Director of Public Prosecutions v Fraser

[2017] VCC 459

IN THE COUNTY COURT OF VICTORIA Revised
(Not) Restricted
Suitable for Publication

AT LATROBE VALLEY
CRIMINAL JURISDICTION

CR-16-02287

DIRECTOR OF PUBLIC PROSECUTIONS

v

DANIEL PAUL FRASER

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Latrobe Valley
DATE OF HEARING:
DATE OF SENTENCE:	21 April 2017
CASE MAY BE CITED AS:	DPP v Fraser
MEDIUM NEUTRAL CITATION:	[2017] VCC 459

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr P. Triandos
For the Accused	Mr J. Anderson

HIS HONOUR: 

1Daniel Paul Fraser, you have pleaded guilty to one charge of possessing a drug of dependence, being methylamphetamine, one charge of trafficking in methylamphetamine in not less than a commercial quantity, one charge of trafficking in a drug of dependence, being cannabis, and one charge of negligently dealing with proceeds of crime.  The maximum penalties for those crimes are five years, 25 years, 15 years and five years.

2You have also pleaded guilty to a relevant summary matter of prohibited weapon which carries a maximum penalty of two years.

3You pleaded guilty at the earliest reasonable opportunity and I accept your counsel's submission that you just wanted to get these matters over with to get on with your rehabilitation.  You are 25 years of age which is still relatively young. 

4I accept in these circumstances that your plea of guilty is accompanied by remorse and you must also, of course, get a significant utilitarian benefit for it.  As your counsel has pointed out, you could well have chanced your arm insofar as a jury is concerned with a couple of these charges and you must be given a demonstrable benefit for having done that.  Unfortunately, in your situation, Mr Fraser, the worst difficulty we have is that you have a significant number of relevant prior convictions.  You have been gaoled before for trafficking in drugs on two occasions that I am aware of and you fall to be sentenced with that background, albeit at such a young age.

5A summary of the offending is that you were 24 years of age in August of 2016 when police executed a warrant at your mother's house, as I understand it, in Sale.  At that time a bag containing 2.4 grams of amphetamine was found.  This gives rise to Charge 1.  There was an assortment of property suspected of being stolen but that does not form part of this indictment, and you also had a crossbow and a butterfly knife which is the related summary offence that I have referred to.

6Police returned on 8 August 2016 and again searched.  You were not present.  Three grams of cannabis were found.

7On Wednesday 17 August 2016, at approximately 1.10, police again attended with the intention of arresting you.  They located you in your caravan and believe that from the sounds that they could hear that you were endeavouring to conceal items within that caravan, which I am assuming in the backyard.  You were interviewed and said that the amphetamine and cannabis were for your own use.

8In any event, later on that day, which is what gives rise to the more significant of these charges, police again searched the caravan and the main house and located the following items:  565 grams of cannabis, which gives rise to Charge 3 of trafficking, and 161.6 grams of methamphetamine, of which 139 grams was pure.  A hundred grams of pure methamphetamine is the cut-off point for a commercial quantity and accordingly that is what you have pleaded guilty to.  They also found an assortment of property, being cash, jewellery, alcohol, various other items, which gives rise to Charge 4 of negligently dealing with the proceeds of crime.

9When you were interviewed in respect of all those matters, you exercised your right and gave a "no comment" record of interview.

10The offending has to be serious, particularly where you have been gaoled for it before, it calls for the application of general deterrence and specific deterrence, as well as denunciation and appropriate punishment.  It is conceded, quite properly by your counsel, that a significant gaol term is inevitable.

11You have now been in custody for some 247 days and in terms of determining the appropriate sentence I turn to matters personal to you.

12Tendered on your behalf was a report from psychologist, Mr Jeremy Parker, which has some information of assistance in it and it includes essentially your history.  He has formed the view that you have a lower than average cognitive functioning and that would seem to be borne out by the fact you had a teacher's aide at school and some learning difficulty.  You are still in a situation where you have some literacy problems.

13I also had before me a letter from your mother which was very helpful in terms of outlining your background, and also a letter from Recover Oz who are prepared to take you upon your ultimate release.  Whether the Parole Board will grant you parole to that organisation is not a matter for me to speculate about.

14Essentially you were brought up in a one-parent house.  At certain times you lived with your mother who has been very ill over the years, at certain times you lived with other relatives and certain times with your father. 

15It is clear from the material before me that you commenced using alcohol at a very early age and there is indeed a Children's Court prior finding of guilt in relation to that.

16You started using amphetamine at around about the age of 17 through 19 and essentially have used it ever since.  I do not have to go through in this situation the various schools that you went through, it has been a disjointed childhood and a disjointed early adulthood.  I take those matters into account and they are not uncommon when offending of this nature occurs.

17You do have a relatively good work record for someone with your problems.  At one stage you were leasing a farm in Denison where you had various cattle and other animals and you had the view that the amphetamine use was assisting you in all that.  Whether that be the case or not, there is no sign of enrichment in this particular matter and I do not regard it as therefore at the highest level of trafficking.  I accept that the purpose of it is essentially for your own use, but it, nevertheless, remains very serious.

18Again, the matters that are referred to in the letter from your mother go to tragedies that occurred in your life; an aunty being murdered, good friends dying are all matters which have affected you, I have no doubt, and it made it harder for you to fight the addiction to which you now, or certainly up until the time of your incarceration, had struggled with very much.  Your mother points out that in the face of these various tragedies that you had difficulty expressing yourself emotionally, but it certainly seems, again, on the material before me, that over the last period of time that you have been in custody you are making genuine endeavours to rehabilitate yourself and to recover from the one-way trip on which you have been travelling now for some significant period of time.

19It is pointed out that you would benefit from counselling, and that is clearly the case, and I think in this situation it is just really the question of rehabilitation is up to you, Mr Fraser.  You can certainly do it if you really want to.  The risk of you reoffending with this sort of criminal history would have to be regarded as high, I would have thought.  If you use again you will offend again, there is no question about that, and you could find yourself at 35 years of age a very, very long-term prisoner.

20As I indicated to your counsel, I am impressed by the degree of family and other support that you have, I think that the opportunity is there on the basis of Tomguenon, Leech and cases such as that for you to rehabilitate, and despite the seriousness of the offending I intend to give you a sentence which hopefully can facilitate that.  I am going to give you a minimum term, on reflection, a release date which will be significantly earlier than might otherwise be the case for somebody with your prior convictions.

21So taking all those matters into account and regarding the matters as serious, on Charge 1, three months; on Charge 2, three years; on Charge 3, 18 months; on Charge 4, six months, and on the summary offence, one month.

22I direct that three months of the sentence on Charge 3, three months of the sentence on Charge 4 be served cumulatively upon each other and upon the sentence imposed on Charge 2.

23That gives an effective head sentence of three years and six months.

24I direct that you serve a minimum term of 21 months before becoming eligible for parole.  I direct that 247 days be reckoned as having been served under this sentence.

25And so that yourself and your family realise the benefit of your sensible conduct since this arrest and the benefits of pleading guilty, I say to your straight that but for your plea of guilty, if you had fought this out and lost, I would have given you five years and three months with a minimum term of three and a half years.

26Have you got those orders you want me to sign or do it in Chambers.

27MR TRIANDOS:  I'll do it in Chambers, Your Honour.

28HIS HONOUR:  Are you okay with that?

29MR ANDERSON:  Yes, Your Honour.

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