Director of Public Prosecutions v Fullaway

[2017] VCC 886

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 17-00423

DIRECTOR OF PUBLIC PROSECUTIONS

v

DANIEL FULLAWAY

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JUDGE:	HIS HONOUR JUDGE LACAVA
WHERE HELD:	Melbourne
DATE OF HEARING:	29 June 2017
DATE OF SENTENCE:	29 June 2017
CASE MAY BE CITED AS:	DPP v Fullaway
MEDIUM NEUTRAL CITATION:	[2017] VCC 886

REASONS FOR SENTENCE
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Subject: Trafficking in a Drug of Dependence  MDMA
Sentence: 3 years imprisonment with a non parole period of 2 years.

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms V. Mellios
For the Accused	Ms Z.Garde-Wilson

HIS HONOUR:

1You have pleaded guilty to one charge of trafficking in a drug of dependence (MDMA) in a quantity that was not less than a commercial quantity.  The maximum penalty for this offence is 25 years' imprisonment.  Your offending occurred between 16 December 2015 and 23 March 2016, a period of approximately four months.

2The circumstances of your offending are set out in a written summary tendered in evidence and read by the learned prosecutor Mr Pickering.  Your counsel, Ms Garde-Wilson, accepted that the prosecution summary was accurate and forms a proper basis upon which I can proceed to pass sentence upon you.

3Your criminal conduct was detected as part of a broad investigation of suspected drug trafficking in the south-eastern suburbs of Melbourne.  As a result of that investigation a number of offenders have been brought to justice.  Through the monitoring of telephones you were detected having dealings with a supplier of the drug MDMA, known as ecstasy.  In the course of those dealings, during the period covered by the charge, you conducted eight separate transactions with the supplier who provided you with a total of 4850 ecstasy tablets for which you paid to him the sum of $38,000.  You then trafficked those tablets to others.  The estimated total weight of the MDMA trafficked by is 1212.5 grams.

4When it is appreciated that the threshold for a commercial quantity of MDMA is 500 grams, the level of your criminal conduct can be seen.  This is a serious example of what is a serious offence.  You trafficked more than double the threshold for a commercial quantity.

5An aggravating feature of some your offending is that on 12 January 2016, during the period covered by the charge, you were apprehended by police in Safety Beach after a routine traffic check of you driving your vehicle.  A search revealed that you had 14 MDMA tablets in your possession.  You were arrested and charged with trafficking and possession of ecstasy and you were bailed to appear in the Frankston Magistrates' Court on 22 April 2016.  This was well before you were to be charged with these offences.

6Notwithstanding that you were on bail, you continued to have dealings with your supplier of MDMA.  Nine days later and whilst on bail you purchased 600 tablets weighing 150 grams for $2,400.  Then, on 27 or 28  January, two weeks after you were bailed, you purchased another 600 tablets for $3,200 weighing approximately 150 grams.  There was a further transaction on 4 February 2016 when you purchased another 600 tablets for $4,800 also weighing 150 grams.  Soon after, you were arrested.

7I was told and accept that you have been a long term drug user, a matter to which I will return in some detail later.  I was told that you engaged in this offending to finance your drug habit and that you did not engage in this offending for financial gain.  Whilst I accept there is no evidence of substantial enrichment, or of large financial gain, having regard to the fact that you paid your supplier $38,000 over a four month period, it is clear to me your criminal conduct was engaged in not only to provide you with a supply of drugs but also to finance your low-key and probably modest way of life.

8Regrettably, it is notorious that drug trafficking is a prevalent offence.  The sentence imposed must therefore reflect proper application of the principle of general deterrence.  Your counsel accepted this and conceded that I must impose a term of imprisonment.  She argued that this should be limited to no more than one year and that I should also impose a community corrections order with appropriate conditions as part of the sentence I impose.  The prosecution oppose this arguing your offending was far too serious for the passing of a sentence that incorporates a community corrections order.  When I remanded you for sentence I indicated that I do not accept Ms Garde-Wilson's submission.  In my opinion a term of imprisonment of one year or less and a community corrections order would not serve to properly meet the purposes of sentencing for serious offending such as this.  Here, the sentence must appropriately address the principle of deterrence (both general and specific), and must serve to appropriately denounce your offending and must have regard to your age and prospects for rehabilitation and apply just punishment.

9To your credit, you have pleaded guilty to the charge and you indicated that you would do so at the earliest available opportunity.  You were arrested on
23 March 2016.  There was a filing hearing the following day.  A bail application on 20 April 2016 was adjourned for a CISP assessment.  You were granted bail on 5 May 2016.  At the time of the plea you had 55 days in custody by way of pre-sentence detention.

10At committal mention on 25 July 2016, you offered to plead guilty to the charge but the prosecution did not accept your offer at that time and the matter was adjourned for a contested committal on 27 June 2017.  You pleaded guilty on that date, the prosecution by then having indicated that it would accept your plea to the charge.

11I treat you as having indicated that you would plead guilty at the earliest possible opportunity.  For that you are entitled to a reduction in sentence.  By pleading guilty you have saved the time and cost of what might have been a lengthy trial.  In your case, I think your plea of guilty can also be taken as an indication of your genuine remorse.

12I accept that you have now had this matter hanging over your head for in excess of 12 months through no fault of yours, and in passing sentence I have taken that delay into account.  Fortunately you have used the time that has elapsed well, and you have taken some positive steps to turn your life around.  You are now aged 23 years and at the time of the offending you were aged 22. 

13You are a youthful offender and in passing sentence I must have full regard to your prospects for rehabilitation and to impose a sentence that will enable you to achieve that goal.

14You have a relevant criminal history from seven appearances in the Magistrates’ Court.  Five of those appearances relate to prior matters and two to subsequent matters.  The prior convictions for driving offences have little or no relevance here, but on 17 September 2013 you were dealt with on charges of trafficking MDMA and deal with the proceeds of crime.  You received a community corrections order without conviction for 12 months.

15Ten months later you were charged with contravening that community corrections order which was proven and you were fined $1,000.

16You received a second community corrections order for driving offences on
4 November 2015 and you breached that by further offences for driving  and the second trafficking charge which arose in January 2016, which I have earlier referred to.  On 17 June 2016, you were charged with these matters but before they were dealt with, you received a further community corrections order with conditions.  I received into evidence as Exhibit 6 a progress report regarding that community corrections order imposed on 17 June 2016, which indicates that you have fully complied with the requirements of the order.  Ms Garde-Wilson submitted that I should take this into account in arriving at an appropriate sentence and I have.

17I admitted into evidence a psychological report prepared by Mathew Staios who saw you for that purpose on 21 June 2017.  That report documents much of your background history.  Central to your background is the fact that you lost your father in what seem tragic circumstances when you were aged but 12 years of age.  This had a devastating effect on both you and your family.  You were soon after diagnosed as suffering obsessive compulsive disorder and referred for psychiatric evaluation and treated for depression at the age of 12.  I agree with Mr Staios that the death of your father seems to have destabilised your childhood.

18You had difficulties at school with bullying and at a young age commenced drinking alcohol with friends.  Your mother attempted to structure your life and confine you but unfortunately this seems to have made matters worse.  You progressed like so many others from alcohol abuse to smoking cannabis at age 16.  You achieved Year 8 level schooling before ceasing study.

19You commenced an apprenticeship as a roof plumber aged 17 and moved out of the family home.  Soon after, you commenced using MDMA and also steroids and cocaine.  Your drug habit resulted in the breakdown of your relationship with your family, especially your brother with whom you had purchased a house.

20Fortunately that relationship is again strong.  Your brother went surety for you for your bail and you lived with him when bailed initially and then with your mother and her husband.  They are both religious people practising the Jehovah faith.  They were all in court to support you which is a good thing.  I conclude you have good on-going family support.  All of your family have provided me with favourable references about you and the attempts you are making to rid yourself of drugs.

21Since you were bailed in March 2016 you have taken a number of positive steps to turn your life around.  You engaged positively with the CISP program whilst on bail.   I received into evidence a report (Exhibit 7) confirming this.  You also attended psychologist Andree Evans who reported positively about you having attended 11 sessions with him.  He said you were remorseful (which I accept) and determined to rid yourself of drugs (Exhibit 2).  You have also attended upon Stepping Up for six sessions of counselling to prevent a return to drugs (Exhibit 3) and I received into evidence 12 pathology reports of urine analysis of you between 16 February 2017 and May 2017, each of which is negative to drugs.

22I think it can safely be said that you are making genuine efforts to rid yourself of drugs in the 15 months that have passed since you were charged with this offending.  Time will tell whether or not you succeed.

23I received into evidence a very favourable reference from your brother who is of the opinion you have now changed for the better (Exhibit 4) and favourable references from former employers and associates from within the plumbing industry who know you.  All speak highly of you as a person and a worker and there is work for you to go to when released from prison to finish your plumbing apprenticeship.

24I have concluded that your prospects for rehabilitation are reasonable to good.  I express this opinion in a guarded way because experience has shown that one can never be sure as to the prospects for rehabilitation of a drug-affected offender.  You have had a couple of opportunities in the past to change your ways after offending and you failed to take the opportunity afforded you by virtue of a non-custodial dispositions.  I accept you have taken a number of positive steps that suggest you will change your ways.  Whether you do so or not is entirely up to you.  Here, your offending is far too serious to impose other than a custodial sentence.  However, having regard to all of the factors in mitigation addressed in your counsel’s submissions and by the evidence, I have imposed what I regard as a modest head sentence having regard to the level of your offending.

25In passing sentence I have had regard to the fact that another offender Whitelaw, was also charged and pleaded guilty in this court to two charges of trafficking in a drug of dependence in a commercial quantity and a summary charge of dealing with the proceeds of crime.  The amount trafficked by him I was told was about the same as the amount of MDMA trafficked by you.  Whitelaw was aged 19, a young offender when he offended and was 21 when sentenced.  Unlike you he had no prior convictions.  In passing sentence upon you I have had regard to the need for your sentence to be on a par with his sentence and I have taken it into account.

26On the charge of trafficking in a drug of dependence in an amount not less than a commercial quantity, you are convicted and sentenced to a term of imprisonment of three years.

27I direct that you serve a minimum term of two years imprisonment before being eligible for release on parole.

28I declare there has been 57 days pre-sentence detention and that 57 days be reckoned as having been already served of the sentence passed this day and be entered into the records of the court and be deducted administratively.

29For the purposes of s.6AAA of the Sentencing Act 1991 I state that had it not been for your plea of guilty to the charge I would have imposed a term of imprisonment of four and a half years and I would have fixed a non-parole period of three years.

30Disposal and forfeiture orders were sought relating to various items which were not opposed and I have signed those orders.

31Are there any questions arising out of that, Ms Mellios?

32MS MELLIOS:  No, Your Honour.

33HIS HONOUR:  Ms Garde-Wilson?

34MS GARDE-WILSON:  No, Your Honour.

35HIS HONOUR:  Very well, thank you.  Could you take Mr Fullaway back into custody please.

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