Director of Public Prosecutions v Duff

[2024] VCC 1003

$53,890

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

 Revised
Not Restricted
 Suitable for Publication

Case No.CR-23-00175

DIRECTOR OF PUBLIC PROSECUTIONS	Prosecution
v
SILIVA DUFF	Defendant

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JUDGE:	HER HONOUR JUDGE GWYNN
WHERE HELD:	Melbourne
DATE OF HEARING:	3 July 2024
DATE OF RULING:	3 July 2024
CASE MAY BE CITED AS:	DPP v Duff
MEDIUM NEUTRAL CITATION:	[2024] VCC 1003

SENTENCE

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Subject:Criminal law

Catchwords:              Possess drug of dependence; prohibited person possess firearm; deal with property suspected of being proceeds of crime

Legislation Cited:      Sentencing Act 1991

Cases Cited:

Ruling:  Total effective sentence of six months’ imprisonment and a $500 fine

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Ms J. Fayman	Jordana Fayman Lawyers
For the Respondent	Mr B. Nibbs	Office of Public Prosecutions

HER HONOUR:

1Siliva Duff, you have pleaded guilty on indictment to charges of possess drug of dependence and prohibited person possess firearm.

2You have also entered a guilty plea to two related summary offences of dealing with property said to be the proceeds of crime, being $53,890 in cash for summary charge 9 and a Mercedes sedan and four motorcycles as a rolled  charge for summary charge 10.

3In sentencing you for your crimes, I am obliged to consider the maximum penalties for each of the offences to which you have entered your guilty pleas. Those maximum penalties reflect the seriousness with which Parliament regards each offence and are as follows:

(a)Possess drug of dependence – 1 year or 5 years' imprisonment depending on whether I am satisfied on the balance of probabilities that the possession was not for the purpose of trafficking;

(b)Prohibited person possess firearm – 10 years' imprisonment; and

(c)Deal with property suspected to be the proceeds of crime – 2 years' imprisonment.

4The circumstances of your offending are set out in a document entitled 'Prosecution Opening for Plea' dated 28 June 2024. This is an agreed document and reflects your admission of each of the elements of the offences to which you have pleaded guilty, as well as the factual basis on which I am to sentence.

5In brief compass, on 30 March 2022 Police attended a premises located in Totem Way, Point Cook at around 3:15 pm in possession of a search warrant. They had been investigating the sale of methylamphetamine in the Warrnambool area and the address at which you were residing had become a point of interest. 

6You were the only person located in the house and told Police that you leased the premises from a friend’s mother. You were given a copy of the search warrant.

7You were escorted to the living room and, whilst sitting on the couch, Police noticed that you were continually looking at the coffee table in front of you. Senior Constable Stevens noticed a compartment under the top of the table hidden by side panels and asked you how to open it. You told him that you did not know. As Senior Constable Stevens continued to try to open the compartment you told him that you had approximately $40,000 hidden inside.  Police located $53,890 inside the compartment, the subject of summary charge 9, deal with property suspected to be the proceeds of crime.    

8On executing the search warrant, police otherwise located:

(a)   A silver C 63 AMG Mercedes in the garage the subject, in part, of summary charge 10 – deal with property suspected to be the proceeds of crime. This vehicle displayed registration plates which were registered to a different vehicle and the front passenger side Vehicle Identification Number (VIN) did not match the driver's side door. An invoice in your name was located inside the vehicle, as were a clear plastic bag containing white powder and a black silicon balloon containing an unknown powder.

(b)   Subsequent analysis of the white crystals and powder seized from inside the vehicle were forensically examined and weighed approximately 2.1 grams of methylamphetamine forming the basis for charge 1 on the indictment - possess drug of dependence.

(c)   Four motorcycles were also located in the garage. These are also part of the rolled-up summary charge 10.

9Also located by Police was a hidden cavity inside the garage where various items were located. These included a shotgun. On subsequent forensic analysis of that item, a mixed DNA profile with four contributors was located on the trigger/trigger guard. The DNA evidence was 27,000 times more likely if you were one of the contributors. These facts form the basis for charge 2 on the indictment -prohibited person possess a firearm. It is the prosecution case that sometime between 1 September 2021 and 30 March 2022 you possessed that firearm, and that you were a prohibited person at the time..

Offence gravity

10The charge of possess drug of dependence is relatively minor, the possession was of 2.1 grams of methylamphetamine in total. Whilst you do have a relevant prior history, I have no reason not to accept that it was for anything other than your own use.

11Being a prohibited person in possession of a firearm is a serious offence. There needs to be a clear message sent to the community that the possession of weapons by offenders, who have no right to do so, is not something which will be tolerated.

12In your case, the firearm charge is put on a particular basis, that is, that at some time between the dates alleged, you were in possession of the firearm which was during a period when you were declared a prohibited person. Whilst you possessed it at some stage between those dates - noting your DNA is said to be present on the trigger of the firearm - it could not be said that your possession was anything more than fleeting, that the firearm was loaded at the time, that your possession was in connection with any other crime or that joint possession could be excluded, in fact joint possession is supported by the four contributors to the DNA. This accepted position lessens the objective gravity of this offence.

13In terms of the summary offences of deal with property suspected to be the proceeds of crime, each charge is put on the basis that you knew of the presence of each item of property and had access to each item given each was located at premises at which you were residing and renting. Your instructions that your friend, from whose mother you rented the premises, also had access to the property and items seized is not disputed. It is accepted by you that there were reasonable grounds for suspecting each item was the proceeds of crime.  These were all high value items and there appears to be a closer connection between you and the cash and you and the Mercedes Benz than there is to the four motorcycles.

Plea of guilty

14The Sentencing Act 1991 obliges me to take into account the stage at which you entered your guilty pleas.

15You accepted a sentence indication given by me on 25 June 2024. Sentence indication is a process which permits a judicial officer to give a defendant an indication of the sentence that would be likely to be imposed if the defendant pleaded guilty at that stage of the proceedings. A sentence indication process can resolve some concerns about the likely sentence that may be causing a defendant to defer entering a guilty plea or otherwise electing to proceed to trial.  

16You were otherwise facing a trial which was due to commence on 24 July 2024.  The charges, facts and circumstances as agreed for the purpose of the sentence indication and for today’s plea hearing represent a considerable amelioration of what you were otherwise facing. In that sense, your plea has occurred in an early time frame.

17Your plea has saved the court the time and expense of contested proceedings and has saved witnesses of the need to give evidence and has utilitarian value.

18Whilst there is no direct evidence of remorse, you have taken responsibility for your offending.

19These matters will be taken into account in your favour.

Personal circumstances

20

You are now aged 37 years. Your personal circumstances have been gleaned from written submissions filed at your sentence indication hearing, a report of

Ms Carla Lechner, psychologist, dated 5 July 2019, and Reasons for Sentence of His Honour Judge Wraight.

21Your mother, Leonie Morgan, is Koori, and your father, Siliva Duff, was of Tongan heritage.

22You grew up in commission flats in Port Melbourne and in the Rowville area.

23Your parents separated when you were two to three years of age and you only had very limited contact with your father. 

24You have four half siblings on your mother’s side and three half siblings on your father's side.

25You attended three primary schools and two secondary schools largely related to your family having to relocate numerous times. Your mother re-partnered a number of times after her relationship with your father and the family home was one in which both you and your mother were the victims of family violence, particularly when your siblings had left.

26I accept that your formative years were difficult and one in which you faced considerable adversity.

27

On leaving school, you commenced but did not finish a real estate course. You began work as a casual labourer in a factory. At the time of speaking to

Ms Lechner, you estimated that you worked about 50 per cent of the time since leaving school with the longest job you held being for a period of some 18 months in a factory.

28You suffered a number of workplace injuries around 2010 and now have a metal plate in your hand.

29From 2012, you had some work in the music industry, touring with a well-known rap artist in 2015.

30It was after your workplace injury that you began to abuse alcohol and amphetamine-based substances.

31The murder of your brother, James, in  2014, in what was described as a drug deal gone wrong exacerbated your use. This matter was not prosecuted until 2018, which continued your distress at that event. Your father died the same year from a brain tumour.

32Ms Lechner’s report would indicate that you presented with Stimulant Use Disorder and symptoms of Post Traumatic Stress Disorder resulting from the loss of your brother. Your use of drugs was to regulate your negative emotions.

33You did do a residential drug rehab program in 2018 but it would appear that you returned to drug use.   

34You are a father. Your child is approximately 16 years of age. You maintain a good relationship with your ex-partner, Ruby, and have been able to see each of them whilst you have been in custody.

35You have been in a relationship with Monica for some 15 years but have no children together. I am told this is a supportive relationship.     

Prior criminal history

36Your prior criminal history is also part of your personal circumstances. Yours spans some 16 pages of criminal record between the years 2005-2020 and some 15 court appearances.

37Your criminal history started with driving offences which included charges of driving whilst disqualified, exceeding the prescribed concentration of alcohol, using an unregistered motor vehicle and speeding offences. Such offences litter your history overall.

38You also have a history of dishonesty which includes offences of obtaining financial advantage by deception, theft, obtain property by deception, handle stolen goods and dealing with property suspected to be the proceeds of crime.

39You have a history which includes drug trafficking, drug cultivation and drug possession and weapon possession, albeit not for being a prohibited person possessing a firearm.

40You have had breaks in your offending history and it would appear that it has escalated since the death of your brother. Your history also demonstrates difficulty complying with court orders as you have a recorded history for offences against the Bail Act and contravening Community Correction Orders.  

41You received your first gaol sentence on 9 August 2019 for offences of obtaining property by deception, obtaining financial advantage by deception, handling stolen goods, attempting to obtain financial advantage by deception and committing an indictable offence whilst on bail. The County Court sentenced you to 18 months' imprisonment with 12 months to be served before you were eligible for parole. 

42You received a further four months imprisonment from the Broadmeadows Magistrates Court on 9 January 2020 for a range of offending which included offences of dishonesty, drug possession, weapon possession and breach of a Community Correction Order.    

43Whilst not to be punished for your criminal history a second time, it is relevant to assessing your moral culpability, the weight to attach to specific deterrence, denunciation and the need for protection of the community. It is also a mechanism to assess your future prospects which, at this stage, would appear somewhat guarded.   

Prospects for rehabilitation

44You have now been on remand for some 433 days.

45The hearing in the County Court in 2019 was before His Honour Judge Wraight and took place in the Koori Court. You maintain an interest in your Koori heritage. I am told that you completed parole before this offending was committed.

46I accept that you are well supported by family and maintain relationships with your mother, ex-partner, son, current partner and a number of your siblings.

47Tendered at your sentence indication was an undated letter authored by your brother, Salesi Leveni, which had been prepared for another sentence indication held on 13 May 2024 before another judge in relation to a charge of culpable driving. Salesi was present for your sentence indication before me. His letter comments on the abuse and violence which he and you were exposed to when you were young and how you were never able to feel safe. You were deeply affected when your brother James was murdered in 2014. This event Salesi sees as escalating your drug use and contact with the criminal justice system and this would appear to be supported by the materials before me. He has also seen you as a supportive brother and offers his continued support of you.   

48As referred to earlier, you presently await trial for charges of culpable driving alleged to have been committed 2 March 2023 so perhaps there is a long road ahead. You were remanded on that day in relation to that matter.

49I am just checking with either of you whether there are any factual errors you need to bring to my attention.

50COUNSEL:  No, Your Honour.

51HER HONOUR:  No.  That's a no from both parties, thank you.

Sentencing

52The basic purposes for which a court may impose a sentence are punishment, general and specific deterrence, rehabilitation, denunciation and protection of the community. In sentencing you, I must have regard to a range of matters such as the seriousness of the offending, your culpability for it, your personal circumstances and those of any victim.

53I must also balance the interest of the community in denouncing criminal conduct with the interest of the community in seeking to ensure, where possible, that offenders are rehabilitated and reintegrated into society.

54I have taken into account the sentencing guidelines referred to in section 5 of the Sentencing Act 1991 where relevant to your case. I have taken into account current sentencing practices for the offences to which you have pleaded guilty and the principles of totality and proportionality.  

55I have taken into account the sentence indication given and your acceptance of that indication.

56On charge 1 – possession of a drug of dependence, you are convicted and fined $500.

57On charge 3 – prohibited person possess firearm, you are convicted and sentenced to four months' imprisonment. This is the base sentence.

58On the summary charges of dealing with property suspected to be the proceeds of crime, you are convicted and sentenced to two months' imprisonment for each charge, one month of each is cumulative on the other and on the base sentence.

59Your total effective sentence is therefore one of six months' imprisonment. I take into account 433 days reckoned as already served. 

60Section 6AAA of the Sentencing Act requires me to state the sentence I would have imposed had you not pleaded guilty to the charges, that only really references  charge 3 and the summary matters, if not for your pleas of guilty, you would have been sentenced to 10 months' imprisonment.

61Whilst I am remembering to do things, the submissions filed on behalf of Mr Duff are D1; the report of Ms Lechner dated 5 July 2019 is D2; the letter authored by Mr Duff's brother is D3; and I will not tender the sentencing reasons of Judge Wraight but they were clearly made available to me. 

62I will also vacate the trial date of 24 July 2024.

63Any other matters?

64COUNSEL:  No, Your Honour.

65HER HONOUR:  Thank you to each of you for assistance, much appreciated, and the hard work of your instructor, Mr Nibbs, which was greatly appreciated. You can thank yourself, Ms Fayman, for your hard work.  I will stand down now, thank you.

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NOTE: This matter was subject to an application under s104A(1)(a)(ii) of the Sentencing Act 1991 on 18 July 2024. This application was granted and the pre-sentence detention declaration was amended to 180 days.