Director of Public Prosecutions v Bolton

[2019] VCC 1340

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

AT GEELONG
CRIMINAL JURISDICTION

CR-19-00671

DIRECTOR OF PUBLIC PROSECUTIONS

v

BARRY BOLTON

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JUDGE:	HER HONOUR JUDGE GAYNOR
WHERE HELD:	Geelong
DATE OF HEARING:
DATE OF SENTENCE:	21 August 2019
CASE MAY BE CITED AS:	DPP v Bolton
MEDIUM NEUTRAL CITATION:	[2019] VCC 1340

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	Mr N. Batten	Office of Public Prosecutions
For the Accused	Mr H. Rattray

HER HONOUR:

1Barry John Bolton, you have pleaded guilty before me to one charge of attempting to traffic a drug of dependence, one charge of trafficking a drug of dependence and a summary charge of possessing a prohibited weapon without exemption or approval.

2The facts underlying the offending are as follows.

3The offending occurred in October and November 2018, at which time you were living at a house on Glendye Court, Corio, which you had rented for some years.  On 4 October 2018, two Border Force officers on duty at the
United Postal Service Melbourne Gateway Facility in Tullamarine examined a package sent from Canada, which was addressed to one Jack Peters at your address with a particular telephone number.  An x-ray of the package, which was a consignment described as, 'Veranda classic stair rail kit', revealed anomalies.

4The package was examined and found to contain plastic veranda rails.  Each end of the rails was glued shut.  Forensic officer Turner removed both ends of one rail which revealed a layer of foreman cardboard at one end, which when removed then revealed plastic bags containing a white crystalline substance.  A presumptive test of that substance gave a positive result for methylamphetamine or ice.  The package contained 2.9 kilograms of what was later analysed to be methylamphetamine, with a purity of 84 to 86 per cent.

5The Australian Federal Police have still been unable to determine where this consignment originated from or who sought to send it to your address.

6Examination found no one by the name of Jack Peters which was attached to your address or the telephone number discovered.  Subsequent investigations found that the mobile telephone was registered to a person by the name of Jingnan Jiang at an apartment in Spencer Street, Melbourne, but the subscriber could not be identified.  Detective Senior Glenn McGowan of the Victoria Police drug task force discovered that you were the occupant of 19 Glendye Court in Corio and the drug task force subsequently obtained your mobile telephone number.

7On the morning of 7 November 2018, drug task force members attended your address.  No one was home, but you were contacted and arranged to meet with the investigators at about lunch time.  When you arrived at the house at about 12.45 you were arrested and the drug task force conducted a search of the house, as well as your car and your mobile phone which was in inside the car in a green bag, as you told police.

8The phone was located as well as an extendable ASP baton in the driver's side seat pocket.  Your possession of that baton underlies the summary charge of possessing a prohibited weapon, you telling police you had worked in security for around 20 years and had used the baton at work.  Investigations revealed that your private security licence had expired in 2010.

9During a search of your home you drew the drug forces’ attention to an esky in your top bedroom cupboard, inside of which was a quantity of cannabis, later determined as weighing approximately 228 grams.  Police also located a set of scales, a plastic container and clip seal deal bags of various sizes.  Your possession of that cannabis underlies Charge 2 on the indictment, trafficking in a drug of dependence, Cannabis L.

10Examination of your phone revealed that in your contacts was the same contact number that had been listed in the consignment of methylamphetamine, which number you had saved under the name, 'Work'.  Numerous messages between your mobile phone and this number relating to the late arrival of a package, referring to the seized consignment package, were discovered.  Essentially there were discussions between you and the person at the other end about the fact that the packages were late and the hope that they would be released soon.  You were taken into custody and charged on that date.  You made a no comment record of interview and have remained in custody since.

11Charge 1 is based on your attempt to assist in the chain of movement of the drugs contained in the packages between importation to the street.  It is not contended by the prosecution that you knew that the drugs were imported, that the drugs were in fact methylamphetamine or that the amount, which was a substantial amount equalling a large commercial quantity, was known to you.

12The prosecution instead alleges that you were involved in trafficking drugs, on the basis that you were trying to participate in the progress of the ice from source to consumer by forwarding it on to the third party contained in the text messages.  In other words, it was your role to receive the package and to hand it on to the person you were speaking to via the mobile telephone number I have referred to.

13You do accept that the parcel you were ultimately to receive did contain a large commercial quantity of ice, but the prosecution does not allege you knew the exact drug or the quantity of the drug and simply made no enquiries of this.  The way your counsel put it to me was that you had a pretty good idea that it was going to contain drugs and you in fact thought it was probably cannabis.

14The maximum penalty for attempting to traffic a drug of dependence is 15 years' imprisonment; you have been charged pursuant to Drugs, Poisons and Controlled Substances Act.  The maximum penalty for trafficking a drug of dependence is 15 years' imprisonment.  The maximum penalty for possessing a prohibited weapon is two years' imprisonment or 240 penalty units.

15A contested committal hearing was held in this matter.  Upon your counsel being briefed for the trial, which had been set down for September of this year, he determined a possible alternative indictment, if you like.  He sought instructions from you, which he tells me you immediately gave and made an offer to the Crown in the terms expressed on the indictment and this was accepted.

16I now turn to your personal circumstances.

17You are 52 years of age and have no prior criminal history.  You are the eldest of two boys born to your parents.  Your father spent many years in the Australian Defence Forces, in fact ultimately receiving an Order of Australia for his contribution.  Along the way, however, he suffered an accident which resulted in the loss of an eye.  This was in the late 1960s and he has been suffering intermittently from symptoms of post-traumatic stress disorder ever since.

18You began your schooling at the Puckapunyal base near Seymour, but ultimately your mother was dissatisfied with the level of schooling there and persuaded your father to seek a transfer to Melbourne and you and your brother continued your education near the Watsonia base.  Eventually, your family moved to Geelong where you completed Year 10 at the Bells Street technical school.

19On leaving school you undertook various short term jobs, but at the age of 19 were involved in a serious motor vehicle accident where your head went through a windshield.  You apparently suffered a serious concussion.  I received a letter from your mother in which she said that she believed there was a change in your behaviour from the time that you recovered from this accident and it is possible, it would seem, that you have an acquired brain injury which has never been formerly diagnosed.  You were also, in your mother's view, from an early age hanging around with a group of young people of whom she did not approve.

20The next few years following the accident were fairly nondescript.  It would seem that you continued to hang out with that crowd of young people and that at around this time you began using cannabis on a fairly regular basis.  But when you were 25 you decided, it would seem, to turn your life around in some sense.  You put yourself through trade school, you worked more frequently and you undertook and achieved a large number of trade certificates, specifically in rigging and scaffolding.

21Thereafter, your counsel informed me (although on occasions you have been the recipient of unemployment benefits) you used those times to qualify in further certificates.  Generally, you have been on the whole employed throughout your working life.

22At the time of this offending you were employed as a truck driver with a firm called Josie's Transport.  I received a reference from them to the effect that you had been working for them for some time, you were described as an excellent worker and were on the verge of moving from a casual to a permanent position as I understand it.  Your involvement in this offending and your arrest for it has meant you have lost that job.

23In your late 20s you formed a relationship with a young woman, Tracey, with whom you had a daughter, Emma, who is now aged 24 and who is studying a law degree at RMIT.  Although the relationship with Tracey ended after a few years, I was informed you continue to have an extremely amicable relationship with here and were always very much involved in your daughter's life.

24You have lived at your rental premises for many years.  Again, I am referring to your mother's letter to the court, which was extremely helpful.  She spoke about you over the years keeping your distance from the family.  Indeed, your brother who also wrote a reference wrote the same the same thing.  It would appear you have, if I can put it this way, pretty much kept to yourself.  You have been a long term cannabis user and this is quite clear on the evidence and you having pleaded guilty to it.  You have engaged in selling cannabis.  You have lived in some ways, it would seem, a sort of half-life that you did not want your family to know about, believing that they would not approve.  But also because you wanted to keep living that life.

25Nevertheless, I also received a reference from your daughter, Emma, who talked about your qualities as a father and as a grandfather to her five year old daughter, Faith.

26Since you have been in custody you have been visited and telephoned regularly by your parents, by Tracey, your former partner, and by your daughter.  I am satisfied you have a strong protective family and that includes your brother, who wrote a very positive reference about his love and regard for you although you have not seen a great deal of each other over the years, because essentially you have chosen different paths.  In any event, the fact that you have this family I regard as an important positive factor in terms of assessing your prospects of rehabilitation.

27Ordinarily, someone involved in the sort of offending you have been involved in, Mr Bolton, could only expect a term of imprisonment to be doled out and in part that has been conceded by your counsel, although, it was his submission I could properly deal with you by way of a combination disposition, comprising a term of imprisonment with release on a Community Corrections Order.  His submission was that a term of imprisonment should be reckoned as the time you have already served.

28This was serious offending, whether you mean it to be or not, Mr Bolton.  If you are going to engage yourself in activities where you are taking parcels for people which you expect will contain drugs then you are going to find yourself, as you have on this occasion, in far more difficulty than you thought possible.  Again, it is not contended you knew anything about the contents of that package except that they were probably drugs.

29As a result of this carelessness on your part you have ended up in a situation where you could have well been facing charges around importation of a large commercial quantity of methylamphetamine, and if you had been found guilty of those, Mr Bolton, let me tell you nobody would be talking about combination dispositions.  It would simply be a question of how long, and if we are talking how long with that amount of drugs, we are talking in the region of eight with a six, seven with a nine.  Do you understand me, sir?  And the fact that you have got no priors in those sorts of cases is irrelevant.

30The movement of drugs in this community is regarded as very serious criminal offending.  You would know perfectly well, Mr Bolton, the havoc that ice wreaks in this community, the damage that it does.  And whether you meant to be or not, you were part of a determined effort to get a very large quantity of ice on the streets.  That was the role that you ultimately played.  Do you understand me?

31OFFENDER:  Yes, Your Honour.

32HER HONOUR:  You took yourself into a whole new stratosphere, if I could put it that way, of engagement with drugs.  Not just a harmless, as you perhaps would see it, bit of selling of cannabis, bit of a smoke at night.  This was a big commercial enterprise involving the movement of a seriously large quantity of a very dangerous drug from source, being overseas, to kids on the street.  And you had a part to play, and it was an important part to play.  You may have only been going to be the “post office” for a couple of days, but that is how these drugs get out, by the participation of persons like yourself, who essentially provide a resting place for these drugs to avoid detection as they are passed from person to person until they finally reach the hands of the dealers who cut them up and sell them.

33I received a number of references from each member of your family and from a family friend.  I understand from these and from what your counsel told me, that this period of time you have spent in gaol has been of use to you.  For the first time in goodness knows how many years you have been unable to smoke cannabis and you have not been able to drink alcohol.  I was informed that on and off over the years alcohol has also been a problem for you.  Apparently, at the time of this offending, it had again become a problem for you because of the demise of a relationship and you were drinking about a bottle of bourbon a day.  In any event, the observation of your family members is that you are far less clouded in your thinking that you have been.

34You have used your time in gaol incredibly well.  You have spent periods of time working in sheet metal fabrication.  You are now at Marngoneet where you occupy the privileged position of peer listener.  In particular, your role involves engagement with persons in the gaol who suffer chronic and longstanding illnesses, such as hepatitis.  I am aware that this is a position of privilege, only dolled out to prisoners who have proved themselves to be trustworthy and reliable.  So that is very much to your credit.

35I have had you assessed for placement on a Community Corrections Order and you were assessed as being a low risk of re-offending on the level of service inventory revised screening version.  I am satisfied that, as I have said, your role in this very serious attempt to import a large quantity of damaging drug was pretty much unintended by you. You have been a person of good work history, you have no prior criminal history and you have a good family.  You have in fact benefited from your time in gaol and I am satisfied that the experience of gaol and arrest, indeed, has been a salutary one.  In other words, it has taught you a lesson.

36The prosecution submission was that the time you have served would be an insufficient response to the seriousness of your offending, but there was no opposition to the imposition of a combination disposition comprising time in gaol together with a Community Corrections Order.  I am therefore prepared to deal with you in that way.

37I therefore sentence you as follows.  Could you stand up please.

38On Charge 1, you are sentenced to 10 months imprisonment; On Charge 2, you are sentenced to six months imprisonment.  On the summary charge you are sentenced to two weeks imprisonment.

39I order that two months of the sentence imposed on Charge 2 be cumulatively to the sentence imposed on Charge 1, giving a total effective sentence of
12 months.

40In relation to Charge 1 you are also to be released on a Community Corrections Order for a period of 18 months.  Before I can place you on this order I have to explain the conditions to you and ensure that you consent to the order.

41Now, what will happen is that this Community Corrections Order will not start until you get out of gaol.  But I should declare - how many days was it again?  It was 281?

42MR BATTEN:  Two-eighty-seven.

43HER HONOUR:  I declare that 287 days of this sentence have already been served by way of pre-sentence detention.

44The conditions of the order are that, firstly, you must report to the community corrections office within two working days of the making of this order.  While you are on the order you must not commit another offence punishable by imprisonment.  That does not mean that if you commit an offence, Mr Bolton, and you do not go to gaol for it that you are in the clear.  If you commit an offence for which you could be gaoled, like knocking off a box of matches from Woolworths, that will breach the order.  If you breach the order you will be brought back in front of me and I will re-sentence you and you will get gaol that time.  Do you understand?

45OFFENDER:  Yes, Your Honour.

46HER HONOUR:  While you are on the order you may not leave Victoria without the permission of the community corrections office.  You must report any change of address or employment to the community corrections office within 48 hours of the making of this order.  You must not attend upon the community corrections office under the influence of drugs or alcohol.  You must report to and receive visits from the community corrections office, you must obey all lawful directions of the community corrections office.

47I am going to order that you undertake 150 hours of unpaid community work.  You are to attend for assessment and treatment for drug use.  You are to attend for assessment and treatment for alcohol use.  I am just trying to think whether it is worth doing - no, I will leave that.  I was thinking of a - mental health's no really a - any decent drug treatment will include some mental health work anyway.

48There is also going to be judicial monitoring, Mr Bolton.  What that means is you and I are not done with each other.  I will see - let me see, how long have you got to go?  Probably got about another two months to go.  So I will set down a judicial monitoring for late January next year.  What that means is you go to your community corrections office, they will beam you in.  I will get a report for Corrections about how you are going on your Community Corrections Order and we will have a chat, you understand?

49OFFENDER:  Yes.

50HER HONOUR:  And that will be happening regularly throughout your Community Corrections Order.  So if you look like you're going off the rails or you're not keeping appointments, all those sorts of things, I'll know.  All right?  If you don't attend appointments as you're supposed to, that will breach the order.  You don't go to your drug counselling and your counselling for alcohol use, those sorts of things.  You don't turn up to your community corrections meetings that all amounts to a breach and I'll re-sentence you; is that really clear?

51OFFENDER:  Yes, Your Honour.

52HER HONOUR:  And I'll make it even clearer.  There's you, Mr Bolton, there's gaol and in the middle is a community corrections order and that's keeping you out of gaol.  And you may discover that you don't like your community corrections officer or things don't go wrong or this is a nuisance and you want to go back to work, all those sort of things, that's bad luck.  You have to do everything that's required of you on the order and if Corrections say jump, you say how high if you've got any brains at all.  Does that make sense, sir?

53OFFENDER:  Yes, Your Honour.

54HER HONOUR:  All right, thank you very much.  Are you prepared to enter this order?

55OFFENDER:  Yes.

56HER HONOUR:  Thank you, we'll just draw up the paperwork.

57MR RATTRAY:  Your Honour, just one matter on that order.  I think Your Honour said that he would have to attend within two days of the making of the order.  I think formerly the order is to attend within two days after his release.

58HER HONOUR:  Of the operation of the order.

59MR RATTRAY:  Yes.

60HER HONOUR:  Yes, but what I mean is within two days of leaving gaol you have to report it.  What I mean by working days, if you get let out on a Friday you have to have reported by the following Tuesday, does that make sense?

61OFFENDER:  Yes.

62HER HONOUR:  The weekends don't count.  All right, we'll just get that sorted.  The judicial monitoring will be at 9.30, on 31 January.  You don't have to come to the court you just go to the community corrections office and they beam you in, Mr Bolton.  All right?

63OFFENDER:  Yeah.

64HER HONOUR:  Thank you.  Have a seat, sir, while we get the paperwork for you.

65Pursuant to s.6AAA I declare that had you not pleaded guilty I would have sentenced you to a term of imprisonment of three years and order that you serve a minimum term of 18 months.  I should also note that it is proposed when you leave gaol that you reside with your former partner, who is prepared to support you on an indefinite basis until you are able to organise new employment and accommodation for yourself.  I accept that as a result of this offending and your arrest you have lost your job and your accommodation, which is no small thing for a man of matured years.

66OFFENDER:  Your Honour, with my job ‑ ‑ ‑

67HER HONOUR:  Stand up, sir.  Yes?

68OFFENDER:  Um, as far as I know it I think I've still got it.

69HER HONOUR:  Well, you'll ‑ ‑ ‑

70OFFENDER:  I - I - I was full time before was arrested.

71HER HONOUR:  Do they know about this?

72OFFENDER:  Yeah.

73HER HONOUR:  Do they know you're inside?

74OFFENDER:  Yeah.

75HER HONOUR:  Do they know why?

76OFFENDER:  Um, basically.

77HER HONOUR:  What do you mean basically?

78OFFENDER:  Well, I haven't said much to them about the actual ‑ ‑ ‑

79HER HONOUR:  What have you said to them?

80OFFENDER:  Um, just that I've been locked up for, um, receiving a package.

81HER HONOUR:  Containing 2.9 kilograms of ice is that what you said to them?

82OFFENDER:  Yeah, well, I didn't go into too - too much detail.

83HER HONOUR:  All right, fair enough.  Well, look, good.  I think that's terrific if you have.  But don't make the mistake that a lot of blokes make is, 'Beauty, you know, I thought I was going inside and I've done better than I thought.  Now I'm getting on with my life and the main thing a man needs in life is a job'.  I mean, it's great if you get employment, that's fantastic.  But just understand you've got a bit of work to do on this order and you've got to do it.

84OFFENDER:  Yeah - yeah.

85HER HONOUR:  You know, the order isn't just about poor you.  The order is about you've got to do unpaid community work.  I cannot tell you how many blokes seem to put that at the end of the queue of things to do.  You know, use your brains, go on a Sunday and knock it off as soon as you can.  I expect that work to be done.

86OFFENDER:  Yeah.

87HER HONOUR:  It's all very well staying off dope and staying off grog while you're in gaol, that's reasonably easy.  I mean, I know you can get it there.  But it's reasonably easy to stay off it.  But once you get outside, you know, you run into one of your old mates, of whom I'm sure you've got millions.  You know say, 'Come on, Barry, let's go and have a choof somewhere', you know, it's a whole different story.  So those are the sorts of things you've got to attend to when you get out, do you understand?

88OFFENDER:  I do.

89HER HONOUR:  Am I making any sense to you?

90OFFENDER:  Yeah, um, I've done these Atlas courses and the ‑ ‑ ‑

91HER HONOUR:  Yes?

92OFFENDER:  One thing that, um, stuck in my mind was making a plan is one of the courses they do.

93HER HONOUR:  Yes, good.  Yep.

94OFFENDER:  And since then I've done nothing but think about it.

95HER HONOUR:  The other thing you can do, I know cannabis is your thing.  Narcotics Anonymous is really good or Alcoholics Anonymous.  They're really, really good because it's 24/7 - you know, you've got someone you can ring 24/7 if suddenly you feel like, you know, you're going to burst if you don't have a smoke or a drink.  But also, you know, you'll be meeting up with a whole lot of other people that have to deal with the same issues as you when you're giving up.  It sounds like you've been drinking and you've been using cannabis for a long time.  And, you know, it can be a hard thing to give up and that means you've got someone the whole time.  Now, you can source that in gaol before you get out if you want to.

96OFFENDER:  Yeah.

97HER HONOUR:  All right, Marngoneet is definitely going to have one or one or either of those there.

98OFFENDER:  Well, I've just actually started doing one inside gaol.

99HER HONOUR:  Excellent, well that's what I mean.

100OFFENDER:  Yeah.

101HER HONOUR:  All right, are you likely to stay in Marngoneet, do you reckon?

102OFFENDER:  Oh, I assume so.  Being a peer worker they'll want keep me there.

103HER HONOUR:  I'll include in my sentencing remarks, which I will have forwarded to the gaol that it is my view that your placement in Marngoneet has been a fortunate circumstance for you, given the greater than usual array of rehabilitative courses available than in other gaols and it is my view that it would be very much in your best interest, and the interests of the community, were you to remain there.  I say this of course without in any way seeking to cut across the decisions of the prison authority.

104Have a seat, Mr Bolton, and we'll - I'll just check this out and give this to you.

105MR RATTRAY:  Sorry, Your Honour, just to clarify for my instructors,
Your Honour wouldn't be expecting representation on judicial monitoring?

106HER HONOUR:  I never have, no.

107MR RATTRAY:  No.  Thank you, Your Honour.

108HER HONOUR:  Absolutely not.  All right, so the way it works is even thought Charge 1 is 10 months and release on a Community Corrections Order the order won't come into operation till you finish that other two months on top.  That make sense to you, Mr Batten?

109OFFENDER:  Yes, Your Honour.

110MR BATTEN:  Yes.

111HER HONOUR:  Good, thank you.

112MR BATTEN:  And Your Honour will make those ancillary orders?

113HER HONOUR:  I will.  I'll do that whilst that's being signed, thank you.

114MR RATTRAY:  And in relation to those ancillary orders there's one matter I will raise and I'll just - that's by consent.  It's just that my client has a number of photographs of sentimental value on the phone that's to be, by consent, forfeited.

115HER HONOUR:  All right.

116MR RATTRAY:  Often it takes time for that to occur and I'll have my instructor write to the informant copy and the prosecutor today just asking for ‑ ‑ ‑

117HER HONOUR:  Yes, I can't make any orders in relation to that.

118MR RATTRAY:  I know Your Honour can't, I just - but by virtue of the text messages with work, it is tainted so there's no issue with that, it's consent.

119HER HONOUR:  Yes.

120MR RATTRAY:  We'll quickly write to see if we can get a copy of those photos.

121HER HONOUR:  No problem, that's fine.  Now, I have also ordered, Mr Bolton - stand up please, sir - that police can take a DNA sample from you.  I've ordered that it's to be by way of a scraping from the mouth.  They'll just wipe a swab around your mouth.

122MR RATTRAY:  Yes.

123HER HONOUR:  I need to tell you that if you resist the police when they're doing this they are entitled to use reasonable force in order to obtain it, all right?  Thank you.  All right, good luck, Mr Bolton, I'll see you in January.

124OFFENDER:  Thank you, Your Honour.

125HER HONOUR:  Thank you very much.  We'll adjourn to 9.30 tomorrow morning.  Do you want the reference?  I'll give those references back.

126MR RATTRAY:  Thank you, Your Honour.  They have been e-lodged, I've checked.

127HER HONOUR:  So we ‑ ‑ ‑

128MR RATTRAY:  I'm happy to take them back, or?

129HER HONOUR:  Yes, that's fine. Thank you very much.  These are the orders for Mr Batten.  Yes, thank you, we will adjourn till 9.30 tomorrow morning, thank you.

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