Director of Public Prosecutions v Conway
[2022] VCC 1719
•5 October 2022
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised (Not) Restricted Suitable for Publication |
Case No.CR-21-00980
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JESSE CONWAY |
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JUDGE: | HER HONOUR JUDGE DALZIEL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 26 September 2022 | |
DATE OF SENTENCE: | 5 October 2022 | |
CASE MAY BE CITED AS: | DPP v Conway | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1719 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Importing marketable quantity of border controlled drug – Trafficking a drug of dependence – Possession of a drug of dependence – Negligently dealing with proceeds of crime
Legislation Cited: Crimes Act 1914 (Cth)
Cases Cited:Akoka v The Queen [2017] VSCA 214; DPP v Maxwell [2013] VSCA 50; Haddara v The Queen [2016] VSCA 168;
Sentence: Convicted and sentenced to a total effective sentence of 32 months imprisonment with a non-parole period of 15 months imprisonment followed by release on a recognisance release order for 14 months.
Section 6AAA declaration: Conviction and total effective sentence of 4 years and 3 months with a non-parole period of 3 years.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms N.Deltondo | Office of Public Prosecutions |
| For the Accused | Mr M.Kozlowski | Emma Turnbull Lawyers |
HER HONOUR:
1Jesse Conway, you have pleaded guilty to one charge of importing a marketable quantity of a border controlled drug, two charges of trafficking a drug of dependence, two charges of possession of a drug of dependence and one charge of negligently dealing with the proceeds of crime. You have also pleaded guilty to the summary offence of committing an indictable offence whilst on bail.
Summary of Offending
2Charge 1 is that of importing a marketable quantity of a border controlled drug. On 12 November 2019 Australian Border Force officers at Melbourne airport examined a parcel sent from China. It was labelled as containing 1.2 dihydroxpropaine. The consignee was listed as “Jesse” at your home address in Seaford. The parcel was x-rayed and a suspicious packet identified. Examination of this parcel located a 700 ml bottle, which contained a liquid, Gamma-Butyrolactone, commonly called GBL, which is a border controlled drug. The total weight of the liquid was 341.5 grams, with a purity of 97.2%.[1] The prescribed marketable quantity of GBL was 2 grams, thus the quantity of that drug that you imported was 170 times the marketable quantity.
[1]The Summary of Prosecution Opening erroneously stated a lesser amount. This was corrected by correspondence post the hearing of the plea.
3There is no evidence of who placed the order, nor that anyone else was involved in the importation of this substance. That it was sent to your home address and had your name as the consignee indicates a lack of sophistication in this importation.
4Information on your mobile phone was discovered later showing you tracking that parcel and receiving information about its shipment.
5The maximum penalty applicable to this charge is 25 years imprisonment.
6Whilst there is no evidence before me in your case as to the cost of the GBL, nor any anticipated earnings from sale of it, I have regard to the authority of DPP v Maxwell[2] and accept that the potential earnings from the sale of GBL would be significantly less than would arise in the case of a similar amount of methylamphetamine or similar drug, so that the objective gravity is towards the lower end of the range of this serious offence.[3]
[2]DPP v Maxwell [2013] VSCA 50
[3]Ibid [24]
7Charges 2 to 6 related to items found at your home and in your possession on 3 January 2020.
8On that day police attended your home, with a search warrant. You fled, jumping over the back fence and into a neighbouring property. You were located by an officer in the Canine unit.
9When you were running away you dropped a black Adidas satchel, and two bundles of cash, one amounting to $5,970 and the other $835. The police also found a snap lock bag containing cocaine in the satchel. You were arrested at 3.56 pm and given your caution and rights. You told an officer that the Adidas satchel was not yours.
10Your room at the Seaford home was searched, with the following items of relevance seized:
(a) A large zip-lock bag containing another zip lock badge with a crystal substance namely methamphetamine ;
(b) White power, namely ketamine;
(c) Two blister packs containing 20 Valium tablets, (diazepam) which was not prescribed to you ;
(d) An ‘Oppo’ mobile phone;
(e) Two ‘Samsung’ mobile phones; and
(f) A notebook containing handwritten notes detailing drug debts.
11You nominated one of the Samsung phones as yours, and gave the police the code for that phone.
12The police located a safe in the garage, which you said you could not open.
13At the police station the Adidas satchel was searched and the following items found in it:
(a) Black wallet containing a driver’s licence and Commonwealth bank card in the name of ‘Jesse Conway’ and $320.00 cash;
(b) A notebook containing handwritten notes with details of drug debts;
(c) Two small zip-lock bags containing white powder, namely cocaine ;
(d) A large zip-lock bag containing white powder, namely cocaine; and
(e) A Rolex Yacht Master II gold watch with an estimated value of between $40,000 to $60,000.
14A month or so after your arrest police opened the safe which had been located in the garage. In it was found a further Samsung phone with the same content as the phone you had identified as yours on the day of the search, a glass jar with some loose Cannabis in it, three snap lock bags with Cannabis in them and numerous empty snap lock bags.
15Analysis of the mobile phone identified revealed various messages in which you discussed the trafficking of drugs, such as messages between you and others about drug debts, and the purchase of specific drugs from you. There were also photos of what appeared to be illicit drugs.
16Also on the phone was an app called “Debt Collector App” in which you had recorded 42 debtors with details of the money they owed you, the drug type sold to them, and quantities. This app showed that for transactions between October and December 2019 people had accrued debts of $49,320 for methylamphetamine and $7,725 for cocaine. As was discussed in the plea hearing, you are not being sentenced for the trafficking indicated by that app and the messages on your phone. The relevance of that information is that it puts the offending for which you are being sentenced into context. That context supports that the drugs in your possession on the 3rd of January 2020 were possessed for sale by you.
17When interviewed by police you were initially contentious, and then remained mute, as was your right.
18In summary, the offending associated with the items found in the search is:
· Charge 2 – Trafficking methylamphetamine, relating to the bag of drugs found in your satchel. The total weight of the drug was 71.5 grams at 84% purity, so that the pure amount of the drug was 60 grams;
· Charge 3 trafficking cocaine and ketamine. The weights of these drugs were 49.5 grams of Ketamine found in one plastic bag, and 27.2 grams of Cocaine separated into two bags, one weighing 23.7 grams and the other 3.5 grams, at 50 and 48% purity respectively;
· Charge 4 possession of Cannabis, with a total of 44 grams of Cannabis
· Charge 5 possession of Diazepam in the form of 20 Valium tablets;
· Charge 6 negligently dealing with the proceeds of crime, relating to the $5,970 and $835 which you dropped when initially fleeing, $320 found in your wallet in the satchel (the total cash being $7,125) and the Rolex watch valued at $40,000 to $60,000, also found in the satchel.
19At the time of the search of your home you were on two sets of bail, having been bailed for charges of theft and trafficking methylamphetamine. You have pleaded guilty to committing an indictable offence on bail.
20The amount of each drug, which you trafficked by having that drug in your possession for the purposes of sale, is one of the factors to take into account in assessing the gravity of that offence. Each of the drugs you trafficked, being the methylamphetamine, Ketamine, and Cocaine, were in quantities well above small or street level dealing amounts. You had nearly an ounce of Cocaine and nearly 50 grams of Ketamine.
21The prescribed trafficable quantity of methylamphetamine was 3 grams, and the commercial quantity thresholds were 250 grams of mixed substance and 50 grams of pure substance. Despite the amount of pure methylamphetamine you possesed exceeding the commercial quantity threshold of 50 grams, you have pleaded guilty to trafficking simpliciter only, presumably on the basis of your intention
22The weight of the drug is not the only factor relevant to assessing your offending. Your role is important. The evidence from your debt keeping app, as context for the amounts of drug in your possession supports the inference arising from the number and weight of drugs in your possession, being that you were a poly-drug trafficker, trafficking in substantial quantities of the various drugs. There is no evidence that you were acting for someone else, and your role is that of the actual owner and seller of the drugs. There is also no evidence to which I have been referred which indicates you were using others to assist your business.
Personal Circumstances
23You are now 29 years old. You were born in Frankston, and have an older brother and sister. Your parents separated when you were 8 years old, after which you lived with your mother. You remain in contact with your father.
24Your mother remarried, and your family settled in Carrum Downs. Your counsel submitted that there was nothing remarkable about your upbringing and childhood.
25You completed Year 10 and then took up a carpentry apprenticeship, and then when you were 17 you ceased that work and worked in truck body building, in the “finishing” section which did not require a qualification. You worked in that industry for around 2 years, off and on.
26You report that between the ages of 17 to 19 that you started using methylamphetamine, at first socially, progressing to using every weekend and then daily use.
27When you were around 20 your mother separated from her husband, and moved to Ballarat. You went with her, in an effort to distance yourself from your negative peers and the drug use you were involved in in Melbourne. You found work again, in Ballarat, building trucks, but again you fell into bad company and drug abuse.
28After a year or so in Ballarat you moved back to Melbourne and returned to work at your employer in Melbourne. You continued to use drugs, but managed to keep your work for some time.
29You met your partner in early 2014, and when you mother moved back to Melbourne later that year you moved in to live with your mother again. In 2016 your first child, a son, was born.
30You say that during this time you were using drugs heavily, but keeping it from your family. Your drug use affected your relationship with your partner and she had to live with her own mother around half of the time. You ceased regular employment in 2018, going onto Centrelink benefits. You started selling drugs to support your own habit. You had a second son born in late 2018.
31Your partner says that at that time she felt like a single mother. She had to work to support herself and her children. Your youngest son was born in January this year.
Criminal History
32Your criminal history commences in the adult jurisdiction in 2014 for driving offences. I have no regard to the matters in the Children’s Court as they are now more than 10 years old.
33On 3 October 2019 you were charged with drug trafficking and related offences. Police had been alerted to your activities in September 2019 by reason of an importation of a precursor chemical (methylamine). You had been listed as the consignee of that parcel, with your actual phone number and address. On searching your home items found included approximately 50 grams of methylamphetamine. You were bailed for that offending.
34On 12 November 2019 you committed Charge 1 on the indictment before me, and on 3 January 2020 your home was searched and the offending founding Charges 2 to 6 before me were detected. You were remanded in custody following your arrest on 3 January 2020.
35You were bailed on these matters on 27 May 2020, and thus have 146 days of pre-sentence detention available to you.
36The day after you were bailed you entered residential rehabilitation at the Eastern Bridge Program, at The Basin, run by the Salvation Army. You remained in that program until mid-September 2020.
37On 12 May 2021 a contested committal ran for the matters now before me and you were committed for trial for offences including trafficking in a commercial quantity.
38On 17 May 2021 you committed offences of theft, handling, trafficking methylamphetamine, possession of drugs of dependence, trafficking 1,4 Butanediol, possession of a prohibited weapon and possession of an imitation firearm.
39You were sentenced on 22 September 2021 for the October 2019 and May 2021 offending, in the Drug Court. You were sentenced to and aggregate of 20 months imprisonment, to be served by way of a Drug and Alcohol Treatment Order (DTO). One hundred and twenty eight days of pre-sentence detention were declared. You had not revealed to the Magistrate who made that order that you were facing charges in the County Court, but an application in October 2021 to revoke the DTO was refused, as you were doing well on the order.
40On 5 October 2021 you were arraigned in this Court on the charges now before me. A plea hearing was listed on 28 January 2022. That hearing was vacated, on your application, to enable you to complete the DTO.
Totality
41That chronology is particularly relevant to the application of the principal of totality. Three months before the offending before me you committed a number of offences, including trafficking methylamphetamine. You were bailed, and whilst on that bail you committed the offences for which I will sentence you. After 146 days on remand you were bailed and then took part in the 3 months rehabilitation program at the Basin. Then, 5 days after the committal hearing in this matter, you committed further offences including trafficking methylamphetamine and related offences.
42For the offending on either side of the present matters you received the DTO, and had declared 128 days of pre-sentence detention declared. The presumption of concurrency does not apply to offences committed whilst on bail, although the principle of totality still applies.
43If you had been sentenced for these three sets of offences, on the one occasion, there would have been a degree of concurrency between the sentences. By reason of the adjournment of this plea hearing until you had finished the DTO, that opportunity for concurrency has been lost. I will moderate your sentences to a degree, for this reason.
Residential Rehabilitation
44I also take into account that you spent 3 months in the residential rehabilitation program at the Basin. That program offers focussed and extensive support and education in respect to drug addiction. Whilst residing at the program you had to abide by the rules. The letter from the program states that you were beginning to acknowledge your own responsibility for your choices and offending, and that you were a valued member of the program. Your voluntary participation in that program whilst not being the equivalent of custody will be taken into account to reflect that your liberty and actions were limited during those 3 months.[4]
[4]Akoka v The Queen [2017] VSCA 214
Prospects of Rehabilitation
45The chronology of offending I have set out earlier gives rise to real concerns about your prospects of rehabilitation. As I have already noted you committed these offences shortly after being released on bail for the October 2019 drug matters. Then, despite having successfully engaged in the Bridge program, you committed further drug offences shortly after the committal hearing.
46On the other hand, since then you have completed a year on the Drug and Alcohol Treatment Order, imposed in the Magistrates’ Court on 22 September 2021. The exit report states that your compliance with that order was exceptional and commendable. You attended for drug screening on 83 occasions with only two positive readings for which your reasons were accepted. You expressed appropriate family oriented goals for your future.
47You also resumed employment, working as a concreting labourer for around 6 to 7 months, until your employer was killed in a road accident. A positive reference was provided by your former employer’s mother. You have since obtained another job as a concreter, supporting your partner and family.
48Having regard to your positive performance on the DTO, and in particular that you have returned negative drug screens for the duration of that order, it appears that you have made a significant step in remaining drug free. Remaining so will require work and assistance in future, which I hope you now have the skills and awareness to seek out.
49Whilst I assess your prospects of rehabilitation as reasonable, specific deterrence remains a relevant sentencing factor. Your history, and the difficulties that present to anyone seeking to recover from addiction, mean that despite your good efforts I do not accept your counsel’s characterisation of your prospects as “excellent”.
Plea of Guilty
50After a contested committal you were committed for trial in May 2021, with a plea of not guilty. These charges resolved with you pleading guilty on 5 October 2021. The significant charge of trafficking in a commercial quantity of methylamphetamine was resolved as trafficking simpliciter.
51The resolution of these charges by reason of your pleas of guilty is of considerable utilitarian value, particularly so in the context of the pandemic and the effects of it upon the operations of the Court.
52I will also treat your pleas as an indicator of some degree of remorse for the offending, although there is nothing in the material beyond the pleas to relate to remorse.
Other Sentencing Purposes and Principles
53In addition to general and specific deterrence, the sentences I impose should reflect the need for just punishment, denunciation of your conduct, and protection of the community.
54General deterrence is also a relevant factor in sentencing you. Offending of this type calls for general deterrence to be given some weight, and there has been nothing raised to suggest that you are not an appropriate vehicle for the expression of this. Where the drug trafficked is methylamphetamine the need for general deterrence is increased.[5]
[5]Haddara v The Queen [2016] VSCA 168; (2016) 260 A Crim R 306
55As to the impact of the potential financial reward in respect to Charge 1 on general deterrence, I accept that a potential importer who sees a vast quantity of money as the potential reward needs a greater threat to act as a deterrence. Despite that, general deterrence remains an important aspect of sentencing you, on Charge 1, as well.[6]
[6]DPP v Maxwell (2013) 228 A Crim R 218
56No purpose or sentencing principle outweighs another. Whilst general deterrence is important, so are the other factors including your prospects for rehabilitation.
57I have had regard also to sentences imposed in other cases. The prosecutor provided a chart of cases in respect the Charge 1, and I have also reviewed the case summaries prepared by the Judicial College of Victoria, for both trafficking and importation. The cases I noted in that review were Gioffre v The Queen [2020] VSCA 177, Cuthbertson v The Queen [2019] VSCA 104, Teoh v The Queen [2018] VSCA 239, DPP v Singer [2020] VCC 1005, DPP v Rettino [2016] VCC 1412, and DPP v Ragauskas [2016] VCC 1232. Obviously each case can be distinguished from yours by reference to a number of factors, including that most were commercial quantity importations, but these cases have provided me with some guidance as to sentencing practice. A wide range of sentences have been imposed in other cases.
Commonwealth Sentence
58Charge one is an offence under the Commonwealth Criminal Code. The Crimes Act 1914 (Cth) requires me to have regard to a number of matters in arriving at sentence, which I have done, although without citation of the particular subsections[7] I am required to not impose a sentence of imprisonment unless, having considered all the other sentencing options, I am satisfied that no other sentence is appropriate in all the circumstances of the case.[8]
[7]Crimes Act 1914 (Cth) s16A
[8]Crimes Act 1914 (Cth ) s17A
59It was noted that in respect to Charge 1, it was not possible at law to impose a sentence combining prison with a CCO.
Disposition
60Your counsel submitted that sentences which did not require you to be further incarcerated were warranted, noting your pleas, totality and your progress towards rehabilitation on the DTO. He submitted that a CCO would assist your further rehabilitation, on the background of your excellent performance on the DTO.
61The prosecution submitted that in view of the gravity of your offending, that the appropriate disposition was a term of imprisonment of such a length as to require a non-parole period.
62I consider that a sentence of imprisonment is the only appropriate disposition for Charge 1, and indeed the other charges. You are not a person of otherwise good character, and you engaged in offending which causes great harm to the community. Even having regard to your efforts on the DTO, giving real weight to your pleas of guilty, but also weighing all the factors relevant to sentence, I consider that a disposition less than imprisonment would be wholly inadequate.
63The sentences are; on Charge 1, importation of a marketable quantity of a border controlled drug, the maximum penalty of that offence is 25 years' imprisonment. The sentence that I impose on you is 18 months' imprisonment.
64On Charge 2, trafficking methylamphetamine, the maximum penalty is 15 years' imprisonment. The sentence I impose is two years' imprisonment.
65On Charge 3, trafficking cocaine and ketamine, the maximum penalty is 15 years' imprisonment. The sentence I impose is 18 months' imprisonment.
66On Charge 4, possession of cannabis, the maximum penalty is five penalty units and I fine you $250.
67On Charge 5, possession of diazepam, the maximum penalty is one year. I sentence you to one month imprisonment.
68On Charge 6, negligently dealing with the proceeds of crime, the maximum penalty is five years. I sentence you to six months' imprisonment.
69On the summary offence where the maximum penalty is three months I sentence you to two months' imprisonment.
70
The orders for cumulation are; on Charge 3 three months, on Charge 6
one month and on the summary charge one month, be served cumulatively upon each other and upon the sentence on Charge 2.
71That means on the State offences there is a maximum penalty of two years and five months' imprisonment which works out at 29 months. The non-parole period for the State sentences is 15 months.
72I notionally cumulate three months of the Commonwealth sentence so that your total effective sentence is 32 months.
73In order to achieve the notional cumulation of three months on the Commonwealth sentence I direct that the Commonwealth sentence commence one month before the expiry of the non-parole period on the State offences.
74I direct that on the Commonwealth sentence you be released on a recognisance release order after serving four months of the Commonwealth sentence. There will be a recognisance sum of $2,500.
75The recognisance release period will be 14 months which is the balance of the Commonwealth sentence.
76As I have said, the result of these orders should be a total term of imprisonment on all of the charges of two years and eight months, that is 32 months. The total time that you will be eligible for parole or on the recognisance release order is 14 months. This is a proportionately long period in comparison to the total effective sentence in order to provide you with a long period of supervision upon release to aid your rehabilitation.
77
Pursuant to s6AAA I state that if you had not pleaded guilty I would have sentenced you to four years and three months' imprisonment with a
non‑parole period of three years.
78I will make the forfeiture and disposal orders sought by the prosecution and I declare 146 days as pre-sentence detention and direct that that declaration be entered into the records of the court.
Recognisance Release Order
79During the period of the recognisance release you must be of good behaviour. I referred earlier to $2,500. That is not a sum you need to pay upfront but it is a sum that the authorities can recover from you if you breach the recognisance release.
80You must agree to be of good behaviour during the period of the recognisance release. If you breach the order by not being of good behaviour during the period of it, you could do so by committing another offence or by failing to comply with the directions of the Corrections officers, you can be charged with breaching the recognisance release and if the breach were proven you could be fined and you would be resentenced on the charge to which it relates, that is the importation charge.
81I also need to tell you that during the period of the recognisance release the court has the power to extend or vary the orders of the recognisance release.
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