Director of Public Prosecutions v Crow
[2016] VCC 1379
•16 September 2016
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR-16-01051
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JULIAN CROW |
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| JUDGE: | HIS HONOUR JUDGE CARMODY |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 16 September 2016 |
| DATE OF SENTENCE: | 16 September 2016 |
| CASE MAY BE CITED AS: | DPP v Crow |
| MEDIUM NEUTRAL CITATION: | [2016] VCC 1379 |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms S. Lenthall | OPP |
| For the Accused | Ms N. D. Kaddeche | Emma Turnbull Lawyers |
Pages 1 - 11
HIS HONOUR:
1Julian Crow, you have pleaded guilty to the four charges on the Indictment F13777230.
2Charge 1, trafficking in a drug of dependence - methylamphetamine. This charge has a maximum penalty of 15 years' imprisonment.
3Charge 2, trafficking in a drug of dependence - pseudoephedrine. This charge has a maximum penalty of 15 years' imprisonment.
4Charge 3, possession of a drug of dependence - cocaine. This charge has a maximum penalty of five years' imprisonment. This charge has a maximum penalty is one year if trafficking is excluded.
5Charge 4, possession of drug of dependence - anabolic and androgenic steroidal agents. This charge again has a maximum penalty of five years' imprisonment, but the maximum penalty is one year imprisonment if trafficking is excluded.
6In respect of these matters, you have served 90 days' pre-sentence detention between 17 June 2016 and today.
CIRCUMSTANCES OF OFFENDING
7Between 11 September 2015 and 10 November 2015, your mobile phone was subject to telephone intercepts which revealed drug-related activity.
8On 11 October 2015, you exchanged a series of text messages with associates Zolton Varadi and Andrew Moore about a bottle of "tone" - referring to acetone in your possession, some of which you had spilt.
9You sent a message stating, "Half a new bottle gone" to which Mr Moore replied, "Needed little more then spilled a lot."
10The text messages and phone calls subsequent to 11 October 2015 between yourself and your associates made reference to drug trafficking activities. Examples of it were:
"see how much $$$ we can make together"
"have you seen the bags, the bags that within bag in ice water that get the phd to come out of it and that"
11On 10 November 2015 at 7 am, you left your home at 25 Rae Street in Bentleigh East. You got into the passenger seat of the car and you were driven away from the house. The car was intercepted by police shortly thereafter and you were arrested. The police executed a search warrant at your home.
12A number of containers and Snap Lock bags containing methylamphetamine, pseudoephedrine and steroids were located in various parts of the house.
13In addition to the drugs, the police also located:
(a) two one-litre bottles labelled "Diggers Acetone" in the bedroom and the kitchen freezer;
(b) $535 in cash;
(c) multiple mobile phones;
(d) other drug manufacturing paraphernalia such as a chemistry lad kit, assorted glassware, pH strips, filter paper, digital scales and a silver heating mantle.
14The drugs were subsequently analysed and the following total quantities detected:
(a) 290.7 g of methylamphetamine, 9.49 g of which was pure (Charge 1 - Traffick Drug of Dependence);
(c) 133.3 g of pseudoephedrine, 32.13 g of which was pure (Charge 2 – Traffick Drug of Dependence);
(d) 0.2 g of cocaine (Charge 3- Possess Drug of Dependence); and
(e) 6.8 g of anabolic and androgenic steroidal agents comprising nandrolone derivative and testosterone derivative respectively (Charge 4- Possess Drug of Dependence).
15One of the substances analysed contained a mixture of chemicals consistent with the process of extracting pseudoephedrine from pharmaceutical preparations. Precursor chemicals of iodine, ammonia and magnesium were also found, but in quantities below that prescribed by law. Various other substances and equipment seized by police were confirmed as being suitable for the manufacture of methylamphetamine.
ARREST AND INTERVIEW
16After your arrest and while the search of your house was taking place, you were conveyed to the Oakleigh Police Station where you participated in the record of interview with the police. You answered no comment to some questions but provided answers to others.
17You told police as follows:
(a), "I have been using this phone" - that is the phone the subject of the telephone intercept - "ever since I got out of gaol";
(b), I have been living at my home for “about three months";
(c), "I had a couple of pills on a plate in the kitchen… I thought it was ecstasy but I don't think it was…(it) just made me feel really disorientated";
(d), "I've seen the cupboard box at the foot of the bed in the spare room. I'm sure my fingerprints will be on the items inside. I've gone through and had a look at a few things the other day, like, I was freaking out, thinking that I'll just throw ‘em in the bin'";
(e), "You use acetone… to get the crap out of the ice so you can smoke it and it's better- of a better quality to smoke it yourself. It's not manufacturing, it's just trying to get the shit out of it… you mix acetone with whatever the product is and then you just put it on paper and the stuff left on the paper is meant to be the better quality… the acetone is meant to filter out the impurities";
(f), "I put the acetone in the freezer because it's supposed to help if it's cold";
(g), "The mobile phones are mine. They are all broken";
(h), "I've had a bit of a drug problem lately… (In the past couple of months) I've used ice and I've used ecstasy. I smoked weed, been taking painkillers a lot as prescribed. I was on a lot of anti-depressants."
18I accept that for Charges 3 and 4 that the drugs in your possession were not for trafficking purposes and hence the maximum penalty for each of those charges is one year imprisonment.
19Whilst there have been a number of court dates including three committal mention dates and an unsuccessful summary jurisdiction application in June 2016, I accept that your plea of guilty to these charges is at an early stage.
YOUR PERSONAL CIRCUMSTANCES
20You are now 32 years old. You have had a troubled familial background from an early age. You were initially raised by your mother in Cairns. You have a stepbrother. Your mother suffered mental illness and you saw her raped and beaten by your stepfather.
21At age five, due to your mother's mental illness, you were sent off to live with your biological father. As far as you are aware, this was your first contact with him. Your father was working as a farmer but due to an accident, became a paraplegic. He subsequently became a heroin addict. Your stepmother was an alcoholic.
22When you were 14 years old, your father was incarcerated. You were sent back to your mother for care. By the age of 17 to 19, you were living with your girlfriend, Simone, and her family. This family became in effect your foster family. They encouraged you to re-engage with school and move away from the negative drug-using peers that you associated with.
23You moved to Melbourne and attended Sandringham Technical College until Year 11. You are a qualified chef and have worked in that capacity at a number of Melbourne's well-known restaurants.
24Following a motor accident, you ceased work as a chef and took up work mainly as a labourer, and in effect, trades assistant type work. References from Karl Forti, who was present earlier in court to support you, and Raphael Lloyd, who now lives in South Australia, attest to your reliable and hardworking approach to your employment opportunities.
25You have a long and extensive history of drug use or abuse. At ten, you started using cannabis. You have used ecstasy, cocaine, GHB, methylamphetamine, amphetamines up to the time of your arrest in these matters.
26Your drug addiction is the driver or the cause of your offending. Your criminal history reflects a parallel of addiction and offending. Your criminal history extends back to 2007. Relevantly, you have convictions for trafficking drugs of dependence in 2007, 2010, 2012 (which were breach proceedings for the 2010 matter) and 2013.
27You have numerous other criminal convictions relating to violence, driving offences and possession of drugs. The longest previous term of imprisonment imposed on you was eighteen months' imprisonment.
28In the period of the offending in Charge 1 in this case, you were put on a suspended sentence for driving whilst suspended.
29Exhibit 4 in the plea is a letter to the court written by yourself dated 14 September 2016. In that letter you set out how you have let people down by your offending. You complain about the company you were forced to keep whilst in gaol. You state that you want to turn your life around.
30I note in your history to the psychologist that your partner died from a drug overdose in 2009. She was in bed with you at the time. That tragic event did not spur you to turn your life around, you sank deeper into the drug abusing lifestyle. As a result, you have had a series of short-term imprisonment penalties in the past.
31In this last period in gaol, you have engaged in rehabilitation. You have completed courses in Access to Vocational Pathways, Kitchen Operations, Emotional Regulation program known as Riding the Wave. You have also participated in a Course with Caraniche which is a drug rehabilitation program in the prison.
32Dr Katherine Honeyman, in a report dated 8 September 2016 (Exhibit 6) prepared a report and assessed you as “consistently demonstrating motivation for change relating to your substance use and offending behaviour”.
33The drug urine sample test of 23 June 2016 and 16 July 2016 are both negative. Ultimately, only you can deal with the drug rehabilitation and get back to normal, useful and for you to have a productive life.
34You have had a rough start in life, but with strong will, you can turn it around.
SENTENCING CONSIDERATIONS
35The basic purpose for which a court may impose a sentence of imprisonment is just punishment, deterrence - both specific and general, rehabilitation, denunciation of your actions and the protection of the community.
36In sentencing you, I must have regard to a range of factors such as the seriousness of your offending, your culpability for it and your personal circumstances. I am required to balance the interests of the community in denouncing your criminal conduct and the interest of the community in seeking to ensure, as far as possible, you, as an offender are rehabilitated and reintegrated into society.
37You have pleaded guilty at an early stage in these proceedings. Your plea has the utilitarian value of allowing the orderly and effective administration of justice. There is a certainty of outcome and a resolution of the substantive issues raised by your offending. Your plea also allows for the preservation of court and police resources, to deal with other matters. Your plea vindicates the public confidence in the legal process set up to protect the community.
38Your plea is also a clear acknowledgement by you that you accept responsibility for your criminal behaviour in this case. Your plea also recognises that you are willing to facilitate the course of justice in the community. I accept that your plea of guilty to these charges indicates and demonstrates remorse on your part.
39I have to have regard to the current sentencing practices for this type of offending. The charges of trafficking a drug of dependence - that is Charges 1 and 2 - are to be dealt with on the quantity-based sentencing regime set out in Pidoto's case and confirmed in Haddara's case.
40In Haddara's case, the Court of Appeal stated at paragraph 71 as follows:
"As we have mentioned, sentencing courts may, to a relatively modest extent, adjust the sentencing standards for trafficking in ice to deal with its increased prevalence. That said, its particularly harmful consequences for the community, and for the individual user, though also well-known, must be disregarded for the purpose of sentencing."
41The prevalence of trafficking in ice was adverted to in the course of the plea but no evidence was led or agreed to as to the extent of that type of offending.
42In Charge 1, the level of purity of the methylamphetamine was approximately three per cent of the total mixed sample. In its pure form of 9.49 g, it was one-third of automatic forfeiture quantity under column 2B of Schedule 11 of the Act. The concerning aspect of Charge 1 is your reference in the text message, "see how much $$$ we can make."
43Despite your answers in the record of interview, this text is indicative of a commercial trafficking operation by you. The amount of the drugs to be trafficked is relatively small in its pure form and more significant in its very adulterated state.
44The drug in Charge 2 is pseudoephedrine. The quantity of the pseudoephedrine in pure form is 32 g which is one and a half times the trafficable quantity set out in Schedule 11 of the Act.
45The charges of possessing cocaine and steroids are not in trafficable quantities but add to the overall picture of your involvement in a wide range of drugs.
46You have been assessed by psychologist, Alison Mynard in her report dated 1 December 2012 (Exhibit 2) and Dr Aaron Cunningham in his report is dated 14 September 2016 (Exhibit 1). I have read those reports. Each psychologist has a consistent history from you about your early years and your completely dysfunctional upbringing. Each of them are of the opinion that your drug abuse is at the core of your offending. I agree with that assessment. You have been diagnosed as suffering from PTSD symptoms going back to your early life experiences.
47I assess your prospects of rehabilitation as fair. You have a reasonably good work history despite having a serious drug addiction at the same time as your work history. Mr Forti, by his presence and his references, gives you some support to rehabilitate. You have a trade as a chef, which could enable you to enter the workforce and turn your life around. You can also of course take up the offer of work with Mr Forti.
48The elephant in the room is your drug dependency. You have been a drug abuser for two-thirds of your short life. That means the battle for you to overcome drug addiction will be all the more difficult.
49In the past, courts have given you chances in the form of suspended sentences and one CCO. You have also been on parole. You have breached parole and the CCO.
50Nevertheless, I have had you assessed for a CCO to facilitate a supervised rehabilitation program upon your release from prison. You have been assessed as suitable for a CCO. Your prior convictions for trafficking in a drug of dependence raises considerations of specific and general deterrence, denunciation of your offending and just punishment as the primary matters in sentencing.
51Imprisonment is the immediate outcome for you however, both you and the community will benefit if you can be rehabilitated from your drug abuse. With that in mind, I am going to impose a CCO on you as part of the overall sentencing process here today.
52In pronouncing this sentence, I am well aware that you have outstanding charges, but they are for another court to deal with on another day in the future.
SENTENCE
53Charge 1 - you are convicted and sentenced to nine months' imprisonment.
54I declare that you have served 90 days' pre-sentence detention in respect of this sentence and it is to be deducted administratively.
55On Charges 2, 3 and 4, you are convicted and placed on a community corrections order for a period of two years. The community corrections order commences on the completion of your period of imprisonment. So it runs for two years from the time you are let out of prison.
56The conditions of the community corrections order are that you submit to drug assessment and treatment; that you submit to alcohol assessment and treatment; that you submit to or take assistance for mental health treatment, and offender behaviour programs; that you are supervised and that there is judicial monitoring.
57In respect of the judicial monitoring – this means you are going to come back and see me – the first occasion is to be within six weeks of your release from prison and your Corrections officer is to liaise with the court to set the actual date of that time. So you are going to activate that with them and they are going to activate it with the court.
58Pursuant to s.6AAA of the Sentencing Act, but for your plea of guilty, I would have sentenced you to three years imprisonment with a two-year non-parole period.
59I will sign the disposal order and the forfeiture order that was sought earlier.
60Mr Crow, just before I let you go. You know what I have done to you with respect to Charge 1. I have put you in gaol.
61OFFENDER: Yes.
62HIS HONOUR: If you breach the CCO, you know exactly what awaits you when you come back here before me.
63OFFENDER: Yes.
64HIS HONOUR: So best for both us, if you put your head down and do your best with your drug rehabilitation, you will have a much better life.
65OFFENDER: Thank you, Your Honour.
66HIS HONOUR: Thank you. Yes. Now, there is paperwork about - sorry
67MS LENTHALL: Sorry, Your Honour. Just one very brief matter raised in relation to the sentence. I submitted to Your Honour that the longest sentence Mr Crow has served was six months, which is what Your Honour said.
68HIS HONOUR: I am sorry?
69MS LENTHALL: I submitted to Your Honour that the longest sentence he had previously served was six months ‑ ‑ ‑
70HIS HONOUR: Yes.
71MS LENTHALL: ‑ ‑ ‑ which is what Your Honour said in the ‑ ‑ ‑
72HIS HONOUR: Reasons.
73MS LENTHALL: ‑ ‑ ‑ reasons for sentence but it is actually 18 months, taking into account that non-parole period we discovered.
74HIS HONOUR: I see.
75MS LENTHALL: Sorry, Your Honour.
76HIS HONOUR: That is all right. Thanks.
77I will amend my reasons to say the longest time you have spent is 18 months. But on this occasion, I am putting you in for nine.
78There is some paperwork for the community corrections order for you to sign. Before you go, I will ask Ms Kaddeche to assist you with that when it has been printed. You can take a seat.
79OFFENDER: Thank you, Your Honour.
80HIS HONOUR: Yes, thanks.
81MS KADDECHE: May I be excused from the Bar table?
82HIS HONOUR: Yes, certainly. Thank you.
83MS KADDECHE: Thank you, Your Honour.
84HIS HONOUR: Right. Thanks. Thanks, you can remove the prisoner. Thank you.
85OFFENDER: Thank you, Your Honour.
86HIS HONOUR: Ms Lenthall, Ms Kaddeche, thank you very much to both of you for your assistance and those that instruct you and the police officer.
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