Director of Public Prosecutions v Bellears

[2019] VCC 379

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

AT GEELONG
CRIMINAL JURISDICTION

CR 18-02467

DIRECTOR OF PUBLIC PROSECUTIONS

v

MICHAEL BELLEARS

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JUDGE:	HIS HONOUR JUDGE M.P. BOURKE
WHERE HELD:	Geelong
DATE OF HEARING:
DATE OF SENTENCE:	27 March 2019
CASE MAY BE CITED AS:	DPP v Bellears
MEDIUM NEUTRAL CITATION:	[2019] VCC 379

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	Ms S. Coombes
For the Accused	Mr L. Hartnett

HIS HONOUR:

1Michael Bellears, you are to be sentenced for one charge of trafficking a drug of dependence in a commercial quantity and one charge of possessing an unregistered firearm as a prohibited person.  The respective maximum sentences are 25 years and two years' imprisonment.

2You pleaded guilty before me on 20 March.  When interviewed by police, on
8 June 2018, you exercised your right to silence.  Committal went by hand-up brief on 30 November, after which you entered pleas of guilty.  The matter was then listed for plea hearing in this court.

3You receive the benefit of your plea of guilty and the level of cooperation  that short history of the proceeding shows.  You have facilitated the interests of justice.

4At the plea hearing, which also ran on 20 March, Ms Coombes   for the Crown  tendered a written prosecution opening and several folders of photographs, including aspects of the police raid at your home on 8 June 2018 and particularly of text messages contained within your mobile phone.

5Mr Len Hartnett for you tendered a folder of documents, which included the psychological report of Alison Maynard, dated 14 March 2019; urine screen results and certificates of rehabilitation programs from remand prison; the letter of Caraniche  clinician,  Michaela Klalanova, related to your participation in a drug treatment program -  also in prison; the letters of your ex-wife, Melissa Bellears and her brother, Lesley Martin; medical summaries and reports related to your children and your mother; reports related to your participation in residential drug rehabilitation programs during the time after your arrest; your own letters to your mother; the letter of your brother, Nigel Bellears.  Mr Hartnett also tendered the letter of your stepfather, Michael Maguire, and a letter to your father, Rodney Bellears, stating the prospect of employment when you leave prison. 

6The folder tendered also contained Mr Hartnett's outline of defence submissions.

7Ms Coombes provided to me a table of comparative cases and the sentencing snapshot document of the Sentencing Advisory Council for the period of 2012 to 2017. 

8The circumstances of your offending are comprehensively set out in the tendered Crown opening, which is Exhibit A.  My own summary may be relatively short.

9Police executed a warrant at your home in Pethajohn Parade, Grovedale, on
8 June 2018.  This had been the family home prior to separation from your wife.  From January 2018 you lived there and also shared care there of your children.

10Earlier that day your wife had attended at the home, you were not there.  She discovered a shopping bag containing drugs and equipment consistent with drug sales, in a bedroom ceiling.  She had come across a ladder and a manhole partly ajar.  She took it to the police.

11The subsequent police raid revealed further packaging and some cash.  Also, on top of a wardrobe shelf was a dismantled shotgun.  There was no ammunition.  I do not find this firearm to be related in any way to the trafficking offence.

12Later investigation and analysis established these things as to the drugs.   There was the drug of dependence, 3-4 methylenedioxy-N- methylamphetamine, known as MDMA.  It was in both crystal and pill forms.  In four packages there was a total of 660 grams in crystallised form.  This had purity of about 80 per cent.  In another bag there was about 100 grams, being approximately 230 pills, purity of 28 per cent.  The total was, accordingly, about 760 grams.  In such circumstances the legislated threshold for commercial quantity is
500 grams.

13The police also located a mobile phone at the home.  There were text messages consistent with drug sales to different people.

14As to this the Crown opening states periods between October 2015 and
July 2016, between April and June 2018, between January and April 2018, between January and June 2018, between March and April 2018, in May 2018 and between May and June 2018.

15There were also photographs taken between November 2017 and June 2018 of MDMA which was being sent in the post.

16You are charged and are to be sentenced for trafficking between October 2015 and June 2018.  Mr Hartnett made the point that the evidence does not present a consistent period of sales over the whole time charged.

17You are a 46 year old man, presently awaiting this sentencing in remand custody.  Your parents separated when you were 11, but you have maintained good relationships with your mother, father, stepfather and your younger brother.  You grew up in the Geelong area.  Schooling was promising early; however, you lost interest in secondary schooling and left in Year 11.  You began drinking alcohol in teenage and abuse of that became a problem well into adult hood.

18You criminal record indicates behavioural difficulties in late teenage years.  There are three court appearances between May 1990, when aged 17, and August 1996.  The first two were in 1990 and 1991.  Of some relevance to this matter before me, you received an adjourned bond in 1996 for possessing and using cannabis.  However, your criminal record has little real relevance to this sentence.

19You have been successful professionally.  In your mid-20s you began and completed a computer science court at Deakin University.  This led to employment with an information technology company for almost 20 years, working in Queensland and Victoria.  You rose to a senior position.

20You had been married to your wife for 20 years.  You moved to Queensland in the late 1990s because of her profession and lived there until 2013.  You have two children, a boy and a girl, aged 11 and 8.  Both suffer the disorder ADHD and associated psychological conditions.  I accept that you are very close to your children and have played a major role in their care.

21You marriage ended with separation in 2017 because of your drug use and involvement in that life.  Despite professional success you were a problematic drinker.  That had increased upon the families return to Victoria in Geelong in 2013.  You have not drunk alcohol since 2015.  But in the course of abstaining from that you began to abuse Xanax and then the drugs cocaine and ecstasy.  Psychologist, Alison Maynard, diagnoses generalised anxiety disorder and substance abuse disorder that are currently in remission.

22After arrest in June 2018 you were remanded until granted bail in August 2018.  That was conditioned upon, particularly, your entry into a residential drug - I will say that again.  That was conditioned upon, particularly, your entry into residential drug rehabilitation at a facility named, "Recovery Oz".  You were there for about six weeks and you were doing well.  You left because, I was told, you assisted another resident to return a negative drug sample.  You entered another residential facility named, "The Cottage", staying for about two weeks.  Your bail was revoked in October 2018.

23Drug trafficking is self-evidently a serious offence.  To do so in a commercial quantity attracts a maximum sentence of 25 years' imprisonment.  Trade in illicit drugs is seen as prevalent and as a major social problem.  It harms our community and its vulnerable.  Your offending was over time, although specific quantities are not clear.  The drugs you possessed for sale on 8 June 2018, seen alone, were in an amount beyond the commercial quantity threshold.  Where you are placed in the hierarchy of drug distribution is difficult to say.  Mr Hartnett made the point that there is no evidence of betterment.

24In circumstances of offending such as this, the sentencing considerations of deterrence, your moral culpability, the need to sentence in a way to condemn and proportionately punish are important.  General deterrence is a particularly important sentencing purpose.  The only appropriate sentence is that of imprisonment, a term of some significant length.

25There are factors, primarily personal to you, which may moderate and reduce the length of sentence;  that is, compared to what the objectively serious and adverse features of the offence require.  Those moderating factors include the following. 

1.     Your plea of guilty and cooperation.  I also see you as remorseful, at least in this sense, that you recognise the damage you have caused your children.  I also accept that you have developed the insight that your wife had no ethical choice but to go to the police, particularly given your children’s circumstances and vulnerability.  This can also be seen as relevant to your desire and capacity to rehabilitate.

262.  Your personal circumstances.  This includes that the evidence tendered persuades me that both of your children suffer significant psychological conditions.  For example, your son's treating doctor states,

"Specific learning difficulties in the area of auditory processing consistent with dyslexia, comorbid generalised anxiety disorder, poor self-esteem, attention-deficit hyperactivity disorder and pragmatic language.  Attention-deficit hyperactivity disorder combined" ‑ ‑ ‑

27I am just having some trouble in making out what is meant here.  I will simply read out what is said.  I take it means that the attention-deficit hyperactivity disorder is combined with other aspects or conditions.  I will read it again,

"Specific learning difficulties in the area of auditory processing consistent with dyslexia, comorbid generalised anxiety disorder, poor self-esteem, attention-deficit hyperactivity disorder, combined 314.01F90.1 as defined by the DSM-5 in 2014 and pragmatic language assessment".

28I find that your children will miss your support and assistance.  It will make it harder for their mother.  Her tendered letter, albeit related to a bail application, states that she states particular concern  about your daughter's mental health.

29The hardship your imprisonment will cause your family is not exceptional, such that it can be a reason for a lesser sentence.  However, this is a case in which I should find that your imprisonment will be harder for your you in the knowledge of their situation and, I would think, that your offending is the cause of it.

303.   Mr Hartnett placed emphasis upon good prospects for rehabilitation.  Your lack of criminal history, now for over 20 years; professional capacity; family support and the likely motivation of wishing to return to assistance of your children are all things which support that.  I also take into account the tendered letters to your mother.

314.    I take into account the residential restriction of you at rehabilitation facilities during your time on bail, that was raised again and discussed with counsel this morning.

32These matters can go to a moderation of both your head sentence and minimum term.  They may particularly be seen as relevant to what minimum term I set before eligibility for parole.  However, I must also attempt to sentence in a way to reflect the seriousness of your offending and commission of a crime as serious as trafficking in a commercial quantity.

33I have considered the comparative cases and the sentencing snapshot provided to me.  I also recognise the need to sentence in a way individual to the case.

34Stand up, please.

35After considering and weighing what I see to be the relevant matters I sentence you as follows:  on Charge 1, trafficking a drug of dependence in a commercial quantity, five years' imprisonment; on Charge 2, possession of an unregistered firearm, one months' imprisonment.  That is a total effective sentence of five years.  I set a minimum term of two years and eight months before eligibility for parole.

36I declare, under s.18 of the Sentencing Act, 231 days of pre-sentence detention.  Had you not pleaded guilty I would have imposed a sentence of seven years with a minimum term of five years.

37Sit down, please. Is there anything else?

38MS COOMBES:  Your Honour, just to clarify, the unregistered firearm, that's one month concurrent on ‑ ‑ ‑

39HIS HONOUR:  Concurrent.

40MS COOMBES:  Yes, thank you, I just ‑ ‑ ‑

41HIS HONOUR:  Yes, saying nothing means it's concurrent.

42MS COOMBES:  Yes, thank you.

43HIS HONOUR:  I see no need to cumulate that.

44MS COOMBES:  No, I wasn't ‑ ‑ ‑

45HIS HONOUR:  No.  I know, yes.

46MS COOMBES:  ‑ ‑ ‑ submitting that, but just wanted to clarify that.  Yes, thank you, Your Honour.

47HIS HONOUR:  It's a total effective sentence of five years with that minimum term.

48MS COOMBES:  Yes, as Your Honour pleases.

49HIS HONOUR:  Now, what else do I need to do?

50MS COOMBES:  Your Honour, there was some ancillary orders sought; forfeiture of the firearms, disposal of the drugs and paraphernalia, and the phone.  Those draft orders, I believe ‑ ‑ ‑

51HIS HONOUR:  Has there already been taken, a forensic sample?

52MS COOMBES:  I believe so, Your Honour.  Yes, correct.  That was sampled in the interview, so retention automatically applies.

53HIS HONOUR:  Well, if you've got those other orders, the ‑ ‑ ‑

54MS COOMBES:  They should ‑ ‑ ‑

55HIS HONOUR:  ‑ ‑ ‑ forfeiture and disposal orders, I'll sign them now.

56MS COOMBES:  Yes.  I think that they've been emailed through to
Your Honour's associate, perhaps last week, Your Honour, when the plea was ‑ ‑ ‑

57HIS HONOUR:  I can do them in chambers too, can't I?

58MS COOMBES:  Yes, you can, yes.

59HIS HONOUR:  I'll do that.  There's a forfeiture order and ‑ ‑ ‑

60MS COOMBES:  I beg your pardon?

61HIS HONOUR:  ‑ ‑ ‑ a disposal order.  There are two.

62MS COOMBES:  Yes, forfeiture and disposal.  That's correct, they're sought.

63HIS HONOUR:  All right.

64MS COOMBES:  I'll make those enquiries.

65HIS HONOUR:  All right, now, is there anything else to do or say?

66MS COOMBES:  No, Your Honour.

67HIS HONOUR:  Your family who come to support you they may speak to you briefly before you're taken into custody.  It must be brief however, I'll remain on the Bench whilst it happen.

68MS HARTNETT:  Could I just go down too, Your Honour.

69HIS HONOUR:  Yes, yes, if you could supervise that.

70MR HARTNETT:  Thank you, Your Honour.

71HIS HONOUR:  Thank you.  All right, now, we can - you're excused, Mr Hartnett.

72MR HARTNETT:  Thank you, Your Honour.

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