Director of Public Prosecutions v Bentley
[2020] VCC 474
•21 April 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
CR-18-02573
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JACOB BENTLEY |
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JUDGE: | His Honour Judge Johns | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 27 March 2020 | |
DATE OF SENTENCE: | 21 April 2020 | |
CASE MAY BE CITED AS: | DPP v Bentley | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 474 | |
REASONS FOR SENTENCE
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Catchwords: CRIMINAL LAW – Sentencing – trafficking commercial quantity methylamphetamine – possession of a drug of dependence – failure to comply with order to provide information – relevant criminal history – effects of COVID-19 pandemic considered – immediate term of imprisonment with a non parole period.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr D. O'Doherty | Office of Public Prosecutions |
| For the Accused | Mr S. Tovey | Slink & Keating Solicitors |
HIS HONOUR:
1
Jacob Bentley, you have pleaded guilty to one charge of trafficking in a drug of dependence being a commercial quantity carrying a maximum penalty of
25 years' imprisonment, one charge of possession of a drug of dependence carrying a maximum penalty of five years' imprisonment, and a charge of failing to comply with an order to provide information to a Magistrate pursuant to s.465AA Crimes Act carrying a maximum penalty of five years' imprisonment.
2 You have also pleaded guilty to four relevant summary offences.
3 You have admitted your relevant prior convictions.
Circumstances of Offending
4 The circumstances of your offending was outlined in the Agreed Summary of Prosecution Opening for Plea dated 19 March 2020. This was Exhibit A on your plea and forms part of these reasons.
5 You were 26 years of age at the time of the offending and are now 28 years of age. You were living with a co-offender Amy Kehl who was your partner at the time. I have been provided with a summary of the charges Ms Kehl has been dealt with for, her criminal record, and the record of the sentence imposed upon her.
6 The most serious charge you face, Charge 1, occurred in connection with another co-offender Rajeev Singh, who pleaded guilty to the same charge along with wider and unrelated drug related matters before His Honour Judge Georgiou on the same date as you did, 27 March 2020. He is yet to be sentenced.
7 In brief terms, on 12 April 2018 you sourced 277 gms of methylamphetamine (78% purity) for Singh in order for Singh to satisfy a regular client of his who in fact was an undercover police operative. The Prosecution puts its case on the basis that you were complicit with Singh in his commercial transaction.
8 You arrived in company with an unidentified man – the two of you supplied the 277 gms of methylamphetamine that was then purchased with $37,000 containing marked bills provided by the undercover operative to Singh. You remained in Singh’s house while the transaction took place.
9 You were arrested at your premises five days later on 17 April 2018. Nine $100 bills that had been part of the $37,000 purchase price were located. Other sums of cash totalling in the vicinity of $2600 was also located. This sum forms the basis of Summary Offence Charge 24 – dealing with property suspected of being proceeds of crime.
10 A number of drugs were located at your premises – these form the basis of Charge 2 and include Methylamphetamine (55 gms), Diacetylmorphine, Temazepam, Diazepam, MDMA, and Alprazolam.
11 You also had a taser at your premises, which forms the basis of Summary Charge 25. Summary Charge 26 relates to unsecured ammunition located at your premises. You were on bail at the time of the commission of the offence of trafficking (Summary Charge 28).
12 You were arrested on 17 April 2018 and taken to Dandenong Police Station. You exercised your right to decline to answer questions when interviewed.
13 Police obtained an order from the Magistrates’ Court Victoria for you to provide the password to your electronic devices, namely a phone and you refused. Your refusal forms the basis of Charge 3.
14 You were remanded in custody on 17 April 2018 and have remained in custody to now.
Personal Circumstances
15 You are the middle child of a sibship of three. Your parents separated when you were 10.
16 Both your parents re-partnered, however, this led to friction between you and your siblings and your father’s new partner. Eventually, you ceased your relationship with your father.
17 You have a good relationship with your mother, although she has had her own battles with alcohol, and you have reported being exposed to heavy alcohol use when her and her partner at the time were consuming alcohol daily. Your mother has been a central support for you.
18 You have a close relationship with your younger brother, and you feel guilt for being a poor role model and influence where he is concerned.
19 Your childhood and teenage years were described as disjointed and tumultuous. You also changed schools regularly which was destabilising for you. Despite the disruption you showed great aptitude as a student. You were awarded a scholarship to Haileybury College, but you were unable to take it up due to your family moving away from the area.
20 You attended Dandenong High School before leaving after Year 11 VCAL to start a plumbing apprenticeship. At Dandenong High you gravitated toward other disaffected youth and commenced cannabis use and alcohol use in your mid-teens. Your drifting from academic study despite your ability was due no doubt to the instability in your home life, probable ADHD, and a vulnerability to substance abuse.
21 You did well at your apprenticeship and completed it which is to your credit and which will stand you in good stead into the future. You were named apprentice of the year during your apprenticeship.
22 You completed your apprenticeship at 21. You also entered a relationship with a young woman who introduced you to methylamphetamine. You had been using cannabis and alcohol since your mid-teens and had also abused steroids during your apprenticeship.
23 Like many before you, methylamphetamine use sent you into a steady decline. Your criminal record commences when you were aged 24. You are now 28 and your record discloses that you are a serious drug offender, and a commercial trafficker whose offending has escalated in a relatively brief period.
24 I was told that each of your relationships and your whole social life has centred around drug use since your early twenties. You have been unable to remain drug-free in the community for more than a few months.
25 At the time of the offending before the Court you were unemployed, depressed, drug-addicted, and in a problematic relationship with co-offender Ms Kehl.
Circumstances of Offending
26
Your offending occurred on a single date. Your relationship with Singh is apparent from the materials and was accepted by your Counsel. I accept that your role was as a middle-man who has assisted sourcing the supply of a quantity that Singh was unable to satisfy within his existing supply lines.
I accept your Counsel’s submission that the money located at your premises is consistent with you getting a commission for the supply rather than being a major shareholder of the 277 gms.
27 However, as the Prosecutor Mr O’Doherty stated, you were a very useful soldier in this enterprise.
28 Commercial trafficking of methylamphetamine is a very serious offence carrying a maximum penalty of 25 years' imprisonment. The destruction and misery wreaked on our community due to the pernicious drug is widespread. You know the consequences of addiction yet like so many other addicts you peddle the misery down the line. Your activity has escalated over a short period of time and your offending now places you in the higher echelon of traffickers. As an example of commercial trafficking, it is not at the high end, however, in all of its circumstances, given the extent to which the threshold has been breached, your role, and the fact that it is a single occasion.
Prior Convictions
29 You have been imprisoned in the recent past for similar offending. Your prospects of rehabilitation are assessed in light of these convictions. The leniency that can be afforded to you is limited. Your moral culpability for the offending is assessed in light of your history.
30 Further, by virtue of s.6B of the Sentencing Act once you have been sentenced to a term of imprisonment on Charge 1 you will be a serious drug offender within the meaning of the Sentencing Act 1991.
Carla Ferrari Report
31 A psychological report from Carla Ferrari dated 19 March 2020 was tendered on your behalf. I accept the following propositions based upon the report:
i) you have a history of undiagnosed ADHD which appears to have commenced around ages 11-12. You learned to manage your symptoms through exercise and illicit substance use;
ii) the presence of ADHD can severely impact executive functioning, leading to problems with emotional regulation, mood swings, low frustration tolerance, self-awareness, inability to cope with stress, and inhibitory control issues;
iii) you were depressed and highly stressed leading up to your offending due in part to relationship turbulence and the stress of unemployment after a period of incarceration;
iv) persistent drug use also affected your judgment;
v) these problems may explain to some degree why you have been unable to learn from past mistakes and consider the consequences of your behaviour;
vi) you present as a moderate risk of re-offending;
vii) issues which need addressing to limit your risk include your untreated mental health issues and your tendency to use substances to self-medicate, and your anti-social peer group;
viii) you have developed insight and awareness of the detrimental effect on your life and your risk factors;
ix) you have the motivation to address your problems and remain drug free;
x) you have some remorse.
32 In contrast to your previous period of incarceration you have demonstrated that you have been drug-free whilst in custody. I accept also your Counsel’s submission that you have shown particular commitment and desire to improve when engaging with available programs whilst on remand.
33 You have family support and a high level of ability in your chosen trade. At your age, if your commitment to a new life is genuine you have the ability to succeed in your rehabilitation. I am guarded as to your prospects given your recent history, however, for the reasons I have stated your prospects of rehabilitation remain realistic.
34 Your plea of guilty, whilst not made at the earliest opportunity is nevertheless a significant matter in mitigation. These sorts of matters often need time to resolve appropriately.
35 I take into account the fact that you are experiencing custody in the midst of the COVID-19 pandemic which will adversely affect your experience in custody over and above the accepted exigencies of custody. There are no visits and have not been for some time. I also accept that there is a heightened degree of anxiety, not just in the community, but of course in the prison and amongst your loved ones who are concerned for you in custody, which will in turn generate anxiety in you. To experience that level of anxiety in the confines of prison, is considerably more onerous than experiencing the same level of concern in the community.
36 As I have stated, I have been provided with the details of the sentences imposed on Ms Kehl for similar but different offending: different charges based on a different factual basis.
37 I am required to impose a sentence which reflects general deterrence, and also the community's denunciation of drug trafficking in these substances in these quantities, as well as reflecting just punishment, and in your case specific deterrence. I take all those matters into account.
Sentence
38 I sentence you as follows:
39 Charge 1: Five years' imprisonment
40 Charge 2: 18 months' imprisonment
41 Charge 3 – failure to comply with an order to provide information: 12 months' imprisonment
42 Summary offence 24 – possess proceeds: Three months' imprisonment
43 Summary offence 25 – possess taser: Fined $800
44 Summary offence 26 – possess ammunition: Fined $800
45 Summary offence 28 – commit an indicatable offence on bail: One month imprisonment
46
I make the following orders for cumulation: Six months of sentence on
Charge 2 to be served cumulatively upon the sentence imposed on Charge 1. Two months of the sentence imposed on Charge 3 is to be served cumulatively upon the sentence imposed on Charges 1 and 2.
47 The terms of imprisonment on summary charges 24 and 28 are to be served concurrently upon each other and upon the sentence imposed on Charge 1.
48 That makes a total effective sentence of five years' and eight months' imprisonment. I set a non-parole period of three years and 10 months.
49 I declare pursuant to s.18 of the Sentencing Act that you have served 735 days of pre-sentence detention, not including today.
50 Pursuant to s.6AAA, I declare that were it not for your plea of guilty, I would have imposed a sentence of seven years' imprisonment and a non-parole period of five years.
51 I make the other orders that are sought, the disposal order and the two forfeiture orders. I think they are the only matters. Well, if there is anything that needs clarification or any other orders that I have overlooked to make that I need to make, given that I cannot hear you, you can communicate with my chambers and we will resume.
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