Director of Public Prosecutions v Burgess (a pseudonym)
[2022] VCC 978
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL JURISDICTION | Revised Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| SHANE BURGESS (a pseudonym) |
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| JUDGE: | HIS HONOUR JUDGE HIGHAM |
| WHERE HELD: | Melbourne |
| DATE OF PLEA: | 31 May 2022 |
| DATE OF SENTENCE: | 21 June 2022 |
| CASE MAY BE CITED AS: | DPP v Burgess (a pseudonym) |
| MEDIUM NEUTRAL CITATION: | [2022] VCC 978 |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – trafficking in a commercial quantity of a drug of dependence – dealing with property suspected of being the proceeds of crime – committing an indicatable offence whilst on bail – plea of guilty – rehabilitation
Legislation Cited: Sentencing Act 1991 (Vic) ss 5(1), 18X(1)
Cases Cited:Gregory v The Queen [2017] VSCA 15
Sentence: Drug and Alcohol Treatment Order for 32 months
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr D. White | Office of Public Prosecutions |
| For the Accused | Mr L. Barker | Chester, Metcalf and Co |
HIS HONOUR:
1Shane Burgess,[1] you have pleaded guilty to one charge of trafficking in a commercial quantity of a drug of dependence (Charge 1), for which the maximum penalty is a term of imprisonment of 25 years. You have also pleaded guilty to related summary offences dealing with property suspected of being the proceeds of crime (Summary Charge 2), for which the maximum penalty is a term of imprisonment of 2 years, and committing an indictable offence whilst on bail (Summary Charge 6), for which the maximum penalty is a term of imprisonment of 3 months.
[1] A pseudonym.
2Tendered on the Determination Hearing as Exhibit 1 was a Summary of Prosecution Opening which set out the agreed facts of your offending. In brief, the circumstances of your offending were as follows.
3On Sunday 12 September 2021, you were in the front passenger seat of an orange Commodore sedan, travelling north on the South Gippsland Highway in Tooradin. Joshua Allen[2] was driving the vehicle, which belonged to your
co-offender Ronnie Payne.[3] You had texted Mr Payne on the previous day, seeking permission to borrow his car for “a drug run”. Mr Payne agreed to provide you with a vehicle and Mr Allen was to act as your driver, as you did not have a valid licence.[2] A pseudonym.
[3] A pseudonym.
4At approximately 2 pm that day, you and Mr Allen arrived at a property in Hampton Park, where you purchased a quarter of a kilogram of methylamphetamine. You then returned to the vehicle and proceeded to drive to a 7-Eleven service station in Cranbourne. Whilst at the 7-Eleven, police intercepted your vehicle. The following items were located in the front passenger side of the vehicle, where you had been seated:
· Two snap lock bags containing approximately 12 grams of methylamphetamine;
· $1,170.60 in cash;
· a large snap lock bag containing approximately 250 grams of methylamphetamine; and
· $11,000 in cash, in $50 and $100 dollar note denominations.
5The methylamphetamine was subsequently analysed. The total weight was
262.4 grams at 81% purity (Charge 1). A total of $12,117.60 in cash was recovered (Summary Charge 2).6You were arrested and the next day you participated in a recorded interview at Dandenong Police Station. You claimed the cash was yours and you had withdrawn it to purchase a car. When asked about the methylamphetamine you made no comment, as was your right. At the time of this offending, you were on bail in respect of three discrete instances of offending (Summary Charge 6).
7The matter resolved at a committal mention in February 2022 and proceeded by way of a straight hand-up brief. On 22 April 2022, your matter was adjourned into the Drug and Alcohol Treatment Court for a Determination Hearing, heard on 31 May 2022. Yours was plainly a plea of guilty at the earliest opportunity.
8You have remained in custody since your arrest on 12 September 2021. On 22 March 2022, you were sentenced to an aggregate term of four months' imprisonment in respect of the charges for which you were on bail at the time of this offending. You report being drug-free during your remand period.
9Tendered as Exhibit 3 on the Determination Hearing was a Case Management Assessment Report by Chloe Reese, dated 13 May 2022. Exhibit 4 was a Clinical Advisor Report from Adrian Papworth, also dated 13 May 2022. Tendered as Exhibit 6HM was a report from Gina Cidoni, Psychologist, dated 20 April 2022. Together these reports outlined your personal and developmental history, your upbringing and family dynamic, your current challenges, your substance abuse and forensic history.
10Exhibit 3 and 4 found you suitable for a Drug and Alcohol Treatment Order (DATO) and assessed and identified treatment pathways for your engagement and conditions for your management in the community. Neither party filed a notice of intention to dispute the court ordered assessment reports and I proceed on the basis that no challenge is made to the contents or conclusions of those reports.
11I turn now to your personal circumstances.
12You were born in September 1987 and are now 34 years of age. You were raised in regional Victoria on a cattle farm and you have three older brothers. Both your parents worked in agriculture. Your mother left the family home when you were aged 18 and you have had little contact with her since that time. Over the years, you have lost contact with your siblings, due to both physical and emotional distance. Your father currently lives in Cairns, Queensland, and you have periodic phone contact with him.
13You attended local schools. You were diagnosed with ADHD when in Year 3. Behavioural issues led to you being expelled from school when you were in Year 6 at the age of 13. Surprisingly, and I must admit concernedly, you did not return to your education and now struggle with basic literacy. Your father then found you work on a cattle station in the Simpson Desert. You have subsequently worked at cattle stations or abattoirs both interstate and in Victoria.
14Over the years, workplace injuries have required surgery and prevented you from engaging in interstate full-time employment as an agricultural labourer. You returned to Victoria in 2019 and have not worked since. In consequence, your long-standing drug use escalated to the point of dependence and your friendship group reduced to only drug-using peers, one of whom was your co-accused Mr Payne, to whose criminal enterprise I find you fully lent yourself.
15It appears, although the material is not clear, that you first used illicit drugs following the breakup of your first significant relationship when you were 18 or 19 years old.
16You describe a pattern of periods of interstate employment and abstinence, then returning to Victoria and relapsing, criminal activity and short sentences of imprisonment. You first reported using methamphetamine at the age of 27 and identify that substance as your primary drug of concern. You report using up to three and a half grams of methamphetamine per day at the time of your arrest on the index offending. I note that you deny any intravenous use of that drug.
17In 2009, you received a suspended sentence of three months’ imprisonment for driving offences. In March 2013, for offending including trafficking in methamphetamine, driving offences, criminal damage, and dealing with property suspected of being of the proceeds of crime, you received a term of one months’ imprisonment and a Community Corrections Order (CCO) of 12 months' duration. That CCO was cancelled in June 2014 for on-order offending and you received a total sentence of six months' imprisonment, three months of which were suspended. In December 2017, you were sentenced to 12 months’ imprisonment for burglary, theft, possession of firearms, driving and possessions of drugs of dependence. In September 2019, you were dealt with by means of a fine for possession and use of drugs of dependence.
18Whilst, Mr Burgess, you do not fall to be sentenced for matters already dealt with by the courts, your prior criminal history impacts my assessment of the need for specific deterrence, community protection, your prospects of rehabilitation, your moral culpability, and upon the appropriateness of a Drug and Alcohol Treatment Order in your case. What is clear is that the offending for which you fall to be sentenced today, represents a significant escalation in the seriousness of your offending.
19Ms Cidoni, in Exhibit 6HM, ventured a diagnosis of adult Attention-Deficit Hyperactivity Disorder (ADHD) and stimulant use disorder. Risk factors for re-offending included your criminal history, untreated mental illness and low positive supports. She noted that treating your un-treated adult ADHD would control your impulses and risky tendencies, and may help with you being abstinent from drugs. She recommended both therapeutic and Alcohol and Other Drug (AOD) interventions in your case.
20You told Mr Papworth (Exhibit 3), that you have not used drugs since you were remanded into custody and that you essentially underwent withdrawal without any clinical or therapeutic assistance. You deny any psychotic episodes associated with your past methamphetamine use. Mr Papworth is of the opinion that at the time of this offending, you would have satisfied the diagnostic criteria for stimulant use disorder, sedative, hypnotic or anxiolytic use disorder and cannabis use disorder. He was satisfied that the treatment and supervision component of a DATO would be an appropriate intervention to address these disorders. There were no significant concerns regarding your capacity to participate in such an Order.
21You told Ms Reese (Exhibit 4), that when working interstate and residing in suitable accommodation you were able to achieve abstinence. In Victoria at the time of this offending, you had been unemployed, living in a shed on Mr Payne’s property and associating only with drug-using peers. You also reported a significant decline in your mental health. Ms Reese writes that,
“Mr [Burgess] has previously engaged in a community corrections order, however did not participate in drug and alcohol treatment during the time the order was in force. He is yet to be afforded the opportunity to engage in an intensive therapeutic program such as a drug and alcohol treatment order, that offers routine, structure, judicial and clinical oversight, and formalised support.”
22Ms Reese recognised that this might be a challenge for you and, in addition to restrictive conditions, she recommended tailored intervention, intended to both look at your triggers and high-risk scenarios, as well as understanding what underlay your past period of abstinence.
23Mr Burgess, those of us who sit in the criminal courts day after day are aware of this one simple fact: drugs are tearing out the heart of our community and particularly regional communities. Our community is losing a generation. Those who participate in this evil trade can expect to be severely punished if and when they come before the courts. What might start out as a fun Saturday night and be regarded as recreational consumption that can be controlled, can quickly spiral into the horrors of dependence. In that dependence, many lose everything, some their lives. Your own experiences, Mr Burgess, must show you how close you have come to losing everything.
24The trafficking offence to which you have pleaded guilty is a serious offence, as is clear from the maximum penalty of 25 years imprisonment which Parliament has seen fit to impose. Quantity, role, the duration of offending and the motivation for the offender’s involvement in the offending, are all important indicators of offence gravity.[4]
[4] See Gregory v The Queen [2017] VSCA 15, 2 [24].
25I am satisfied, to the requisite standard, that you played an important and integral role in the drug trafficking enterprise of your co-offender Mr Payne. You were the approved buyer of a quarter of a kilogram of methamphetamine and you may have been the first contact for the supply. It was you who travelled from West Gippsland to Hampton Park to make the purchase; it was you who handed over the cash. These facts make clear the level of trust and confidence placed in you by Mr Payne. The nature of the enterprise to which you so readily lent yourself, was one where the drugs in your possession were for onward sale to other wholesalers, not end users. The benefit to you from your involvement in this enterprise was both being able to feed your own habit, as well as some financial and material gain. As your Counsel conceded, you entered into the enterprise of your own free will. You had agency over your actions and you chose willingly to participate in this evil trade. Your own drug dependence is no more than the context for your offending, it does not excuse it. And your moral culpability for the offending is, in my view, quite clear.
26Your offending is further aggravated by the fact that it was committed whilst you are on bail, for no fewer than three discrete instances of offending. The sentencing purposes of general and specific deterrence and protection of the community must all have a significant role to play.
27The particular purposes of a Drug and Alcohol Treatment Order (DATO), are:[5]
(a) to facilitate the rehabilitation of the offender participant by providing a judicially-supervised, therapeutically-oriented, integrated drug and alcohol treatment and supervision regime;
(b) to take account of the offender participant’s drug or alcohol dependency;
(c) to reduce the level of criminal activity associated with drug or alcohol dependency; and
(d) to reduce the offender participant’s health risks associated with drug or alcohol dependency.
[5] Sentencing Act1991 (Vic), s 18X(1)
28Mr Barker, Counsel on your behalf, urged me to follow the recommendations of the clinicians and case manager and place you on a DATO. He submitted this was an appropriate disposition, having regard to your circumstances and the circumstances of the offending.
29Mr White, Counsel on behalf of the Director, fairly conceded that a DATO was an available sentencing option in your case. However, he submitted that your prospects for rehabilitation were guarded at best, if not poor, and that, in light of your prior criminal history and offending, there was an elevated need for specific deterrence in your case. He submitted both these sentencing purposes should be reflected in the custodial part of any Order.
30Mr Burgess, in sentencing you I must have regard to a range of different factors. I must give effect to the principal of general deterrence, that is to deter others from behaving as you did. This is of particular importance when dealing with offences of trafficking methamphetamine. I also must have regard to specific deterrence, that is I need to deter you from any repeat of this offending. I must consider the need to protect the community. I must express the community’s denunciation of your conduct. I must take into account the effect of your crimes upon the community, that is the damage that is caused by methamphetamine use. I must have regard to current sentencing practices and to the statutory maximum penalties with the offences to which you have pleaded guilty. I must ensure, in far as possible, that you are rehabilitated and reintegrated into society. In short, I must try to balance your personal circumstances with the circumstances of your offending, and I must also pass no greater sentence than is necessary in all the circumstances of the case as I find them to be.
31These sentencing purposes, as identified in s 5(1) of the Sentencing Act 1991, are all still engaged and to be considered in your case. However, if the Court is considering making a DATO then your rehabilitation and the protection of the community, which is to be achieved through your rehabilitation, have greater importance than those other sentencing purposes.[6]
[6] Sentencing Act 1991 (Vic), s 18X(2)
32From all the material in front of me, I am satisfied on the balance of probabilities that:
· you are dependent upon methylamphetamine;
· your dependency contributed to the commission of the offending in front of me;
· otherwise, it would be appropriate to impose an immediate sentence of imprisonment of no more than four years; and
· you are not charged with any offending nor subject to any order that would make you ineligible for a DATO.
33Having regard to all the above matters, I am satisfied that in all the circumstances of your case that it is appropriate to place you upon a
Drug and Alcohol Treatment Order.34And these are my reasons.
35You pleaded guilty to this matter at the earliest opportunity and such a plea has a significant utilitarian benefit in saving the community the time and the expense of a trial. Your plea also has a particular value to the Courts and to the general administration of justice in the time of the COVID-19 pandemic, and it is a value that must significantly mitigate any sentence.
36I also accept that you are remorseful. I have had regard to the restrictive regime and conditions during which you have served your period on remand.
37You do not report a history of traumatic childhood, as so often encountered in this Court. However, I do accept that for you, your mother’s desire for a different life seemed to you to be a fundamental betrayal, and this sense of betrayal has clearly stayed with you throughout your life to date.
38It is also clear that your early neurodevelopmental challenges were not sufficiently treated, if indeed they were treated at all. I note your father refused you continuing with a medication regime when you were aged 13: instead you were allowed to leave school. Quite how that was permitted is beyond me and, consequently, you now lack both the practical skills and emotional skills required for life, and for the challenges and disappointments that life may place in your path.
39Confronted, it seems, with the breakdown of a relationship, you began to use drugs of dependence and you commenced using methamphetamine in your mid-20s. Thereafter, your life in Victoria was a cycle of drug use, offending, imprisonment, release, and more drug use. The cycle was only interrupted by periods of working interstate during which you managed to achieve abstinence. However, for some reason you always returned to Victoria and to that aforementioned cycle.
40You say that you are keen to do a DATO, and, in your words, “get out of this drug world.” I am going to give you that opportunity, Mr Burgess.
41On Summary Charge 6 you are sentenced to a term of imprisonment of 40 days. I declare that you have already served the whole period of this sentence by way of pre-sentence detention.
42On Charge 1 and Summary Charge 2 you are convicted and you are placed upon a Drug And Alcohol Treatment Order (DATO).
43A DATO has two parts: the treatment and supervision part and the custodial part. The treatment and supervision part itself has two parts, which are as follows.
44The core conditions, which are that:
(a) you must not commit, whether in or outside of Victoria, another offence punishable on conviction by imprisonment during the time the Order is in force;
(b) you must attend Drug Court when required by the Court to do so;
(c) you must report to the Melbourne Drug Court House within two clear working days after the Order is imposed;
(d) you must report to and accept visits from members of the Drug Court;
(e) you must undergo treatment for alcohol and drug dependency as specified in the Order or by the Drug Court;
(f) you must give notice of any change of address, at least two clear working days before the change, to a specified Drug Court officer;
(g) you are not to leave Victoria without the permission of the Drug Court; and
(h) you are to obey all lawful instructions from the Drug Court Team.
45The core conditions will operate for 32 months, or until further order.
46The program conditions, which are that:
(a) you must submit for drug and alcohol testing, as directed;
(b) you must submit to detoxification or other treatments specified in the Order, as directed;
(c) you must attend vocational, educational and employment programs, as directed;
(d) you must submit to medical, psychiatric and psychological treatment, as directed;
(e) you must not associate with Joshua ALLEN, Ronnie PAYNE and Ryan CRUZ;
(f) you must reside at a place directed by the Drug Court Team for the duration of the Order or until further Order;
(g) you are subject to a curfew that you must remain at a place directed by the Drug Court Team between the hours of 9:00 pm and 6:00 am, which is required until further order;
(h) you are not to use a drug of dependence without lawful authorisation;
(i) you are to abstain from alcohol; and
(j) you are to do or not do anything else that the Drug Courts consider necessary or appropriate concerning:
(i)your drug and alcohol dependency; and
(ii)the personal factors that the Drug Court considers contributed to your criminal behaviour.
47These program conditions will operate for two years, or until further order.
48The custodial part of the DATO is the term of imprisonment that I would have imposed had I not placed you on a DATO, and it is a term of imprisonment of 2 years and 8 months. That is made up as follows:
· On Charge 1, two years and six months.
· On Summary Charge 2, six months.
49I order that two months of the sentence on Summary Charge 2 run cumulatively to the sentence on Charge 1, so that makes a Total Effective Sentence of two years and eight months.
50I declare that you have served 178 days of Pre-Sentence Detention (PSD). That figure comprises the agreed PSD figure of 218 days, minus the 40 days served on Summary Charge 6.
51That 178 days will only come into consideration were an application to be made to cancel your DATO. But, of course, you are going to succeed on this order, Mr Burgess.
52OFFENDER: Correct.
53HIS HONOUR: I have a disposal and a forfeiture order, both of which I will sign.
54Pursuant to s 6AAA of the Sentencing Act 1991, although I recognise it is somewhat of an artificial exercise, had you not pleaded guilty you would have been sentenced to a Total Effective Sentence of three years and eight months, with a non-parole period of two years and eight months. All right, now you can come out of the dock, Mr Burgess.
55Now, do you understand that you are waiving all rights of confidentiality between the Drug Court and those who act on behalf of the Drug Court, and all other treatment providers, Government agencies, authorities and departments.
56OFFENDER: Yep.
57HIS HONOUR: All right, now do you consent to the order?
58OFFENDER: Yes.
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