Director of Public Prosecutions v Finnan
[2012] VCC 1515
•3 October 2012
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-10-01919
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ASHLEY FINNAN |
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JUDGE: | HIS HONOUR JUDGE DEAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 3 October 2012 | |
CASE MAY BE CITED AS: | DPP v. Finnan | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1515 | |
REASONS FOR SENTENCE
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Catchwords:
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr R. Pirrie | OPP |
| For the Accused | Mr J. Buchecker | Alan McMonnies |
HIS HONOUR:
1 Ashley Finnan, on 25 September 2012 a jury was empanelled to determine whether you were fit to stand trial in relation to an indictment containing four charges of trafficking in a drug of dependence and three charges of possession of a drug of dependence. On 27 September 2012 the jury found that you were fit to stand trial.
2 On 28 September 2012 you pleaded guilty to four charges of trafficking in a drug of dependence, contrary to s.71AC of the Drugs, Poisons and ControlledSubstances Act 1981. The maximum penalty for that offence is 15 years’ imprisonment. You also pleaded guilty to three charges of possession of a drug of dependence, contrary to s.73(1) of the Drugs, Poisons and ControlledSubstances Act 1981. In the circumstances of this case, the maximum penalty for that offence is a fine of 30 penalty units or imprisonment for one year or both. I have taken your plea of guilty into account in your favour in mitigation of sentence.
3 You have admitted two prior court appearances, the most recent of which was on 5 April 2004 in this court, where you were sentenced to a total effective term of imprisonment of 38 months with a non-parole period of 20 months in respect of one charge of intentionally causing serious injury, one charge of affray and one charge of intentionally causing injury.
4 The prosecution opening was read to the court and tendered in evidence, and your offending may be summarised as follows:
5 In November 2008 detectives of the Ethical Standards Department of Victoria Police commenced an investigation into allegations of drug use by a police officer, Constable Matthew Holmes, then stationed at Prahran Police Station.
6 Between 24 April and 16 July 2009 an investigation was conducted into the activities of Mr Holmes and during the course of that investigation a number of conversations between you and Mr Holmes were identified pursuant to a telephone interception warrant obtained for the purposes of the investigation. As a result of the telephone intercepts, you were found to be involved in a drug trafficking relationship with Holmes and others which involved agreements with him and others to traffic drugs of dependence to persons in return for money.
7 During the course of the investigation police monitored 8940 telephone calls from your telephone service and of these, 350 telephone calls and text messages related to trafficking in drugs by you.
8 In relation to the charge of trafficking in amphetamine, Charge 1, a number of telephone conversations were intercepted, revealing eight transactions in relation to the sale of that substance, and furthermore, when a warrant was executed at your premises, 24.8 grams of amphetamine was located in deal bags.
9 In relation to Charge 2, trafficking in a drug of dependence, namely ketamine, again, a number of telephone conversations revealed eight transactions in which ketamine was sold in gram lots by you for between $200 and $300.
10 In relation to Charge 3, the charge of trafficking in ecstasy, the telephone conversations revealed seven transactions involving the sale of, on one occasion 50 tablets, on another occasion 30 tablets, and smaller quantities of that substance on the other occasions.
11 Finally, in relation to trafficking in cocaine, it would appear that there was more activity in relation to that substance during the investigation period, and the telephone conversations revealed at least 15 transactions in relation to the sale of that substance in quantities ranging between half a gram and three grams. The cocaine was sold by you for $250 a gram, and when, on 16 July 2009, a warrant was executed at your premises, 26.2 grams of cocaine was there located.
12 When the warrant was executed, police also located 2.5 grams of amphetamine, three grams of MDMA and 1.2 grams of ketamine. It is accepted by the prosecution that the possession of these substances in these quantities was for your personal use and it is the location of them at your premises which is relied upon in support of the charges of possession on the indictment.
13 Your trafficking was at a street level amongst your close associates, and I accept that any financial gain by you was modest. At the relevant time you were a heavy user of illegal drugs of dependence and your trafficking enabled you to access your drugs of choice. Nevertheless, any sentence that I impose must be calculated to deter you and others from offending in the way that you have. Illegal drugs of dependence cause incalculable damage to our society and it is clear that you have suffered significant physical and psychological harm yourself from your use of methylamphetamine, amphetamine, cocaine and ecstasy.
14 Any sentence that I impose must also be calculated to punish you for your offending.
15 You were born on 28 September 1983 and you are now aged 29 years. You had little contact with your parents, and tragically, your mother died of a drug overdose when you were six years old. You were then raised by your maternal grandmother in Collingwood, and it would appear that your development, whilst stable, was also characterised by disadvantage and abuse.
16 You left school at the age of 15 and have worked in a variety of unskilled occupations. Most recently you have worked as an instructor in a gymnasium and it is to that occupation you intend to return once these proceedings are completed.
17
On 9 February 2012 you suffered a psychotic episode, in all probability as a result of drug use, and you were attended by a CAT team attached to the
St Vincent's Public Hospital. As a result of the psychotic episode, you were subsequently admitted to St Vincent's Hospital as an involuntary psychiatric patient and you remained there for a period of four days. Upon your discharge, the diagnosis of your treating psychiatrist was that you had suffered from drug-induced psychosis.
18 As a result of continuing psychiatric issues after your admission on this occasion, your solicitors arranged for you to be assessed by Dr Pradeepa Dasanayake in relation to your psychiatric condition. Dr Dasanayake concluded that in her opinion you suffered from either paranoid schizophrenia or drug-induced psychosis and that your illness was of sufficient severity as at July 2012 as to render you unfit to stand trial.
19 It was a characteristic of your illness then and continues to be a characteristic of your illness that you suffer from delusions, and conspiratorial delusions which are consistent with a person suffering from schizophrenia. As a result of your admission to hospital in February 2012, you were prescribed Olanzapine and you continue to take that medication in order to control your illness.
20 The prosecution, in anticipation of the issue as to your fitness to stand trial, arranged for you to be examined by Dr Danny Sullivan, a consulting and forensic psychiatrist. Dr Sullivan did not share Dr Dasanayake's opinion that you suffer from paranoid schizophrenia, but he did conclude that you suffered from drug-induced psychosis and at the time of your fitness to stand trial hearing Dr Sullivan concluded that you were continuing to suffer from low level psychosis requiring ongoing treatment and medication.
21 It is clear that the principles set out by the Court of Appeal in R v. Verdins (2007) 16 VR 269 are engaged in your case such that the sentencing principles of specific and general deterrence are to be moderated, and having regard to the degree and severity of your illness, in my opinion, such moderation must be considerable. It is also clear that imprisonment would have a serious adverse affect on your mental health and that you would also experience a greater degree of hardship as a result of imprisonment to that of a person not suffering from your illness.
22 Whilst it is clear that imprisonment is the only proportionate penalty available to me in relation to the charges of trafficking, your counsel submitted that in all the circumstances of this case it would be appropriate for me to suspend the entirety of that sentence.
23 The prosecution accept that it is open to me to suspend that sentence, and I am satisfied by reference to s.27 of the Sentencing Act 1991 that it would be desirable for me to do so in all the circumstances of your case.
24 In the result, the sentence of the court is as follows:
25 In relation to Charge 1, the charge of trafficking in a drug of dependence, namely amphetamine, you are convicted and sentenced to be imprisoned for 18 months. In relation to Charge 2, the charge of trafficking in a drug of dependence, namely ketamine, you are convicted and sentenced to be imprisoned for 18 months. In relation to Charge 3, the charge of trafficking in ecstasy, you are convicted and sentenced to be imprisoned for 18 months. In relation to Charge 4, the charge of trafficking in a drug of dependence, namely cocaine, you are convicted and sentenced to be imprisoned for two years. Charge 4 is the base sentence. I order that three months of the sentence on Charge 1, three months of the sentence on Charge 2 and three months of the sentence on Charge 3 be served cumulatively on each other and on the sentence I have imposed in relation to Charge 4. This makes for a total effective term of imprisonment of two years and nine months, and I order that the entirety of that sentence be suspended for an operational period of three years.
26 In relation to Charge 5, the charge of possession of a drug of dependence, namely ketamine, you are convicted and fined the sum of $500; in relation to Charge 6, the charge of possession of a drug of dependence, namely methylamphetamine, you are convicted and sentenced to be fined the sum of $500; and in relation to Charge 7, the charge of possession of a drug of dependence, namely MDMA, you are convicted and fined the sum of $500. That makes for a total sum of $1500 in fines. I order a stay of three months in relation to the payment of the fines.
27 But for your plea of guilty in relation to the charges of trafficking in a drug of dependence, I would have sentenced you to a term of imprisonment of two years and nine months and I would have ordered that you serve 12 months before becoming eligible for release on parole.
28 I have made the disposal and other orders sought by the prosecution.
29 Anything else?
30 MR PIRRIE: No, Your Honour.
31 MR BUCHECKER: No, Your Honour.
32 HIS HONOUR: Yes, all right. Thank you.
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