Director of Public Prosecutions v Bowcock

[2017] VCC 1716

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

 Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR-17-00250

DIRECTOR OF PUBLIC PROSECUTIONS

v

BRENTON BOWCOCK

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JUDGE:	HIS HONOUR JUDGE P. LACAVA
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	20 November 2017
CASE MAY BE CITED AS:	DPP v Bowcock
MEDIUM NEUTRAL CITATION:	[2017] VCC 1716

REASONS FOR SENTENCE

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Subject: Trafficking – not less than a commercial quantity and others

Sentence: 1 year imprisonment with a 2 year Community Corrections Order

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms M. Mahady
For the Accused	Ms M. Tittensor

HIS HONOUR: 

1Brenton Bowcock, you have pleaded guilty to one charge of trafficking in a drug of dependence (Charge 1) in not less than a commercial quantity.  The maximum sentence for this offence is 25 years' imprisonment.

2In addition, you pleaded guilty to one charge of trafficking methylamphetamine (Charge 2) for which the maximum sentence is 15 years' imprisonment, and four charges each of possession of a drug of dependence. 

3In Charge 3, the prosecution alleged that you possessed 794.6 millilitres of
1,4-Butanediol and that you possessed this drug for the purposes of sale.  In that circumstance, which I am satisfied exists here, the maximum sentence for this offence is five years' imprisonment, or a fine of up to 400 penalty units.

4In Charges 4, 5 and 6 you possessed the drugs methamphetamine, MDMA and cannabis respectively and it is accepted that you possessed these drugs for your own use and not for trafficking, in which event, the maximum penalty is
30 penalty units or imprisonment for one year.

5You were born in September 1984 and you are 33 years of age.  When arraigned, you admitted a limited criminal history for drug-related offending. 

6In 2006, aged 22, you were dealt with for trafficking amphetamine and possession of ecstasy, for which you were fined a total of $1500, without conviction.  Having regard to the penalty, I conclude you were involved in very low level trafficking on that occasion. 

7In 2015, you again appeared in court on possession charges.  Those charges were adjourned without conviction.  Unfortunately, neither of these past appearances in court served as a wake-up call to you.

8Save for time on remand for this offending, (52 days) you have never before served a prison sentence.  You appear before me as a long-term drug user with a very limited criminal history.  This offending is a very great step-up in the level of your criminal offending.

9The circumstances of your offending are contained in a prosecution summary that was tendered in evidence and summarised by Ms Mahady, who appeared to prosecute. 

10Your counsel, Ms Tittensor, accepted that the prosecution summary represented a proper factual basis upon which I can proceed to sentence you.  It is not necessary that I here set out in full that which is contained in the agreed summary, except in an abbreviated way.  These sentencing remarks must, however, be read in light of what is contained in the summary.

11Earlier this year, I sentenced Cindy Simonoski and Damien Sepe for similar offending, although the volume of drugs trafficked by them was much larger and their offending was over a longer period of time.  I think you can therefore be distinguished from them.

12Your offending was detected as part of a police operation in which Cindy Simonoski and Damien Sepe were the principal targets.  Telephone intercepts revealed that you trafficked 4.8 litres of the drug Butanediol over a period of six days between 9 July 2016 and 15 July 2016 in two separate transactions.  In each case, Sepe facilitated the supply of the drug, but you trafficked it to Simonoski (Charge 1). 

13The charge of trafficking methylamphetamine involved you delivering a small package of the drug also to Simonoski at the request of Sepe (Charge 2).

14The commercial quantity threshold for Butanediol is two litres when in liquid form.  You trafficked more than double the commercial quantity threshold of this drug.

15I accept you were not generally engaged in the business of trafficking in the drug Butanediol at a high level, in the sense of having many customers and dealing in large volumes.  You were involved with Sepe and Simonoski in trafficking.  Butanediol, I accept, is a relatively cheap drug and the profit margins for dealers like you are not high.  You did what you did to help support your long-term drug habit and your dealings with Sepe were on the basis he was
a friend of long-standing and also known to you as a long-term drug user.  I am satisfied you did not engage in trafficking Butanediol for the purposes of making a lot of money and nor did you.  The same might be said for the Butanediol found in your possession for sale (Charge 3).

16As the penalty for the offence in Charge 1 indicates, trafficking in a drug of dependence in a commercial quantity is a very serious offence.  Drug trafficking is a serious and prevalent offence.  Sentences for these kind of offences must reflect proper application of the principle of general deterrence and must appropriately denounce the offending.  The sentence I impose must apply these sentencing principles, although I am satisfied your offending falls towards the lower end of the scale of criminality for this kind of offending.

17You pleaded guilty to the charges and indicated that you would do so at the earliest opportunity.  Because you have pleaded guilty, you are entitled to
a reduction in sentence and the sentence that I will soon pass reflects this fact.  By your pleas, you have saved the time and costs of a trial and I take your pleas of guilty as signifying genuine remorse on your part for your offending.

18Ms Tittensor tendered a file that contained:

·Her written outline of submissions;

·A psychological report from Dr Mathew Barth;

·An excellent reference from your employer, Mr Leigh Fellowes, who speaks highly of you as a person and employee and of your expressions of remorse;

·A reference from Sharon and Wayne Hinsley;

·A letter to me from you, in which you express remorse;

·A letter from your parents, in which they outline some of the problems you have had, how you have dealt with them, how they have tried to assist you and importantly, how they continue to support you.  I note they were in court on your plea as a sign of their full support;

·A letter from your GP at the Oak Park Medical Centre, attaching the results of urine screening tests between 6 October 2016 and 21 October 2017, all of which were clean.  I note these test did not pick up your admitted relapses during the time of testing;

·A certificate from ReGen, for you having attended a personal education program of three hours on 2 February this year, related to
methamphetamine use.

19Dr Barth carried out a comprehensive psychological assessment of you.  He thought your mental state was normal.  You did express to him your concern about these court proceedings and that is understandable.  He opined you presented as a relatively unsophisticated, concrete thinker, with limited problem solving skills and that your level of intelligence fell towards the lower end of the normal range.  He concluded you suffer from stimulant use disorder, arising from a significant dependence on methylamphetamines, GHB and
1,4-Butanediol.  Although you have taken some steps to arrest this addiction, Dr Barth thought your rehabilitation remains at a very early stage.  Your insight into the problem is limited and you are said to have relapsed on several occasions in 2017, which Dr Barth thought underlines the severity of your addiction.  Dr Barth gave the opinion that you need extensive substance abuse treatment and psychological counselling.

20You were born and educated in Oak Park.  You were raised well in a good family.  You have two brothers and you are very close to your younger brother, who was also in court to support you.  You began using drugs at school.  In secondary school, you began to absent yourself and began using cannabis and to binge drink on alcohol.  To your credit, you completed Year 12.

21You used cannabis until your mid-20s, but began experimenting with other drugs, including ecstasy, ketamine and speed.  From there you moved to using acid, GHB, 1,4-Butanediol and ice, moving quickly to daily use by your mid-20s.  You have had some periods of abstinence, but these have not been sustained.  I was told and accept that you were using in dangerous proportions in 2016 when you moved out of home again and away from your parents, who apparently knew you had a drug problem, but were not aware of the extent of it.

22You began, but did not complete, an apprenticeship as an electrician.  This ceased when you moved out of home and your drug use increased and you became unreliable as an employee.  Thereafter, you engaged in various casual jobs and labouring-type work.  Between 2003 and 2012, you were employed full-time with a motor group, but began taking time off work to care for your then girlfriend who had drug issues and mental health issues and you resigned to take care of her.  Thereafter, you returned to casual work.  You presently work as a full-time casual at an air conditioning company and your employer, as
I say, has provided an excellent reference for you.  An apprenticeship is available to you for this position.

23You have had about three relationships with women, each of whom were themselves drug users.  I accept that the ending of your most recent relationship was hard for you and you apparently reacted by again turning to drugs in the period leading up to your arrest.

24You were arrested on 2 August 2016 and you have served 52 days on remand of pre-sentence detention.  You were released on bail with strict bail conditions, including a curfew and you have complied with your bail conditions.

25I was told you went through detoxification on remand and since release, have engaged in some drug counselling and had some psychological counselling.  You have relapsed back into drug use on occasions this year.  Whilst on bail, you have been employed.  You are still relatively young and you can have a useful and good life.  I think your prospects for rehabilitation must presently be assessed as reasonable.  Whether you can pull yourself out of the drug mess that you find yourself in, time will tell, but only you can do something about it.

26Ms Tittensor asked that I impose a non-custodial sentence.  She argued time served is enough and that you should not return to prison.  She argued the time that you have served was a wake-up call for you and that what you need is treatment and counselling for your addiction and that a non-custodial sentence would be the best way of ensuring your rehabilitation.  I generally agree that you need treatment and counselling for what is an addiction, many years in the making, involving heavy drug use.  Ms Tittensor submitted I should release you now on a community corrections order with appropriate conditions.

27I have given these matters a great deal of thought since your plea.  In my judgement, the offending that you have engaged in is simply too serious for me to impose a disposition urged upon me by Ms Tittensor.  The prosecution argues that offending of this kind requires an immediate prison term and I generally agree with that submission.

28Although I am satisfied you were not generally carrying on business of trafficking Butanediol in large quantities, you did traffic more than double the commercial quantity threshold to Simonoski and although your offending is towards the lower end for this kind of offending, I am of the view that I must impose a further term of imprisonment upon you.  In my opinion, a community corrections order alone, even with appropriate conditions, would not of itself achieve all of the purposes of sentencing in this case.  The offence in Charge 1 is too serious and the sentence imposed must appropriately apply general deterrence to deter others who may seek to offend as you have.

29I have had you assessed for a community corrections order and I will have you released on a community corrections order, after you have completed a term of imprisonment of one year, on conditions that require you to undergo treatment and counselling and judicial monitoring.

30On Charge 1, you are convicted and sentenced to a term of imprisonment of one year.

31On Charge 2, you are convicted and sentenced to a term of imprisonment of one month.

32On Charge 3, you are convicted and sentenced to a term of imprisonment of one month.

33The sentences imposed on Charges 1 to 3 inclusive will be served concurrently, making a total effective sentence of one year imprisonment.

34In addition, on Charges 1 to 3, I make a community corrections order, with conviction, to begin upon your release from prison, for a period of two years.

35There will be conditions for treatment and rehabilitation for drugs and mental health and supervision and judicial monitoring.

36On Charges 4 to 6, the possession of drugs charges, you are convicted and discharged.

37I declare there has been 52 days pre-sentence detention and direct that 52 days be reckoned as time already served under the sentences imposed this day and be entered into the records of the court and be deducted administratively.

38For the purposes of s.6AAA of the Sentencing Act, had you not pleaded guilty to the charges, I would have imposed a total effective sentence of four years' imprisonment and I would have ordered that you serve a minimum term of three years before being eligible for release on parole.

39I have been asked to make a forensic sample order, which was not opposed.  For the reasons stated in the order, I have signed it, which means that whilst in custody, a police officer may approach you and request to take a forensic sample from you, which is a swab from your mouth.  He may use reasonable force to do, so should you refuse.

40I have also signed disposal and forfeiture orders that relate to items seized from you, which were not opposed.

41Mr Bowcock, what all that means, is that I impose a total term of imprisonment of one year.  The 52 days that you have already served will be deducted from that.  Upon your release, should you agree to do so, at the end of your prison term, you will begin a community corrections order for a period of two years.  There will be no community work involved in that.  It will be an order relating solely to address your drug and mental health problems.  Do you understand?

42OFFENDER:  Yes, Your Honour.

43HIS HONOUR:  Do you agree to the making of a community corrections order?  I am sorry?

44OFFENDER:  Do I agree?  Yes, Your Honour. 

45HIS HONOUR:  Do you want to speak to your counsel first?

46OFFENDER:  Is that all right?

47MS TITTENSOR:  May I approach, Your Honour?

48HIS HONOUR:  Feel free to approach your client, Ms Tittensor. 

49OFFENDER:  I agree.

50HIS HONOUR:  I do not want there to be any misunderstanding, Ms Tittensor.  Your client understands the situation, does he?

51MS TITTENSOR:  Yes, and it'll be further explained to him, yes, Your Honour. 

52HIS HONOUR:  I am sorry?

53MS TITTENSOR:  Yes, he does, Your Honour, and I'll explain it to him further after the sentence.

54HIS HONOUR:  Very well.  Are there any questions arising out of the sentence?

55MS MAHADY:  No, Your Honour.       

56MS TITTENSOR:  No, Your Honour.

57HIS HONOUR:  If you would have your client sign the community corrections - agreement to the community corrections order, Ms Tittensor. 

58Now, Mr Bowcock, the order provides for judicial monitoring and the first judicial monitoring will take place here at 9.30 on 20 March of next - of 2019.  Do you understand?  So you will have to be here at 9.30 on that date, at which time I will receive a report from Corrections, as to your progress on the community corrections order.

59OFFENDER:  Yeah.

60HIS HONOUR:  If you do not comply with the community corrections order in any way, you are running a risk of being brought back before me and dealt with again.  Do you understand?

61OFFENDER:  I understand.

62HIS HONOUR:  Very well, thank you.  Could you take Mr Bowcock into custody, please. 

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