Director of Public Prosecutions v Donnes
[2021] VCC 1662
•22 October 2021
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-21-01176
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| CHRISTOPHER DONNES |
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JUDGE: | HIS HONOUR JUDGE DEAN | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 15 October 2021 | |
DATE OF SENTENCE: | 22 October 2021 | |
CASE MAY BE CITED AS: | DPP v Donnes | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1662 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Trafficking in a drug of dependence - Trafficking simpliciter - Middle range of seriousness - Possession of a drug of dependence - Possessing counterfeit money - Dealing with property reasonably suspected of being the proceeds of crime - Knowingly possessing identification information of another person - Unauthorised possession of Schedule 4 poison
Early plea of guilty at committal mention - Extensive relevant criminal history - Undercover police operation - General deterrence - Polysubstance abuse disorder
Legislation Cited: Drugs, Poisons and Controlled Substances Act 1981; Crimes (Currency) Act 1981 (Cth); Crimes Act 1958
Cases Cited: N/A
Sentence: Total effective sentence – Imprisonment of 5 years with a non-parole period of
3 years and 6 months – s.6AAA declaration – Imprisonment of 7 years with a non-parole period of 5 years
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr M. R. Wilson | Office of Public Prosecutions |
| For the Accused | Ms F. Fox | Balmer & Associates |
HIS HONOUR:
1 Christopher Jeffrey Donnes, you have pleaded guilty to the following charges –
(i)
Three charges of trafficking in a drug of dependence, contrary to
s 71AC(1) of the Drugs, Poisons and Controlled Substances Act 1981 (the Act). The maximum penalty for that offence is fifteen years imprisonment or a fine of 1800 penalty units or both. Each of these charges is a rolled-up charge, a procedure adopted with your consent, that permits the court to have regard to the overall offending encompassed by the charge but constrained by the maximum penalty for a single offence;
(ii)
Four charges of a possession of a drug of dependence contrary to
s 73(1) of the Act. In relation to each of these charges your counsel did not seek to persuade the court that the offence was not committed for any purpose related to trafficking in a drug of dependence and accordingly the maximum penalty for that offence is five years imprisonment or a fine of 600 penalty units or both;
(iii)
One charge of knowingly possessing counterfeit money, contrary to
s 9(1)(a) of the Crimes (Currency) Act 1981 (Cth). The maximum penalty for that offence is 10 years imprisonment or a fine of 600 penalty units.
2 You have also pleaded guilty to the following related summary offences –
(i) One charge of dealing with property reasonably suspected of being the proceeds of crime contrary to s 195 of the Crimes Act 1958. The maximum penalty for that offence is two years imprisonment or a fine of 240 penalty units or both;
(ii) One charge of knowingly possessing identification information of another person, contrary to s 192C of the Crimes Act 1958. The maximum penalty for that offence is three years imprisonment or a fine of 360 penalty units or both; and
(iii) One charge of unauthorised possession of a schedule 4 poison, contrary to s 36B(2) of the Act. The maximum penalty for that offence is a fine of 10 penalty units. This is also a rolled-up charge.
3
You pleaded guilty at committal mention on 28 April 2021 and following an application for the matter to be heard summarily, which was refused on
3 June 2021, you were committed for plea and sentenced in this Court. Yours is an early plea of guilty and it has facilitated the administration of justice during the COVID-19 pandemic. I accept that it is also evidence of some remorse for your offending and it is a high value plea of guilty which I have taken into account in your favour in mitigation of sentence.
4 You have admitted an extensive criminal history dating to 2008 for a range of offences including trafficking amphetamine, possession of a range of drugs of dependence, dishonesty offences, weapons offences, and serious traffic offences. Community-based sentencing dispositions intended to support your rehabilitation have been repeatedly breached by you and you have continued to re-offend.
5 A prosecution opening was tendered in evidence and your offending may be summarised as follows -
6 Between 21 August 2020 and 2 October 2020, undercover police made six evidentiary purchases from a drug trafficker that they were investigating. The trafficker introduced the investigators to you, and on 2 October 2020 the trafficker in company with the investigators purchased 7 grams of heroin from you in Bundoora for $3,500.
7 Following this transaction, the investigators conducted surveillance of you and observed you attending Kennards Self Storage in Thomastown on 5 October 2020. CCTV footage retrieved from Kennards revealed you attending a storage locker you had rented on numerous occasions between May and October 2020.
8 On 13 October 2020, police executed a search warrant at your home in Bundoora, and there recovered a substantial quantity of drugs of dependence, cash, and other items, including records kept by you in the course of your business as a drug trafficker.
9 Later that day investigating police executed a further search warrant at the storage unit in Thomastown. Located in the unit were further quantities of drugs of dependence, cash and other items used by you in the course of your business as a drug trafficker. A list of the drugs and other items located at Bundoora and Thomastown are listed in the prosecution opening and I do not propose to revisit them in these reasons
10 Following execution of the warrant, you were interviewed by the investigators and you denied your offending and claimed you had been set up. An analysis of your mobile telephone revealed numerous text messages sent and received by you in relation to drug trafficking.
11
Charge 1 on the indictment concerns 64.4 grams of heroin mixture, 7.1 grams of which was sold by you to the undercover police and the balance of
57.3 grams which was located in the storage unit in Thomastown.
12 Charge 2 on the indictment concerns 1,799.2 grams of 1/4 Butanediol located at your premises in Bundoora and at the storage unit in Thomastown.
13 Charge 3 on the indictment concerns 118.5 grams of methylamphetamine mixture, 94 grams of which was pure methylamphetamine, located at your premises in Bundoora and at the storage unit in Thomastown. Whilst you have not pleaded guilty to trafficking a commercial quantity of that substance, it is notable that a commercial quantity of pure methylamphetamine is 50 grams.
14 Charge 4 concerns the possession by you in the storage unit in Thomastown of a total of 2 grams of cocaine mixture, being approximately 1.4 grams of pure cocaine.
15 Charge 5 concerns the possession by you at the storage unit in Thomastown of a total of 2.5 grams of MDMA mixture of which 1.1 grams was pure MDMA.
16 Charge 6 concerns your possession at the Bundoora property of a quantity of cannabis. It is accepted by the prosecution that the quantity is under 50 grams.
17 Charge 7 concerns the possession by you of a number of drugs of dependence including lorazepam, diazepam, oxycodone, amphetamine and alprazolam.
18 Charge 8 concerns possession by you of two counterfeit $50 notes.
19 Related summary offence 19 concerns the possession by you of $21,030 in cash.
20 Related summary offence 34 concerns the possession by you of a USB stick containing the identification of another person.
21 And related summary offence 36 concerns the possession by you of a number of schedule 4 drugs listed in the prosecution opening.
22 As I have already observed, it is plain from this summary and the contents of the prosecution opening that, at the time of your apprehension, you were engaged in the business of drug-trafficking in a range of illegal drugs of dependence for profit.
23 Whilst you are to be sentenced on the basis of the specific facts relied on in support of the specific charges, these were not one-off transactions or events, as the facts reveal you had been in the business of drug trafficking for some months.
24 It has been repeatedly stated by the courts that persons engaged in this illegal activity must expect the imposition of a substantial term of imprisonment upon conviction. Whilst it appears that you were a drug user at the relevant time, this was not trafficking to support that dependency. You were engaged in this destructive business for financial reward and this sentence must be calculated to protect our community from persons such as you who are prepared to traffic these substances for profit.
25 General deterrence is a prominent sentencing consideration in cases such as this. And as you have prior convictions for trafficking in a drug of dependence and possession of a drug of dependence, you must also be deterred from reoffending yourself.
26
Illegal drugs of dependence cause incalculable damage to individuals and to our community; you must also be punished for your role in that damage. Whilst your crimes were not sophisticated, in my opinion this does not moderate the seriousness of your offending to any significant degree. I am satisfied on the basis of the agreed facts before the court and, in particular, by your sale of
7 grams of heroin to the drug trafficker (or to the police introduced to you by the drug trafficker) for the sum of $3,500, that your offending is in the middle range of seriousness for offending of this nature.
27 I now turn to your personal circumstances -
28 You were born in Port Hedland, Western Australia in May 1986 and are now aged 35. Your parents reside overseas and you have little or no contact with them. You have two siblings with whom you have no contact and you have no children.
29
At the time of your offending, you were residing with your partner of 12 years. You were educated to Year 9 level in Western Australia and when your family moved to Victoria you were then educated at Whitefriars College until
Year 11.
30 You are a qualified carpenter having undertaken apprenticeship and trade school. You developed polysubstance abuse disorder in your early teens, and, with the exception of a period of abstinence of two years during your 20s, this disorder has been a significant health issue for you.
31 I also accept that your criminal history is linked to your history of drug addiction. However, as I have already observed your offending was not primarily driven by that disorder. It was on a scale considerably in excess of trafficking to support your addiction. I accept that prior to your incarceration in relation to these offences, your life lacked any pro-social structure. And this too, in part, is linked to your criminal history.
32 Your counsel informed me that your imprisonment, which is your first experience of incarceration, has led you to reassess your circumstances. You are now in receipt of methadone for your drug addiction and have undertaken a number of courses in custody, with a view to securing stable employment upon your release.
33 Whilst these matters are very much to your credit, in my opinion your prospects of rehabilitation are to be approached with a degree of caution. And, as I have previously stated, specific deterrence is an important sentencing consideration in this case.
34 You have been in custody during the COVID-19 pandemic and I accept that this has increased the hardship of imprisonment upon you. Although, as I have said, whilst in custody you have been able to complete a number of vocational courses.
35 Your counsel relied upon a number of decisions of the Victorian Court of Appeal in relation to sentences imposed in cases involving so called trafficking simplicita. I have had regard to these decisions in formulating the appropriate proportionate sentence in relation to each of the charges that you have pleaded guilty to.
36 In the result, the sentence of the court is as follows –
37 On Charge 1, you are convicted and sentenced to be imprisoned for 2 years and 6 months.
38 On Charge 2, you are convicted and sentenced to be imprisoned for 2 years.
39 On Charge 3, you are convicted and sentenced to be imprisoned for 3 years and 3 months.
40 On Charge 4, you are convicted and sentenced to be imprisoned for 6 months.
41 On Charge 5, you are convicted and sentenced to be imprisoned for 6 months.
42 On Charge 6, you are convicted and sentenced to be imprisoned for 1 month.
43 On Charge 7, you are convicted and sentenced to be imprisoned for 3 months.
44 On Charge 8, you are convicted and fined $500.
45 In relation to summary offence 19, you are convicted and sentenced to be imprisoned for 3 months.
46 In relation to summary offence 34, you are convicted and sentenced to be imprisoned for 1 month.
47 In relation to summary offence 36, you are convicted and fined the sum of $500.
48
The sentence imposed on Charge 3 is the base sentence. I direct that
6 months of the sentence on Charge 1, 6 months of the sentence on
Charge 2, 3 months of the sentence on Charge 4, 3 months of the sentence on Charge 5, 1 month of the sentence on Charge 7, the entire sentence on Charge 4 (that is one month), and 1 month of the sentence on Charge 19 are to be served cumulatively on each other and cumulatively on the sentence imposed on Charge 3.
49 This makes for a total effective term of imprisonment of 5 years.
50 I direct that you serve 3 years and 6 months before becoming eligible for release on parole.
51 I declare that you have served 372 days by way of pre-sentence detention, not including today.
52 But for your plea of guilty, I would have imposed a total effective term of imprisonment of 7 years and fixed a non-parole period of five years.
53 I will also make the ancillary orders sought by the prosecution.
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