Director of Public Prosecutions v Coleman
[2022] VCC 1721
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
CR-21-00583
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BRENDAN COLEMAN |
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JUDGE: | HIS HONOUR JUDGE LYON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 11 October 2022 | |
CASE MAY BE CITED AS: | DPP v Coleman | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1721 | |
REASONS FOR SENTENCE
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Subject:Criminal Law
Catchwords:
Legislation Cited: Drugs, Poisons and Controlled Substances Act 1981 (Vic); Crimes Act 1958 (Vic); Sentencing Act1991 (Vic)
Cases Cited: Akoka v The Queen [2017] VSCA 214; Bugmy [2013] HCA 37; Verdins (2009) 16 VR 269; Worboyes v The Queen [2021] VSCA 169; Farmer v The Queen [2020] VSCA 140; Gregory (a pseudonym) v R (2017) 268 A Crim R 1; Lytras v R [2020] VSCA 150; Boulton v R (2014) 46 VR 308; DPP v Bowen [2021] VSCA 355; Lombardo [2022] VSCA 204
Sentence: 26 months imprisonment; non parole period of 13 months imprisonment
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr M. Roper | |
| For the Accused | Mr D. McGlone |
1Brendan Coleman, you have pleaded guilty to the following offences, which carry the following maximum penalties:
Charge 1
Trafficking in a drug of dependence – commercial quantity contrary to s 71AA Drugs, Poisons and Controlled Substances Act 1981
25 years
imprisonment /3,000 penalty units
Charges 2, 4
Possession of a drug of dependence
s 73(1) Drugs, Poisons and Controlled Substances Act 1981
1 year imprisonment / 30 penalty units
Charge 3
Possession of a drug of dependence
s 73(1) Drugs, Poisons and Controlled Substances Act 1981
5 penalty units
(less than smallquantity)
Summary Charge 13
Fail to comply with a direction to provide information s 465AAA Crimes Act
2 years / 240 penalty units
2Charge 1 is a Category 2 offence under s5(2H) of the Sentencing Act.[1]
[1] 1991 (Vic).
3You have admitted your prior criminal history. I shall return to that later in these sentencing remarks.
Circumstances of Offending
4The Crown tendered the summary of prosecution opening as Exhibit A. A summary of your offending is as follows:
5You were residing at Moreton Street in Frankston North with your co-accused, Jehad Alramlawi.
6Charge 1 on the indictment is charged between 17 April 2020 and 18 May 2020 and comprises two instances.
7In April and May 2020, you posted two parcels to a third offender, Janelle McConnon, in Tasmania, each containing a quantity of methylamphetamine.
8Parcel one contained a DVD player in a box which was wrapped in gift wrapping paper. Concealed within the DVD player were two sealed clear plastic bags containing a total substance weight of 199.2 grams, containing methylamphetamine in a purity of 79.7% and 80.0% in the two bags. The total pure weight of methylamphetamine was therefore 159.0 grams.
9CCTV footage confirmed that you attended the post office and posted the parcel. Your fingerprint was located on the outside of the DVD player and on the outside of a plastic bag containing the methylamphetamine.
10Parcel two contained a birthday card inside a white envelope. Concealed within the card was a small clear clip-seal bag containing 3.5 grams of methylamphetamine.
11CCTV footage at the post office confirmed that you also posted this parcel. Forensic analysis found three of your fingerprints on the envelope.
12On 7 August 2020, police executed a search warrant and found cannabis and butanediol and buprenorphine in your possession.
13At the time of your arrest and when the police were searching your house, you were heard to observe that you ‘did not think that the lady in Tassie would lag’.
14You were interviewed by police and you made partial admissions. You stated that you were paid $200 to post the DVD player but you did not know what was in it. You told police that you had never seen the envelope containing the birthday card before they showed it to you.
15You were remanded in custody and spent 106 days by way of presentence detention until your release on bail on 20 November 2020.
16You indicated your intention to plead guilty at the committal mention.
Objective Gravity and Moral Culpability
17I turn now to a consideration of the objective gravity of your offending and an assessment of your moral culpability.
18The objective gravity of the offence of trafficking in a drug of dependence in a commercial quantity can be immediately ascertained by the maximum penalty set by Parliament being 25 years. Further, your offending constitutes a category 2 offence which calls for the imposition of an immediate term of imprisonment unless I am satisfied that there are substantial and compelling circumstances that are exceptional and rare. I will return to these concepts later in these remarks.
19Continuing with the objective gravity of your offending, I take into account that the amount of the drug trafficked (that is, 159 grams pure) in the transactions is three times the commercial threshold of trafficking in a pure quantity of the drug (which is 50 grams).
20I assess your role in the offending in-line with the following:
(a) You were one of three involved in the transactions;
(b) Your offending was planned and co-ordinated;
(c) There was a repetition of behaviour; and
(d) You were the active participant in posting the drugs.
21I do not place much weight on your explanation to police that you were paid $200 to post the parcels. It is apparent that you lied to the police in other respects. It is also apparent that you disavowed your ignorance of the contents of the parcels by your plea of guilty. The evidence of your fingerprint on the outside of the plastic bag containing methylamphetamine in parcel one shows, that at least you had full knowledge of the amount being transacted and that you took the critical step of posting the parcels in which drugs were concealed in both April and then again in May 2020.
22You have extensive convictions in Victoria and New South Wales. Your offences date back to 2003 and include drug, weapon, property damage and extensive dishonesty offences. You have been placed on community-based orders and suspended periods of imprisonment. You have contravened community-based orders, suspended sentences and you have contravened a community corrections order. You have two previous convictions for armed robbery. On 3 March 2014, you were convicted in the County Court for armed robbery and sentenced to six years, four months' imprisonment with four years to serve.
23In all of the circumstances, I consider your offending to be objectively serious. Your moral culpability is high. On the face of it, principles of deterrence, denunciation, just punishment and a measure of protection of the community should dominate the sentencing consideration.
Personal Circumstances
24You are 36 years of age, being born in Albury in December 1985.
25Your parents separated when your mother was pregnant with you and you report not having close contact with your father over the years.
26Your mother was drug dependent until you were five years old when she met your stepfather, Andrew. Your mother remarried Andrew when you were eight years old. You report having had a close relationship with your mother until your stepfather came into your lives. You stated that your stepfather was verbally and physically aggressive towards you.
27You have a younger half-sister, Shaylee from one of your mother’s previous short relationships and a younger half-brother, Elijah who is the child of your mother and Andrew. Your counsel told me today that your relationships with your siblings are ‘works in progress’, and earlier that you have recently distanced yourself from your sister as she was an active drug user.
28In your childhood you accidentally fired a slug gun at Elijah, resulting in him being blind in one of his eyes. This incident coincided with the death of your maternal grandmother who you report having had a very close relationship with. These events were significant triggers for your anxiety and depression and ongoing substance use.
29You have a history of multiple drug use over the years, and began smoking cannabis at age 12.
30In his report of 27 April 2022 psychologist Warren Simmons considered that your childhood left you vulnerable to substance use, particularly due to the history of physical and emotional abuse and potential emotional neglect prior to your mother meeting your stepfather; when she was heavily drug dependent.
31Mr Simmons was unsure whether you suffered from ADHD as a child, or whether your turbulent family upbringing caused concentration and behavioural difficulties. Mr Simmons considers that you have suffered from various drug use disorders which appear now to be in remission in light of your efforts at rehabilitation.
32Mr Simmons considers that given your history, ‘one must be a little guarded as to his prospects for the future, however the fact that he is engaged in treatment, is accepting of medication and has had periods in the past where he has been offence free despite his ongoing substance use, does suggest there is an ability to make changes’.
33You moved between several towns during your childhood and attended 13 different schools and had several terms of home schooling. You completed up to Year 10 and estimate that you have worked in intermittent employment for approximately a quarter of the time since leaving school.
34At the age of 20 you met Amanda and went on to have a five year relationship. Together you have a son Blair, currently aged 14 and a daughter Madison who is 12. Your relationship with Amanda ended when your daughter was aged three months after you suffered a psychotic episode from your drug use.
35As I mentioned earlier, you were remanded in custody for 106 days after your arrest until you were released on bail in November 2020.
36The following represents a rough timeline of your efforts since your release:
37On 30 March 2021 you were referred by Doctor Htun at the Corowa Medical Centre to Jennifer Ryder, a mental health social worker, to formulate a mental health plan. Your GP stated you presented with complex mental health needs but primarily stemming from drug use and PTSD.
38Ms Ryder reports that she saw you on 30 May 2021. She reported that you had resumed drug use.
39Cara Malone from Windana Ballarat reports that you entered the residential drug treatment program on 21 June 2021 after completing a stabilised withdrawal. You completed treatment at Windana on 11 December 2021.
40You had not had any contact with your children following separation from Amanda Gieschen. However since you completed the residential rehabilitation program at Windana you have recommenced contact with them. You and Ms Gieschen participated in family law dispute resolution in February 2022. Ms Gieschen provided a reference of the importance you now play in your son’s life. He has high functioning autistic spectrum disorder and I was told this morning that you now have access to your children every second weekend and for half of each school holidays.
41In January 2022, it was reported you undertook five sessions with psychologist Trudy Brunton towards stabilising your emotional regulation. It appears that you have had further sessions since then and still have some contact with Trudy Brunton.
42You have been attending Narcotics Anonymous at the First Nations Men’s Meeting on a regular basis since completing the rehabilitation program in December 2021. Ivan Morris provided a reference which speaks of the importance of you embracing your indigenous heritage as a Ngari Ngari Wirudjuri man, and your commitment to remaining drug free.
43Urine screens dated 26 April 2022, 5 July 2022 and 12 September 2022 show you have tested negative to alcohol and drugs.
44Warren Simmons provided a supplementary report dated 1 July 2022 which reports upon the importance of your reconnection with your indigenous heritage in the last 15 months. Importantly, Mr Simmons speaks of your family turmoil and the patterns of intergenerational abuse and intergenerational trauma; that is associated with your family’s indigenous heritage and long-time denial of that heritage.
45Your current partner Jess gave birth to your child on 20 September 2022. Her mother was in palliative care but passed away in July 2022. Your mother is in receipt of the NDIS. It appears that since your embracing and acknowledgment of your indigenous heritage, which comes through your mother and her support, being gained through the NDIS, you and your mother have grown closer again.
46You are currently employed as a stable hand. Your employer, horse trainer Archie Alexander states that you have worked for him on a casual capacity since October 2021. He observes that you take pride in your work and you are a valued employee. I was told today that you scaled back your work with Mr Alexander in recent weeks to provide support to your partner and your newborn child.
47In addition to your work with Mr Alexander, you have worked for David Antrobus. You met Mr Antrobus through Mr Alexander. Mr Antrobus provided a reference and gave evidence that he owns and runs four small enterprises. He considered you to be his ‘right-hand man’. Mr McGlone told me today that Mr Antrobus has had his own mental health issues and much of this work has dried up for the moment.
Sentencing Submissions
48Mr McGlone on your behalf submitted that the following factors should operate to mitigate your sentence:
(a) That you are an indigenous man who has suffered emotional abuse and physical neglect as a child. These factors should give rise to the application of the Bugmy principles. Your recent embrace of your Aboriginal heritage and its culture gives you a greater sense of self and deeper understanding of your tumultuous upbringing;
(b) Your upbringing left you vulnerable to substance abuse. You suffer from mental health issues and a long-standing drug abuse. Since your release on bail for this offending, you have taken considerable steps to address your mental health issues and your substance abuse issues and your emotional regulation;
(c) He submitted you have had limited education and a limited work history, but you now have a continuous history as a dedicated and responsible worker for two separate, concurrent employers in the last 12 months;
(d) Fourth, he submitted you have entered a new relationship which has itself provided stability. Your partner recently gave birth to your child together. With your recent stability, you have reconnected with your two older children. This has been especially important for your son who has high functioning autism spectrum disorder;
(e) The plea was resolved during the COVID-19 pandemic. The law states you are entitled to recognition and mitigation of your sentence in these circumstances;
(f) Together, these factors amount to ‘substantial and compelling circumstances that are exceptional and rare’ to bring you outside the sentencing presumption of category 2 provisions of the Sentencing Act;
(g) You have demonstrated strong prospects for your rehabilitation; and
(h) The time you have served on remand (which was during pandemic lockdown), and then also in a residential detox facility, which was 95 days plus six days withdrawal[2], should be considered a sufficient period of imprisonment / confinement. The objective principles of sentencing can be sufficiently met if that period of imprisonment forms part of a sentence with a substantial CCO.
[2] Akoka v The Queen [2017] VSCA 214.
Crown
49Mr Roper who appeared for the Crown submitted that the only appropriate sentence is a term of imprisonment with a head sentence and a non-parole period.
50The Crown concedes, however, that the following matters are relevant as mitigatory considerations:
(a) Your early guilty plea has utilitarian benefit to the community particularly given the backlog in courts due to COVID-19 restrictions and he referred to the case of Worboyes;[3]
(b) There was evidence of remorse by the plea of guilty and cooperation with the investigators;
(c) The restrictive custodial conditions of the COVID-19 pandemic and the time spent on remand during lockdown should be taken into account;
(d) You have remained drug fee since being granted bail and complied with conditions of bail since granted bail was on 20 November 2020;
(e) Your personal circumstances should be taken into account;
(f) Your significant efforts towards rehabilitation from drug addiction in the almost 23 months since bail was granted have been impressive;
(g) Your rehabilitation was consistent with the principles stated in Akoka v The Queen [2017] VSCA 214; and
(h) Finally, your employment and family situation should be taken into account.
[3] Worboyes v The Queen [2021] VSCA 169.
Substantial and Compelling Circumstances that are Exceptional and Rare
51The meaning of this phrase was considered by the Court of Appeal in the matter of Andrew Farmer v R.[4] In that case, the court adopted the observation that ‘compelling’ connotes powerful circumstances of a kind wholly outside the ‘run-of-the-mill’.
[4] Farmer v The Queen [2020] VSCA 140.
52The court further stated that this is a high hurdle that will not often be surmounted, and in many cases, a term of imprisonment will be inevitable. The court acknowledged that there may be departures from a sentence of imprisonment but a test of stringency must be applied.
53In determining whether substantial and compelling circumstances that are exceptional and rare exist:
(a) I must regard general deterrence and the denunciation of your conduct as having greater importance than other sentencing purposes. Further, less weight must be given to your personal circumstances;
(b) I must have regard to the fact that Parliament’s intention is that a period of imprisonment should ordinarily be imposed; and whether the cumulative impact of the circumstances of the case would justify a departure from such a sentence;
(c) I must not have regard to your prospects of rehabilitation; or parity with other sentences; and
(d) When looking at comparable sentencing decisions, I must not have regard to cases that are not category 2 cases.
54I was referred to Gregory (2017) 268 A Crim R,[5] Lytras,[6] Boulton[7] and Bowen.[8] It is necessary to say a little more about Bowen. In that case, the appellant pleaded guilty to trafficking in a commercial quantity of methylamphetamines (192 grams) and associated offences to do with the manufacture of methylamphetamines. Like you, the appellant had a previous conviction for armed robbery in 2014, was sentenced to six years with four years to serve and was released on parole in November 2017. Bowen had completed 18 months of parole when his offending occurred.
[5] Gregory (a pseudonym) v R (2017) 268 A Crim R 1.
[6] Lytras v R [2020] VSCA 150.
[7] Boulton v R (2014) 46 VR 308.
[8] DPP v Bowen [2021] VSCA 355.
55The learned sentencing judge in that case took into account the plea of guilty and Bowen’s efforts towards achieving his rehabilitation. The appellant was sentenced in the first instance to 12 months' imprisonment with a CCO. That judge’s careful sentencing remarks were described as exemplary by the Court of Appeal. Her Honour did not, however, address the category 2 requirement that a sentence of imprisonment with a non-parole period is presumed and that ‘substantial and compelling circumstances that are exceptional and rare’ must exist before a combination sentence can be imposed. The Crown appealed against that sentence. The Court of Appeal considered that, while a combination sentence with a CCO was appropriate to advance the appellant’s prospects for rehabilitation, the sentence was vitiated by error and a new, sterner sentence was required. The Court of Appeal described the statutory requirement as ‘almost impossible’ to meet; and it was a test that was ‘extraordinarily stringent’. As a consequence, Bowen was resentenced to three years with 18 months to serve.
56This morning Mr McGlone referred to Lombardo [2022] VSCA 204. The Court of Appeal in that case considered a Crown appeal against the submitted manifest inadequacy of a sentence of a CCO on a charge of dangerous driving causing death which is also a category 2 offence. The Court of Appeal stated that the observation made in Bowen that the exception is ‘almost impossible to satisfy’ must not be treated as a substitute for the statutory language and does not supply a guide as to its meaning.
57The Court stated that ‘the degree of difficulty in satisfying the exception may vary according to which offence is under consideration. For example both culpable driving causing death and dangerous driving causing death are category 2 offences, but the former offence is, by definition, more serious than the latter.’
58The Court went on to say that in identifying whether there are substantial and compelling circumstances, the court must identify circumstances that are forceful or powerful. As to whether those circumstances are exceptional or rare, the court considered that they must be ‘wholly outside the “run of the mill” factors typical of the relevant kind of offending… it refers to circumstances that are wholly outside the ordinary factors typical of the relevant offence…’
59Mr McGlone submitted that through the fresh perspective of Lombardo I should be satisfied that substantial and compelling circumstances that are exceptional and rare exist in this case.
60I have carefully considered the requirements of the category 2 provisions (in particular, ss5(2H), (2HC) and (2I)) and how they apply to this case. I have concluded that in the circumstances of your offending and the factors that I may take into account, that this should not lead to the conclusion that there are substantial and compelling circumstances that are exceptional and rare.
61As I have already concluded, the objective gravity of your offending is serious. You were integrally involved in the trafficking of over three times the commercial threshold. You were one of two, sending to a third person; and there is evidence that you were involved not just in the posting of the two items, but in the packing of the items of the bag concealed in the DVD player. Your offending was planned, executed, and repeated.
62Your offending is far less serious than, say, the case of Gregory. Your offending was not attended by violence; the amount trafficked is not close to a large commercial quantity; there is no evidence that you were in charge, that is, at the pinnacle, but rather one of two or three; these were two instances of offending in just under a month and you pleaded guilty and you have no priors for trafficking in a drug of dependence. These factors however do not qualify as substantial and compelling circumstances that are exceptional and rare.
63Nor can a realistic comparison be made between your circumstances of offending and those matters submitted on behalf of the appellant in Lombardo and I refer particularly to paragraph [51] of the judgment in that case.
64In making the determination, I must (as a matter of law) give less weight to your personal circumstances. It is these matters which your counsel sought to emphasise; especially your Aboriginality, a reliance on Bugmy, and the resolution of the matter during the pandemic.
65I am not satisfied that your circumstances are ‘substantial and compelling, exceptional and rare’. I do not agree that I should find those circumstances are made out and that a combination sentence should be imposed. I do not agree that the time you have served on remand is sufficient to fulfil the sentencing objectives.
66Rather, I consider that, through the focus on your personal circumstances, a sentence can be imposed which meets the statutory requirements and the sentencing objectives, but which is moderated to give you the best opportunity to continue the good work that you have started when you are again released into the community.
67I do so, taking into account the following factors:
(a) I take into account, of course, your plea of guilty, the fact it was made during COVID and what I consider to be expressions of remorse from the good work that you have undertaken.
(b) I take into account next your indigenous background as a significant consideration in this case. Generally, Mr Simmons concluded that there has been intergenerational trauma in your family and then you suffered direct family conflict with your mother. I do not consider that your circumstances allow a neat application of the principles in Bugmy, but I have taken these matters into account;
(c) I take into account your recent embrace of your indigenous heritage and culture in the hope that your new sense of identity bring further stability to your life;
(d) I take into account your efforts to address your mental health issues and drug issues (which tie back to the trauma and conflict in your family) and that these have been impressive and sustained; even in the face of my observations made to you back in July, that you are likely to go back to prison, you stuck to your guns. I also take into account that your efforts, whilst in the face of court proceedings, were all initiated by you and not by a CISP program, or some other court order;
(e) I take into account that you have the prospect of family stability: your partner Jess has just given birth to your child together. There has been some reconciliation/resolution with your former partner and you have renewed bonds with your two older children;
(f) I recognise the application of the Akoka principles and the fact that you completed a six day withdrawal program and 95 day residential rehabilitation program;
(g) I take into account that you have worked continuously, showing a real commitment to work after a patchy work history in your adult life. Both your employers speak well of you; and
(h) I take the following into account. Neither party nor Mr Simmons considered the application of Verdins principles in this case. I will not make finding. I will however recognise that I am ordering your return to prison after you have not only been at liberty on bail for 23 months, but you have used your time constructively and pro socially. I also recognise that it is going to take a tremendous effort on your part to stick to your resolve when you return to prison. I recognise also the fact that, whilst Mr Simmons expressed some caution about your rehabilitation, for the path that you have taken so far, I at least express the hope that your prospects for your rehabilitation are good, Mr Coleman.
68As a consequence of these matters, I have decided upon a sentence which may be considered lower than most sentences for this type of offending, but which I consider meets all of the circumstances of this case. In saying that, Mr Coleman, I realise that any sentence at this point is going to weigh heavily on you and your family.
Orders
69Accordingly, I make the following orders:
70On Charge 1, trafficking in not less than a commercial quantity of a drug of dependence you are convicted and sentenced to 26 months' imprisonment.
71On Charge 2, possession of Butanediol, you are convicted and sentenced to a month's imprisonment.
72On Charge 3, possession of a small amount of cannabis, you are convicted and fined $50.
73On Charge 4, possession of buprenorphine, you are convicted and sentenced to one month's imprisonment.
74On the related summary Charge 13, you are convicted and sentenced to two months’ imprisonment.
75The total effective sentence is 26 months' imprisonment.
76I order you serve a non-parole period of 13 months before you are eligible for parole.
77I declare the period of 106 days' presentence detention reckoned as already served.
78A 6AAA declaration is, but for your plea of guilty, and in the absence of the all-powerful mitigating factors, I would have ordered a sentence of four years, with three years to serve.
79Mr Roper, were there - there was disposal orders?
80MR ROPER: Disposal orders, yes.
81HIS HONOUR: I'll make ancillary orders in chambers. There's no opposition to those orders?
82MR McGLONE: No. They were settled.
83HIS HONOUR: All right. Now, are there any other matters?
84MR McGLONE: I just didn't quite hear the charge clearly, Your Honour.
85HIS HONOUR: It's going to be a month, I think. Yes, one month. So 26 months, one month, $50, one month, two months.
86MR McGLONE: As Your Honour pleases.
87HIS HONOUR: Twenty-six months, 13 served, 106 days reckoned as already served. All right, now, with that, Mr Coleman, I'm going to ask that you be good enough to go with the custody officers.
88OFFENDER: Yes.
89HIS HONOUR: Thank you. I'll adjourn now.
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