Director of Public Prosecutions v Bundy

[2017] VCC 167

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR -16-02053

DIRECTOR OF PUBLIC PROSECUTIONS

v

JASON BUNDY

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JUDGE:	HIS HONOUR JUDGE MULLALY
WHERE HELD:	Melbourne
DATE OF HEARING:	27 February 2017
DATE OF SENTENCE:	2 March 2017
CASE MAY BE CITED AS:	DPP v Bundy
MEDIUM NEUTRAL CITATION:	[2017] VCC 167

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	Ms C. Fitzgerald	Office of Public Prosecutions
For the Accused	Mr L. Gwynn	Lethbridges

HIS HONOUR:

1Jason Bundy, early on 18 August 2016 police came to your unit to search for drugs.  You were cooperative with the police.  Ultimately the police found methylamphetamine or ice, MDMA or ecstasy, cocaine and 1,4-Butanediol which you believed to be the drug GHB.  Also found was LSD, magic mushrooms, a drug called DMT or "God drug" and prescription drugs diazepine and Xanax.  You also had some Viagra.  Also found were equipment for selling drugs as well as using drugs.

2Following your arrest, interview, charging of you and importantly negotiations this matter settled and you have pleaded guilty to two charges.  The first being a charge of trafficking in a drug of dependence no less than the aggregate commercial quantity.  This relates to the drugs in your possession that you had for the purposes of trafficking, being methylamphetamine or ice, MDMA, ketamine and 1,4-Butanediol, which as I said you considered to be GHB.

3These drugs were possessed by you for the purposes of sale in quantities set out in a table in the prosecution opening.  What is shown by that table is that you had fractions of the various drugs that aggregate to 1.6 with the law making clear that anything greater or equal to a fraction of 1.0 being an aggregate commercial quantity.

4Trafficking was pleaded by the prosecution as being your possession for the purposes of trafficking of the drugs on the single day of 18 August 2016, the day the police raided your flat.  The maximum term for this offence is 25 years' imprisonment. 

5In addition you pleaded guilty to a second charge of trafficking being possession for the purposes of sale of the drugs DMT, LSD, the magic mushrooms and the prescription drugs, Xanax and diazepine.  The maximum term for this offence is 15 years.  You also pleaded guilty to the possession of Viagra.

6Now as noted when the police came to your premises, you were cooperative.  Your cooperative attitude continued during your subsequent interview with the police.  Your interview was very frank.  However how I deal that those matters that you spoke to the police about is important to understand.

7In your interview you admitted selling drugs, save for LSD and DMT which you said were possessed for your own use.  As to the scale of your drug sales or trafficking you explained to the police that you buy in bulk at cheaper prices, marked them up, just like any business.  Here I am referring to the summary that was read out by the prosecution.  A number of dot points under paragraph 17 which summarises your extensive admissions made in the record of interview.  You went on to say that you buy drugs from the same people and sell to regular customers, about 15 or so people in respect of methylamphetamines. 

8In respect of methylamphetamines you indicated that you buy a bag of ice, about an ounce, and sell a bag a week depending on how busy you are, you gave values of your purchases to the police.  You said that you knew that GHB was a dangerous drug and you indicated that you bought it normally a litre and sold it per millilitres.  You said that there about ten or so people that you sold to and a litre would last a week.

9You indicated that your selling of drugs started at the end of last year.  You started taking drugs two and a half years ago.  You were introduced by an ex-flatmate and it was a slippery slope from there.  It was expensive to use drugs or do drugs and you weren't making, though, much money in respect of your sales.  You were continuing to use perhaps two grams of ice a day and you needed to support his habit.  You did so by these sales.  You explained about your sales of ecstasy, ketamine and other matters.

10You said that you don't make much profit as you use the lot.  You made enough to live comfortably, buy groceries and pay rent.  People paid cash and you put it in a safe.  You indicated to police the sorts of amounts that might be held in the safe and the biggest quantity of drugs that you had bought involved an exchange up to $20,000.

11You explained the reason that you were trafficking in a drug of dependence was to pay for you own habit.  You said you could not afford to pay for it and you would rather be this kind of criminal than a different kind of criminal.

12I refer to these matters because they are the background to the charges before me of trafficking on a single day.  I am not asked to impose punishment for your past drug trades.  I make it clear that in the penalty that I will shortly announce I have not punished you for anything other than the charges that you have pleaded guilty to.  However these other matters mean that your present trafficking, that is your possession for sale on 18 August is not a one off isolated event.

13It is clear your drug trafficking on 18 August 2016 was to make money.  It was so you could afford the drugs that you used.  You have been in the grip of drugs, especially ice, for a number of years.  Your trafficking allowed you to pay rent and live comfortably enough but I am convinced that there was no extravagance as a result of drug trafficking in your life.  The possession of drugs for the purposes of trafficking in all the circumstance is for sale to other users and perhaps at a level up from selling to the users themselves but it would appear, perhaps, it was just to users. 

14You were part of the distribution of drugs that are a scourge in our community.  The prosecution categorised your offending as mid to low level. 
This necessarily is an offence - that is trafficking in drugs in not less than a commercial quantity by way of aggregate fractions.  It's a broad categorisation to describe it as mid to low-level.  This categorisation is made more difficult to be precise about the matters because this offence of trafficking in an aggregate commercial quantity by fractions has not been before the court in any way to provide me with assistance as to penalty.  I consider the categorisation by the prosecution to be more or less accurate but I emphasise the caveats raised in debate about not having other cases to look at to establish relativities. 

15That said the community is very concerned at the damage caused by the potent and dangerous drugs you had for the purposes of trafficking.  These drugs are at the heart of the downfall of many users, you amongst them.  Lives and families are ruined, jobs are lost, relationships ended, also violence both random and to supposed love ones, is often a heartbreaking consequence of drug addiction.  These drugs, especially ice, are terribly substances and the courts, the police and hospitals are regularly, if not daily, seeing the dreadful impacts of ice.  Also many of the drugs that you had are dangerous to the users resulting in real health problems, if not worse and you recognised as much in your own record of interview  It is plain your role in moving these drugs to the users is serious criminality. 

16Thus the sentencing considerations of denunciation, deterrence to others and protection of the community loom large.  The long maximum term for the aggregate commercial quantity charge is a matter I must not ignore but I do not allow that to overwhelm other important aspects of the crime and you as the offender.

17You are now 28, 27 at the time that the police came to your premises. 
You continued to enjoy significant support from your family.  Since your arrest you have moved to live with your oldest brother and his partner.  Your upbringing was straightforward enough.  You went to school to Year 12 but left halfway through.  You had worked at school, it seems, from the age of 15 at a KFC store.  You continued with this for nine years or so rising up to being a store manager.  Your next job was in insurance.  You were, at the time, struggling with a drug addiction that saw you obtain a leave of absence from your employer before resigning as this matter came to light.

18Thus in terms of work you have good history, a matter to your credit.
This provides an aspect of the good foundation you have for rehabilitating.  Other matters that indicate you can reform are your previous good character.  Your previous court appearance saw a without conviction adjournment is of no adverse moment in this sentencing task and I put it to one side.

19The support of your family is supplemented by solid support of friends. 
Some who wrote testimonials attesting to your quiet and otherwise decent character your own shock and remorse at your demise and your efforts to put drugs behind you in recent times.  The letters have been helpful to me.  You had others who attended court both on your plea and today that make it clear to me that you have significant support in the community.

20As to your efforts to end drug taking there have been of late clean drug analysis reports and letters from Odyssey House Outpatients drug counsellors. 
Also your GP spoke of your efforts of late.

21You are HIV positive as a consequence of your ex-partner's infidelity.  The end of that relationship was difficult for you although it was, it seems, a relationship that involved violence and trauma to you.  The medico-legal psychologist report that was provided to me emphasises your vulnerable personality.  It was put that this together with your health status and your sexual orientation means that any gaol would be especially hard for you.  I am sure this is an accurate description.  Thankfully, with your dedicated approach to your HIV status at the moment your viral load is zero.  You hope to return to a stable, working life.  One aim being to set up your own cleaning business. 

22Taking into account all the material I consider your prospects of complete rehabilitation to be strong.  Your counsel urged that I impose no gaol but rather, in his submission, an onerous community corrections order can meet all sentencing purposes.  He emphasised the mitigatory matters that flow from your early plea.  Your remorse, your complete cooperation and frankness with the police and your considerable steps towards rehabilitation you have undertaken already.  He submitted that the punishment of last resort of being gaoled was not needed in this case.  Now this is a precis of what were well considered oral and written submissions and I have taken them into account.

23The prosecution contended that the gravity of the offending, the need for denunciation of drug trafficking and most importantly the need for deterrence to others who may be minded to engage in drug trafficking at the level you were, this meant, in the Crown's submission, that some gaol was required although a combination sentence of gaol and community corrections order was within range in the unusual circumstance of this case.

24I had you assessed and you are suitable for a community corrections order although I note you are considered by the Office of Corrections as a high risk of re-offending.  I am not sure about that assessment.  From my viewpoint you appear well chastened by this experience and in my view are unlikely to re-offend if you consolidate your rehabilitation and stayed free of drugs.  Of course that is a matter entirely for you.

25The question is can the sentencing purposes of denunciation and deterrence be adequately met by punishment wholly in the community?  I am mindful that a community corrections order is punishment and establishes onerous responsibilities with real consequences for failures to comply. 

26Grave as it always is, I have reached the conclusion that the only just and appropriate sentence that is able to meet the important purpose of denunciation and deterrence to others and proper proportionate punishment is one involving some time in custody.  Drug trafficking is a corrosive crime and trafficking in an aggregate commercial quantity would ordinarily see a lengthy term of imprisonment far beyond what would allow for consideration of a combined sentence involving some community corrections order. Hard as gaol will be imprisonment is required given the seriousness of the trafficking in the aggregate commercial quantity of such harmful drugs.  The trafficking being the possession on the day the police arrived, that is, the possession for the purposes of trafficking.

27Now that said the term that I will impose will be significantly lower than might otherwise be the case by reason of the availability to me of onerous community corrections order requirements that will be in addition to the sentence that
I imposed.

28Now as you will hear, Mr Bundy, your plea of guilty has significantly reduced what would otherwise have been a sentence that I would have imposed had you pleaded not guilty to these offences and been found guilty. 

29In respect of the charge of trafficking in a drug of dependence not less than the aggregate commercial quantity, the drugs being set out, that is Charge 1,
I sentence you to a term of imprisonment of nine months.

30For the second charge of trafficking in a drug of dependence I sentence you to a term of imprisonment of two months. 

31In respect of the summary matter or the other matter of the possession of the Viagra, you are convicted and fined $250.

32The total sentence, therefore, is nine months.  The second charge is wholly concurrent.  In addition I impose, with conviction, a two year community corrections order.  There will be conditions that apply to that.  They will relate to unpaid work in the total of 200 hours and program conditions relating to treatment for your drug addiction, your mental health problems and the requirement that you be under supervision.

33Had you pleaded not guilty to these offences and been found guilty of them
I would imposed a sentence of three years and six months with a non-parole period of two years and three months.

34I believe that there are other orders that are sought and I will deal with those shortly.  What is required, Mr Bundy, is that a document is produced setting out the community corrections order conditions.  That has to be read out to you and explained and we will do that shortly.  However at the end of that you will be taken by the Office of Corrections to commence the sentence that I have imposed.  Is there anything further required?

35MR GWYNN:  No, Your Honour.

36HIS HONOUR:  Is there ancillary orders needed?

37MS FITZGERALD:  Yes, Your Honour.

38HIS HONOUR:  All right. 

39MS FITZGERALD: There are disposal orders is sought. I hand up a copy of those orders and an order pursuant to s.464ZF of the Crimes Act.

40HIS HONOUR:  Yes thank you.

41MS FITZGERALD:  I hand up those orders.  Excuse me, Your Honour. 

42HIS HONOUR:  Mr Bundy, the prosecution have sought an order that you undergo a forensic procedure being the scraping from your mouth until a sufficient sample is gained to enable DNA to be placed on the database.  I have considered that application and I propose to grant it.  The reason for that are the seriousness of the circumstances of the offending warrant the making of the order and the granting of the order is in the public interest.

43What you have to understand is when the authorities come to take that sample they are authorised to use reason force if you do not cooperate.  The way through it is to cooperate.  It is just a scraping from your mouth as I understand it.

44The prosecution seek an order disposing of all the items that were in the house.  They being relating to the drug trafficking and so I grant that order.

45MR GWYNN:  Sorry, Your Honour, just if I may ‑ ‑ ‑ 

46HIS HONOUR:  Yes, of course.

47MR GWYNN:  ‑ ‑ ‑ just prior to where the orders are being printed out, Mr Bundy will need to sign those.  I'm just wondering if it's possible to note or request that it be noted on the records that go to the authorities that he requires the antiretroviral medication, Genvoya.  He has medication with him but he's not allowed to take it with him we've been advised and he doesn’t have a script with him.

48HIS HONOUR:  All right.

49MR GWYNN:  If that could be noted hopefully that may ‑ ‑ ‑ 

50HIS HONOUR:  Yes.  I don't normally accede to all this because it gets people nowhere.  I say, you know, look after him because he's vulnerable and he needs a drug and they come back the next day and say the very thing he didn't get was the very thing he ordered but I make exception here to emphasise to the authorities.  All I have here listening is a gentleman at the back of the court. 
So I'll put something on a document but I'm now orally speaking to the gentleman in the back of the court who's operating as the Office of Corrections person.  This man requires this antiviral - what is it?

51MR GWYNN:  It's antiretroviral medication.

52HIS HONOUR:  Yes.  He needs his medication for his status.  No-one can overlook it, no-one can push him to one side and say that, "Leave it to the doctor, you'll get sorted out in the normal course".  This is not the normal course.  This is not the normal course.  If this man does not get his medication then the harm caused to him psychologically and perhaps physically is too much to contemplate.  So I will put this on the order and his solicitors will advise me immediately if it did not happen and then he will be brought back and I will reconsider the matters that I have looked at.

53MR GWYNN:  Thank you, Your Honour.

54HIS HONOUR:  So far as the Crown has any role to play then they should ensure that the order that I make is adhered to or the indication I give is adhered to.

55MS FITZGERALD:  Your Honour, my instructor's just informed that she'll spend a specific email to Corrections in relation to the medication.

56HIS HONOUR:  All right.  Mr Bundy, once you are released from prison you will commence a two year community corrections order.  The conditions that apply to everyone engaged in a community corrections order are as follows.

57You must not commit any other offence for which you can be imprisoned during the time the order is in force.  You should consider that almost every offence you can think of is punishable by imprisonment, even if the magistrate would not do it.  Anything to do with drugs would likely, highly likely, breach this order.  You will be back and, I know you will not see it this way, but the mercy that
I have shown by imposing a sentence in months, not years, will not be repeated if you go back to using drugs and break the law within the next two years.

58You must comply with any obligations, requirements under the sentencing regulations.  Once you get to the community corrections order people will need to take a photograph of you and know who you are so you have just got to cooperate with all that. 

59Cooperation really forms the rest - a number of these other things.  They are you must report to and receive visits from the Office of Corrections.  You must report to the Community Corrections Centre within two clear working days of the order starting.  So two days after your sentence finishes.  That will be in December sometime.

60You must let the Community Corrections officers know within two clear working days if you change your address or your job.  You cannot leave Victoria without getting permission to do so from them and you must obey all their lawful instructions and directions.  Just cooperate and keep them informed of things.

61In addition to those standard conditions that apply to everyone, what applies to you particularly is that you must do unpaid work, 200 hours over two years.  That is mandatory.  You turn up when you are asked to, you do the whole lot and you finish when you are allowed to finish and go back the next time.

62I do not know that I have to emphasise this, I sometimes say this to others,
I will say it to you.  You will find that there will be people on community corrections orders, they are not interested in their rehabilitation.  They are interested in drug use, continuing and you will be exposed and you just have to stand firm, do you understand that?  Otherwise you will be returning to gaol I predict.

63You must undergo assessment and treatment for drug abuse and dependency.  They will give you further help with that matter which will be difficult.  You must undergo any mental health assessments and treatment and you must participate in programs and courses that address factors relating to your offending as they see it, all right?  If you sign that document.  It will be brought down to you by a solicitor.  Is there anything further required?

64MR GWYNN:  No thank you, Your Honour.

65MS FITZGERALD:  No, Your Honour.

66HIS HONOUR:  I thank counsel for their very considerable assistance in this matter.  Mr Bundy, the court rooms are not set up for you to spend any time here and now with those that care for you and have come along.  You just have to leave.  I am sure you would behave, I am sure everyone here would but we have just got to have one rule because many people will not.  So you just have to head down with the Office of Corrections but your solicitor and barrister will come and see you I am sure.  They will explain things to you and they will then explain if anyone waits around, about various things.  Getting in contact with you in the next short period of time.  So if you would remove Mr Bundy please.  Thank you.

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