Director of Public Prosecutions v Barwick

[2014] VCC 858

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-14-00381

DIRECTOR OF PUBLIC PROSECUTIONS

v

SHANE BARWICK

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JUDGE:	HER HONOUR JUDGE LAWSON
WHERE HELD:	Melbourne
DATE OF HEARING:	26 May 2014
DATE OF SENTENCE:	30 May 2014
CASE MAY BE CITED AS:	DPP v Barwick
MEDIUM NEUTRAL CITATION:	[2014] VCC 858

REASONS FOR SENTENCE
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Subject: Criminal sentencing - trafficking in a drug of dependence.
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Office of Public Prosecutions	Mr. P. Pickering	Craig Hyland, Solicitor for the Office of Public Prosecutions
For the Accused	Ms. M. Fox	Garde-Wilson Lawyers

HER HONOUR:

1Shane Barwick, you have pleaded guilty before me, to five charges on the indictment.  One charge of trafficking in a drug of dependence, MDMA, in not less than a commercial quantity on 13 August 2013; one charge of traffic drug of dependence, methyl amphetamine on 13 August, 2013, one charge of being a prohibited person in possession of a firearm, namely a MAB Model E semi-automatic Colt pistol, and two charges of possession of a drug of dependence, one related to cannabis L, and one related to Methorphan.  

2In addition, pursuant to s.145 of the Criminal Procedure Act 2009 you have entered pleas of guilty to summary charges that were transferred to this court, and those charges are: Charge 6: deal with property suspected to be the proceeds of crime, and that related to cash totalling $20, 315. Charge 9, possess prohibited weapons relating to flick knifes, box cutter, set of knuckle dusters, a Taser, two laser pointers and an expandable baton. Charge 15: deal with property suspected of being the proceeds of crime, that includes a Raymond Weil gold watch, three gold bracelets, two Apple iPhones, one electric money counter, various pieces of surveillance equipment, outdoor power box and a safe. Charge 16: possess unauthorised explosive, namely assorted fireworks without appropriate authority, and Charge 19, possess police identification without satisfactory explanation and that related to a police badge and a wallet, and Charge 20: possess cartridge ammunition.

3These crimes are serious and that is evidenced by the maximum penalties that are proscribed.  In respect to trafficking a drug of dependence in not less than a commercial quantity, the maximum penalty is 25 years imprisonment.  With respect to trafficking a drug of dependence, it is 15 years imprisonment; in respect to the possession of drug of dependence, as I have just discussed with counsel, in relation to the cannabis, the maximum penalty is five penalty units, and in relation to the Methorphan, that is 30 penalty units or one year imprisonment.   Being a prohibited person in possession of a firearm, the maximum penalty is 1200 penalty units or 10 years imprisonment.  In dealing with the proceeds of crime, two years imprisonment.  Possession of fireworks is 100 penalty units, possession of police identification 100 penalty units, and possession of ammunition 40 penalty units. 

4I will proceed to sentence you on the basis of the Crown opening.  I also note that you did admit your prior criminal history.  You have prior convictions, largely for driving related offences.  You have never held a licence.  It is of some relevance that none of the prior convictions relate to drug offending.  You do have one conviction for an unlawful assault, and throwing a missile and that concerns an occasion when you were drunk at a MacDonald's store and you got into a fight, and threw a straw holder.  You have completed two Community Based Orders.  You breached the first order due to a non-attendance at an appointment towards the end of that order and you were dealt with that breach by way of fine. 

5I will move on now to the circumstances of the offending.  On 13 August, 2012, you were arrested as a consequence of an ongoing police investigation into drug distribution in the Bayside area.  Police observed you sitting in your car with others at the Concourse Shopping Centre, Beaumaris.  You parked the car next to another vehicle and were arrested when it appeared that you were carrying out a drug transaction.  When arrested they found $1650 dollars in cash, a flick knife and keys in your possession.  A flick knife was also found in the pocket of the front passenger seat, your vehicle and as well as two Apple iPhones. 

6You are aged 30 and you live at your grandparents' home at 22 Reserve Road, Beaumaris.  By way of background, you have been effectively parented by your grandparents and have been in their care since you were about six weeks of age.  Police executed a search warrant of your grandparents' home at 22 Reserve Road, Beaumaris, and there they found the following items in your bedroom: an estimated 1280 Ecstasy or MDMA tablets in ziplock bags, 15 grams of cannabis, $18,500 cash, fireworks, ziplock bags containing methamphetamines, 16.7 gram, knuckle dusters, an expandable baton, property believed to be the proceeds of crime, digital scales and multiple ziplock bags, and the property that was believed to the proceeds of crime, relates to those items.  That was the subject of Charge 15, in the summary matters that I have already referred to.  A search of the lounge room in the house also located some items.  A money counting machine, a safe security system, cameras and various surveillance devices. 

7During the investigations, police also identified your neighbour, Andrew Kotsifas, a person who was closely associated with you.  He lives with his parents next door, at 24 Reserve Road, Beaumaris.  Police obtained and executed a search warrant of the Kotsifas' house, and there they located property in Andrew Kotsifas' bedroom consisting of two locked cases.  One case contained an estimated 1992 Ecstasy tablets in plastic bags, and a small amount of other tablets containing Ecstasy and two white tablets containing Methorphan and the other locked case contained an MAB branded, Model E automatic pistol, a police wallet and badge.

8You have admitted that through your pleas of guilty that those items belonged to you.  They were in Mr Kotsifas' possession.  He was looking after those items on your behalf whilst you were overseas. You had not made arrangements with him for their return.  Police later ascertained that the keys held by you opened both locked cases that contained the Ecstasy tablets and the firearm. 

9The total weight of the MDMA and methyl amphetamine seized was described in the Certificate of Analysis completed by Kathleen Poel, a scientist at the Forensic Services Department, Victoria Police.  That certificate is dated 30 January 2014.  The total weight of all the MDMA was calculated at 1.1 kilograms and that was made up of drugs that varied in purity between seven per cent and 60 per cent.  That amount does exceed a large commercial quantity, however the matter was resolved at committal on the basis that you intended to traffic a commercial quantity only.  The total amount of methylamphetamine seized was 16.5 grams. 

10An estimate of the valuation of the MDMA tablets and the methylamphetamines that were seized, was provided in the statement of Detective Sergeant Vaughan and he estimates the MDMA tablets have an estimated value ranging from $41, 363 to $99,270 and the methylamphetamine between $9,429 to $16,500.

11When arrested, you were interviewed, and as is your right, you made no comment.  You have spent 31 days in custody in relation to this crimes prior to being released on bail in September of 2013.  You were then remanded following the plea hearing on 26 May 2013, and pre-sentence detention is to be declared. 

12Ms Fox on your behalf, in her plea, stated the context to your offending was that you had been using both Ice and cannabis in the past, and over the period from 2012, your Ice use increased.  Your employment at AAA Supplements had ceased, a past relationship had broken up because of your escalating drug use, and generally your lifestyle had spiralled out of control.  You were using Ice and MDMA and you were gambling, you fell in with the wrong crowd.  You trafficked drugs to fund both your gambling and drug habit.  You were exhibiting signs of being affected by your increasing drug use, such as anger, secrecy, not communicating properly with your grandparents and you were not working.  Your grandparents', at no stage, were aware of your drug use or activities related to your drug dealing. 

13I acknowledge the context to your offending was that your use of the drug Ice had got out of control and that you were trafficking primarily to fund your drug habit and associated gambling habit. 

14Ms Fox explained that you purchased a pistol and other items as they were offered to you, and you were using heavily at that time and making poor decisions.  You did not have any ammunition for the pistol.  Whilst that explains the offending, it does not, in any way, excuse your offending and in sentencing you the court needs to emphasise both general and specific deterrence. 

15I will now refer to the matters that were put in mitigation. You entered a plea of guilty once the matter was resolved. You were charged on 13 August 2013, and thereafter the matter was the subject of a committal mention on 6 November, 2013, but that was adjourned pending receipt of further evidence. On 3 March, 2014, the matter resolved at committal mention, to the charges presently before the court, including the summary charges.

16The Crown accepts that the plea of guilty was entered at an early opportunity.  Mr Barwick, by your pleas, you have obviated the need for trial and you have spared the State the expense and inconvenience of having to call evidence upon your trial and you thereby facilitated justice.  There is real utility in your plea and your sentence will be discounted accordingly.  I am also satisfied that your plea of guilty is evidence of genuine remorse. 

17There was a lot of emphasis put during the plea hearing on the significant steps that you had taken whilst released on bail, towards your rehabilitation.  I accept having heard the evidence of Mr Joe Lamberti and your grandmother, that you did make genuine efforts to turn your life around and you were dealing with your underlying offending behaviours.  Mr Lamberti is a very experienced drug rehabilitation counsellor and rehabilitation provider and he has been seeing you on an Outpatient basis, initially weekly and then fortnightly following your release on bail.  He performed some random urine screening tests and they have all been clean.  

18You were successful in obtaining employment with Property One Solutions, a building firm, following your release on bail and you worked there as a full-time labourer five days a week.  On the evidence before me, I am satisfied that you were not using any illegal drugs whilst you were released on bail, and you have been compliant with the very strict bail conditions, including curfew. 

19Mr Lamberti confirmed that he had seen you for 20 sessions. He noted that you detoxed in custody, so his primary consideration was assessing you and also educating you about relapse prevention.  He focussed on lifestyle changes, with behaviour modification and relapse prevention.  He said that you developed a very strong therapeutic relationship with him, and that you were following all his directions.  He confirmed whilst under his treatment, you have regularised your lifestyle, you are working full time, you have re-established a relationship with your grandparents and your sister, and you have reconciled with your girlfriend. 

20He stated that you have clearly expressed remorse for your offending to him, and that you now wish to make amends to your family and your girlfriend.  He considered that you have progressed through rehabilitation and that you appropriately resisted all pressures to relapse into drug use.  He says your situation is one where your drug rehabilitation will be a lifetime recovery, and that you are now showing no signs of relapse and therefore, your long term prospects are very favourable. 

21Dorothy Barwick, your grandmother, gave evidence and she also confirmed the positive steps that you had made to change your lifestyle upon your release on bail. She described you as being a completely different person, and whilst on bail, you had been taking part in family activities, assisting your grandparents and you were trying to do the right thing.  She said you were now working full time, that you had resumed your relationship with your girlfriend, and she too, confirmed your compliance with the strict curfew and reporting requirements on bail.

22I accept, having regard to that evidence, that you have demonstrated a real commitment to changing your lifestyle, and that you now have insight into your offending, and that is borne out by the significant behavioural changes that you have made.  You are no longer using drugs, you have disassociated from drug taking friends, you are able to work full time, you are enjoying work and become crime-free and drug-free.  In view of that evidence, together the material set out in Mr Cummins, the psychologist's report, I consider that your prospects of rehabilitation are very favourable. 

23Mr Barwick, you are now 30.  I mentioned before about your background, and being effectively parented by your grandparents.  They remain very supportive of you and have been present during the plea hearings, as well as your girlfriend, so you are very fortunate in as much as they have been able to provide you with emotional support, and notwithstanding probably very bad behaviour on your part, during the times when you were badly affected by the drugs, they are willing to assist you in your situation once you are released, so that augers well for your future. 

24

I note your background.  You were able to complete Year 11, and then after that you have had work doing various roles as packer, glazier, labourer and as I have mentioned before, some casual work with

AAA Supplements doing some promotional work and working in the factory, and then your work as a labourer with Property One Solutions.  The letter from Michael Di Stella, the owner of the company, Property One, confirmed you had been working with him, enjoying working with him full time, up until your remand, and it appears he is willing to keep your job open for a time. 

25Moving onto the sentencing considerations, Ms Fox acknowledged that this was very serious offending, and she further acknowledged the likelihood of a term of imprisonment as being an appropriate sentence.  Through your pleas of guilty you now accept the seriousness of this offending and you take full responsibility for your behaviour.  You openly acknowledge, with hindsight, that your arrest has been a catalyst for change, and that at the time you were arrested, your life had spiralled out of control, linked to your Ice habit.  You have now built up the relationship with your grandparents, your sister and your girlfriend, and you are remorseful.  This is your first time in custody, and you have described the earlier period spent on remand as being a real wakeup call.

26Ms Fox, on your behalf, sought a longer than normal parole period, to enable you to be released back into the community, with appropriate supports so that you may continue your rehabilitation in the community. 

27Mr Barwick, a term of imprisonment is appropriate in all the circumstances, having regard to the seriousness of the offending represented by these charges, particularly trafficking in not less than a commercial quantity of MDMA.  You are being dealt with for trafficking on the one day only, and you had obviously become involved in drug dealing to support your own addiction.

28General deterrence is of paramount consideration in sentencing any offender in respect to charges of this nature.  It is necessary for the court to also emphasise specific deterrence although having regard to the very real steps that you have taken towards your own rehabilitation in the community, I consider that the need to emphasise specific deterrence in this case, in less important.

29It is necessary for the court to formally denounce your conduct, and finally I must impose just punishment.  I will ask you now to stand, while I read out the sentence. 

30The formal court orders of the court will be as follows:  in respect of Charge 1, you are convicted and sentenced to four years imprisonment, that is in the relation to the trafficking in a drug of dependence not less than a commercial quantity.  Charge 2, trafficking in a drug of dependence, convicted and sentenced to 18 months imprisonment.  Charge 3, being a prohibited person in possession of a firearm, convicted and sentenced to 12 months imprisonment.  Charge 4, possession of a drug of dependence, convicted and discharged.  Charge 5, possession of a drug of dependence, convicted and discharged. 

31It is important in sentencing you, that I must avoid double punishment, so in relation to the first two charges, namely Charges 1 and 2, that relate to trafficking on one day only, there will be no orders as to cumulation.  Charge 1 is the base sentence.  I direct that six months of the sentence imposed on Charge 3 be cumulative upon Charge 1, making a total sentence for the indictment of four years and six months.

32I will now move onto the summary matters.  Charge 6, deal with property suspected to the proceeds of crime, you will be convicted and sentenced to 12 months imprisonment.  Charge 9, possess prohibited weapons, convicted and sentenced to 12 months imprisonment.  Charge 15, deal with property suspected to be proceeds of crime, convicted and sentenced to 9 months imprisonment.  Charge 17, being a prohibited person possessing a firearm, convicted and sentenced to 12 months imprisonment.  Charge 19, not being a member of a police force, possessing accoutrements supplied to a member of the police force without satisfactorily accounting for such possession, convicted and fined $1000.  Charge 20, possess cartridge ammunition without a licence, convicted and fined $750. 

33I make the following orders for cumulation.  I direct that three months of the sentences imposed in respect to summary matters, Charge 6, Charge 9, Charge 15, and Charge 17, are cumulative upon each other, and on the sentence imposed on the Indictment.  Therefore, the total effective sentence is 5 years and six months. 

34I have allowed a significant gap between the head sentence and the non-parole period to enable your supported released back into the community, if appropriate.  That is, to facilitate your ongoing rehabilitation and to further encourage you to continue your rehabilitation.   Therefore, I direct that you serve a period of three years before being eligible for parole. 

35I make the forfeiture and disposal orders sought. 

36I make the orders for a retention of forensic sample.  Having regard to the seriousness of the offending, I consider that the order is appropriate and also the order is not opposed.  The granting of the order is in the public interest. 

37I declare that you have already served by way of pre-sentence detention, a period of 35 days, and direct that that be entered into the record of the court. 

38I declare pursuant to s.6AAA of the Sentencing Act 1991, but for your pleas of guilty, I would have sentenced you to seven years imprisonment, with a non-parole period of four and a half years.

39HER HONOUR:  Does that cover everything. 

40MR PICKERING:  I'm sorry, Your Honour, I just missed some of that.  I wasn't writing quite as fast as I'd hoped.  I got up to Charge 15, Your Honour on the summary offences.  You had 9 months and I missed 16. 

41HER HONOUR:  Sorry, Charge ‑ ‑ ‑ 

42MR PICKERING:  Charge 16 which is possess fireworks.  Sixteen was possess firework and ‑ ‑ ‑ 

43HER HONOUR:  Sorry, I'll just have to go back to the beginning. 10.28.54.

44MR PICKERING:  I think you said 17, Your Honour, but it's actually - possess firework is 16.

45HER HONOUR:  Six, 9, 15 - 16.  Sorry, I announced 17, which is wrong.  So it's Charge 16, possess unauthorised fireworks.

46MR PICKERING:  Yes, Your Honour.

47HER HONOUR:  Yes, I have made a mistake there.   That is only a monetary fine, so you will be convicted and fined $100 for that, sorry and I added three months imprisonment, so I will have to confirm that that was wrong.  Charge 19 is right.  Charge 20.  Yes.  The orders for cumulation in respect to the summary offences are three months of the sentences imposed with respect to Charges 6, deal with property, suspected of being stolen.  Charge 9, possess prohibited weapons and Charge 15, deal with proceeds of crime.  That is 9 months. 

48MR PICKERING:  Yes.

49HER HONOUR:  Then that is to be added to the four years and six months.

50MR PICKERING:  Yes, which make five years, 3 months.

51HER HONOUR:  Five years and three months, and the non-parole period is three years. 

52MR PICKERING:  If Your Honour pleases. 

53HER HONOUR:  Sorry about that.  What I have done is, I have transposed a charge from his co-accused.  Yes.  I think I have covered everything.  Are you right, Ms Garde-Wilson. 

54MS GARDE-WILSON:  Yes, Your Honour. 

55HER HONOUR:  Have you got all the details. 

56MS GARDE-WILSON:  Yes, I have.  Thank you.

57

HER HONOUR:  Thank you.  Thank you for picking that up,

Mr Pickering.  It does not matter how many times I look at these things sometimes.  Sometimes I get it wrong, but I was able to correct it before it passed into the record, so that is good. 

58I have signed all those orders so they can be provided to the Crown.  Did you want to spend some time with your client here, or you are happy to go down to the cells.  Okay.  All right.  Do the family members want to say goodbye. 

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