Director of Public Prosecutions v Borg, Andrew

[2012] VCC 1662

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

AT MELBOURNE

CRIMINAL DIVISION

Case No. CR-12-02-01162

DIRECTOR OF PUBLIC PROSECUTIONS

v

ANDREW BORG

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JUDGE:	HER HONOUR JUDGE WILMOTH
WHERE HELD:	Melbourne
DATE OF HEARING:	3 September 2012, 22 October 2012
DATE OF SENTENCE:	22 October 2012
CASE MAY BE CITED AS:	DPP v Borg, Andrew
MEDIUM NEUTRAL CITATION:	[2019] VCC 1662

REASONS FOR SENTENCE

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Subject: Trafficking drug of dependence

Catchwords: Trafficking; PG; addicted to methylamphetamine but in early remission; good prospects for rehabilitation; parity; role less than that of primary offender; prison likely to be more burdensome than for others; Verdins principles.          

Cases Cited: R v Karafilowski [2007] VSCA 156;

Ramadan v R, Bocca v. R [2011] VSCA 50,

R v Verdins [2007] VSCA 102

Sentence:     3 years imprisonment  non parole period   18 months 

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms D. Caruso	Office of Public Prosecutions
For the Accused	Ms F. Holmes	Leanne Warren

HER HONOUR:

1       Andrew Borg, you have pleaded guilty to one charge of trafficking in a drug of dependence, namely methylamphetamine.  You were charged with a number of other persons following a police operation in 2010.

2       Of those persons, Dorry Dawid was sentenced by Her Honour Judge Patrick of this court on 7 May 2012.  Neil Turner was prosecuted at the same time as you and has had his plea adjourned for reports to be obtained.  The other two accused, Richard Barkho and Sargon Barkho, are awaiting trial.

3       The prosecution case is that as a result of telephone intercepts and other forms of surveillance you were identified as having been supplied with methylamphetamine by Dawid, which you sold with such frequency as to fit the definition of trafficking.

4       The prosecution summary of facts in a document dated 3 September 2012 states at paragraph 12: "The Crown relies on all the relevant evidence in the hand-up brief as demonstrating the involvement of Turner and Borg in the commission of the offence detailed in Counts 1 of the indictments."

5       

However, the Crown conceded that it could not prove the trafficking of a large commercial quantity and so it became necessary to limit the facts forming the basis of the plea to reflect this.  As a result, both the defence and the prosecution agreed that you are to be sentenced on the basis of the trafficking of a commercial quantity at the upper end of the tier; that is to say, under

one kilogram.

6       The maximum penalty for this offence is 25 years' imprisonment, which indicates that drug trafficking at this level is an extremely serious offence.  The courts have held that general deterrence is a most important principle to be reinforced by sentences imposed on those guilty of this crime and that, accordingly, those motivated by addiction, as you were, can expect to have that aspect of their circumstances given less weight.

7       Certainly there are mitigating factors in your case.  The first is that you have pleaded guilty at an early stage and that means you are entitled to a discount on your sentence because the expense and inconvenience of a trial has been avoided.  That is regarded as being of importance to the system of criminal justice, and the plea is also recognised as an indication of remorse.

8       Other mitigating factors emerged from your personal circumstances and from the extent of your involvement in trafficking, both individually and in relation to the other offenders.  I will address those matters in more detail.

9       You are aged 36, Australian born and raised in an intact family, none of whom have been in trouble with the law.  Indeed, both your sisters are teachers.  You completed your secondary schooling and you were a very successful sportsman, playing soccer at the national level.  You were captain of the team, but owing to a lapse in leadership your career did not continue and you harboured some resentment about that.

10      You worked successfully for some years as a self-employed courier but you began using cannabis and that developed into an addiction which continues.

11      You lived with your partner, Danielle, for eight years, raising two children who are now aged five and four.  You took on a second job to manage the increasing financial obligations of the family.  You took up an offer of methylamphetamine by another driver and quickly became addicted, using two to three grams a day, which is said to be a large amount.  It was in this context that you commenced trafficking in order to finance your addiction and thereby hide it from your family.

12      Your relationship ended in 2011 and there have been difficult legal proceedings as a result.  In a letter to the court your parents have confirmed that you and Danielle parted on acrimonious terms and she has prevented you from seeing the children, which has affected you deeply.

13      Your parents have described very serious instances of self-destructive behaviour on your part and they struggle to provide assistance and to support you.

14      Following your arrest you ceased using methylamphetamine and that has been described by Ms Janev, the psychologist who assessed you recently, as being in "early full remission".  She also considered that you were suffering from a major depressive disorder at the time of the separation, coinciding with the drug trafficking which continued for several months.

15      You began treatment with Ms Janev and she reported positive progress, your main problem now being the fact that you have not been able to see your children and, of course, facing the prospect of imprisonment.  This progress, together with solid family support, augurs well for your rehabilitation, as does the fact that you have no prior convictions.  It may be that your emotional state and drug addiction impaired your judgment to some extent at the time you engaged in trafficking, but I am not persuaded that I should place great weight on this such as to reduce your sentence.

16      However, the principles established in the case of Verdins as to the impact of imprisonment on an offender come into play, because a prison sentence will bring a halt to your present efforts to see your children again and play a part in their lives.  That in itself will make prison a more onerous burden.

17      

The prosecution attitude to parity is that your role was not one of primary offender but, nonetheless, your involvement was above the level of street trader, as you were dealing in ounces and it continued over some months. 

Mr Dawid, who trafficked three to four kilograms of amphetamine, a large commercial quantity, was sentenced to nine years' imprisonment, with a non-parole period of six years and two months.

18      Although the amount you trafficked was much less than this, your actions facilitated the distribution of an illicit drug through the community, and that must be punished by way of immediate imprisonment.  I was invited to consider sentences in the cases of Karafilowski, and in the joint case of Ramadan and Bocca, as well as the most common sentences for this crime as can be determined from studying the sentencing analysis of the Sentencing Advisory Council. 

19      The dissimilarities between cases make it difficult to use those other cases and statistics to any great effect, other than to indicate a broad range.  Put simply, it comes down to weighing the seriousness of the crime against the mitigating factors, while never losing sight of the particular circumstances overall. 

20      In this case the need for general deterrence weighs more heavily than the need to deter you yourself from further offending, as it would appear that prospect is unlikely.  You have demonstrated an ability to respond well to treatment, and in your family situation you have a sound motivation to address your rehabilitation seriously.

21      For those reasons I shall order that you spend a relatively long period on parole.  I will ask you to stand now, Mr Borg.

22      I make this order: I sentence you to prison for three years, to serve 18 months before being eligible for parole.  If you had pleaded not guilty to this charge I would have sentenced you to four years' imprisonment, with a non-parole period of two years and six months. 

23      

The prosecution seeks a disposal order in respect of drugs and a mobile phone, and an order for a forensic sample of saliva to be obtained. 

Ms Holmes, I might have missed what you may have said about that.

24      MS HOLMES:  They're not opposed, Your Honour.

25      HER HONOUR:  Not opposed, all right.

26      MS HOLMES:  Both the forensic sample order and the disposal order.

27      HER HONOUR:  Thank you.  In that case, Mr Borg, I just need to explain that in respect of the forensic sample the police are able to use reasonable force if necessary to obtain the sample, but I trust that will not be necessary.

28      You have spent a total of 16 days in custody before you were released on bail, and I declare that time to be already served, and I shall cause that to be noted on the court record.

29      Have I omitted any other matters, Mr Tighe?

30      MR TIGHE:  No, Your Honour.

31      HER HONOUR:  Ms Holmes?

32      MS HOLMES:  No, Your Honour.  Might I have a very quick word with my client after Your Honour goes off the Bench before he is taken down?

33      HER HONOUR:  Certainly.  Yes, I will enable him to stay for that purpose.

34      MS HOLMES:  Thank you, Your Honour.

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