Director of Public Prosecutions v Campbell
[2020] VCC 1920
•2 December 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-20-01073
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| RYAN CAMPBELL |
---
JUDGE: | HER HONOUR JUDGE TODD | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 26 November 2020 | |
DATE OF SENTENCE: | 2 December 2020 | |
CASE MAY BE CITED AS: | DPP v Campbell | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 1920 | |
REASONS FOR SENTENCE
---
Subject: CRIMINAL LAW
Catchwords: Plea of guilty- one charge trafficking commercial quantity of methamphetamine - one charge trafficking 1,4-Butanediol - one charge cultivating cannabis - one charge possessing cocaine -one charge possessing a drug of dependence (diazepam and alprazolam) – related summary charges- Offending at the lower end of mid-range - Family hardship – Covid-19 pandemic
Legislation Cited: Crimes Act 1958 ; Drugs, Poisons and Controlled Substances Act
Cases Cited: Fernando 2017 VSCA 208; R v Koumis [2008] VSCA 84 ; R v Lacey [2007] VSCA 196
Sentence: Four years and one month, with non-parole period of two years and four months
---
| APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr D. Brown | Office of Public Prosecutions |
| For the Accused | Ms L. Conwell | Stary Norton Halphen |
HER HONOUR:
Circumstances of the offending
1. Ryan Campbell, the facts giving rise to your offending are set out in the Summary of Prosecution Opening and that is marked Exhibit A on the plea. I will summarise some of the facts here.
2. At 4.58 am, on 7 February 2020, police executed a Drugs, Poisons and Controlled Substances Act search warrant at your address. You, and your friend Ellie Hawthorn were at home.
3. The police found drugs of various kinds, weapons and cash. First, there was 129.3 grams of methylamphetamine. That gives rise to (Charge 1: trafficking in a commercial quantity). Then there was 1724.8 grams of 1,4-Butanediol. That gives rise to Charge 2: trafficking in a drug of dependence. There were two cannabis plants in pots. That is Charge 3: cultivating cannabis. There was 0.5 grams of cocaine (Charge 4: possess cocaine). There were 13 diazepam tablets and seven alprazolam tablets (Charge 5: possessing a drug of dependence). There was one tablet of sildenafil, 51 tablets of quetiapine, and one and a half tablets of risperidone. That gives rise to Summary Charge 7: possessing a Schedule 4 poison. There were seven tablets of Oxycodone. That gives rise to (Summary Charge 11: possessing a Schedule 8 poison). There was a Taser and two knuckle dusters (Summary Charge 13: possessing a prohibited weapon). There were two knives (Summary Charge 14: possessing a controlled weapon) and a total of $2,485 in cash. (Summary Charge 15).
4. The various items were found in a bird aviary, the back garden, a study area of the house, your bedroom, and your car. Found with the items the subject of these charges, was also a set of portable scales, empty zip lock bags, and empty plastic bottles. Police found and viewed CCTV footage stored at the address. On it there were images of Ms Hawthorne running to the bird aviary carrying a satchel when the police arrived.
5. The various drugs were analysed and weighed. The methamphetamine weighed 129.3 grams with an average of around 81% purity. Its total pure weight was 105 grams. This is twice the commercial quantity threshold of 50 grams for pure methamphetamine; and roughly 20% of a large commercial quantity. The 1.4 Butanediol weighed a total of 1724.8 grams. A trafficable quantity of that drug is 50 grams. The next threshold for 1,4-Butanediol is commercial quantity at 2 kilograms. The cannabis weighed 51 grams, which is (just over the threshold for a small quantity being 50 grams). The cocaine weighed 0.5 gram. A small quantity is 1 gram.
Arrest and interview
You were arrested and interviewed. In the main, you exercised your right to silence. You did, however, state that Ms Hawthorne was not involved in your activities.
Ms Hawthorne was also arrested and interviewed; she has been charged with possession of the methylamphetamine found in the aviary and possession of 1,4-Butanediol that was in her handbag. Ms Hawthorne’s case is proceeding in the summary stream of the Magistrates’ Court.
Pleas of guilty and maximum penalties
Ryan Campbell, you have pleaded guilty to the following charges:
· one charge of trafficking in a commercial quantity of methamphetamine, the maximum penalty for which is 25 years imprisonment;
· one charge of trafficking in 1,4-Butanediol, which carries a maximum penalty of 15 years imprisonment;
· one charge cultivating cannabis, which carries a maximum penalty in your case of one year imprisonment;
· one charge of possessing cocaine, which carries a maximum penalty in your case of one year imprisonment;
· one charge of possessing a drug of dependence being diazepam and alprazolam, which carries a maximum penalty in your case of one year imprisonment.
You have also entered pleas of guilty to the following summary charges:
·one charge of possessing Schedule 4 poisons being sildenafil, quetiapine and risperidone, an offence that carries a maximum penalty of 10 penalty units;
·one charge of possessing a Schedule 8 poison being oxycodone, which carries a maximum penalty of 10 penalty units;
·one charge of possession of a prohibited weapon, being a Taser and two knuckle dusters, which carries a maximum penalty of imprisonment for two years or 240 penalty units;
·one charge of possessing a controlled weapon, being two knives which carries a maximum penalty of one year imprisonment or 120 penalty units and;
·one charge of dealing with suspected proceeds of crime being $2,485 cash, which carries a maximum penalty of two years imprisonment.
10.I note that Charge 1: trafficking in a commercial quantity of methamphetamine is a 'Category 2 offence'. That being so, I am obliged to make an order for imprisonment pursuant to Division 2 of Part 3 of the Sentencing Act. It was uncontroversial in this case that a sentence of imprisonment with a non-parole period was warranted even in the absence of this statutory requirement.
Prior criminal history
11. I will now address your prior criminal history.
12. You have a relevant prior history. Your first criminal conviction was on 21 May 2013, for trafficking methamphetamine. You were again sentenced for further trafficking offences and possession charges on 29 May 2014. On 31 May 2018, you were convicted again of trafficking methamphetamine and other drug possession offences. You were sentenced to a total of 14 months’ imprisonment, with a non-parole period of seven months. Curiously, and despite being granted parole on 19 December 2018, you were not released, but rather, apparently on your own request, stayed in custody to complete the full term of 14 months. The prisoner history document that was tendered and is Exhibit D on the plea, records these events.
13. I am obliged to have regard in particular, to the prior convictions for trafficking in arriving at your sentence today.
Procedural History
14. In terms of the procedural history of your case, you were arrested and charged on
7 February 2020, received into Ravenhall prison on 11 February 2020, you pleaded guilty at committal mention and the prosecution concede that your case was resolved at the earliest opportunity.
15. I am required to now address the nature and gravity of the offending. To assess the gravity of your offending, I must first have regard to the quantity of drugs involved in the trafficking. Quantity is not the only relevant factor, but is generally used as the primary measure of the seriousness of such a charge. On Charge 1: trafficking commercial quantity of methamphetamine, the quantity was 105 grams pure, just over twice the 50 gram threshold for commercial quantity. Another guide is that that was approximately 20% of the large commercial quantity threshold. The 1,4-Butanediol fell short of the commercial quantity of 2 kilograms, but was well above the trafficable quantity threshold of 50 grams.
16. It is important to note that your charges are anchored to a single day. It was conceded by the prosecution that the drugs and other substances not the subject of the trafficking charges, are to be regarded as there for your personal use.
17. The charge of dealing with the suspected proceeds of crime, was not specifically alleged as to have been derived from trafficking.
18. It is clear that your trafficking was undertaken to support a relatively fierce addiction to methamphetamine. You told your psychologist that whatever money you made out of selling drugs, would usually go back into buying more drugs, which ultimately funded your drug use. I find that you were motivated by your addiction and not by a desire to accumulate wealth; there was certainly no evidence of enrichment. You had descended into that use of drugs during your teenage years, when you were experiencing a range of personal difficulties that will be referred to later in these reasons. I accept that the principles in R v Koumis and R v Lacey are engaged. Taking all these features into account, I conclude that your offending was not quite at the lowest end, but does belong somewhere on the lower end of the mid range.
Personal circumstances
19. You are now 30 years old. You and your two siblings were raised by both your parents in a loving home. You completed Year 12 and then commenced an apprenticeship in cabinetmaking, which you completed after four years.
20. Your childhood and early adolescence were marred by your father’s significant health problems, which required an organ transplant, one which subsequently failed. A dominant feature of your family’s life was the very real possibility of your father’s death. You also lost two friends to suicide. It was in these insecure circumstances, that you began using drugs.
21. It was after you completed your apprenticeship and started full-time work, that your drug use gathered momentum.
Matters in mitigation
Plea of guilty
22. Some of the matters in mitigation are these. First, your plea of guilty. You pleaded guilty at the earliest practical stage. Your plea has saved the community the various costs, human and financial, of a trial. It has taken one more case out of a large backlog of cases awaiting trial in the context of the Covid-19 Pandemic. Your plea will be acknowledged by a significant reduction of your sentence. Your plea also has an aspect of remorse in it.
Psychological material
23. You were assessed by Mr Jeffrey Cummins, psychologist. Mr Cummins assessed you as moderately depressed, apparently as a result of an inevitable significant gaol sentence and your repeated inability to refrain from using drugs. I am referring in particular to paragraph [34]. Mr Cummins’ report is perhaps at its most useful for what it does not contain. That is, you do not appear to have long-term underlying psychiatric or psychological problems of the kind that sometimes underpin heavy drug addiction. Ultimately, there were no particular Verdins submissions pressed on your plea; I take into account the report’s contents, insofar as they put your offending into a personal context.
Hardship on family
24. Your father’s health is still very precarious and I accept that your concern for him, and in particular, the worry about whether he will still be alive when you are released, makes your time in custody more onerous.
Prospects of rehabilitation
25. Your prospects for rehabilitation depend entirely upon your capacity to grapple with your addiction. It is as yet unknown whether you have that capacity. You have attempted, without success, to confront your addiction in various programs. You will need to do so again, and perhaps repeatedly, until you break the grip it has on you.
26. You have the unwavering support of your parents. Their commitment to you is apparently undiminished by your behaviour over the several years of serious addiction and consequent incarceration. They attended the hearing by video link and wrote affectionate references. They both still see the best in you.
27. You are a qualified cabinetmaker. You have done this job profitably in the past. You have therefore prospects of gainful and dignified employment, and a template for occupying yourself in a dignified and skilled trade.
28. While your rehabilitation faces a significant difficulty, I am not prepared to conclude that your prospects of rehabilitation are entirely bleak, given your strong family support and your capacity to earn a living and to participate in social life.
Relevant sentencing principles
29. I will now address the roles for general deterrence, specific deterrence, denunciation, just punishment and community protection.
30. General deterrence assumes a prominence in cases of drug trafficking. Moreover, with your history for trafficking on earlier occasions, specific deterrence does have a role to play too. While your addiction provides a context for your offending, it does not provide an excuse. I must also impose a sentence which is just and appropriate, taking into account all of your conduct; and the sentence must denounce your conduct on the part of the community and have it as its goal, that community's protection.
Regard to current sentencing practices
31. I am obliged also to have regard to current sentencing practices and I have done so by looking at a range of cases with comparable quantities of drugs involved.[1] None of them are quite alike to yours, with precisely the same balancing factors to take into account. Looking at the sentences imposed in cases involving charges of trafficking in a commercial quantity of a drug of dependence, in particular methylamphetamine, shows that many of those cases have more grave ongoing offending in commercial operations, or else higher quantities of drugs (and sometimes both). The usual difficulty of discerning a range of comparable cases applies here. I was referred in the course of the plea to the case of Fernando 2017 VSCA 208 and I have read it. That case does have useful similarities, but was of course after a trial, and different quantity thresholds applied at the time.
[1] See for example Fernando 2017 VSCA 208.
Totality
32. I have had regard to the principle of totality and have attempted to moderate your sentence and make appropriate orders for cumulation and concurrency to reflect the overall criminality.
Covid-19
33. You have served time in custody during the Covid-19 pandemic. I accept that that has caused particular hardship for prisoners who are denied face to face contact with your families, and access to the full range of courses and treatment has often been limited. I have taken this into account in your favour. I note that you have otherwise used this difficult period in custody well, participating in voluntary drug screens and courses where possible.
Disposition
34. Mr Campbell, now is the time I would normally ask you to stand while I deliver the sentence, but given that you are on a screen, that does not really make any sense, but this is the bit now where I tell you the actual numbers. Ryan Campbell, on Charge 1: trafficking in a commercial quantity of methamphetamine, you are convicted and sentenced to three years and six months imprisonment. (42 months)
35. On Charge 2: trafficking in 1,4-Butanediol, you are convicted and sentenced to one year imprisonment.
36. On Charge 3: cultivating cannabis, you are convicted and sentenced to one month imprisonment.
37. On Charge 4: possessing cocaine, you are convicted and sentenced to one month imprisonment.
38. On Charge 5: possessing diazepam and alprazolam, you are convicted and sentenced to one month imprisonment.
39. On Summary Charge 7: possession of a Schedule 4 poison, you are convicted and fined $200.
40. On Summary Charge 11: possessing a Schedule 8 poison, you are convicted and fined $200.
41. On Summary Charge 13: possessing a prohibited weapon, you are convicted and sentenced to two months imprisonment.
42. On Summary Charge 14: possessing a controlled weapon, you are convicted and sentenced to one month imprisonment.
43. On Summary Charge 15: dealing with suspected proceeds of crime, you are convicted and sentenced to two months imprisonment.
44. I now make the following orders for cumulation.
45. I direct that five months of the sentence on Charge 2, one month of the sentence on Summary Charge 13: possessing a controlled weapon, one month on Summary Charge 15: dealing with suspected proceeds of crime, be served cumulatively upon the sentence on Charge 1 and upon each other. This makes a total effective sentence of 49 months or four years and one month.
46. I direct that you are to serve 28 months before becoming eligible for parole.
47. I declare that pursuant to s.18 of the Sentencing Act, you have served 299 days by way of presentence detention, not including today.
6AAA
48. Pursuant to s.6AAA of the Sentencing Act, I declare that had you been found guilty after trial, I would have imposed a sentence of five years and six months imprisonment with a non-parole period of three years.
Ancillary Orders
49. I will make the forfeiture and disposal orders as sought. Mr Brown, is there anything else?
50. MR BROWN: Your Honour, just in relation to pre-sentence detention, - - -
51. HER HONOUR: Yes.
52. MR BROWN: - - - I think your associate said there was an agreement. Did you say 299 - sorry 299 or 289?
53. HER HONOUR: I meant to say 299. Was that the agreement?
54. MR BROWN: That's the agreement, yes. It's just that my instructions were that as of the plea date, it was 283.
55. HER HONOUR: All right.
56. MR BROWN: I don't know - - -
57. ASSOCIATE: Ms Tegan and Ms Conwell.
58. MR BROWN: I'll defer to them if they've - - -
59. HER HONOUR: I would if I were you too.
60. MR BROWN: Yes, I think my - - -
61. HER HONOUR: No disrespect Mr Brown.
62. MR BROWN: Yes.
63. HER HONOUR: Perhaps I ought to confirm with Ms Tegan, Ms Conwell just in case.
64. MS CONWELL: Your Honour, I think at the plea hearing, I confirmed that it was 283. Upon reflection, I calculated from the date that he was taken into custody rather than the filing hearing and I sent in an email to Your Honour's chambers.
65. HER HONOUR: Yes.
66. MS CONWELL: As of today, it's 299 and I've spoken to Ms Tegan this morning and we agree that from the time that he went into custody, which being 7 February of this year, it would be 299 today.
67. HER HONOUR: All right, I'm sure Ms Tegan will make herself known if she's - - -
68. MR BROWN: Yes, no that sounds - - -
69. HER HONOUR: If she's in conflict with that position. Are you able to get - - -
70. MS CONWELL: No, I'm in agreement, Your Honour.
71. HER HONOUR: Terrific. Is there anything else before we rise?
72. MR BROWN: No, Your Honour.
73. HER HONOUR: All right. I thank counsel for their assistance and we'll adjourn until 10.30.
- - -
2