Director of Public Prosecutions v Boehm
[2016] VCC 536
•29 April 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-14-01115, CR-14-01120 and CR-14-01122
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| PAUL BOEHM |
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JUDGE: | HIS HONOUR JUDGE RYAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 29 April 2016 | |
CASE MAY BE CITED AS: | DPP v Boehm | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 536 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – trafficking in a drug of dependence (methylamphetamine) –
Dangerous driving whilst being pursued by Police – possession of unregistered category handgun – possess prohibited weapon – possess cartridge ammunition while not holding a license – resist police – use methylamphetamine – deal with property suspected of being the proceeds of crime – plea of guilty
Legislation Cited: Drugs, Poisons and Controlled Substances Act 1981, s71AC; Crimes Act 1958; Road Safety Act 1986; Summary Offences Act 1966; Sentencing Act 1991
Sentence: Community Correction Order for 3 years. Section 6AAA declaration:
2 years’ imprisonment with a non-parole period of 12 months’ imprisonment.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr M Regan | John Cain Solicitor for Office of Public Prosecutions |
| For the Accused | Ms N Kaddeche | Doogue & O’Brien |
HIS HONOUR:
1 Paul Boehm on 28 January 2016, you pleaded guilty to Indictment D12382673 containing three charges, being:
· Charge 1, trafficking in a drug of dependence between 21 December 2012 and 15 February 2013, the drug being methylamphetamine,
· Charge 2, dangerous driving whilst being pursued by police, and
· Charge 3, possession of an unregistered general category handgun.
2 In addition, you pleaded guilty to a number of related summary offences, being:
· Four charges of possess a prohibited weapon, being a double-edged dagger, a ninja hand-claw, a sword, and a belt buckle concealing a knife,
· Possession of cartridge ammunition,
· Resist police,
· Use amphetamine,
· Deal with property suspected of being the proceeds of crime.
3 The maximum penalty for trafficking in a drug of dependence is 15 years’ imprisonment. The maximum penalty for dangerous driving while being pursued by police is three years’ imprisonment, whilst the maximum penalty for possession of an unregistered general category handgun is 600 penalty units or seven years’ imprisonment.
4 In respect to the summary offences, the maximum penalty for possession of a prohibited weapon is 240 penalty units or two years’ imprisonment. The maximum penalty for possession of cartridge ammunition is 10 penalty units, whilst the maximum penalty for resist police is 60 penalty units or six months’ imprisonment. The maximum penalty for use of drug of dependence is 30 penalty units or one years’ imprisonment. While the maximum penalty for dealing in property being the proceeds of crime is two years’ imprisonment.
5 Tendered as Exhibit A on the plea was the prosecution opening for plea that sets out the facts which found the charges. You initially came to the attention of investigating police as they had a telephone intercept warrant in respect to your co‑offender, Frank Fortunato. In general terms, the telephone intercepts revealed that you were a supplier to Fortunato. However, from time to time Fortunato would supply you when you ran out of stock. In this respect you worked collaboratively together, and helped one another out in your independent trafficking activities. An analysis of the telephone intercepts revealed that you trafficked 113 grams of methylamphetamine during the charge period. The amounts that you trafficked ranged from half a gram up to seven grams of methylamphetamine. Despite being arrested on 23 January 2013, you continued to traffic in methylamphetamine.
6 On 23 January 2013 you were intercepted by the police in Main Street, Thomastown. Your efforts to elude the police found Charge 2 on the indictment. Whilst fleeing from police you abandoned your car, and during a foot chase you were observed to discard objects that, when recovered by police, were identified as deal bags containing a white crystal substance that subsequently proved to be methylamphetamine. Upon arrest you were taken to the Fawkner Police Station where you were interviewed under caution. You made admissions in respect to the contents of the deal bags, saying that there was speed in them and that you regarded your driving as “dangerous”. You were bailed from the police station.
7 As noted earlier, in the period between your first and second arrest you trafficked in methylamphetamine on four occasions.
8 On 15 February 2013 police executed a warrant at your house, during which you resisted one of the police officers involved in the execution of the warrant and attempted to flush a zip-lock bag containing crystal material down the toilet. During the search of your premises, methylamphetamine was found in a plastic container containing deal bags, and a .22‑calibre pen pistol and a single .22‑calibre cartridge was located within the house. The search also revealed the weapons the subject of the four related summary offences of possession of prohibited weapons.
9 You are thirty four years of age and have no relevant prior convictions, although you have a number of subsequent convictions arising out of an appearance at the Heidelberg Magistrates’ Court on 18 August 2014. This appearance related to a number of motor traffic offences for which you were placed on a community corrections order for a period of six months, which you have breached, and you were due to return to the Magistrates’ Court on the 14th of this month, although I was advised that this matter has been adjourned.
10 It was asserted on your plea that an analysis of the telephone intercepts clearly revealed that you were a methylamphetamine addict and that you trafficked to maintain your addiction and that you did not gain financially from your activities.
11 After being arrested on 15 February 2013 you were remanded until you were released on bail on 19 February 2013 on the CREDIT/Bail support program. Tendered as Exhibit 1 on your plea were a number of bail reports dated 18 March 2013, 15 April 2013, 14 May 2013 and 11 June 2013. During the course of this bail program you were referred to a number of therapeutic services to treat your addiction and mental health issues, and you appear to have progressed reasonably well on the program.
12 I was informed that the short period that you spent on remand shocked you, as you had never been in prison before.
13 Tendered as Exhibit 2 on the plea was a report dated 5 October 2015 from Mr Jeffrey Cummins, psychologist. Apart from a useful history in respect of you, Mr Cummins opines that you suffer from a chronic adjustment disorder with mixed anxiety and depressed mood. This apparently, in his opinion, will make an immediate prison sentence more onerous for you than it otherwise might be for a person without these disorders.
14 You were initially released on bail to your father’s address in Mirboo North, and received therapeutic services in the Bass area until your bail conditions were varied to enable you to reside with your mother in Thomastown.
15 Your parents separated when you were two, and you and your brother were raised by your mother, who was impecunious and forced to reside with her parents. You continued to reside with your grandmother until she died when you were around seventeen years of age. You then moved with your mother to Sunbury. Your mother repartnered, and the man that you regard as your stepfather has been part of your life since you were aged about ten years. Your relationship with your biological father is best described as an ambivalent one, despite the fact that he supported you upon your initial release from custody.
16 You attended Keon Park Primary School, and later the Kingsbury High School until Year 8 when you left school at the age of thirteen. You were employed as a tyre-fitter and later as a glazier for some thirteen years. It was during this time that you were introduced to methylamphetamine, and you attribute your use of this drug to the loss of that job. You have been a poly-drug user most of your adult life, having commenced to use cannabis at the age of 18 and you have been a binge drinker from your early teens. Of concern is the reference in the Department of Justice and Regulation report dated 7 April 2016 that:
“At this present time he reports using methylamphetamine up to three times a week and often turns to drug use in times of stress and out of habit.”
17 For the past ten years you have maintained an on-again off-again relationship with Megan Andrews. There are two children of that relationship: a boy, Jordan, and a girl, Annalee. Your partner has an extensive mental health history as well as involvement with illicit drugs.
18 Tendered as Exhibit 3 on your plea was a report from VincentCare Victoria dated 22 January 2016. Your life since being released on bail has not been without its difficulties. In November 2015 the home in which your partner and your children resided was destroyed by fire. All of your possessions were destroyed, and you were dependent upon VincentCare support services to provide you with accommodation, clothing and vouchers for food, schooling and other matters. Each of your children have health needs, and this adds to the pressures that you already feel.
19 The Department of Human Services, not unsurprisingly, has become involved in respect to the wellbeing of your children.
20 On the adjourned date of your plea, being 4 March 2016, further materials were tendered on your behalf, being an updated report of Mr Jeffrey Cummins dated 17 February 2016, and a report from the Department of Health and Human Services dated 2 February 2016 indicating that should you be incarcerated, the Department would need to put in place further supports for Ms Andrews for her children to remain with her, or in the alternative the children would be removed from her care. Additionally, a report from ReGen, an organisation associated with UnitingCare, reported that Ms Andrews was receiving support by way of assessment and treatment for her alcohol and drug abuse.
21 After hearing further submissions on 4 March 2016, I adjourned the further hearing of this matter so that a full report could be obtained from the Department of Justice and Regulation as to your suitability for a community correction order. You have been assessed as suitable. On the return date, Exhibit 4, a report from STAR, Substance Treatment and Recovery, dated 28 April 2016 was tendered, evidencing that you are making attempts to become drug-free.
22 You have pleaded guilty at an early stage to a settled indictment and you are entitled to the benefits that flow from that plea, namely that it is some evidence of your remorse and that it has utilitarian value. You are a relatively young man, being aged 34 years, with no relevant prior convictions. I regard your offending as serious, although your drug trafficking is best described as at street level, although you were very active in that regard. You continued to reoffend whilst on bail, and this must be regarded as an aggravating feature of your offending. Having said that, your drug trafficking was motivated by your own addiction, and it is unlikely that you would have been able to cease drug use without professional assistance.
23 Of concern is the firearms offence. You were possessed of a .22‑calibre pen pistol and ammunition. Whilst your instructions to your counsel, Ms Kaddeche, were that the instrument had been left at your home by another person, these instructions were not supported by evidence, and firearms have often been found as part of the accoutrements of drug traffickers. Your fetish for edged weapons provides little or no support for your instructions to your counsel in respect of the firearm.
24 It is over three years since this offending, and you have not reoffended in a similar way since that time. You maintain your relationship with Ms Andrews, troubled though it is. You are regarded as having a somewhat stabilising effect upon your partner and your children. You are hopeful of obtaining work as a glazier despite suffering from carpal tunnel syndrome.
25 By this sentence I must punish you, publicly denounce your conduct, and deter you and others from committing these kinds of crimes. Taking into account the circumstances of your offending, and the effects of your offences, with your personal circumstances and antecedents, and endeavouring to produce a sentence that reflects and promotes the purposes of sentencing in a manner appropriate to you and your offending, I intend to release you, with your consent, on a community corrections order. I cannot release you on such an order without your consent. Do you consent?
26 OFFENDER: Yes, I do.
27 HIS HONOUR: I sentence you as follows. On each of the charges on the indictment, together with all of the related summary offences, I sentence you to a community corrections order for a period of three years with conditions:
(i) That you perform 300 hours of unpaid community work,
(ii) That you be supervised, monitored and managed as directed by the Secretary of the Department, and
(iii) That you undergo treatment and rehabilitation by way of drug assessment and treatment, mental health assessment and treatment, and offending behaviour programs directed at reducing your risk of reoffending.
28 Pursuant to s.6AAA of the Sentencing Act 1991 I declare that but for your plea of guilty I would have sentenced you to two years’ imprisonment with a non-parole period of 12 months’ imprisonment. You may be seated whilst my associate brings you the relevant paperwork.
29 MS KADDECHE: As Your Honour pleases.
30 MR REGAN: While that's being done, Your Honour, just wanted to check logistics. There's nine summary charges. Informant Robson, Charge 3, 21 January 13, use meth, 23 January 13, Charge 7, deal with $2065.
31 HIS HONOUR: Which was remitted back to the Magistrates' Court upon your application.
32 MR REGAN: I'm sorry, yes. My apologies. We'll straighten out our paperwork, Your Honour, I apologise for that interruption.
33 HIS HONOUR: No, that's all right. But if there needs to be other matters added to my reasons they'll be added. To the best of my understanding, the summary offences are as follows.
34 MR REGAN: Yes.
35 HIS HONOUR: Four charges of possess a prohibited weapon.
36 MR REGAN: Yes.
37 HIS HONOUR: Possess a cartridge ammunition and resist police.
38 MR REGAN: Yes.
39 HIS HONOUR: That's six by my number. I may be in error. By all means just quietly check that. It appears that Charge 9, a separate charge of deal with property suspected of proceeds of crime - - -
40 MR REGAN: That's - - -
41 HIS HONOUR: - - - is before me.
42 MR REGAN: Yes.
43 HIS HONOUR: There were two such offences, as I understand it, and one - I beg your pardon, that's not right, that was remitted back to the Magistrates' Court. I can hand down the record of the court as to what is before it.
44 MR REGAN: I'd be grateful, Your Honour.
45 HIS HONOUR: That is the record of the court of those matters which are presently before it. Do you say there are other matters before the court? I understand there were other matters put in your opening but I can only deal with the process before me.
46 MR REGAN: Yes, Your Honour. There's charges - on the Informant Robson, if one looks at the hard copy of the charges under the notice, there's a use methylamphetamine and a deal with property, which is $2065, which came out of the car.
47 HIS HONOUR: That's right, I'll have a look at that.
48 MR REGAN: So if one looks at the hard copy of the charges, the charge - - -
49 HIS HONOUR: I'll just - I heard you the first time.
50 MR REGAN: Yes.
51 HIS HONOUR: I'm looking at the document.
52 MR REGAN: Right. The possible reason why this has occurred, sir, is that Robson has charged on 23 January as Charge 3, use meth and as Charge 7, deal with property proceeds of crime, then on the second arrest Robson comes into play again and has charged the dagger, that is, Charge 3 for the charge bundle under case number 1115. So you've got - - -
53 HIS HONOUR: That's right.
54 MR REGAN: - - - in the bundle of summary offences that were handed up, you've got the Charge 3, 23 January 2013, Charge 3, use meth and 23 January 2013, Charge 7, deal with $2065, which was found in the car when it was discarded after the chase. Then we go to the second arrest, 15th - - -
55 HIS HONOUR: We'll just deal with this in summary form. There is a use methylamphetamine as an additional summary offence and do you say there is an additional deal with property suspected of being the proceeds of crime?
56 MR REGAN: That's right, the deal - yes, there's two in the summary offence group, there's two charges of deal property being proceeds of crime. The first one arises from the car chase day and the first arrest and that's $2065 that was found in the car alongside the drugs that were found in the car.
57 HIS HONOUR: Yes.
58 MR REGAN: Then on the second arrest day there's the Charge 9 and that's deal property and there's a list of property attached to that, wheels and the like and the parties could not come to an agreement about what was proceeds of crime and therefore Charge 9 - - -
59 HIS HONOUR: Yes.
60 MR REGAN: - - - on the day of the arraigning, by consent went back to the Magistrates' Court for sorting out there.
61 HIS HONOUR: Yes, that's all right. We can deal with that.
62 MR REGAN: So.
63 HIS HONOUR: That's all right, now - - -
64 MR REGAN: So is it the - - -
65 HIS HONOUR: Just pardon me for a moment.
66 MR REGAN: Now if - - -
67 HIS HONOUR: Just pardon me for a moment.
68 MR REGAN: I'm sorry, Your Honour.
69 HIS HONOUR: Both of those offences are capable of being dealt with by way of a community corrections order because of their maximum penalty, is that correct?
70 MR REGAN: That's correct.
71 HIS HONOUR: Yes, thank you. Thank you for drawing that to my attention.
72 MR REGAN: We'll return the record of orders made in the criminal jurisdiction, sir, dated 28 January. That would need to be altered.
73 HIS HONOUR: Today's record will reflect accurately what you've put.
74 MR REGAN: Thank you, Your Honour.
75 HIS HONOUR: And I will amend the sentencing remarks to include the use of methylamphetamine and deal with property suspected of being the proceeds of crime.
76 MR REGAN: May it please the court.
77 HIS HONOUR: Thank you very much for that, Mr Regan. That has been of assistance to me. You'll have to amend that community corrections order, can you do that for me please? Thank you. While the orders of the court in respect to Mr Boehm are being corrected to conform with the true position, I will deal with Mr Fortunato.
78 (At this stage the court proceeded with another matter.)
79 Mr Boehm, my associate will bring to you the amended documents that relate to your community corrections order.
80 (At this stage the court proceeded with another matter.)
81 Mr Boehm, will you please stand up. I have released you on a community corrections order for three years from today's date and apart from the mandatory conditions that appear within the copy of the community corrections order that you will receive, I have ordered that you will perform 300 hours unpaid community work during that three year period, that you will be under the supervision of a community corrections officer for a period of three years, that you undergo assessment and treatment, including testing for drug abuse or dependency as directed by the Regional Manager. You must undergo any mental health assessment and treatment, which may include psychological, neuropsychological, psychiatric or treatment in a hospital and residential facility as directed by a Regional Manager. You must participate in programs and/or courses that address factors relating to the offending as directed by the Regional Manager. Do you understand those conditions?
82 OFFENDER: Yes.
83 HIS HONOUR: All right. Do not breach this community corrections order. If you breach it by reoffending, I can almost guarantee you a custodial result, you understand?
84 OFFENDER: Yes.
85 HIS HONOUR: The Crown has made a number of applications. I've probably made a muck of your filing system, Mr Regan, for which I apologise. I'll hand down the folder first and then I'll hand down the orders. In respect of the disposal orders, I have made those and in respect of each of the two forfeiture orders, I have made those.
86 In respect to the application for a forensic sample, I have ordered a forensic sample in the form of a scraping from your mouth. I have done so because of the seriousness of the circumstances of your offending warrant the making of such an order, that the order was not opposed and that the order was in the public interest. I need to inform you that you are obliged and the order is rather ham-fisted in its expression, you are to attend on the officer in charge of the Reservoir police station at 25 Edwards Street, Reservoir during a period of four weeks, commencing 14 days after today's date. That means 14 days pass and then you have got four weeks to turn up to provide this sample and if you do not, you breach this order. Do not breach this order.
87 I need to inform you that if at the time of request you do not consent to the taking of a mouth scraping under the supervision of an authorised member of the police force, then the sample to be taken will be a blood sample and the police may use reasonable force to enable that forensic procedure to be conducted and I hand down a copy of that order. Can you copy that and provide a copy of that to the Crown, to Ms Kaddeche and to the prisoner, please. You can sit down, Mr Boehm.
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