Director of Public Prosecutions v Ellison
[2022] VCC 1341
•15 August 2022
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT Melbourne
CRIMINAL DIVISION
CR-22-00498
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DANIEL ELLISON |
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JUDGE: | His Honour Judge Maidment | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 10 August 2022 | |
DATE OF SENTENCE: | 15 August 2022 | |
CASE MAY BE CITED AS: | DPP v Ellison | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1341 | |
REASONS FOR SENTENCE
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Subject:Plea – sentencing
Catchwords: Knowingly deal with proceeds of crime - possess drug of dependence - traffick drug of dependence - commit indictable offence whilst on bail - contravene conduct condition of bail
Legislation Cited:
Cases Cited:
Sentence:3 years and 4 months' imprisonment, 2 years and 3 months non-parole
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr M. Roper | Office of Public Prosecutions |
| For the Accused | Ms V. Drago | Lauren Tye Legal |
HIS HONOUR:
1Daniel Ellison, you have pleaded guilty to an indictment charging you with:
- on Charge 1, knowingly dealing with the proceeds of crime, for which the maximum penalty is 15 years' imprisonment;
- on Charge 2, possession of a drug of dependence, namely methylamphetamine, for which the maximum term of imprisonment is five years;
- on Charge 3, possession of a drug of dependence, namely cannabis, in a quantity that was below 50 grams, for which the maximum penalty is five penalty units;
- on Charge 4, possession of a drug of dependence, namely Butanediol, for which the maximum penalty is five years' imprisonment; and
- on Charge 5, trafficking in a drug of dependence, for which the maximum penalty is imprisonment for 15 years.
2You have also pleaded guilty to two related summary offences, namely, committing an indictable offence whilst on bail and contravening a conduct condition of bail in respect of your place of residence, for each of which the maximum penalty is imprisonment for three months or a fine of 30 penalty units.
3You have also admitted a prior criminal history which goes back to June 2015 and includes offences of trafficking in drugs of dependence and dealing in property suspected of being the proceeds of crime on two separate occasions. The last occasion was on 31 January 2019 when, for trafficking in methylamphetamine and other drug possession offences and dealing with property suspected of being the proceeds of crime, you received an aggregate term of imprisonment of 118 days and were ordered to complete a Community Correction Order.
4The prosecution relied upon a summary of prosecution opening on the plea which is Exhibit A. It reveals that on 6 August 2021 you were observed attending the address of the target of an ongoing investigation by police into drug trafficking, and were followed by those police officers back to your then home address in Tullamarine.
5On arrival, the police attempted to intercept you and speak to you about your conduct. You shut and locked the front door of your premises and prevented the police from arresting you or otherwise searching your property. You subsequently fled through the back of your property and evaded police, at least on a temporary basis.
6The police forced entry into your property and found that you had a television displaying live CCTV footage from external cameras surrounding the address, that you had apparently smashed mobile phones and thrown them into the toilet system and that there were numerous Zip Lock bags containing the remnants of a crystal-like substance on the floor surrounding the toilet. There were numerous other empty Zip Lock bags, sets of scales, measuring jugs, empty bottles and assorted drug paraphernalia throughout the house and a large bottle containing partially frozen liquid propped upside down by towels in the laundry sink where it was draining fluid.
7Later that day you were seen by surveillance officers fleeing the address. You were arrested and searched. You were found in possession of $1,270.50 in Australian currency, which forms part of Charge 1 of knowingly dealing in the proceeds of crime.
8You were taken back to the Sunshine police station. You were interviewed, and you gave the police very little information about your trafficking business. Police then obtained search warrants for your home address and your motor vehicle where, upon searching, the police found five mobile telephones, various quantities of Australian currency totalling $297,550, 8.4 grams of 1,4-Butanediol contained within a large bottle, the Swann CCTV system, 1.5 grams of cannabis (which is the subject of Charge 3), a money or cash counting device, a diary notebook and 13.5 grams of methylamphetamine contained within a small bag in the motor vehicle (which is the subject of Charge 2 on the indictment).
9You responded 'no comment' to most of the questions in the recommenced interview which took place after the search, but you did admit staying at the address and having property items stored there.
10
You were then remanded in custody at the Melbourne Magistrates' Court on
7 August 2021, and have remained in custody since that date.
11Upon examination of your mobile phones, there were a number of telephone calls identified and text messages made between 11 February 2021 and 19 April 2021 which implicated you in the offence of trafficking in Butanediol from your home address.
12The communications on the phones involved a person who was then a target of a police operation. It is apparent from the communications that the police were able to access that the target of the operation was purchasing various amounts of Butanediol in amounts of 100 millilitres and 2 litres from you, as well as other substances. You would ask the target of that investigation for money to be correctly counted prior to sale, so that you could walk past and exchange the drugs that were being purchased for the cash through the window of a vehicle.
13On occasions the target of the investigation would pay sums to you of between $7,000 and $10,000 at a time in exchange for drugs. It was also apparent from those communications that you would use a counting machine to count the money, and you were also seeking out new supplies of 1,4-Butanediol. Those communications, coupled with the possession of the Butanediol the subject of Charge 4, provide the evidence supporting Charge 5 on the indictment.
14You were at that time on bail, having been granted bail at the Melbourne Magistrates' Court on 23 June 2021. You were due to reappear at that court on 31 August 2021 on charges of possessing a drug of dependence and resisting a police officer. That offending occurred on 28 September 2020 and there were conditions attached to your bail for those offences requiring you to reside at a particular address - which was different from where you were residing at the time you were arrested for these matters.
15I now turn to matters personal to you. Your counsel provided me with an outline of submissions dated 9 August 2022, which is Exhibit 1; a report headed Psychological Assessment Report from Mr Mathew Staios dated 8 August 2022 which is Exhibit 2; and a letter from your mother dated 9 August 2022 which indicated that you are the second of her five children, that she and the family have kept in contact with you almost weekly since your incarceration and that you have iterated frequently that you had finished with drugs. She continues by saying, 'As disappointing as his charges are, we will continue to support him and his rehabilitation.' That is Exhibit 3.
16You are now 31 years of age. The report of Mr Staios provides a good deal of information about your personal history. You had the benefit of a stable and loving family and that continued throughout your childhood.
17You had an untroubled and good education up to Year 10 at a secondary college in a mainstream academic setting. You then completed Year 11 at a Victorian Certificate of Applied Learning college and, although you were inclined to characterise yourself as a below-average student attaining average grades of D and E, you were able to go on to complete an apprenticeship as a carpenter over a period of four years. You have apparently worked as a carpenter throughout your adult life, and indeed were continuing in that employment until your arrest for these offences.
18Mr Staios goes on to deal with your alcohol and substance abuse history, identifying a recreational drug habit which had its origins when you were about 17 years of age, graduating to the use of methylamphetamine at the age of 18 and gradually becoming addicted to that to the point where, at the time of your arrest for these matters, you had a daily habit of 1 gram of methylamphetamine as well as using the drug GHB.
19You have two prior convictions for trafficking in drugs of dependence: GHB in June of 2015 and methylamphetamine in January of 2019. On each of those occasions you were also dealt with for dealing in property suspected of being proceeds of crime.
20You have exhibited a history of significant anxiety which, according to the report of Mr Staios, you attributed to significant substance abuse. That seems to have persisted particularly during periods when you have not been able to use, or have not been using, your drugs of choice.
21During the course of the plea hearing, I sought to challenge the proposition that there was a demonstrated mental disorder which had any link to your offending conduct. The report of Mr Staios identifies an overall intellect within the borderline range and your performance within the borderline to low average range on task assessing, abstract verbal and non-verbal vocabulary, knowledge and general knowledge, spatial processing, attentional and working memory and speed of information processing.
22Apart from those findings, it does not seem to me that you suffer from any identified mental disorder other than the anxiety which seems to be largely, if not entirely, associated with the abuse of various illicit substances over the last 12 years or so.
23I am quite unable to find any relevant link between your offending and any mental disorder. Despite raising that issue with your counsel during the course of the plea hearing, I was not persuaded to accept the submission that I should apply any of the Verdins principles in reduction of sentence. That is not to say that the contents of Mr Staios's report and the low average or borderline intellectual functioning is irrelevant, far from it, but it does not rise, in my opinion, to the levels necessary to apply the Verdins principles.
24It is noteworthy that you have apparently sought help on three occasions, although your efforts at rehabilitation on those occasions were ultimately unsuccessful. That conduct on your part when you were seeking help does not entirely support the proposition that you have a reduced capacity for, or ability to, seek assistance for your conditions.
25I also note that your offending itself requires a degree of organisation and consideration necessary to run a business as a middle-man, which seems to be the accepted level at which you were operating this business of drug trafficking. It certainly involved considerations as how you might avoid detection, and protecting yourself and the drugs that you were housing at your premises through the use of CCTV cameras.
26And indeed, although under pressure and perhaps in some degree of panic, you showed ability to think on your feet (so to speak) when pursued by police: smashing and concealing five telephones in the toilet system, apparently making efforts to dispose of at least some of the drugs that were at your premises at that time, escaping out the back door of the premises and avoiding police.
27Also you have a number of prior convictions, including two for trafficking in drugs of dependence and for proceeds of crime offending. So you were well aware of the consequences when you embarked on this trafficking as a middle-man. It was urged upon me that I should not find that you were doing it for greed, but it is clear that you were doing it for profit. It may be that you were initially motivated by maintaining your no doubt expensive drug habit.
28But the presence of $299,000 or thereabouts in your possession at the time of the offending speaks of at least a degree of profit motivation. It was accepted on your behalf by your counsel that there was an element of profit in the $299,000. I was supplied with no other information about that offending from which I could conclude that that sum of money was exclusively the product of your drug trafficking.
29Therefore it is not possible for me to attribute it wholly to the trafficking, the subject of Charge 5 on the indictment. Or indeed to reach any firm conclusions as to the nature of the offending, beyond your acceptance of the elements of the offence the subject of Charge 5 and looking at the amount of cash that is relevant to that offence.
30You have pleaded guilty to this offending and it is very much to your credit that you have. Although I note that the evidence seems quite overwhelming against you, I give you full credit for your plea of guilty, particularly in these COVID times. You have assisted the court in disposing of another case that could have been a lengthy and expensive trial by jury and you are to receive full credit for doing so, and doing so in these difficult times.
31Your pleas of guilty underpin an acceptance of criminal responsibility. I note that you have been in custody on remand during a particularly difficult period within the prison system and would have been the subject of a much more stringent and oppressive regime during your period on remand than would have ordinarily been the case. You need to receive full credit for that.
32There is a significant benefit in terms of acceptance of criminal responsibility, which I must take into account and give you full credit for those facts, and for the fact that a further period of incarceration will continue to be much more stringent and difficult than is ordinarily the case outside the period of the COVID pandemic.
33It has been urged upon me that your pleas of guilty represent evidence of remorse. I accept that your pleas of guilty are consistent with remorse, but I see little or any evidence beyond that of genuine remorse. You could have, and have chosen not to, given evidence before me as to your remorse. I am not persuaded that you have demonstrated genuine remorse requiring a significant reduction in sentence.
34It has been urged upon me that you have good prospects of rehabilitation and that support is to be obtained from your efforts at rehabilitation in the past, voluntarily submitting yourself to treatment courses and seeking assistance beyond that which you were required to do under Community Correction Orders.
35I note that in none of those three attempts you were successful in maintaining your rehabilitation from drug abuse and avoiding reoffending in terms of drug possession or offending involving drug trafficking. I can only therefore conclude that your prospects of rehabilitation will depend entirely on your ability in the future to beat your drug habit. Therefore I am not prepared to accept that you represent a good prospect of rehabilitation at this stage. I place your prospects of rehabilitation as guarded at best.
36
There has been some delay, but in the overall scheme of things, a delay of
12 months or so in disposing of this case is not particularly great. Although I acknowledge that you have had the matter hanging over your head for that period of time, particularly during the difficult period of incarceration during the COVID pandemic.
37I am not prepared to accept that your mental health and mental impairments rise to a level where I can find any basis for applying any of the Verdins principles to your sentencing, although I take into account those that have been identified in the overall synthesis of the facts relevant to sentence.
38Your offending is serious, in particular Charges 1 and 5 are above the lower end of those types of offences, and are within the mid range of offending for offences of trafficking in a drug of dependence simpliciter, and for knowingly dealing in the proceeds of crime.
39As has been conceded by your counsel, an amount of some $299,000-odd is substantial. Although it may be that does not all represent profit to you, and that your motivation for drug trafficking and your motivation for committing the offence of possessing proceeds of crime was not that of greed, but rather involved some degree of profit motivation.
40It still represents offending above that of the low range of offending, and you having prior convictions on two previous occasions for not dissimilar offending, I am required not just to denounce your conduct, but to impose sentences which deter you and most importantly have a general deterrent effect on others who may be inclined to similar conduct.
41There is also an element of protection of the community, where somebody persists after two previous convictions for drug trafficking and dealing in the proceeds of crime. There is a strong public interest in preventing offending of that kind, which represents a scourge on the community.
42Nevertheless, I do not regard your prospects of rehabilitation as hopeless. I do not propose to impose a crushing sentence upon you. I must be careful to avoid double punishments, that is, between Charges 1 and 5 in particular, and I am satisfied there is at least some degree of overlap between the offending the subject of Charge 1 and that the subject of Charge 5. Therefore I need not to just avoid double punishment, but to ensure that the totality of the sentence is just in all the circumstances.
43Dealing with all of those factors as best I can, I now propose to impose sentence upon you.
44Daniel Ellison, on Charge 1 on the indictment of knowingly dealing with the proceeds of crime, you are convicted and sentenced to imprisonment for a period of two years and 10 months.
45On Charge 2 of possession of a drug of dependence, namely methylamphetamine, you are convicted and sentenced to imprisonment for four months.
46On Charge 3 of possession of a drug of dependence, namely cannabis, in an amount of 1.5 grams, you are convicted and fined $100.
47On Charge 4 of possession of a drug of dependence, namely 1,4-Butanediol, you are convicted and sentenced to imprisonment for a period of two months.
48On Charge 5 of trafficking in a drug of dependence, namely 1,4-Butanediol, you are convicted and sentenced to imprisonment for a period of two years and three months.
49I order that all sentences are to be served concurrently, save that six months of the term of imprisonment on Charge 5 be served cumulatively on the base sentence of two years and 10 months imposed on Charge 1.
50The total effective sentence is three years and four months' imprisonment.
51I order that you serve a period of two years and three months before you are eligible for parole.
52In respect of the two related summary offences, for committing an indictable offence on bail you are convicted and fined $900, and for contravening a conduct condition of bail you are convicted and fined $100.
53I declare that pre-sentence detention of 374 days is to be regarded as time served under the sentences that I have imposed and deducted administratively from the time you will be required to serve under those sentences.
54
But for your pleas of guilty to these offences, I would have sentenced you to imprisonment for five years with a non-parole period of three years and
five months.
55And I make the ancillary orders for forfeiture and disposal of drugs the subject of the charges in accordance with the drafts with which I have been provided. Are there any other matters, counsel?
56MR ROPER: Nothing, Your Honour.
57HIS HONOUR: Thank you.
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