Director of Public Prosecutions v Duncan
[2016] VCC 1468
•4 October 2016
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT BAIRNSDALE
CRIMINAL JURISDICTIONCR 16-01019
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JACK ELLIOT DUNCAN |
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| JUDGE: | HIS HONOUR JUDGE STUART |
| WHERE HELD: | Bairnsdale |
| DATE OF HEARING: | |
| DATE OF SENTENCE: | 4 October 2016 |
| CASE MAY BE CITED AS: | DPP v Duncan |
| MEDIUM NEUTRAL CITATION: | [2016] VCC 1468 |
EX TEMPORE REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms N. Sheridan-Smith | |
| For the Accused | Mr J. Anderson |
HIS HONOUR:
1Jack Elliot Duncan, you have pleaded guilty to one charge of importing a commercial quantity of a border-controlled drug, which carries with it a maximum penalty of life imprisonment.
2In addition, you have pleaded guilty to four charges of being in possession of a drug of dependence, Charges 2, 3, 4 and 5, which carry with them a maximum penalty of either one year or five years, depending on whether I am satisfied whether the possession was in relation to trafficking or not.
3The circumstances where I am not so satisfied that the possession of those drugs, the subject of Charges 2 to 5, was not related to trafficking, the maximum penalty is one years' imprisonment on each of those charges.
4In addition, you have pleaded guilty to three summary charges of possessing prohibited weapons, upon each of which there is a maximum penalty of two years' imprisonment.
5By far the most serious of the offending for which you are to be dealt with today is in relation to Charge 1, importing a commercial quantity of GBL, or gamma-Butyrolactone. The commercial quantity of that drug is above one kilogram and the package that was imported by you weighed 1.1267 kilograms, thus being just over the commercial quantity.
6The circumstances surrounding that offending are that you were, at the time, 26 years of age and residing at 2/22 Hunter Street in Lakes Entrance. You lived there with your de facto, Kirsten Scott Bennett. The house you occupied was owned by your father, though he infrequently stayed there.
7On 23 June 2015, staff at the Australian Customs and Border Protection Service intercepted a parcel that had been sent from an overseas address to you. The consignee was you, Jack Duncan, of 2/22 Hunter Street, Lakes Entrance, Victoria 3909, Australia. The sender's address was given as an address in Hong Kong.
8The description of the contents was dimethicone-1, a cosmetic cream, with a purported value of five dollars. The parcel in fact contained a cardboard box which contained within it a quantity of bubble wrap and one white coloured plastic bottle, which contained the 1.138 kilograms of colourless liquid. That liquid was tested and confirmed the presence of GBL.
9A little over a week later, on 2 July 2015, a controlled delivery of a substitute package was carried out at approximately 9.52 am by an Australian police officer who was dressed as a courier driver. He attended at your premises with the package, having the substituted contents. You signed for the package and wrote the date and time on it on the delivery slip. Afterwards you remained at the premises.
10Eight minutes later, at approximately 10 am, police executed a search warrant at your premises. On entering the property through the garage entrance police officers located you in the kitchen area of an open-plan living area. Also present was your de facto partner and co-accused, Kirsten Scott Bennett, and a friend, Adam Ash, who was asleep in the bed in the ground floor bedroom.
11The controlled delivery package, which had been delivered some eight minutes earlier, was located on the top of a speaker in the open-plan lounge/living room, and had the letters "RTS" (Return to Sender) written across the label. That of course was a ruse aimed at protecting you from detection in relation to this importation. It provided you with a potential innocent explanation for you possession of that parcel and suggested an intent not to continue possession but to return the parcel to the sender, all of which of course was untrue by dent of your plea of guilty to that Charge 1.
12During the course of the search of the premises that followed, dried green vegetable matter was located on the couch that was later on analysed and revealed to be cannabis, however I accept that it was cannabis of no value to you or to anybody else. That relates to Charge 2. During the search a press-seal bag containing "Bhenazaepam" powder and a toolbox in the master bedroom were also located. That relates to Charge 3. The drug of dependence being 1,4-benzodiazepene, the very small quantity of 0.03 grams. In addition, two zip-lock bags containing acetyl-fentanyl powder located in a tool bag in the master bedroom, which is a form of fentanyl, being a drug of dependence (Charge 4), and a small bottle and syringe containing 20 mL of GBL located in the tool bag in the master bedroom (Charge 5).
13In relation to the narcotics, the subject of Charges 3 and 5, they were apparently used by you and your partner for withdrawal purposes. In all the circumstances, I am satisfied that none of the drugs of dependence, the subject of Charges 2 to 5 inclusive, were related to any trafficking by you, thus the maximum penalty, of one years' imprisonment.
14This matter was listed for trial at this sitting of the Bairnsdale County Court and due to commence either yesterday or today. However, as a result of further information disclosed to your counsel on Thursday afternoon of last week the matter resolved to a plea. The reason for that change arose from the disclosure of additional material which the prosecution had been waiting upon concerning an analysis of your computer, which further implicated you in relation to the matters before the court.
15It is plain to me that had that material been disclosed at an earlier point in time, you would have entered a plea of guilty or pleas of guilty much earlier. That is not a criticism of the prosecution, it is simply a reflection that the prosecution were not in a position to utilise that information until just prior to the commencement of the trials.
16Thus, though it cannot be said that your plea offer was at the earliest opportunity, the pleas were offered at the earliest reasonable opportunity, therefore I do not intend to disadvantage you in any regard because of the delay in those pleas being entered. I accept those pleas in two ways. One, that for the utility of those pleas, and secondly as showing some insight in relation to your offending.
17It has been conceded by the prosecution that you, having already spent 169 in custody before your release on bail, have served an appropriate period of imprisonment given your pleas of guilty. That concession I accept, particularly having regard to the fact that you have pleaded guilty, the fact that the commercial quantity is only just a commercial quantity, and the value of the border-controlled drug GBL is low, this being a relevant sentencing consideration as articulated by the Court of Appeal in DDP (Cth) v Maxwell [2013] VSCA 50.
18As to the three summary charges of possessing a prohibited weapon, two relate to swords that belonged to your grandfather and have been passed down from your deceased brother to you and one in relation to a mobile phone taser, which I accept was not operational.
19Mr Anderson, in his typically careful plea, pointed out that you are a 27-year-old man who has had significant difficulties, suffering, among other things, from foetal alcohol syndrome, which affects your cognitive abilities, and ADHD, which you were diagnosed with at the age of seven. You had a disruptive kindergarten experience which resulted in you being expelled, and attended no less than three different primary schools until your diagnosis of ADHD, which occurred when your mother moved to Mallacoota. Since that early diagnosis, you have been well-managed, sufficiently so for you to leave school at Year 10 and obtain employment in 2006.
20Your employment history is an impressive one. You first worked as a commercial fisherman, a lucrative but arduous occupation. You then turned to the mining industry between 2012 and 2014, where you developed other skills, including operating a plant at Gladstone, where you were on a salary in the vicinity of $130,000. You then moved to the Roy Hill mining operation in Western Australia, until you were retrenched in 2014-15. During that period in the mining industry, because of random drug testing, you did not use drugs of dependence but you turned to drug use in a significant way upon your retrenchment when back in Victoria. You used speed, ecstasy and ice and were introduced to fentanyl, which was a synthetic opiate, to which you developed a serious addiction which you disclosed to your sister in April 2015.
21In a most helpful letter written by your sister, Carly Duncan, which became Exhibit JD1, she writes, among other things, that you had been in the care of your mother; that your mother and father had a volatile relationship fuelled by alcohol and substance misuse:
"This was particularly bad during the time my mother was pregnant with Jack, and shortly after his birth when they separated permanently. Our father was then incarcerated for a lengthy period. Jack and myself then moved interstate with our mother whilst our older brother stayed in the care of our paternal grandparents. Whilst living interstate with minimal family support, our mother continued to heavily drink and misuse substances. At this time, she commenced a de facto relation which was also emotionally, verbally and physically abusive.
By the time Jack had commenced school, he had been exposed to many traumatic events. Jack did not cope in a school setting and was quickly diagnosed with Attention Deficit Hyperactivity Disorder, and was medicated for this. His psychiatrist also made reference to foetal alcohol effects due to our mother's heavy drinking throughout her pregnancy. Jack was sent to numerous schools and excluded from the classroom consistently, which interrupted his learning greatly.
Our father was present in our lives in between periods of incarceration and was plagued by heroin addiction, and unable to be a consistent and positive figure in our lives. Jack has had to witness our father overdose on occasions and be in states of drug-induced psychosis at other times. Our mother moved to Mallacoota in approximately 1996, and this had a tremendous benefit to Jack. He was surrounded by a small, caring community, and in my opinion, he finally felt safe and part of the family. Jack continued to struggle academically and was placed on a reduced timetable at school due to his changing behaviours and inability to concentrate. Jack left school, found work as a deckhand, and moved to Lakes Entrance when he was about 16 years old."
22A little later in the concluding two paragraphs, she writes:
"It was at this point that I came to know Jack was experimenting with drugs, and over the next few years this became more frequent. Jack has always been liked by people. He is quick-witted, has a caring nature an infectious smile. I have three children who think the world of him, and refer to him as 'Uncle Noisey', as he is generally the loudest child in the house. Prior to his drug addiction I would happily leave my children in Jack's care, knowing that they would be well cared-for, loved and safe. I have no knowledge of Jack having ever harmed another person. At his core, he is a good person.
Watching Jack's trouble with drug addiction has been heartbreaking and confronting for myself and my family. He has made poor decisions that have caused great harm to him and his loved ones. Jack understands this and is generally wanting to make better choices moving forward. He is able to speak to me at length about his hopes and dreams for the future."
23Letters such as this, written by family members, often provide the insight that sentencing judges such as myself seek, and so it is with this particular case. I accept that you are capable of making a change in your life and have made a decision not to walk in your father's footsteps. You know what that will bring, for you have seen it in your father. Incarceration for lengthier and lengthier periods of time, separation from family, the spiral of drug addiction is either broken or continues. It continued for your father, it need not continue for you. That decision entirely is one for you.
24You are fortunate to have the support of your elder sister, Carly, and you should use it. You have skills. You are quick-witted. You can make a contribution to this community, or not. As I have said, those are the decisions that only you can make.
25I am satisfied that if you continue in your decision to make good your life, rid yourself of any use of drugs for the future, your prospects of rehabilitation are good.
26The importation of border-controlled drugs by this means is all too common and the gravity of such offending is reflected in the maximum penalty of life imprisonment, which is set by the Commonwealth Parliament. Had you not pleaded guilty yet been found guilty on trial, you would have gone to gaol for a longer period than what you have already served.
27Deterring others from offending is the principal sentencing factor in relation to Charge 1. Deterring you from further offending is also a significant matter. This conduct, bringing this commercial quantity of drugs into Australia, must be denounced. In addition, it is necessary for there to be an element of just punishment in any penalty that I impose.
28You have since been placed on a 12 month community corrections order late last month in relation to possession of a drug, with conditions including 100 hours of unpaid community work, supervision, and drug and alcohol treatment.
29Whilst I cannot impose a community corrections order together with a sentence of imprisonment on Charge 1, I can release you on a recognisance release order for the same period as the community corrections order that I will impose for the remaining charges, being 3 years. This I intend to do, subject to your consent. As I have stated, on the remaining charges of possession of a drug of dependence, (Charges 2 to 5 on indictment), and the three summary charges of possession of prohibited weapons, I place you on a community corrections order for a period of three years. It would have attached to it conditions that you be under the supervision of community corrections and do unpaid community service work for 300 hours during that period of three years and that you receive treatment and rehabilitation in relation to drug use, alcohol abuse, and mental health as required.
30Stand up Mr Duncan. Are you prepared to enter into that community corrections order in relation to those charges?
31OFFENDER: Yes, Your Honour.
32HIS HONOUR: Further, in relation to Charge 1, I sentence you to be imprisoned for a period of five months. That period of imprisonment commences today. I declare in that regard presentence detention of 169 days, meaning that you do not have to serve any further period of imprisonment, having already served that five months. I will release you on a $1,000 recognisance release order for a period of three years that you be of good behaviour for that period of time.
33I state that but for your pleas of guilty, I would have imposed a custodial sentence of 18 months and set a minimum none-parole period of 12 months. Yes, take a seat, Mr Duncan. Any errors that I should correct?
34MR ANDERSON: Your Honour, in relation to the s.6AAA, my understanding, and I might be corrected on this, is that if Your Honour imposes a sentence of imprisonment of three years or less, then it has to be a recognisance release order. A parole period can only imposed for three years and above.
35HIS HONOUR: That is right.
36MS SHERIDAN-SMITH: That is my understanding as well, Your Honour, sorry.
37HIS HONOUR: Yes, so a recognisance release order commencing 12 months after today's date, is that how it is ‑ ‑ ‑
38MS SHERIDAN-SMITH: Sorry, I am just blanking. Yes, that is correct, sorry, yes.
39HIS HONOUR: Yes, see, it is all coming back to me on this. Sadly. Yes, well I will change that to a period of 18 months' imprisonment with a recognisance commencing today, with the recognisance release order taking effect after having served 12 months of that period from today's date. Does that comply with Commonwealth ‑ ‑ ‑
40MS SHERIDAN-SMITH: Yes Your Honour, that is correct.
41HIS HONOUR: Yes. How long will it take for those orders to be prepared, Mr Brown? Yes, well I will stand down whilst those matters are prepared. Anything else?
42MR ANDERSON: Sorry, one other thing Your Honour was that - did Your Honour intend for a - the section is s.48CA of the Sentencing Act, which allows Your Honour to direct that completion of mental health, drug and alcohol programs be recognised.
43HIS HONOUR: Yes, that is right. I had forgot to mention. As to that 300 hours, I indicate that under section ‑ ‑ ‑
44MR ANDERSON: Section 48CA.
45HIS HONOUR: Section 48CA of the Sentencing Act ‑ ‑ ‑
46MR ANDERSON: "The court may determine that some or all of the hours satisfactorily undertaken for treatment and rehabilitation be counted as hours of unpaid community work, so ‑ ‑ ‑
47HIS HONOUR: Is that under the Sentencing Act?
48MR ANDERSON: Yes.
49HIS HONOUR: And then I will specify that the number of hours is 150.
50MR ANDERSON: Yes.
51HIS HONOUR: Thank you for reminding me about that, Mr Anderson. Anything else?
52MS SHERIDAN-SMITH: No, Your Honour.
53HIS HONOUR: Well, I thank you both for your assistance. And sensible resolution of this matter.
54MS SHERIDAN-SMITH: May it please the court.
55HIS HONOUR: Yes, well I will just stand down whilst the documentation is prepared.
56(Short adjournment.)
57MS SHERIDAN-SMITH: Apologies for appearing partially robed, Your Honour, I thought we had completed the proceedings today, I apologise.
58HIS HONOUR: Yes, where were we up to? Yes, there is the community corrections order, if counsel would look at it and see that it is correct? Stay there, Mr Duncan. Understand Mr Duncan, if you breach this community corrections order, or are not of good behaviour for the three-year period, you will be brought back, not before a Magistrate, not before any other County Court judge, you will be brought back before me, do you understand?
59OFFENDER: Yes, Your Honour.
60HIS HONOUR: So when in doubt, do not. Do not follow the footsteps of your father. You have got a bright future ahead of you. Use it. Yes. Thank you, you may stand.
61OFFENDER: Thank you, Your Honour.
62HIS HONOUR: I will excuse counsel and solicitors from the Bar table.
63MS SHERIDAN-SMITH: May it please the court.
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