Director of Public Prosecutions v Brown

[2014] VCC 1014

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

AT BENDIGO
CRIMINAL JURISDICTION

CR-12-01440

DIRECTOR OF PUBLIC PROSECUTIONS

v

DANIEL FRANCIS BROWN

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JUDGE:	HIS HONOUR JUDGE LACAVA
WHERE HELD:	Bendigo
DATE OF HEARING:	6 June 2014
DATE OF SENTENCE:	27 June 2014
CASE MAY BE CITED AS:	DPP v Brown
MEDIUM NEUTRAL CITATION:	[2014] VCC 1014

REASONS FOR SENTENCE
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Subject:  Trafficking commercial quantity

Sentence: 5 years, 9 months    NP 3 years, 10 months

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr P. Jones
For the Accused	Ms M. Aumair

HIS HONOUR: 

1Daniel Brown, you have pleaded guilty to one charge of trafficking in a commercial quantity of a drug of dependence (Methylamphetamine) (Charge 1);  one charge of knowingly dealing with the proceeds of crime (Charge 2); and one charge of possession of a drug of dependence (Cannabis L) (Charge 3).  You also pleaded guilty to two summary charges and agreed to them being dealt with in this court.  Those charges were, first, being a prohibited person did possess a registered Category B Longarm firearm without being the holder of a licence under the Firearms Act 1996 and, second, possessing a device to detect when a speed detector is being used.

2The maximum sentence for the offence of trafficking in a commercial quantity of a drug of dependence is 25 years' imprisonment.   The maximum sentence for the offence of knowingly dealing with proceeds of crime is 15 years' imprisonment.  The maximum sentence for the offence of possession of a drug of dependence, where the court is satisfied on the balance of probabilities that the offence was not committed for any purpose relating to trafficking in that drug of dependence, is a penalty of not more than 30 penalty units or imprisonment for a maximum of one year, or to both that penalty and imprisonment.  The maximum sentence for being a prohibited person in possession of a registered Category B Longarm firearm without being the holder of a licence is two years' imprisonment, and the maximum sentence for possessing a device to detect when a speed detector is being used is 20 penalty units.

3The circumstances of your offending are contained in a summary of prosecution opening which I admitted as Exhibit A on the plea.  That summary was read to the court by the learned prosecutor, Mr Jones, and was accepted by your counsel, Mr McDonald, as being accurate and as forming a proper basis upon which I can pass sentence.  It is not necessary that I refer in detail here to that summary except in brief.

4Over a period of approximately two and a half months between 7 September 2011 and 25 November 2011 you trafficked in the drug of dependence, methylamphetamine (known as ice) in a commercial quantity.  You sourced the drug principally from a dealer, Nguyen, and from four others.  For the purposes of the plea it has been agreed you had purchased no less than 647 grams of the drug with a 25 per cent purity.  You may have used some of the drug acquired yourself but the majority of it you used to supply one, Ridge, who in turn supplied users.  When Ridge was paid you were paid.  You supplied Ridge on average twice per week.  Ridge paid you $6,000 for an ounce or 14 grams of the drug.  Monitored telephone discussions between you and Ridge revealed Ridge agreeing to pay you over $40,000 and records seized from Ridge reveal the level of his trafficking.  Aside from Ridge, you supplied the drug to at least 16 other persons.  This was medium level trafficking in my view.

5When arrested you were found in possession of one ounce of ICE in a clear zip-lock plastic bag and $3,900 cash, accepted to be the proceeds of your crime (Charge 2).  I regard this offence as being in effect part of the trafficking offence.

6In your car was found a radar detector (Summary Offence).  Other traces of drugs and drug paraphernalia were also found.

7A search of your home found you possessed 460 grams of cannabis L, which is accepted for being for your own use (Charge 3), and a Winchester 30/30 lever action high powered centre fire rifle which had been stolen in a burglary in New South Wales (Summary Offence).  You are prohibited from possessing such a weapon and you are not licenced.   At your home traces of drugs and drug paraphernalia and items used for trafficking were also found.

8Thus your offending must be seen as serious.  Any sentence will be informed by the maximum penalty for the principal offence of trafficking a commercial quantity of a drug of dependence applicable here, as well as the need to ensure proper application of the principle of general deterrence and denunciation. 

9When you pleaded guilty to the charges you also admitted prior convictions in Wodonga Magistrates’ Court in December 2003 for trafficking a drug of dependence, amphetamine, and trafficking a drug of dependence, cannabis L.  You were also convicted for using both drugs.  You were convicted on all charges and placed on a Community Based Order for 12 months with conditions.  You complied with that Community Based Order and have not re-offended until these matters.  Nevertheless, the prior conviction for trafficking amphetamine is very relevant here and there is a need for any sentence to also reflect in your case proper application of specific deterrence.

10You were arrested and charged with this offending on 25 November 2011 and remanded in custody.  You have served 26 days pre-sentence detention as at 20 June 2014, when I heard the plea and remanded you in custody for sentence.  You have now served 33 days pre-sentence detention.

11

You were committed for trial on 8 August 2012 and you offered to plead guilty to trafficking in a commercial quantity of methylamphetamine as long ago as

8 February 2013.  Unfortunately, the prosecution did not accept this offer until after a callover on 14 April 2014.  I treat you for sentencing purposes as having offered to plead guilty at an early time.  By your pleas you have saved the time and costs of a trial and I take your pleas of guilty as reflecting appropriate remorse.  Because of your guilty pleas you are entitled to receive a lesser sentence than you would have received had you fallen for sentence, having been convicted at trial, and this is reflected in the sentence I shall shortly hand down.

12Your co-offender, Ridge, was dealt with by Judge Gaynor in this court.  None of the offences he was dealt with was common with your charges save for Charge 1, where he pleaded guilty to a charge of trafficking in a drug of dependence, methylyamphetamine, on the same facts common with your offending.  Her Honour sentenced him to four years, ten months' imprisonment on that charge, which was her base sentence.  The other matters were not common with you.  He pleaded guilty to a lesser charge than Charge 1, which you have pleaded guilty to.  Ridge subsequently appealed to the Court of Appeal on the grounds of new evidence and he succeeded.  The judgment of the court reveals he succeeded on merciful grounds.

13You are now 32 years of age.  You were not supported in court by any family members.  Your parents, who are separated, have their own health problems.  Your two siblings reside in Perth.  You are not presently living in a relationship although you had a brief relationship with a woman that commenced shortly before your arrest but that ended abruptly soon after your arrest.

14You were educated at Corowa High School to Year 10 and then completed an apprenticeship as a motor mechanic.  You did not remain employed in this field but worked for a number of years in the business of bridge construction.  At the time of arrest you were a partner in a bridge construction business but that dissolved soon after your arrest.  You found work in shed construction but the owner of that business ran out of work and fell ill and you lost that work.  You have been on Centrelink benefits.

15You did not accumulate large amounts of money or other assets from your trafficking.  A house you owned was subject to a mortgage and the mortgagee foreclosed.  A car that you owned was subject to a loan and was repossessed.  It is accepted that the purpose of your trafficking was in part to finance your own addiction to ice.

16Mr. McDonald relied upon a psychological report from Dr Simon Kennedy, dated 17 June 2014. which I admitted into evidence.  That report shows you have been a long term drug user from about the age of 15 when you began smoking cannabis before moving to amphetamines around 17 or 18 years of age.  You told Dr Kennedy, and I accept, you use amphetamines, cannabis and alcohol on a daily basis.  You have also occasionally used ecstasy and cocaine.

17In 2012 you attended at Bendigo Health on seven occasions for drug counselling but you did not keep that up.  You attended upon Windana a couple of days before the plea.  I accept that your drug habit in part explains your offending.

18In his written outline of his plea on your behalf Mr McDonald accepted that drug trafficking is a serious offence, in part because of its affect upon the community.  He recognised that imprisonment is the only option available in sentencing you but asked that any sentence imposed not be a crushing one.  He asked me to have regard to your pleas of guilty and the utilitarian benefit of them.  He also asked me to have regard to the fact you have been a long term drug user and from a young age, which he submitted reduces your moral culpability to some extent.  I accept that argument.

19You will be about 38 years of age when released from prison.  Having regard to your previous good work record, there are signs that if properly motivated, and, you can rid yourself of drugs of dependence, you can still have a worthwhile life, and I have taken all of this into account.  However, I cannot say you have good prospects for rehabilitation until you rid yourself of drugs.  You have in the past taken some steps to do so but only tentative ones.  Until you take real action you will most likely remain a drug addict.

20Would you please stand, Mr Brown.

21On Charge 1, trafficking in a drug of dependence, methylamphetamine, in a commercial quantity, you are convicted and sentenced to a term of imprisonment of five and a half years.

22On Charge 2, knowingly dealing in the proceeds of crime, you are convicted and sentenced to a term of imprisonment six months.

23On Charge 3, possess a drug of dependence, cannabis L, you are convicted and sentenced to a term of imprisonment of three months.

24On the summary charge of possession of a registered Category B Longarm firearm without being the holder of a licence, you are convicted and sentenced to a term of imprisonment of six months.

25On the summary charge of possession of a device to detect a speed detector, you are convicted and fined $100.

26I direct that three months of the term of imprisonment imposed on the summary charge of possession of a registered Category B Longarm firearm, without being the holder of a licence, cumulate upon the sentence imposed on Charge 1, making a total effective sentence of five years and nine months.

27I direct that you serve a minimum term of three years and ten months before being eligible for release on parole.

28I declare there has been 33 days pre-sentence detention and that 33 days be reckoned as having been served under the sentences passed this day and be deducted administratively.

29For the purposes of s. 6AAA of the Sentencing Act 1991 I state that had it not been for your pleas of guilty to the charges I would have imposed a total effective head sentence of nine years and I would have set a minimum term of six years before you would be eligible for release on parole.

30The prosecution seeks a forensic sample order under s. 464ZF of the Crimes Act.  That application was not opposed, and having regard to the seriousness of your offending, it is in the public interest that such order be made.  Having signed the order. a member of the police force may use reasonable force to take a forensic sample from your body, which in this instance, is a swab from your mouth.

31The prosecution also seeks a forfeiture order that relates to items and paraphernalia seized.  That order was also not opposed and I have signed it.

32Any questions arising out of that, Mr Jones?

33MR JONES:  No, Your Honour.

34HIS HONOUR:  Could you remove Mr Brown, please.

(Prisoner removed.)

35Mr Jones, could I thank you and your instructor for your assistance during the circuit.  As usual, it was most efficient and most helpful.

36MR JONES:  Yes, it got a bit too much for us all at times, Your Honour.

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