Director of Public Prosecutions v Corben

[2019] VCC 1840

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR-19-01099
CR-19-01187
CR-19-01188

DIRECTOR OF PUBLIC PROSECUTIONS

v

JACK CORBEN

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JUDGE:	HIS HONOUR JUDGE CAHILL
WHERE HELD:	Melbourne
DATE OF HEARING:	30 October 2019
DATE OF SENTENCE:	11 November 2019
CASE MAY BE CITED AS:	DPP v Corben
MEDIUM NEUTRAL CITATION:	[2019] VCC 1840

REASONS FOR SENTENCE
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Subject:              
Catchwords:              Commercial quantity drug trafficking - Guilty plea
Legislation Cited:
Cases Cited:            Gregory v The Queen [2017] VSCA 151
Sentence:                  TES 6 years 10 months, non parole period 4 years 3 months

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr G. Martin Mr A. Sim (for plea)	Office of Public Prosecutions
For the Accused	Ms S. Pratt	Sarah Pratt & Associates
Mr M. Gumbleton (for plea)

HIS HONOUR: 

1Jack Corben, you have pleaded guilty to two charges of trafficking in a commercial quantity of a drug of dependence, one charge of trafficking in a drug of dependence, one charge of intentionally cause injury, one charge of theft, and three charges of possession of a drug of dependence. You have pleaded guilty to the following summary offences: committing an indictable offence, that is intentionally cause injury whilst on bail; possess a prohibited weapon, namely a knuckleduster, without an exemption; possess cartridge ammunition without a permit; dealing with property suspected of being proceeds of crime; committing an indictable offence, trafficking in a commercial quantity of cocaine, whilst on bail; failing to comply with a police officer's direction; and possessing a prohibited weapon, namely a butterfly knife, without an exemption.

2The circumstances of your offending are set out in the summary of prosecution opening [exhibit A] and they are agreed facts.

3In relation to Charge 1, trafficking in a commercial quantity of a drug of dependence, namely cocaine, between 5 November 2017 and 16 October 2018 you trafficked 804.02 grams of cocaine.  In 19 transactions you made 14 sales to an associate, Adam Campagna, in quantities ranging from half an ounce to 3 ounces, for around $7000 an ounce.  You sold half an ounce of cocaine to another associate, Cody, and you sold 2 ounces of cocaine to an unknown person and offered other amounts of cocaine for sale to persons named Grant Willow and Paul Richards.

4In relation to Charge 2, trafficking in MDMA, between 17 November 2017 and 21 January 2018, you also sold Campagna 10 ounces, or 283 grams, of MDMA for around $1700 an ounce. 

5In relation to Charge 3, intentionally cause injury, on 20 August 2018 you assaulted Zachary Johnston, to collect a debt for a friend of yours who claimed Johnston owed her $2000. 

6Johnston suffered fractures to his right eye socket and left upper jawbone, with bleeding beneath his skull, facial bruising, bleeding to his right eye and concussion.  You were on bail for other charges at the time.  That relates to one of the summary offences of committing an indictable offence whilst on bail.  You stole Johnston's car. That conduct constitutes charge 4, theft of a motor car

7Next day, police apprehended you driving the car. You had three blister packs of diazepam, (Charge 5 possess a drug of dependence), and a bloodstained knuckleduster, (the summary offence of possess a prohibited weapon without exemption), which you had used to assault Johnston. 

8Police arrested you.  At interview, you said you borrowed the car from Zach the previous night.  You admitted the knuckledusters and diazepam were yours. You were released from police custody.

9In relation to Charge 6, trafficking in a commercial quantity of a drug of dependence, namely MDMA, between 24 September 2018 and 16 October 2018 with a co-offender, Jesse Mocellin, you trafficked nearly 1 kg of MDMA.

10On 24 September 2018 Mocellin asked you if you could “get kegs for 100?” That was code for 1 kg of MDMA for $100,000. You said your supplier charged you “100” (thousand dollars) but you would try to get a kilo for “95”, that Mocellin should offer the drugs to his customer for “105” (thousand dollars) and the 2 of you would split the profit, $5000 each. On 30 September you had several phone conversations with Mocellin about the proposed sale. You didn’t want to deliver the drugs yourself. The potential buyer agreed to pay $1000 for a driver to deliver them. Mocellin said the customer may only want “half” (a kilogram) and not a “full” one (kilogram). You agreed you would split the drugs in half and discussed with Mocellin possibility of offering smaller quantities to other customers; you suggested offer “Sabb” “5 at 35”. Later that evening, Mocellin told you the potential customer had paid the driver but didn’t take the drugs. When that sale fell through the 2 of you discussed selling the MDMA in smaller amounts. Phone calls between you show the two of you were paying $2850 an ounce for MDMA with the intention to cut and sell it for $3500 an ounce. The quantity of MDMA traffic was just short of 1 kg. Mr Gumbleton, who appeared on your behalf, told me the quantity of 153.3 g of MDMA police seized, when they arrested you, was part of the MDMA which is the subject of this trafficking charge.

11On 16 October 2018 police arrested you for drug trafficking. You had $2900 in cash, a Gucci watch, and a Ford utility motor car, the items which are the subject of the summary offence of dealing with property suspected of being proceeds of crime.  At your flat they found digital scales, two Apple iPhones and a Samsung iPhone, other cash, and five vials of anabolic steroids and those steroids make up part of Charge 8, possess a drug of dependence.  They also found a black butterfly knife which is the subject of a summary offence of possessing a prohibited weapon without exemption.

12They also found in your flat and in your car empty snap lock bags and another bag containing 476 MDMA pills which weighed 153.3 grams, and your possession of those pills is conduct which constitutes part of Charge 6, trafficking in a commercial quantity of drug of dependence, MDMA. 

13In another car, connected to you, they found a blister pack containing four diazepam tablets and your possession of those tablets constitutes part of the possession charge, Charge 8. 

14At a home of a friend of yours they found a plastic bag containing multiple green shotgun cartridges and three red shotgun chargers, which are the subject of the possess cartridge ammunition, a snap lock bag containing 10.5 grams of methylamphetamine, which is the subject of to Charge 7, possess a drug of dependence, and a snap lock bag containing 24 Suboxone strips which is part- subject of Charge 8, possess a drug of dependence.

15When police interviewed you, you refused to provide the password to the two phones you had when you were arrested and this refusal constitutes the conduct charged in the summary offence of failing to comply with a police direction. 

16You were remanded in custody where you have remained to this day. This is your first time in adult gaol.

17You have admitted a number of prior summary convictions. 

18On 4 March 2011 you were sentenced to 12 months' detention in a youth training centre for riot.  Prior to that, between November 2008 and October 2009, you had had three appearances in the Magistrates' Court, for driving and dishonesty offences.  On 14 March 2012 you were fined for burglary and theft and, on 26 July 2017, you were fined for possession of MDMA, steroids, cartridge ammunition and a prohibited weapon. 

19Your personal circumstances are set out in the report of Miriam Latif, consultant psychologist [Exhibit 2]. You were born in Byron Bay in New South Wales on 9 September 1990 and are now aged 29 years.  You have two stepbrothers and a stepsister.  Your father had a son and daughter from a previous relationship and your mother had another son.  When you were nine years old your parents separated.  Your father's other children went to live with him and your mother's other son and you lived with your mother.  You have a very close relationship with your mother but had little to do with your father when you were growing up.

20You attended local schools and completed Year 10 at TAFE.  When you left school you obtained work in scaffolding, which you have enjoyed.  You told
Ms Latif you were a hard worker but stopped working in 2017 because your substance abuse had escalated.  In 2005 you had moved with your mother and stepbrother to Melbourne when her father became ill.  When he died in 2008 your mother returned to New South Wales.  You stayed in Melbourne and you told Ms Latif that is when you started getting into trouble.

21During your childhood both your mother and father smoked cannabis at home.  By the age of 12 you were smoking cannabis, too.  It seemed “normal” at the time.  When you were 18 you were using methamphetamine regularly.  You stopped for about 18 months in 2010 and 2011 but after the loss of a child stillborn you separated from your partner and relapsed into drug abuse.  You re-partnered, but after that relationship broke down in 2017 your drug use spiraled.  In 2016 and 2018 you had made unsuccessful attempts to stop using drugs.

22When you offended in 2018 you were using methamphetamine, cocaine and diazepam.  You said to Ms Latif, 'Without gaol, I don't know how I would have stopped (using drugs)’.  You have never been diagnosed with any psychological condition.  Ms Latif diagnosed you with addictions to cocaine, methamphetamine, and diazepam and an adjustment disorder with anxious and depressed mood.  She recommended treatment for your addictions and psychological treatment to help you cope better with life stressors.  In her opinion, you appear genuinely motivated to get off drugs and access psychological treatment.

23Also, in her opinion, provided you have access to mental health and drug treatment with a return to employment and family and peer support, your prognosis is good.  In your letter to the court (Exhibit 3) you wrote for the majority of your life, 'I've used drugs as a way of coping with depression, anxiety, and loss.'  Because of drugs you lost your fiancee, your job, and your family and your friends. I accept you have taken full responsibility for your offending.  You instructed your lawyers to resolve the charges against you as quickly as possible and you have not applied for bail whilst you have been held in remand custody.  In gaol you have been sober, you have worked as a billet, and focused on improving your mental and physical health by reading, writing to family and friends, and working out. You understand you must receive a lengthy sentence and you look forward to the chance to continue your rehabilitation upon your release from prison under parole supervision.

24I received a number of very impressive references on your behalf.  Your former partner, Jade Armstrong (Exhibit 4), described her five-year relationship with you as perfect, at times, that is, while you were working hard and seeing your son Noah, aged six years. In 2017, following the loss of two friends, as she described it, you 'shut off', using drugs, losing your job, cutting off your family, friends, and her.  She ended the relationship.  About six weeks before your arrest you helped look after her when she injured herself in a fall.

25Since your incarceration she talks to you daily and visits you weekly, if not more.  She says you have responded positively to your time in gaol and you have hopes for a future with your son.  Whilst your relationship with her is over, she still considers you to be her family.

26Your father (Exhibit 6) wrote that you struggled when your parents separated and the move from New South Wales to Victoria was difficult for you.  He said that when you left school you seemed to have found a future in the scaffolding trade.  He did not know about your involvement with drugs and was shocked and upset when he heard you had been charged with the offences which bring you before this court.

27Your mother (Exhibit 5) confirmed your very close relationship with her.  You have supported her when she has needed you.  She says you now “realise the impact of your poor choices” and she is confident you can successfully rehabilitate yourself. 

28Your brother-in-law, Dion Jelley (Exhibit 7), wrote you have helped his family and him considerably since they moved to Melbourne three years ago.  He described you as generous and loyal.  He sees you as an intelligent and talented young man who, with appropriate guidance and support, has huge potential to succeed in your work.  He operates a sports event management company and is prepared to employ you in event set-ups and pack-downs when you are released from prison.

29Your stepbrother, Cain Beardmore (Exhibit 8), wrote you are very sorry for the adverse impacts of your offending.  You realise drugs have been your downfall and as he described you as now being “clear-headed”, and you are determined never to reoffend.  He had previously employed you in his scaffolding business.  You are a good worker and he will be happy to employ you again.

30In written and oral submissions (Exhibit 1) Mr Gumbleton, who appeared on your behalf, relied on the following factors in mitigation of penalty:  Your early plea of guilty, your limited criminal record, your remorse, evidenced by your early plea, your positive response to your time in custody and your expressions of remorse to family, friends, and Ms Latif and, relying on Ms Latif's opinion, your good prospects of rehabilitation, provided you can overcome your drug addiction and address the causes associated with it. 

31He acknowledged your drug offending was serious and must attract lengthy sentences of imprisonment. 

32He submitted your trafficking of MDMA, Charge 6, was the most serious offence before the court taking into account the quantity-based trafficking penalty regime and that you committed this offence while you were on bail.  He submitted in relation to your trafficking of cocaine, Charge 1, and MDMA, Charge 2, you were effectively a sole operator with one principal customer. 

33He submitted you trafficked drugs to support your habit and, because you had stopped working, also to support a modest lifestyle.

34Your offending spanned an 11-month period although there was a hiatus between 24 January and 5 August 2018.  You were trafficking drugs from 5 November 2017 until 20 January 2018 and from 5 August 2018 until 16 October 2018, when you were arrested. 

35He submitted I should structure your sentence with the imposition of your base sentence on Charge 6.  He further submitted, applying the parity principle, for that offence, I should impose the same sentence which I imposed upon your co-offender, Mocellin, because as equal partners in that unlawful endeavour you were equally culpable and there was little to differentiate your personal circumstances.

36In relation to the injury which you caused Mr Johnston, he accepted that offence must draw a sentence of imprisonment.  He correctly acknowledged, as aggravating features, you had no good reason to get involved, your offending was premeditated, you sought the assistance of others, you assaulted
Mr Johnston with a weapon, in company of others, and you boasted about it afterwards.

37He also acknowledged I must impose terms of imprisonment for the offences of theft of Johnston's car, Charge 4, and your possession of methylamphetamine, Charge 7, as the quantity you possessed exceeded what might be expected as a quantity only for personal use.

38And he acknowledged that I must impose terms of imprisonment for the summary offences of the offence of assaulting Johnston while you were on bail, the offence of trafficking in a commercial quantity of MDMA while you were on bail, and dealing with property suspected of being proceeds of crime and also the summary charge of failing to comply with a password direction.

39He submitted, taking into account the nature of the offences, I should impose a monetary penalty in respect of possess diazepam, Charge 5, the summary charge of possess the knuckledusters, the possession of steroids, diazepam and Suboxone, summary Charge 8, possess ammunition, Summary Charge 5, and possess the butterfly knife, Summary Charge 23. 

40In relation to all your offending he submitted, having regard to the principle of totality, I should moderate the individual sentences I impose and the measure of cumulation of them.

41Mr Sim, who appeared for the prosecution, in response, submitted trafficking in a commercial quantity of a drug of dependence is inherently serious and that general deterrence, specific deterrence, and denunciation are important sentencing considerations.  He submitted that fines would be appropriate punishment for the offences Mr Gumbleton identified.  He made the additional submission that a fine in respect of the passcode offence would also be within range and I accept his submission in that regard.

42He submitted the offences of trafficking in a commercial quantity of a drug of dependence, Charges 1 and 6, are the most serious charges.  As the maximum penalty reflects, they are of comparable gravity and either could properly form the base sentence.  He also submitted there is evidence of your remorse for your drug offending but you have not been heard to expressly state remorse for your assault on Mr Johnston to Ms Latif, family or friends, or through your counsel.

43On the material before me, I accept you are remorseful for the whole of your offending. Otherwise I accept the force of Mr Sim's submissions and have taken them into account in assessing the sentences I will impose. 

44Mr Gumbleton referred me to Gregory v The Queen [2017] VSCA 151 where the Court of Appeal held commercial quantity trafficking offenders would expect sentences well into double figures for upper category offending of that type.

45It was not suggested to me by either counsel that your case falls into this range.  Mr Gumbleton suggested post-Gregory sentencing in cases comparable to yours have ranged between three years and five years and six months. As he acknowledged, current sentencing practices are but one consideration in the sentencing process.  From recent Court of Appeal decisions I have identified sentences ranging from four years to seven years for similar commercial quantity trafficking offending.

46While there are differences in the gravity of the offending and personal circumstances of the offender, in the cases Mr Gumbleton referred me to and yours, I have used them as a yardstick to guide the sentences imposed. 

47In relation to Mr Gumbleton's other submissions, I accept that Charge 6 is the most serious offence in respect of which you have pleaded guilty and the sentence that I impose on Charge 6 will be the base sentence.

48By reason of the conviction on charge 6, on charge 1, trafficking in a commercial quantity of cocaine, you fall to be sentenced as a serious drug offender. I was not urged to impose a disproportionate sentence. In the circumstances of your case, I am satisfied it is appropriate not to impose a disproportionate sentence.

49I must consider parity, as between Mocellin and you, in relation to Charge 6.  I accept that the two of you, as equal partners in that endeavour, were of equal culpability, and whilst the personal circumstances of Mocellin and you differ, they are indistinguishable for the purpose of sentencing. Accordingly, I will impose upon you, for charge 6, the same sentence imposed on Mocellin.

50I accept that your remorse is genuine and profound, taking into account your early guilty plea, that you have never applied for bail, and that you have made a positive response to your incarceration. 

51I also accept you have good prospects of rehabilitation provided you remain drug free and that you address your underlying psychological issues.  

52Because you are to be sentenced for multiple offences, the principle of totality has application and I have moderated the individual sentences and the measure of cumulation between them to achieve a total effective sentence which is just and appropriate for the whole of your offending.

53I will impose a non-parole period which allows for a longer than usual period of parole supervision to mitigate your punishment and to give you the chance to advance your rehabilitation in the community when you are released. 

54Please stand, Mr Corben. By this sentence I must denounce your conduct. I must punish you and deter you and others from committing crimes of the same or similar kind.  I must also look to the protection of the community and, as well, your rehabilitation. 

55Taking into account the circumstances of your offending and its effects, your personal circumstances and antecedents, and endeavouring to produce a sentence which reflects and promotes the purposes of sentencing in a manner appropriate to you, I sentence you as follows.

56On Charge 6, trafficking in a commercial quantity of MDMA you are convicted and sentenced to five years' imprisonment. 

57On Charge 1, trafficking in a commercial quantity of cocaine, you are convicted and sentenced to four years and six months' imprisonment and I direct that 12 months of that sentence be served cumulatively on the sentence I have imposed on Charge 6. 

58In relation to Charge 2, trafficking MDMA, you are convicted and sentenced to 12 months' imprisonment and I order that three months of that sentence be served cumulatively on Charges 1 and 6. 

59On Charge 3, intentionally cause injury, you are convicted and sentenced to nine months' imprisonment and I order that three months of that sentence be served cumulatively with each of the other sentences I have imposed. 

60On Charge 4, theft, you are sentenced to three months' imprisonment and I order that one month of that sentence be served cumulatively on all other sentences that I have imposed.

61On Charge 7, possess methamphetamine, you are sentenced to three months' imprisonment and I order that one month of that sentence be served cumulatively with the other sentences I have imposed.

62On Summary Charge 7, commit an indictable offence whilst on bail, that is intentionally cause injury, you are sentenced to three months' imprisonment and I order one month of that sentence be served cumulatively on all other sentences.

63On the summary charge of commit indictable offence, trafficking in a commercial quantity of MDMA, whilst on bail, you are convicted and sentenced to three months' imprisonment and I order that one month of that sentence be served cumulatively on all other sentences.

64On Summary Charge 7, deal with property suspected of being proceeds of crime, you are convicted and sentenced to three months' imprisonment which I order be served concurrently with all sentences.

65Your total effective sentence is six years and 10 months' imprisonment and I direct that you serve a minimum period of four years and three months before you are eligible for parole. 

66I declare you have already served 346 days of your sentence by way of pre-sentence detention. 

67I impose an aggregate fine of $2500 on the remaining charges, that is Charge 5, possess a drug of dependence, diazepam; Charge 9, possess a drug of dependence, steroids, diazepam and Suboxone; Summary Charge 2, possess the knuckledusters; Summary Charge 5, possess ammunition; Summary Charge 23, possess the butterfly knife, and Summary Charge 19, failing to comply with a password direction.  You are convicted also of each of those offences.

68But for your guilty plea I declare I would have imposed a total effective sentence of eight years and nine months' imprisonment with a non-parole release period of five years and nine months. 

69In relation to the theft charge, under s.89(4) of the Sentencing Act I am required to cancel all licences and permits held by you and disqualify you from obtaining any licence or permit.  I make that order for cancellation and the period of disqualification will be 12 months from today's date.

70By consent, I will make the forfeiture order in the terms of the order to be filed with the court.