Director of Public Prosecutions v Conroy
[2019] VCC 823
•4 June 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-19-00097
Indictment No. J11849221
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| NIGEL MICHAEL CONROY |
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JUDGE: | HER HONOUR JUDGE PULLEN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 21 May 2019 | |
DATE OF SENTENCE: | 4 June 2019 | |
CASE MAY BE CITED AS: | DPP v Conroy | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 823 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – trafficking in a drug of dependence – commercial quantity – trafficking in a drug of dependence – possessing a firearm whilst prohibited – theft – negligently deal with proceeds of crime – possession of a drug of dependence
Legislation Cited: Criminal Procedure Act 2009; Sentencing Act 1991
Cases Cited: R v Verdins & Ors (2007) 16 VR 269
Sentence: 7 years' imprisonment
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr Z. Menon | Solicitor for the Office of Public Prosecutions |
| For the Accused | Ms P. Smith | James Dowsley & Associates |
HER HONOUR:
1 Nigel Conroy, you have pleaded guilty on Indictment J11849221 to one charge of trafficking in a drug of dependence in a commercial quantity, the maximum penalty 25 years' imprisonment; one charge of trafficking in a drug of dependence, the maximum penalty 15 years' imprisonment; possessing a firearm whilst prohibited, the maximum penalty 1,200 penalty units or 10 years' imprisonment; a charge of theft, the maximum penalty of 10 years' imprisonment; a charge of negligently dealing with the proceeds of crime, the maximum penalty of 5 years' imprisonment; and one charge of possession of a drug of dependence, and the maximum penalty 30 penalty units or a maximum of one year's imprisonment.
2 You have also agreed to a summary charge being dealt with by me pursuant to s.145 of the Criminal Procedure Act 2009, and have pleaded guilty to Charge 22, possessing cartridge ammunition whilst not the holder of a licence. The maximum penalty is 40 penalty units. A penalty unit was, at the time, $161.19.
3 These crimes arise out of events which culminated in your arrest on 13 July 2018.
4 It is not necessary for me to recount in great detail the facts of this matter, as the matter was opened in some detail by the learned prosecutor consistent with Exhibit A. I proceed to sentence you on the basis of the facts as summarised by the prosecutor and discussed during the course of the plea hearing. It is sufficient for present purposes to simply say the facts in this case are most serious. You also have a very disturbing, lengthy and relevant criminal record.
5 I turn to a summary of your offending. At the time of it you were 43 years of age and you are also 43 at sentence.
6 These offences occurred at 218 Belgrave-Hallam Road, Narre Warren North ('the Narre Warren North property'), a single storey house on a property of approximately one-acre. You lived at that property with Natalie Popovits.
7 As a result of investigations with respect to Popovits, Victoria Police obtained a search warrant on 13 July 18 in relation to a rental apartment property in Dandenong and the Narre Warren North property.
8 I turn to the search warrant executed on 13 July 2018 at approximately 6 pm at the Narre Warren North property. You were located at the address as were the following items:
· 4.8 kilograms of Butanediol (Charge 1);
· 56.63 grams of methylamphetamine (Charge 2);
· a .22 calibre bolt action repeating long arm rifle with one .22 round in the chamber located wrapped in a blanket in the shed (Charge 3);
· an electrical bypass (Charge 4);
· $7,980 in cash made up of $4,150 in a satchel and the balance in your pocket and wallet (Charge 5); and
· 19 Oxycodone tablets (Charge 6).
9 Accoutrements relevant to trafficking including glassware, scales and drug paraphernalia were also located in various locations around the house.
10 In respect to the firearm, the serial number appeared erased but was capable of being restored for reading. The firearm was functioning. Twenty-one .22 cartridges were also found in a Winchester brand box (Summary Charge 22).
11 You were a prohibited person because you were subject to a Community Correction Order that had a supervision condition attached at the time you possessed the firearm.
12 You were arrested that same day and made admissions with respect to some of your offending, including that you lived at the property with Popovits, although you said you did not know who owned the black satchel bag in the shed where $4,150 cash was located. You admitted possessing the methylamphetamine and GHB.
13 You said that when you had recently been released from prison you hoped you would have been able to not take drugs. You were selling drugs partly to fund your own drug use habits, using up to 'maybe' a gram a day.
14 You said you would usually buy quantities of half a bag – '14 grams to 28 grams' – use some and sell the remainder.
15 You said you did not own a firearm, nor did you know about the ammunition, save for one bullet you remembered seeing. You did not know about the rifle.
16 You said you did not have any property in the shed. You said you did not sell the 'G' but if others asked you to move it, you would. You admitted owning scales which you used with drugs.
17 Turning to the chronology relevant to your offending and plea hearing. The offences occurred on 13 July 2018 and you were remanded in custody on that date. The matter was listed for Mention on various dates in the Magistrates' Court. On 24 October 2018, the matter was listed for a contested committal. On 18 January 2019, however, the matter resolved prior to that committal commencing. No witnesses were required to give evidence at it. The prosecution accepts, as do I, your plea of guilty was early.
18 Regarding the timing of your plea of guilty, Ms Smith, your counsel, also urged it was an early plea which facilitated the course of justice and saved the cost to the community and inconvenience of a trial. Your plea of guilty, she submitted, showed you regretted your actions and a willingness to accept responsibility.
19 The fact that you have pleaded guilty and the stage at which you entered your pleas of guilty are relevant sentencing considerations in mitigation of sentence. You are entitled to have the fact that you have pleaded guilty and the timing of it taken into account in your favour and I do so. The community, by your pleas of guilty, has been spared the time and cost of a trial, and witnesses have not been required to give evidence upon your trial. I also note you made some admissions to the police in the interview regarding your offending at the time of your arrest. I accept your pleas of guilty are indicative of some remorse by you but given the extent and relevance of your criminal record, I have reservations about the true extent of your remorse.
20 You have admitted a prior criminal history which is relevant and, as I've said, is extensive, as acknowledged by your counsel. In that criminal history, there are priors in relation to drug trafficking, proceeds of crime, dishonesty, drug use/possess, possess prohibited weapon, possess dangerous article, possess controlled weapon, plus others. You were most recently released from a term of imprisonment on 20 June 2018, then subject to a Community Correction Order.
21 An aggravating feature of your offending before me, is that at the time of this offending you were on a Community Correction Order imposed on 10 April 18. On that date at Court, you were sentenced to a term of imprisonment of 120 days, with 48 days declared as pre‑sentence detention, then to be on a Community Correction Order. It was accepted by your counsel that this offending before me occurred approximately three weeks after your release from that imprisonment.
22 You are, of course, not being sentenced for breach of the Community Correction Order. I was told by Ms Smith a hearing date for the breach had not yet been given. However, it is an aggravating feature of your offending that you were subject a Court Order at the time of this offending.
23 Ms Popovits was sentenced in the summary jurisdiction on the day of the committal. She took responsibility for all the items found at the Dandenong apartment, and received a combination sentence of six months' imprisonment with 188 days pre‑sentence detention declared, together with a twelve-month Community Correction Order.
24 Ms Popovits faced very different charges to yours and at a different address, not at Narre Warren North. Both counsel submitted parity was not a relevant consideration when sentencing you, and I agree.
25 The prosecution made application for a disposal order and Ms Smith, on your behalf, consented to the order being made, and I make that order. The prosecution also made application for a forfeiture order, again consented to by Ms Smith on your behalf, and I make the order in the terms sought.
26 Ms Smith prepared a written outline of submissions for your plea hearing and acknowledged from the outset you accepted the summary of facts alleged by the prosecution, and accepted your prior offending was relevant. Also that this current offending was serious.
27 Ms Smith conceded the only option regarding your sentence was an immediate term of imprisonment, and that, in my opinion, was a sensible concession in all the circumstances of this case.
28 You had spent 312 days in custody by way of pre‑sentence detention up to and including 20 May 2019.
29 I was given details of your background and history.
30 You are the eldest of three children. Your childhood was with loving and supportive parents. You were educated at Upper Beaconsfield Primary School, then high school to Year 9 at Berwick High School. You struggled at school.
31 After leaving school, you worked at a number of jobs including as a nursery hand at flower farms and labouring work. You struggled to maintain employment.
32 In your teenage years you were difficult, acting out, rebelling against your parents and abusing cannabis.
33 When you were about 17, you moved to Queensland in an attempt to make a change and lived with extended family there finding employment in various jobs.
34 After four years in Queensland, you came back to Melbourne when you were 21 and worked as a security guard. You were in a stable relationship between ages of 21 to 25, during which time you had a 'normal and content' life.
35 In your mid-twenties you disclosed you had been the victim of sexual abuse by a relative. Prior to that, you had not disclosed that abuse to anyone, being in fear of that relative. You felt responsible for the subsequent strain within the family as a result of your disclosure. As a result of the unresolved trauma of that abuse, you started to heavily abuse drugs and thereafter used a variety of drugs, most recently becoming addicted to methylamphetamine. Your addiction to drugs spanned over 30 years.
36 Your counsel noted, as do I, that when you first appeared at court in the adult jurisdiction you were often at court for drug-related offences, and on a regular basis.
37 I note a gap in your offending following your release from custody in May 2014 to 2017 when you returned to live with your parents, were employed and were able to remain abstinent from drugs. However, your old patterns of drug use and criminality began again after approximately 18 months when you found your friend deceased.
38 Ms Smith referred to a report from Ms Carla Lechner, to which I shall shortly refer. Ms Lechner stated you presented with symptoms of stimulant use disorder in early remission and a Major Depressive Disorder with some features of Post-Traumatic Stress Disorder.
39 The report noted you suffered from “a long-standing drug addiction problem with an underlying depressive illness contributing to both the genesis and ongoing nature of [his] dependency”.
40 It was acknowledged by Ms Smith, and no doubt you, that you had a number of rehabilitative orders in the past, referring to your criminal record. However, you have been unable to overcome your addiction. In the opinion of Ms Lechner, you required intensive drug rehabilitation and psychotherapy and had expressed a willingness to do so.
41 Since the age of 30, Ms Smith conceded you had regularly appeared before the court for dishonesty and drug-related matters. Prior to that, however, you only appeared in the Children's Court when sixteen.
42 Regarding your offending on this occasion, you instructed you had met Ms Popovits in mid June of 2017, and that the relationship was turbulent. You were both addicted to drugs.
43 Ms Smith submitted that most recently on 20 June 2018, you were released from custody; however you failed to utilise the opportunity to address your drug use, returning to the same address with Ms Popovits. Your offending occurring, as I have said, just three weeks after your release.
44 Your offending behaviour involved relapsing into your old lifestyle and the need to fund your own drug habit.
45 Regarding your offending, Ms Smith conceded it was serious, however occurred on a single day, and urged yours was not a sophisticated trafficking enterprise. Whilst that may be so, your offending achieved your purpose and therefore was effective absent sophistication.
46 It was conceded, and appropriately so, by your counsel the circumstances in which the firearm was found, supported the conclusion that possession of it was for the purposes of your criminal activity, and Ms Smith did not attempt to suggest the contrary.
47 Ms Smith relied upon your admissions to police in relation to your drug use, buying and selling methamphetamine and possessing and selling GHB to feed your habit.
48 Ms Smith referred to the principle of totality, conceding some cumulation between the charges. I agree.
49 Regarding your rehabilitation prospects, Ms Smith conceded, given your age and relevant and extensive prior criminal history, your prospects of rehabilitation were guarded and ultimately depended upon you. I have real concerns about your rehabilitation prospects. 'Guarded' is arguably a generous description. However, when sentencing you, I must seek to maximise your chances of rehabilitation as they may be, albeit at the moment I do not have great confidence. You are aware, I am sure, you need to address your drug use and abstain from drug use to have any chance of not continuing your criminal lifestyle and return to the courts. It is only you who can change that. You have at least undertaken programs in custody and that is to your credit. The hard work for you will be the direction you take upon your eventual release. You know that, you don't need me to state the obvious.
50 In custody, I was also told, you had been working in metal fabrication.
51 I turn then to the report from Carla Lechner, clinical psychologist, dated 24 April 2019.
52 Ms Lechner referred to your longstanding and chronic drug addiction, your most recent drug of choice being methamphetamine. You presented with a stimulant use disorder and exhibited symptoms of Major Depressive Disorder, although that was not further defined/described. You also had some symptoms of Post-Traumatic Stress Disorder as result of finding your friend's deceased body in your home, again not further defined/described regarding the actual symptoms. I note no reference to other medical material i.e. any previous diagnosis to support her conclusion.
53 You do not have a full range of symptoms to warrant a diagnosis of Post-Traumatic Stress Disorder. Ms Lechner said you evidenced a range of symptoms of depression at a clinical level and 'filled' the criteria for a diagnosis of Major Depressive Disorder, conceding however that some of your low mood was a reaction to this pending Court hearing and your current situation.
54 Ms Lechner set out your personal history and background, much of which was contained within the written submissions of Ms Smith. You have never been married and do not have any children. You described having some friends who were not into drugs however they only associated with you when you were 'behaving'.
55 Although not formally assessed, you impressed as being of ‘low-average’ intelligence. You tended to 'live in the moment driven by ensuring your regular supply of drugs'.
56 Your drug and alcohol history was set out in some detail within the report with the commencement of cannabis use at the ages of 11 to 12. By 15 to 16, that use had increased to up to 7 grams a day. You ceased regular cannabis use in your twenties. You were using cocaine and speed regularly from age 25 then began using methamphetamine in your early thirties. Prior to your arrest on 13 July 2018, you said you had not used a lot of heroin and GHB, only this time when you got out of jail. You had in the past also at times used Ketamine, Ecstasy and LSD, sometimes using Xanax to help you sleep. You were currently prescribed antidepressant medication, Lexapro.
57 In custody you had been trying to focus on your rehabilitation; at that time being partway through a 24 hour drug and alcohol program. You said you were studying engineering; and that your urine screens had been negative since Christmas. You understood your drug use was related to your offending behaviour. Ms Lechner urged an intensive drug rehabilitation program upon your eventual release.
58 Your counsel was not relying upon the principles of R v Verdins & Ors[1] when sentencing you and that in my opinion was a sensible concession on the material before me.
[1](2007) 16 VR 269 (‘Verdins’)
59 Ms Lechner said you had offered no real excuse for your actions for this offending beyond relapsing into the old lifestyle to support your drug habit. You also wanted to make some money to 'catch up'. You expressed shame for your offending.
60 Your counsel, Ms Smith, addressed her written submissions during the course of the plea hearing, conceding at the outset a term of imprisonment was the only appropriate disposition, not suggesting that there was a “special reason” for not imposing an immediate custodial sentence.
61 Ms Smith clarified that in relation to her written submissions (paragraph 22), there was nevertheless a breach of a Community Correction Order to which I have previously referred, yet to be listed for a hearing.
62 Ms Smith conceded the quantity of GHB relevant to Charge 1 was a significant amount – more than double a commercial quantity. Also that the amount of amphetamine of 56.63 grams, was also a significant amount. She is correct.
63 Ms Smith conceded you made admissions to some of the offending but not to all of it.
64 Ms Smith accepted you were not only a user, but a dealer, consistent with your plea of guilty to the trafficking charges before me.
65 Ms Smith said your recent time in remand of 312 days, was the longest period of time you had previously spent in custody.
66 Before me were three certificates; completion of the six-hour AOD and depression program, a 24-hour drug and alcohol program and a six-hour Ice effects program (Exhibit 4).
67 Also before me were two results of urine samples taken from you in 18 April and February this year which showed 'negative' for illicit substances. On 18 April 2019 there was a “positive” for Methadone, which you were prescribed (Exhibit 5).
68 Also before me was correspondence from Peter Wroblewski, a volunteer with AA-NA, dated 15 May 2019. He is the area co-ordinator for Victoria Prisons Intergroup, South-West Barwon Region, which encompasses Marngoneet Correctional Centre where you currently were (Exhibit 3).
69 Mr Wroblewski referred to you having attended the AA-NA meetings every week at Marngoneet since you arrived in November 2018. Your attitude towards remaining drug free once released from prison showed through your contribution to group discussions. You had an attitude towards remaining drug free once released from prison. You were respected by fellow inmates. You were serious about your abstinent-based recovery as advocated by the Alcoholic-Narcotics Anonymous 12-Step Program for Recovery.
70 I accept that you have made a start in your attempts to avoid re-offending, and this is to your credit. You still have a long way to go as your extensive and relevant criminal history in particular would indicate. You have had numerous opportunities over the years to address your drug use with assistance of Community Court Orders and the community-based dispositions, however, none, to date, have been successful long-term, and, of course, most recently, you were in the community for only three weeks approximately before you re-offended.
71 Ms Smith conceded your rehabilitation prospects were “not great”, however, you had made some effort of late to address that by courses in custody, which she urged this could be viewed as a turning point.
72 You retained your family support providing you did not use drugs, and members of your family, including your mother, were present in Court for your plea hearing. I was told that should you apply for parole, and if you remain drug free, you would be able to live with your mother.
73 Ms Smith conceded general deterrence, specific deterrence, the need to protect the community from you, denunciation and just punishment were all relevant sentencing considerations, and she is correct.
74 She also conceded some cumulation in relation to each of the charges, urging, however, they all occurred on the same day and I am aware of that.
75 Mr Menon, on behalf of the prosecution, referred to your offending occurring soon after you were released on the Community Correction Order and only after a short period after you completed your time in custody. He submitted your prospects of rehabilitation were guarded at best.
76 Mr Menon submitted the appropriate disposition was a term of imprisonment with a head sentence and a non-parole period. He did not seek to rely on any authorities in relation to your offending.
77 Regarding your rehabilitation prospects, as I have discussed with counsel, 'guarded' optimism is somewhat generous, given your repeated and relevant offending history. Your offending behaviour is well and truly entrenched. Although one can never give up hope of your eventual rehabilitation, there is little before me to suggest any great likelihood of that. However, as I've previously said, when fixing the appropriate sentence I must seek to maximise your chances of rehabilitation as they may be. Ultimately, also as I have said, addressing your drug use – specifically abstaining from it – will provide prospects of rehabilitation.
78 As well as matters personal to you to which I have referred, including, as I've said, those prospects of rehabilitation, I must take into account matters such as deterrence, especially general deterrence, which is of considerable importance in a case such as this, involving drug trafficking in particular.
79 There is also the need for specific deterrence when sentencing you given your extensive and relevant criminal history.
80 I must also consider the question of protection of members of the community from you and bear in mind the likelihood of your re-offending. Without appropriate treatment, it is highly likely you are going to continue to re-offend every time you are released from prison. There is a need to protect the community from you until you undertake and benefit from courses directed to your drug use, which is your main motivator for offending.
81 I am called upon by the Sentencing Act1991 to manifest the community's denunciation of your conduct and generally to impose a just punishment.
82 When sentencing you I take into account the principles of totality and proportionality, and I sentence you as follows.
83 Can you stand, thank you.
84 On Charge 1, convicted and sentenced to 4 years' imprisonment.
85 On Charge 2, convicted and sentenced to 2 years' imprisonment.
86 On Charge 3, convicted and sentenced to 18 months' imprisonment.
87 On Charge 4, convicted and sentenced to 6 months' imprisonment.
88 On Charge 5, convicted and sentenced to 12 months' imprisonment.
89 On Charge 6, convicted and sentenced to 6 months' imprisonment.
90 On Summary Charge 22, convicted and fined $200.
91 I direct the following in relation to cumulation and concurrency.
92 Charge 1 is the base sentence and I direct the following.
93 That 12 months of Charge 2 be served cumulatively upon Charge 1.
94 That 12 months of Charge 3 be served cumulatively upon Charge 1.
95 That 3 months of Charge 4 be served cumulatively upon Charge 1.
96 That 6 months of Charge 5 be served cumulatively upon Charge 1.
97 That 3 months of Charge 6 be served cumulatively upon Charge 1.
98 And I've already referred to the fine in relation to the summary charge.
99 For clarity, the orders are cumulative upon each other and upon the base sentence.
100 That results in a total effective sentence of 7 years' imprisonment, and I direct you serve a period of 4 years 6 months before you are eligible for parole.
101 Have a seat.
102 Pursuant to s.18(4) Sentencing Act 1991, I declare you have spent 326 days up to and including yesterday, which was 3 June 2019, in custody by way of pre‑sentence detention, and I direct that that be entered into the records of the Court.
103 Pursuant to s.6AAA Sentencing Act 1991, had you been found guilty of these offences following jury verdict - in other words, if you'd pleaded not guilty, and been found guilty - I would have sentenced you to 10 years' imprisonment with a non-parole period of 8 years.
104 I make the Forfeiture Order and Disposal Order sought by the prosecution to which I have previously referred.
105 No other orders sought? No. Okay, do you agree with the PSD - any other orders?
106 MR MENON: I agree with the PSD.
107 MR WALSH: No, Your Honour, and the PSD - I agree with that.
108 HER HONOUR: PSD, agree, all right. The figures add up? I'm not asking whether you like them, I am simply asking did you get the maths and you have got it worked out?
109 MR WALSH: Yes, Your Honour.
110 HER HONOUR: Yes, all right. Thank you very much. Is there anything further in this matter? No?
111 MR MENON: No.
112 HER HONOUR: All right. Thank you. You will have to go out, Mr Conroy. Thank you both.
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