Director of Public Prosecutions v Booth

[2024] VCC 913

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 23-00077

DIRECTOR OF PUBLIC PROSECUTIONS

v

JOHN BOOTH

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JUDGE:	JUDGE DAWES
WHERE HELD:	Melbourne
DATE OF HEARING:	30 May 2024
DATE OF SENTENCE:	6 June 2024
CASE MAY BE CITED AS:	DPP v Booth
MEDIUM NEUTRAL CITATION:	[2024] VCC 913

REASONS FOR SENTENCE

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Subject:  CRIMINAL LAW

Catchwords:  Trafficking in a drug of dependence – methylamphetamine; trafficking in a drug of dependence – heroin; deal with property suspected of being proceeds of crime

Legislation Cited:  Crimes Act 1958 (Vic)

Cases Cited:  Worboyes v The Queen [2021] VSCA 169

Sentence:  9 months’ imprisonment

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr M. Kats	Ms A. Moretti Office of Public Prosecutions
For the Accused	Mr J. Saunders	Mr J. Milides Valos Black & Associates

1John Booth, you have pleaded guilty to the following offences that occurred on a single date, being 18 July 2022.  You were 44 years of age at the time:

CHARGES	OFFENCE	MAXIMUM PENALTY
Charge 1	Trafficking in a drug of dependence, namely, methylamphetamine	15 years’ imprisonment
Charge 2	Possession of a drug of dependence, namely, heroin	1 year imprisonment
Summary Offence	Deal with property suspected of being proceeds of crime, namely, $5,010	2 years’ imprisonment

2The circumstances of your offending have been provided in the summary of prosecution opening.  It is agreed to be an accurate account of events.
A summary of the facts is as follows:

3On 18 July 2022, police investigators executed a search warrant at your address in Essendon North for an unrelated matter.  At the time, you resided there with your daughter and granddaughter.

4During a search of your bedroom, a number of items were located, seized and subsequently analysed, namely:

·a plastic bag containing white crystals, being 9.5 grams of methylamphetamine at 81 per cent purity;

·two plastic bags containing white crystals, being 46.8 grams of methylamphetamine at 81 per cent purity; and

·a plastic bag containing a powdered substance, being 0.7 grams of heroin at 73 per cent purity.

5A total of $5,010 in cash was also located in your room.

6You were arrested and interviewed by police on the same day.  While you admitted that you lived at the address, you answered 'no comment' to other questions put to you.  You were remanded into custody and charged with several offences, including trafficking in a commercial quantity of drugs, although that charge was withdrawn at the first committal mention on 10 October 2022.  You were released on bail by the Supreme Court on 14 October 2022.

7On 30 January 2023, a contested committal was conducted where the drug analyst was cross-examined.  You were committed to stand trial and entered pleas of not guilty.  The matter resolved at a directions hearing on 14 August 2023, where you entered pleas of guilty to the current charges.  While this case may have been dealt with summarily, it was not sought.

8You are entitled to receive a benefit for your guilty plea.  It has a utilitarian benefit and has saved the court and the community the time and expense of running a trial.  Your plea of guilty facilitates the efficient administration of justice, and you are entitled to a benefit for that.  The utilitarian benefit of your plea is enhanced by the fact that Worboyes[1] considerations were engaged at the time and results in a further sentencing benefit.  Your plea of guilty also demonstrates that you have now accepted responsibility and shown some remorse for your misconduct.  I take that into account in your favour.

[1]Worboyes v The Queen [2021] VSCA 169.

9A traffickable quantity of methylamphetamine is 3 grams.  The total weight of methylamphetamine found in your possession was 56.3 grams.  This is approximately 18 times the amount prescribed as a traffickable quantity.  While it is acknowledged by your counsel that the offence of trafficking is serious, the objective gravity of your offence concerns the possession of methylamphetamine on a single date.  I note that it is the quantity of drugs located that amounts to the charge of trafficking.  No evidence of overt acts of trafficking were detected by police, who in fact attended your address due to unrelated matters.

10There is no dispute that the possession of heroin was for your own use.

11I do not assume that the summary offence relating to the proceeds of crime is a product of the trafficking offence that you have admitted by your guilty plea, although the amount of money seized is suspected as being derived from the business of criminal activity.  I take that into account.

12When released on bail for these matters, you initially adhered to your conditions.  In a letter to the court prepared by Ms Maria Hutchinson, addiction counsellor, she confirms that she met with you on a weekly basis for counselling and that you engaged well with your addiction treatment.  You accept that your relapse into drug use at the time of this offending was unfortunate.

13You spent 15 months on bail for this matter.  You have subsequently been charged with further offences that are currently listed in the Magistrates' Court in both the summary and the indictable streams.  You were remanded back into custody on 18 January 2024 and are now at the Fulham Correctional Centre.  On 29 April 2024, your bail was administratively revoked, and you have now spent a total of 230 days of pre-sentence detention.  When considering the content of the outstanding criminal matters, I do not take them into account when determining the appropriate sentence here.

14You have admitted a lengthy criminal history that commenced in 1996.  You have been sentenced to an order designed for rehabilitation, as well as a number of custodial sentences including parole periods.  You have been dealt with for drug offences on a number of occasions, including the possession and use of drugs as well as five previous convictions for trafficking.

15On 31 March 2015, an appeal to the Supreme Court proceeded for a consolidation of serious offences, including aggravated burglary and kidnapping.  You received a total effective sentence of eight years and three months, with a non-parole period of six years and three months.  You were released in May 2021 and successfully completed your period on parole, living in Morwell with your mother.  You then moved to Melbourne to spend more time with your children.  I am told that you found it extremely challenging to adjust to life in the community after such a lengthy period in custody.  You felt anxious about the rapid changes in technology and the general speed of life.  You also felt as though everyone could tell that you had been in prison, which increased your level of self-consciousness and adversely affected your
self-confidence.  You re-engaged with your old friends, which triggered a more marked relapse into drug use.  It was in this context that your offending occurred.

16I turn now to your personal circumstances.  You were born in April 1978 and are now 46 years of age.  Your parents separated when you were quite young.  You are their only child, with numerous half-siblings.  You have been in one long-term relationship that has ended.  You have two children together, aged 24 and 21 years, and maintain a strong relationship with them.  You also have a granddaughter, now four years of age.

17Your mother and daughter were present at the hearing of your plea.  You continue to have their support and are most fortunate in that regard.  Your mother has written a letter to the court, confirming that she is aware of your current circumstances.  She loves you very much and will always be there for you.

18As a young child you lived in Carlton and Footscray and then moved to West Heidelberg when you were 10 years of age.  You attended several primary schools and did not recall any social problems but said that you were often in trouble for fighting and wagging.  You also attended several secondary schools and left halfway through Year 10.  You then worked in a factory, in sales for Optus, and have been involved in a range of businesses including strip clubs and car detailing.  You have never been reliant on Centrelink benefits.

19You were involved in a motor vehicle accident in 2005 that resulted in a head injury, although your cognitive ability seems to have improved quite markedly since an assessment conducted in 2013.  You were also diagnosed with testicular cancer in 2009, which you have now overcome.  You have Graves' disease (hyperthyroidism).  You were prescribed Seroquel in your
mid-teenage years.

20Although your biological father lived close by when you were young, you did not have much contact with him.  Nor did you have a good relationship with your stepfather, an aggressive man who perpetrated domestic violence.  You were exposed to abuse and neglect in your formative years.  You have recently disclosed that you were the child victim of sexual abuse.  All of these factors led you to a number of drug issues and substance abuse, which has been a significant issue in your life over many years.  You stated that you have used drugs on and off, including methylamphetamine, buprenorphine and cannabis, as well as occasional use of cocaine, heroin and ecstasy.  You stated that you were using 'ice' at the time of your arrest for these offences.

21At the request of your solicitor, you participated in an assessment with clinical psychologist, Ms Carla Lechner.  She has provided a report for the court dated 16 May 2023.  I note that you were on bail at the time.  Your personal history and circumstances have been summarised in the report.  Ms Lechner has made the following observations and findings:

·     You emanate from a dysfunctional family environment in which you were exposed to domestic abuse and emotional neglect.  You are inclined to minimise the impact of your formative years on the development of your personality.  You present with a number of behaviours and symptoms of adult attention-deficit/hyperactivity disorder (ADHD) that contribute to your impulsive and reactive behaviour;

·     You present with a complex clinical picture.  Your prior history of offending has arisen in the setting of polysubstance abuse problems and features of a complex post-traumatic stress disorder that have undermined your social, emotional and vocational development. 

·     Your offending for these matters occurred in the context of a relapse to drug use and association with negative peers;

·     You currently present with features of adult ADHD, opioid use and stimulant use disorder.  You are prescribed buprenorphine;

·     You would benefit from trauma-informed psychotherapy, but overcoming your addiction problem is the priority.

22There is no dispute that you were exposed to domestic abuse and emotional neglect as a younger person.  Your counsel has submitted that your offending history must be viewed in light of your upbringing and subsequent mental health problems.  While there is no suggestion that these circumstances amount to Bugmy or Verdins considerations, they are, nevertheless, a significant feature of your background.

23Your prospects of rehabilitation are linked to your capacity to avoid drug relapse and to deal with your issues upon your release.  Although you have managed to do so for some periods of time, I find that your prospects remain guarded, given your history overall.

24It has been conceded that a term of imprisonment will be imposed in your case.  Your counsel has submitted that a straight sentence is appropriate, given your current incarceration.  The prosecution agrees that the objective seriousness of the trafficking charge is at a lower level.  While you do have a lengthy criminal history, the prosecution agrees with your counsel that a straight sentence of imprisonment is the appropriate disposition here.

25I am satisfied that the principles of general and specific deterrence, denunciation and just punishment are clearly of relevance in the sentencing mix.  I take into account the maximum penalty for these offences and current sentencing practices.  The principle of totality is relevant, and I have taken care not to doubly punish you for these offences.  I have endeavoured to tailor your sentence to ensure that it is proportionate to your overall criminal conduct.

26Balancing these factors as best I can, I sentence you as follows:

CHARGES	OFFENCE	MAXIMUM PENALTY	CUMULATION
Charge 1	Traffick methylamphetamine	8 months’ imprisonment	Base sentence
Charge 2	Possess heroin	1  month imprisonment	Concurrent
Summary Offence	Deal with property suspected of being proceeds of crime	3 months’ imprisonment	1 month will be cumulative
Total Effective Sentence		9 months
Pre-Sentence Detention		230 days
S6AAA		14 months’ imprisonment

27The orders for forfeiture and disposal, which are sought, are not opposed, and I make those orders in relation to the drugs and to the cash that is the subject of the summary offence.

28COUNSEL:  As Your Honour pleases.

29HER HONOUR:  Thank you.  Any further orders or anything further to be raised?

30MR SAUNDERS:  No, thank you, Your Honour.

31MR KATS:  No, thank you.

32HER HONOUR:  Do you want to have a quick word to your client when I leave the Bench, Mr Saunders?

33MR SAUNDERS:  No, Your Honour.  We will arrange a conference with him shortly.

34HER HONOUR:  All right, thanks.  Thank you, Mr Booth.  I will leave the Bench.

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