Lovan for your diagnosed depression. The back condition has improved after you have rigorously taken up a walking program, some one and a half hours per day.
24 Mr Omar, your prior criminal history dates back to 2000, when you were given a six month wholly suspended sentence for cultivating and trafficking cannabis. That court appearance also had a firearm and theft offence. In 2004, you were before the courts on handling stolen goods charges and going equipped to steal. The disposition was a fine. In 2005, you were back to court on charges of obtaining financial advantage by deception and placed on a Community-based Order for 12 months. You breached that supervisory order and ultimately, on appeal in October 2006, you were placed back on that Community-based Order. In April 2011, you were fined for possessing a prohibited weapon. That last court appearance was just two months prior to this offence before the court.
25 It is clear from your record of interview, your reason for speeding at the time and the reason for your interception by the police that you were on bail with some strict curfew conditions for some other offending. You were speeding to get home in time to comply with the curfew conditions of your bail on other charges. The charges that gave rise to those bail conditions were not proceeded with by police, however you have been incarcerated between December 2012 and February 2013 for breach, as I understand it, of a Family Violence Order. You have been at home with your wife and children since that time. You have been on bail for this charge. Initially upon arrest, you served 61 days on remand for the charges arising from your arrest on 23 June 2011.
26 Your role in this offending is that you have driven the white Magna registered RXD 767 from your home in Glenroy. You have picked up Ms Barker as a passenger in Narre Warren and you have then driven the car to Wonthaggi to pick up Mr Bausch at his mother's home. You assisted Bausch in loading bags and suitcases in the boot of the car. You knew that the items in the boot of your car were chemicals and equipment for a clandestine laboratory. The smell in the car as you drove around must have been overpowering. Your culpability is the same as your passengers, Bausch and Barker.
27 You have offended at this time while you were on bail. One of your prior convictions is trafficking in a drug of dependence. On that occasion, it was cannabis.
28 It was put on your behalf, that any term of imprisonment should be wholly suspended. The factors of general deterrence and just punishment outweigh factors personal to you in this offence. A term of immediate imprisonment is appropriate.
29 Ms Barker, at the time of this offence, you were 24 years old. You are now 26. Your co-offenders are nearly old enough to be your father. You are currently residing in WISP accommodation, having been released from prison in April 2013. There are no outstanding matters against you.
30 Exhibit Barker/A is a psychological report dated 24 November 2011 prepared by Dr Simon Kennedy, a psychologist. This report was prepared some five months after this offending, but whilst you were in Dame Phyllis Frost Prison for other matters.
31 On the day of this offence, you were picked up by Omar and went for the drive to Wonthaggi. Your record of interview is not a fully frank description of your role in these events. The forensic evidence proves you handled the gas bottle which was part of one of the stoves in the boot of the Magna. You knew more than you told the police. You have pleaded to the charge at a later stage of the proceeding.
32 You, of all people, know the ravages and misery that the production of amphetamines brings to its users. You told Dr Kennedy that gaol effectively saved your life in a time when your methylamphetamine use was out of control from November 2010 onwards. I was told the informant in this case commented on your much improved health and general appearance between the date of your arrest back in June 2011 and your plea at court on Monday this week.
33 You have two children, both of whom live with other people. Your eldest lives with his father. Your youngest lives with your mother. On the surface, that all looks very normal. You know otherwise. Your life has been beset by many challenges. Your earliest family life was overshadowed by heroin and drug addiction by your mother and your father. At age nine, you witnessed your father's death from an overdose. Your mother is an alcoholic. When you were a very young girl, you were sexually abused by your stepfather. By age 14, you were pregnant with your first child. The father was your mother's partner. You were removed to Wesley Mission until you were the age of 18, where you lived with your child.
34 You have used cannabis, speed and ecstasy since age ten. This was given to you by your mother. You looked after your younger siblings whilst she indulged her drug and social habits. It goes without saying that you have a well-entrenched drug problem. Dr Kennedy, in a masterful understatement, says your upbringing was neglectful. He continues to say your relationships have been extremely dysfunctional. Three of your partners over life have either died from accident or committed suicide. The fourth is currently serving a sentence of imprisonment for violent offending against you whilst you were pregnant. The offending in that case resulted in your second pregnancy being unsuccessful.
35 You have attempted suicide on four occasions in 2011 and been hospitalised during that time. You have been diagnosed with a borderline personality disorder by Dr Kennedy. Your education includes attendances at 13 primary schools and nine secondary schools. By number, that might mean you were very educated but the reality is that you have been denied the basic right to an education by your family circumstances over which you had no control.
36 Your criminal history commences when you are a 14 year old. You have five Children's Court appearances up until 2004. You have served YTC imprisonment for violence and robbery. You have no directly related prior convictions for drug trafficking or related charges.
37 I have not fully set out the detail of the tragedy that has been your life so far. You are living proof of the resilience of the human spirit. It can only be your hope that things will improve for you and that you can keep going in the face of all the adverse factors in your life. I am told you are currently under the care of a Dr Sanders, a general practitioner, and a psychiatrist by the name of McKinnon. I did not have reports from these doctors.
38 Since this offence, you have served considerable time in custody due to other offending. You are in a different position to your co-offenders because of your relative youth and your compromised start in life. The prosecution agreed a suspended sentence was an appropriate disposition for you and your part in this offence.
39 A suspended sentence can be a danger for someone like you, with your background and your criminal history. It is a risk. If you offend, you get to serve the time. It is a reward; if you do not offend, you do not go back to gaol. This sentence gives you hope.
40 Each of you have pleaded guilty to the charge of possessing substances and equipment with the intention of using these substances and equipment for the purpose of trafficking in a drug of dependence. Your pleas of guilty have a utilitarian value of allowing the orderly and effective administration of justice. There is a certainty of outcome and resolution of substantive issues raised by each of your offending. Your pleas allow for the preservation of court time, police resources to deal with other matters. Your plea indicates public confidence in the legal process set up to protect the community. Your pleas also are clear acknowledgment by each of you that you accept your responsibility for your criminal behaviour in this case. Your pleas also recognise you are willing to facilitate the course of justice in the community.
41 Your pleas also indicate and demonstrate remorse on the part of each of you. Mr Lavery urged me to accept that your plea of guilty, Mr Bausch, had particular utilitarian value because of the objective strength of the prosecution case against you. Your plea of guilty was at a late stage. I accept that, on balance, your plea indicates remorse and acceptance by you of your involvement in this criminal behaviour. Mr Omar had indicated his plea at an earlier stage in proceedings. A plea indictment was prepared and filed on the basis of that indication. I accept you display remorse and are accepting of your criminality. I take that into account in fixing your sentence.
42 Ms Barker, your plea of guilty was indicated prior to the last minute. It was finalised at the listing of the trial of this matter. I accept you are remorseful for your part in the criminal enterprise. I take your remorse and admission into account when fixing your sentence.
43 I turn to sentencing considerations. The basic purpose for which a court may impose a sentence of imprisonment are just punishment, deterrence both specific and general, rehabilitation, denunciation of your actions and protection of the community. In sentencing each of you, I must have regard to a range of factors, such as the seriousness of your offences, your culpability for them and your personal circumstances. I am required to balance the interests of the community in denouncing your criminal conduct with the interests of the community in seeking to ensure, as far as possible, you are as offenders rehabilitated and reintegrated into society.
44 In the case of drug offences where the offending encompasses the possession of some precursor chemicals and the relevant pieces of equipment to make up a clandestine laboratory for the production of amphetamines, one of the primary purposes for sentencing is general deterrence. The scourge that is all too prevalent in our society is the use of amphetamines and other amphetamine-related derivatives. In short, no equipment: no amphetamines. In this case, general deterrence is a significant consideration in sentencing.
45 The offending in this instance is connected to financial gain from the misery of the ultimate product users. The prevalence of supply and use of amphetamines in our society demands this offending by each of you be denounced with punishment that carries the character of general deterrence. The prosecution has submitted that, in respect of each of you, an immediate term of imprisonment is not sought as a final disposition. I find that the prevalence in our society of this drug-related offending requires denunciation at its source. I repeat: no laboratory-type equipment or precursor chemicals means no amphetamines are made. This offence calls for terms of imprisonment.
46 In respect of Mr Bausch and Mr Omar, the terms of imprisonment are to be served. Ms Barker, you will have your term of imprisonment wholly suspended for the reasons that I have already previously expressed.
47 Mr Bausch, on Charge 2 you are convicted and sentenced to 18 months' imprisonment. I order that you are to serve a period of 12 months' imprisonment before being eligible for parole. I declare that you have served a total of 90 days' pre-sentence detention and that period is to be deducted from your sentence administratively. Pursuant to s.6AAA of the Sentencing Act, I announce that but for your plea of guilty, I would have sentenced you to two and half years' imprisonment with a two year period of non parole.
48 Gemma Barker, on Charge 2, you are convicted and sentenced to 12 months' imprisonment. I order that the whole of that sentence of imprisonment be suspended for a period of 12 months. Pursuant to s.6AAA of the Sentencing Act, I declare that but for you pleaded guilty, I would have sentenced you to two years' imprisonment with 18 months' non parole.
49 Mr Omar, on Charge 1 on your indictment, you are convicted and sentenced to 18 months' imprisonment. I order that you serve a term of 12 months' imprisonment before being eligible for parole. I declare that you have served a total of 65 days' pre-sentence detention and that period is to be deducted from your sentence administratively. Section 6AAA of the Sentencing Act: but for your plea of guilty, I would have sentenced you to two and a half years with a non parole period of two years' imprisonment.
50 I have previously signed a Disposal Order on 3 September 2013 and I will hand that down to the prosecutor.
51 Is there anything else?
52 MR DOYLE: No, Your Honour.
53 HIS HONOUR: I thank counsel for their assistance in this case. They are always difficult. Thank you.
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