Director of Public Prosecutions v De Ocampo
[2020] VCC 366
•2 April 2020
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR-19-01084
Indictment No. C1812246.1
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| Jersey De Ocampo |
---
| JUDGE: | HIS HONOUR JUDGE TINNEY |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 1 April 2020 |
| DATE OF SENTENCE: | 2 April 2020 |
| CASE MAY BE CITED AS: | DPP v De Ocampo |
| MEDIUM NEUTRAL CITATION: | [2020] VCC 366 |
REASONS FOR SENTENCE
---Subject: trafficking in methylamphetamine, summary offences: drive whilst disqualified and fail to stop at police direction; 28 years old now. Prior convictions for trafficking. Many CCO failures. Long PSD. COVID-19.
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms C Foot | Office of Public Prosecutions |
| For the Accused | Mr M Kozlowski | Papa Hughes Lawyers |
HIS HONOUR:
1Jersey De Ocampo you pleaded guilty yesterday to one charge of trafficking in a drug of dependence. In addition, you also pleaded guilty to two summary offences being charges of drive whilst disqualified and fail to stop at police direction. The maximum penalties are correctly set out in the prosecution amended summary.
2You were born on 11 February 1992 and you are 28 years of age. You have a quite sizable criminal history which is clearly relevant to my sentencing task.
3The matter was opened to me yesterday by the prosecutor Ms Foot. She opened in accordance with a written summary that was marked as an exhibit in these proceedings. Your counsel Mr Kozlowski confirmed that it was an agreed summary.
4I see then no need to descend to the finer detail of that summary, which was marked as Exhibit A. That is because I will not stray beyond those agreed facts. There were some discussions about the purity of the drug that was seized, and no issue was taken with that information being provided to me. After all it was disclosed in a certificate of analysis.
5You were not the target of this operation but you came up on the intercepts. You were actively involved in trafficking in methamphetamine on the occasions and in the manner described in the summary. It was not some isolated act. The charge is between dates and you trafficked in 6 ½ ounces of methylamphetamine. I note that there was no evidence as to your supplying the 1 ounce mentioned in paragraph 18 b. I will not further describe the trafficking covered by the charge. It came to an end up in Mildura, as you know. You had driven up to Mildura with your co-accused to traffick drugs and fled from the police who had given you a direction to stop. You had no business even being at the wheel of a car as you were disqualified. A large array of paraphernalia including a digital cash counting machine was located in the room you had booked. Also over 82 grams (by way of mixed weight) of methylamphetamine. The bulk of that had a purity ranging between 80 to 86%. Of course none of the other drugs covered by the between dates charge had been seized. You were arrested and made a no comment interview as was your right. You ran a contested committal, again as was your right. You have been in custody since your arrest a period of 528 days up to but not including the plea date yesterday. Traffickable quantity for this particular drug was 3 grams. Commercial quantity was 250 grams mixed weight or 50 grams pure. Though on the purity figures provided it seems likely that even the seized drugs exceeded the commercial quantity, of course you do not fall to be dealt with by me for commercial quantity trafficking. That is important. I am dealing with you for the lesser crime with the lesser penalty and I do not lose sight of that.
6So much then for my brief summary of the summary. I will sentence in accordance with that full agreed factual statement.
In Mitigation
7Your counsel, Mr Kozlowski had prepared written submissions on the plea dated 30 March which were marked as Exhibit 1. He took me to your background in some detail. He relied upon a report from Mr Simmons though not as in any way attracting any of the principles from the case of Verdins v The Queen (2007) VSCA 102; 16 VR 269; 169 A Crim R 581 but rather as setting out your background. He made submissions as to the offending, how it ought be characterised as well as your prospects into the future. He made submissions as to the relevant purposes of sentencing as well as your motivation for offending.
8He relied upon;
·The guilty plea and stage of that plea;
·The presence of some limited remorse; and
·The hardship that you would experience in custody.
9He argued that a combination type sentence could be imposed here with a prison term equating to your pre-sentence detention which stood at 528 days as of yesterday. He submitted that you ought be released immediately onto a therapeutic community corrections order. Failing that perhaps a straight sentence and failing that a head sentence with a non-parole period which might lead to consideration by the Adult Parole Board of your possible release in the not too distant future.
Prosecution
10The prosecutor Ms Foot argued that a community corrections order would not be open in the circumstances of this case given the nature of the offending and your past history before the Courts. The Director of Public Prosecutions of this State called for a prison term with a non-parole period.
Background
11Your background was set out in some detail in the written outline as well as in the expert report. Indeed, that really was the only way the expert report was relied upon. I am not going to set out your background again in my reasons. There is no reason for me to restate it all as I accept the personal family background placed before me. Briefly you are 28 years of age born on 11 February 1992. You were born in Melbourne and raised in Sunshine. You describe your childhood in positive terms. However, your father died far too young aged 41 when you were only 12 years old and entering adolescence. No doubt that was difficult for you and for your mother and younger sister. Your behaviour deteriorated and at some later point after finishing up at school as a 17 year old, you were then sent to stay with some relatives over in the Philippines. That was not a success. You returned after 6 months and had a sense of disconnection from some of your peers. You started using drugs at a very young age and they have been problematic pretty much ever since. You left school and did a Certificate course in automotive studies at one point and then you worked part time for a retail company and then a tyre manufacturer. You did some factory work as well. You have not worked for many years now, I was told, not since 2011.
12You have a sizeable enough criminal history. I make plain that you do not fall to be sentenced a second time for those past matters. You have been sentenced and have served those sentences. Your history before the Courts is undoubtedly though relevant to my task. Amongst other things, it can assist me in making judgments about your rehabilitative prospects, your risk of reoffence and the extent of the need to deter you. I am not going to conduct a formal audit of that criminal history in my reasons. You have a number of convictions for trafficking in and possession of drugs of dependence. You have trafficked in methamphetamine on two prior occasions. Also heroin on one occasion. In each case you received combination orders. You have other offences which have been dealt with in the past including one attempted armed robbery. There are many driving matters, dishonesty offences and weapons offences. You have been given very many chances by the Courts. You have not taken them. You have breached countless community corrections orders, some imposed in combination with prison terms. You have also breached at least one suspended sentence. You have in fact received numerous community corrections orders since 2016.
13You have seen the inside of a prison more than once but even that has not deterred you from offending. I note that you entered a community corrections order by way of variation following a breach of an earlier community corrections order. That varied community corrections order was imposed on the 9th October 2018 with reporting to take place on or before 11 October. You consented to that order. The trafficking charge covers conduct from 7th October 2018 and continuing on to the 20th October 2018. On 10 October you were offering to sell an ounce of methylamphetamine [see paragraph18(a)]. There were other acts in that same time frame. You also of course drove whilst disqualified despite being on the community corrections order for such an offence. So you just kept offending irrespective of the serious court order made on 9 October. The need for you to be deterred is plain enough.
14Courts have tried repeatedly to deter you with no success at all and I must try again.
15You have been in custody for a sizable period now and I accept there are uncertainties in relation to the impact of the COVID-19 virus and I will discuss that issue later. I am told that you have ceased drug use. You have broken up with a long term partner whilst in custody which has not been easy for you. You are working in custody as a billet and you have also been doing a business course. You have hopes upon release of living with your mother as well as working with her in a commercial laundry business. There is still family support as was evident from the attendance of your mother and sister on the plea yesterday and they are both back here today. I am not sure if you can see that or not. I take into account your background in so far as I am able to. I turn then to some of the other matters have been raised in mitigation.
Guilty plea
16You have pleaded guilty. You ran a contested committal as was your right. A single witness was called at that brief committal. There was a more serious charge which did not proceed. The issue was with the commercial quantity alleged in that other charge. Indeed you had offered to plead to this charge, the simpliciter charge, on the day of the committal. So I will treat it as a very early plea and ignore the fact of the committal hearing. You have admitted your guilt. You have taken responsibility for your crimes. You have facilitated the course of justice. The community has been saved the time, cost and effort associated with a trial up in this court. All the witnesses have been spared the experience of giving evidence at trial before a jury. I take into account your early guilty plea and as a matter of law there must be a sizeable discount in sentence.
Remorse
17Little was said about remorse on the plea and that is not that surprising. There is little evidence of any of actual remorse here. Your counsel pointed only to your guilty plea. You have yet again chosen for whatever reason to traffick in drugs. You have though pleaded guilty and done so at an early stage and a guilty plea is often indicative of at least some remorse and that is the way I will treat your plea. So, I will find the existence of some remorse here as evidenced by the fact of your guilty plea and I take that into account in mitigation.
Increased burden
18I turn now to the aspect of the increased burden.
19The COVID-19 global pandemic is a worry for us all. I accept that it is no less worrying for a prisoner. Indeed, prisoners unlike other people in the community have real limitations in what they can do. You will not have the freedoms that you would have in a non-custodial setting. By that I mean that you will not have the ability of going where you want to go or distancing yourself from other people. You will have no real autonomy as a prisoner and we in the criminal justice system are all waiting I think with bated breath as we consider the possible impacts of this global pandemic when it hits the prisons. I say when as it seems inevitable to me that it will hit the prison system. The Court of Appeal dealt with this concept in a decision earlier last week it was Brown v R [2020] VSCA 60 and the same issue has been raised in a number of Supreme Court and Court of Appeal decisions. For instance, the case of Re Broes [2020] VSC 128; Re McCann [2020] VSC 138; Re Tong [2020] VSC 141; R v Madex [2020] VSC 145; Sazimanoska v R [2020] VSCA 66 and Nguyen v R [2020] VSCA 76.
20It is still too early to know how this is all actually going to play out in the prison system. It is such a rapidly evolving setting. It changes almost from day to day. I cannot know exactly how this will impact upon you into the future. Only time will tell. It will undoubtedly be generating stress amongst both prisoners and their families. You are currently in 20-hour lockdown which has been brought in recently in response. Will there be lockdowns in the future and to what extent? Will there be allowances or sentence adjustments made by the authorities by way of, for instance, emergency management days being declared. I cannot know any of these matters for sure. It seems likely though that there will be some continued lockdowns. All visits have already been suspended. So that does not require any speculation on my part. That has already occurred and who knows when they will resume. Nor do I need to speculate about your present position; 20-hour lockdown is in place and that is harsh and all of these things will increase your burden. There are probably no good times to be in a prison. But these are not the best of times to be there, that is for sure. There is an increased stress in this sort of setting, I am sure of that, for every prisoner. So I accept that there is an increased custodial burden in this case. I was taken to the breakup of your long term relationship with your partner as increasing your burden. I do not ignore that as I accept that there is another unsettling aspect of your life but I cannot give that much weight in my task.
Rehabilitation
21What then are your prospects of rehabilitation? You have a lengthy criminal history which gives me no great cause for optimism. You were no silly teenager when you chose to commit the trafficking offence. You were a mature man who had been given chance after chance to avoid going to prison. You have breached very many community corrections orders. You have seen the inside of a prison and that did not impede you from offending. Nor the community corrections order that you entered in October 2018. You have pleaded guilty at a very early stage and have done some courses in custody. You still have a supportive family and you have hopes of employment. I am told you are drug free. You have spent already a very sizable period in custody. Hopefully the time you have served and my sentence, which will embrace that time in custody, will serve to deter you to a degree. You had a long term problem with drugs. You have in the past been unwilling or unable to leave drugs behind you. You have some prospects of rehabilitation but it is hard to be greatly optimistic. Your counsel accepted that was the true position. He described himself your prospects as being fair but guarded. That is a reasonable assessment, in my view. You told him and wanted me to be told that you had reassessed your life and were determined to be drug free into the future and wished to avoid any return to prison in the years ahead. Ultimately, I can only be quite guarded here. You certainly have some prospects of rehabilitation, I make that plain. I am not going to write you off. But such prospects of rehabilitation as you have, they will depend on your abstinence from drugs into the future. That is a state which has eluded you for many years in the community. If you can see your way clear of drugs, of course your prospects will improve very significantly. If you do not desist from drug use in the future you will have virtually no prospects of rehabilitation.
The Offences
22I am not going to say much more about the offending. I will scarcely mention the driving offences at all. The trafficking is plainly the most serious of the offences before me and it was no minor crime. There was nothing spontaneous about it. It was planned serious offending. As I said earlier, I am dealing with you for a non-commercial quantity. But there were a number of separate acts in a relatively confined period. There was ample opportunity for you to pause for thought and to reconsider your serious conduct and you had many reasons to pause for thought. You were on a community corrections order. You had consented to such an order and one of the mandatory terms was that you not commit any offences punishable by imprisonment. It is serious conduct to traffick in drugs at this level. This was not some low level street trafficking. Far from it. The fact that you were seeking to clear a debt is not actually mitigatory. All that is, is the context. It all comes down to the hope of financial gain. Drug trafficking almost always does. We are all sick of drugs and the deep impact of drugs upon so many in the community. Trafficking almost always involves taking a calculated risk and the risk is taken on because of the money involved. It is a serious crime to traffick in drugs. This is a quantitative based regime. Your offending was of a sizeable enough quantity when regard is had to the commercial quantity thresholds in play. It is a long, long way removed from the lowest levels. The trafficking relates after all to 6 ½ ounces in a couple of weeks. You were engaged in a venture as a trafficker, that venture ending as you travelled from Melbourne to Mildura by car with another, renting a hotel room, all to supply drugs in regional Victoria.
Purposes
23I have to consider a number of purposes of sentencing. I must pay regard to your prospects of rehabilitation. Your prospects though they exist, as I have said already, are quite limited in my view. I really can only be guarded. I am required to punish you for your crimes. I must do that justly and proportionately. I must denounce your conduct and of course that is important.
24I must pay appropriate weight to specific deterrence and by that, I mean the need to deter you or dissuade you from offending in the future. That is obviously very important given your track record in the past and the chronology of offending within days of being placed onto a community corrections order in October 2018. Community protection is equally important.
25General deterrence is a highly relevant purpose of sentencing in this case. It is very important that this Court send a clear message to others in the community who may think it worth considering trafficking in drugs. Drug trafficking is pernicious. It attacks the very fabric of society. See Zarghami [2020] VSCA 74. The Courts must convey the message loud and clear through the sentences imposed that trafficking when brought before the court will be dealt with seriously. That message may neutralise the seductive lure of easy financial gain and cause people to actually rethink their involvement. Our sentences must cause other likeminded people to pause and think of the potential ramifications of being caught if they choose to commit this serious style of offence. You made the choice and it was of course a very poor one but it was made with a view to financial gain. The driving offences are obviously far less serious. But of course you have a highly relevant prior record for such matters.
26I must have regard to the maximum penalties. I also have to pay regard to current sentencing practices. That is not a single controlling factor though. I have looked at the relevant Sentencing Snapshot (number 218 of 2018) as well as overviews of cases from the new Judicial College of Victoria sentencing manual (7.4.1.1).
27At the end of the day though, I am exercising a sentencing discretion in this case. I am sentencing you for your crimes, and that is not some mathematical task. No amount of looking at other cases or statistics will provide the answer to me. Other cases are not precedents and statistics always have inherent limitations.
28I take into account all of the submissions that have been made by your counsel. I also take into account the report of Mr Simmons. I have not descended to any close examination of that report in my reasons and that is because it was not relied upon in any significant way other than as placing your background before me and it was of use to me in that regard.
Totality
29I have taken a last look at the orders that I intend to make to guard against a crushing outcome and to ensure that the total effect of my sentences is commensurate with your criminality here.
30Prison is always a disposition of last resort. Your counsel conceded the inevitability of a prison sentence but argued that one in combination with a community corrections order would suffice and that in that way there should be no time over and above your existing pre-sentence detention. You had after all, he said, served close to 18 months. He argued then that a therapeutic community corrections order was open and one involving your immediate release. I do not agree with that submission. Your offending is too serious and your past multiple failures on such orders gives me no confidence at all that it is the correct outcome here or even an option that falls within my sentencing discretion. It would give inadequate weight to specific and general deterrence and community protection, not to mention denunciation and punishment. Nor is a straight sentence open here in my view as the sentence plainly in this case must fall above 2 years and in such a setting, I am required as a matter of law to fix a non-parole period other than in the very rare circumstances as set out in the provisions of the Sentencing Act, circumstances which in no way apply here. So I am bound to fix a non-parole period.
31What I will do though is I will provide for at least the possibility of your early release by fixing a non-parole period taking into account all the matters that have been raised before me. Now I cannot speculate as to whether you will be released on parole. I must and do proceed on the footing that you will serve every day of the head sentence that I will soon pronounce and that is because I am not allowed to take into account the possibility of your release on parole. The Adult Parole Board will make that decision as to whether you can be released and that will be between you and them. It has nothing to do with me but I will arm them with the ability to at least consider your early release.
Forfeiture: Confiscations Act
32I will make the forfeiture order that is sought. I should ask directly. There is a forfeiture order that is sought in relation to the cash. I was not sure this was being raised yesterday but I am told there is no issue in terms of that. Is that so, Mr Kozlowski?
33MR KOZLOWSKI: That is so, Your Honour.
34HIS HONOUR: All right. There is an application made for forfeiture of the $1,400 cash that was found within the hotel room up at the Quest in Mildura. There is no opposition to the making of the order and I am satisfied it is appropriate to make that order under the provisions of s.33 of the Confiscations Act. I am satisfied the conditions exist to make that order. The property referred is to be forfeited to the Minister. I have signed that order.
35I would normally get you to stand up. Of course, I will not here. We are doing this down through the video link. So just remain seated please. I will pass the sentence upon you then.
Indictment
36On Charge 4, trafficking in a drug of dependence, you are convicted and sentenced to 36 months or 3 years' imprisonment. That is the base sentence.
Summary offences
37On the summary charge of failing to stop and the summary charge of drive whilst disqualified, I believe it is both open and appropriate to pass an aggregate sentence in relation to those matters. On those two charges you are convicted and sentenced to 2 months' imprisonment.
Licence order
38In addition on the fail to stop charge, all licences and permits to drive will be cancelled and you are disqualified from driving in this State for 12 months. That licence order will commence from today's date.
Cumulation
39I direct then that 14 days of the 2-month aggregate term imposed on the two summary offences is to be served cumulatively upon the base sentence.
Total effective sentence
40So those orders produce a total effective sentence of 3 years and 14 days' imprisonment.
Non-parole period.
41I fix a period of 21 months during which you will not be eligible for release on parole.
Section 18 pre-sentence detention
42You have already served 529 days of this sentence by way of pre-sentence detention, and that declaration is to be entered into the records of the court.
Section 6AAA
43I have taken into account your guilty plea. If you had pleaded not guilty and been found guilty of these offences, I would have convicted and sentenced you to a term 4 ½ years' imprisonment. I would have fixed a non-parole period of 3 years and that statement likewise is to be entered into the records of the court.
44Are there any other matters at all or not?
45MS FOOT: No.
46HIS HONOUR: All right. So that completes the matter then. I will sign the formal orders in a moment.
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