Director of Public Prosecutions v Elliott
[2022] VCC 2326
•13 October 2022
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 22-00211
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MITCHELL ELLIOTT |
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| JUDGE: | HIS HONOUR JUDGE LAURITSEN |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 4 October 2022 and 13 October 2022 |
| DATE OF SENTENCE: | 13 October 2022 |
| CASE MAY BE CITED AS: | DPP v Elliott |
| MEDIUM NEUTRAL CITATION: | [2022] VCC 2326 |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Two charges of trafficking in a drug of dependence – four charges of possessing a drug of dependence – one charge of handling stolen goods – related summary offences – no prior criminal history - purposes of general deterrence, specific deterrence, denunciation and protection of the community relevant – excellent prospects of rehabilitation – high moral responsibility – operation of s16(3C) of sentencing act
Legislation Cited: Sentencing Act 1991
Cases Cited: Worboyes v R [2021] VSCA 169
Sentence:243 days imprisonment and a Community Correction for three years
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr N. Goodenough | Office of Public Prosecutions |
| For the Accused | Mr C. Farrington | Tony Hannebery Lawyers |
HIS HONOUR:
Introduction
1Mitchell Elliott, you have pleaded to two charges of trafficking in a drug of dependence, four charges of possessing a drug of dependence and one charge of handling stolen goods.
2You have also pleaded guilty to charges of dealing with property suspected of being the proceeds of crime, possessing a prohibited weapon and committing an indictable offence while on bail.
Circumstances
3The circumstances of your offending are set out in the document, ‘Summary of Prosecution Opening for Plea’, which is Exhibit A. Your counsel agrees with its contents.
4On 18 June 2021, police members entered apartment B04 at 57 Flinders Lane, Melbourne. You had booked that apartment from 1 June to 23 June 2021.
5The police members found you and two others in the kitchen. In the dining room, they found drugs on the table and floor. There was 259.3 grams of cocaine, of which 208.7 grams was of 18 percent purity, and 50.5 grams of 51 percent purity. These circumstances, especially the amount of the drug, constitutes Charge 1, trafficking in a drug of dependence, being cocaine.
6Also on the dining room floor, they found five bottles of Xanax tablets and about 80 loose Xanax tablets in small boxes. This constitutes Charge 2, possession of Alprazolam or Xanax.
7They also found a bottle containing a liquid. The liquid proved to be 1,4 Butanediol, a common substitute for GHB. The weight of the liquid was 178.7 grams. The trafficable quantity is 50 grams. This constitutes Charge 3, trafficking in 1,4 Butanediol.
8Again on the dining room floor was a Ziploc bag containing 1 gram of Ketamine. You were standing near this bag. This constitutes Charge 4, possession of Ketamine.
9On the kitchen table there was a 250 millilitre vial of testosterone and five similar vials were found in the refrigerator, all containing testosterone. This constitutes Charge 5, possessing testosterone.
10In your bedroom, the police found two bank cards and an identification card in the names of persons other than you. This constitutes Charge 6, dishonestly retaining stolen goods.
11Near the dining room table, in a satchel, the police found 87 tablets in two bags. The weight of the tablets was 18.1 grams and were MDMA.
12The police found a total of $8,912.85 in notes and coins near the dining table. This constitutes the summary charge of dealing with property suspected of being the proceeds of crime, being Charge 12.
13On the kitchen bench, they found a flick knife. This constitutes summary charge 13, a charge of possessing a prohibited weapon.
14At the time of your offending on 18 June 2021, you were on bail. This constitutes summary charge 23, committing an indictable offence while on bail.
15Following your arrest, you were interviewed. Your answers were largely unhelpful to the police in investigating and prosecuting this matter.
Criminal History
16Prior to these offences, you had no criminal history. After the commission of these offences, on 3 May 2022, you were placed on a community correction order for drug trafficking offences. The duration of the order is two years. The order contained conditions as to unpaid community work, supervision, drug abuse or dependency, mental health and judicial monitoring. As to the last condition, I read the judicial monitoring report dated 25 July 2022.
17Unusually, in my experience for someone facing such serious charges and with your background, the report is unreservedly favourable. So much so, the author of the report recommended the removal of the condition. Whether it was removed or not, no further judicial monitoring hearings have occurred since the first.
Pre-Sentence Detention
18Before being granted bail you spent 243 days in custody.
Personal Circumstances
19You are now 36. You were born and raised in Albury. You have a younger brother. Until three years ago, your parents lived together. The fact of their separation has affected you significantly. You remain close to your mother.
20At present, you are living with your mother in Albury. However, you are contemplating moving to South Yarra to live with your family.
Education
21After completing Year 12 you studied for a Bachelor of Teaching degree for two years before transferring to a Bachelor's Degree in Accounting. You completed three of the four years of that course.
Employment
22You have worked in various jobs including a payroll officer and installing roller doors. You are employed in your father's cabinet making business. However, while the condition of your heart remains uncertain, you are working reduced hours.
Relationships
23You were married at 21 but the marriage broke down in the following year.
24You formed another relationship when you were 30. The relationship lasted two and a half years. For most of the time you were together, you did not use drugs. However, your parents' separation saw your return to drug usage and the relationship broke down.
25During the past 18 months, you had another partner, Maria. However, you are no longer in that relationship.
Drugs
26You used cannabis from 18 but stopped after a few years due to its side effects. You used ecstasy between 20 and 22. You started using cocaine, methamphetamine and amphetamine from 22 and GHB and Xanax from 23. You used steroids from 21 to 33. Your use of steroids was monitored by your mother-in-law who was a pharmacist.
Health
27At 33, you first suffered a heart attack. In June and July of this year, you suffered further heart attacks. The latter was more serious, resulting in a two-day inpatient admission to a hospital.
28According to Rick Martin, a general practitioner, you have significant heart issues. Apart from the heart attacks and the insertion of a stent at some stage, you suffer from coronary heart disease and what Dr Martin vaguely describes as 'cardiac failure/impairment'. Although Dr Martin gives no prognosis, and for someone only 36, the state of your heart appears poor.
Psychologist
29Gina Cidoni is a psychologist. At the request of your solicitor, she interviewed you on 2 February 2022.[1]
[1] Report dated 22 February 2022 although incorrectly stated to be 2021
30Using standardised tests and the results of her interview with you, Ms Cidoni considered:[2]
‘The ending of his football career in his teenage age years breakdown of his marriage at age 22 had a cumulative effect and sent him on a downward spiral. The breakdown of his parent's marriage in stressful circumstances and other psychosocial stressors has resulted in a major relapsing condition.’
[2] Report at [60]
31Ms Cidoni diagnosed three recognised psychological disorders related to depression, anxiety and stress and a drug disorder. The symptoms of the three disorders were untreated except by your use of illicit drugs.
32Ms Cidoni recommended psychological intervention, individual psychotherapy and skills training and treatment for your drug addiction.
33In relation to your drug addiction, in September 2022, you attended four appointments at Gateway Health for standardised counselling with a drug counsellor.[3]
[3] Letter dated 28 September 2022
Sowden
34Susette Sowden is a clinical and forensic psychologist. In February 2022, you were referred to her by your general practitioner under a mental health treatment plan.[4] By 3 October, she had seen you on four occasions.
[4] Report dated 3 October 2022
35She diagnosed you as suffering from Attention Deficit Hyperactivity Disorder, which she described as a combined type including an inattentive type and a hyperactive/impulsive type. She also diagnosed a substance abuse disorder.
36As to your progress, Dr Sowden said:[5]
‘Mr Elliott is currently presenting as being in remission in relation to his Substance Dependence Disorder and is currently in the therapeutic process of understanding his ADHD, Combined Type. He is actively seeking clinical psychological treatment to enable him to manage the symptoms of this condition as a way of ensuring he continues to have a low risk of recidivism. He is already benefiting from strategies to address his tendency to have difficulties with attention and his difficulties with impulsivity and emotional ability along with hyperactivity and restlessness. He is also aware of the importance of his continuation with drug and alcohol counselling.’
[5] Report at page 2
Discussion
37Section 5(1) of the Sentencing Act 1991 sets out the purposes of sentencing. All those purposes are relevant in your case. The purposes of general deterrence, specific deterrence, denunciation and protection of the community from you are relevant, especially in relation to the trafficking charges. The material presented on your behalf goes to the issue of rehabilitation. In that regard, I must say your prospects of rehabilitation are excellent provided you continue receiving professional help. Your efforts during 2022 give me considerable confidence that you will do so. I dare say your first-time experience of imprisonment, in a time of significant restrictions, has helped you to address your problems.
38Section 5(2) of the Sentencing Act sets out matters, were relevant, which I must consider in sentencing you.
Maximum Penalties
39The maximum penalties for the offences are:
(a) trafficking in a drug of dependence – 15 years' imprisonment;
(b) possession of a drug of dependence – 5 years' imprisonment;
(c) handling stolen good (which includes retention) – 15 years' imprisonment;
(d) dealing with property suspected of being the proceeds of crime – two years' imprisonment;
(e) possessing a prohibited weapon – a fine of 240 penalty units or two years' imprisonment; and
(f) committing an indictable offence while on bail – 30 penalty units or three months' imprisonment.
Gravity
40As your counsel pointed out, all of the offending occurred on the same day.
41With the charge of trafficking of cocaine, the police found 259.3 grams of cocaine consisting of 208.7 grams of 18 percent purity, and 50.5 grams of 51 percent purity. This amount was well above the threshold for a trafficable quantity and halfway to the threshold of a commercial quantity. The penalty for trafficking in a commercial quantity is 25 years' imprisonment.
42Somewhat similarly, the trafficking 1,4 Butanediol was well above the trafficking threshold although well short of the commercial quantity.
43Apart from the related summary offences, the other offences are relatively minor examples of each.
Moral Responsibility
44The potential harm to others through your trafficking of cocaine and 1,4 Butanediol is significant. Your moral responsibility is high.
Guilty Pleas
45Your guilty pleas were made at the earliest reasonable opportunity in the justice process which starts with the laying of the charges and ends with a trial in this Court. They have the usual utilitarian benefits from the criminal justice perspective. They have the additional benefit identified in the case of Worboyes v R[6]. Overall, they enable you to obtain a significant discount on the sentences which would be imposed if you had not pleaded guilty to the charges but had been found guilty after a trial.
[6] [2021] VSCA 169
Co-accused
46What happened to one of your co-accused, being a disposition called diversion, causes me to have no regard to it. Plainly, the circumstances between you and her were vastly different. I understand the situation of the other co-accused is unknown and possibly unresolved in any event.
CCO Assessment
47On 5 October 2022, you were assessed in relation to a community correction order. I have received the assessor's report. You are assessed as a medium risk of reoffending. The assessor said you are suitable for a community correction order and recommended four conditions in the order including supervision.
48You are already the subject of a community correction order, which expires on 2 May 2024. According to your case manager, you are making 'a lot of progress' on the order.
49As part of the assessment for a community correction order, on 11 October, you were assessed by Gregory Lane, who is part of the Mental Health Advice and Response service in this Court.
50After interviewing you and reading available documents, Mr Lane concluded you had a mild mental health problem. He recommended a mental health condition as part of a community correction order. If available, he recommended you continue to seek help from the general practitioners at the practice called ‘Doctors of Lavington and Thurgoona’ and from Dr Sowden.
51Finally, Mr Lane did not think your mental health issues would impede your compliance with the conditions of a community correction order.
S16(3C) Sentencing Act
52Section 16(3C) of the Sentencing Act 1991 provides:
‘Every term of imprisonment imposed on a person for an offence committed while released on bail in relation to any other offence or offences must, unless otherwise directed by the court, be served cumulatively on any uncompleted sentence or sentences of imprisonment imposed on that offender, whether before or at the same time as that term.’
53Unless I order otherwise, each sentence of imprisonment on the charges after Charge 1, should be served cumulatively upon themselves and upon Charge 1. That would lead to a very large sentence of imprisonment if sentences of imprisonment were to be imposed on the other charges. However, I do not propose to do that although I am mindful of the effect of s16(3C) in sentencing you.
Sentence
54On Charge 1, trafficking in a drug of dependence, I sentence you to 243 days of imprisonment. On this charge and the remaining indictable and summary charges, subject to your consent, with convictions, I will place you on a community correction order for three years with these conditions:
(a) to perform 100 hours of unpaid community work;
(b) to undergo assessment and treatment (including testing) for drug abuse or dependency;
(c) to undergo any mental health assessment and treatment; and
(d) to be supervised, monitored and managed as directed by the Secretary.
55All of the hours satisfactorily undertaken for treatment and rehabilitation are to be counted as hours of unpaid community work for the purposes of the unpaid community work condition.
56The unpaid community work condition of this order will be cumulative upon the unpaid community work condition imposed by the May 2022 community correction order.
57I declare the 243 days of your pre-sentence detention as time served under my sentence of imprisonment today.
58Pausing there, Mr Farrington, would you enquire of Mr Elliott whether he is prepared to consent to a community corrections order in those terms?
59MR FARRINGTON: Your Honour, I can confirm he is willing to consent.
60HIS HONOUR: Thank you.
S6AAA Declaration
61Absent your guilty pleas I would have sentenced you to six months imprisonment with the same community correction order, but I would not have declared your 243 days of pre-sentence detention as time served.
Forfeiture and Disposal Orders
62I will make the forfeiture and disposal orders in the terms sought.
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