Director of Public Prosecutions v Furnell (a pseudonym)
[2018] VCC 1556
•21 September 2018
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT BENDIGO
CRIMINAL JURISDICTION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| SAMUEL FURNELL (a pseudonym) |
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| JUDGE: | HIS HONOUR JUDGE MASON |
| WHERE HELD: | Bendigo |
| DATE OF HEARING: | 20 September 2018 |
| DATE OF SENTENCE: | 21 September 2018 |
| CASE MAY BE CITED AS: | DPP v FURNELL (a pseudonym) |
| MEDIUM NEUTRAL CITATION: | [2018] VCC 1556 |
REASONS FOR SENTENCE
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Subject: Plea - sentencing
Catchwords: Traffick drug of dependence - damage property - attempt to obtain property by deception - persistent contravention of Family Violence Order - obtain property by deception - recruit child to engage in criminal activity - traffick drug of dependence to child - commit indictable offence whilst on bail - contravene bail conduct conditions - use unregistered motor vehicle on highway - fraudulently use registration label or plate
Legislation Cited: Sentencing Act 1991
Cases Cited:
Sentence: 3 years’ imprisonment, 2 years’ non-parole period and $500 fine
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr D. Cordy | Office of Public Prosecutions |
| For the Accused | Mr M. Page (Plea) Ms K. Hartman (Sentence) | Ann Valos Criminal Law |
Pages 1 - 10
HIS HONOUR:
1Samuel Furnell[1], you have pleaded guilty to:
-one charge of trafficking in a drug of dependence, for which the maximum penalty is 15 years' imprisonment;
-one charge of damaging property, for which the maximum penalty is 10 years' imprisonment;
-one charge of attempting to obtain property by deception, for which the maximum penalty is 5 years' imprisonment;
-one charge of persistent contravention of a family violence order, for which the maximum penalty is 5 years' imprisonment;
-one charge of obtaining property by deception, for which the maximum penalty is 10 years' imprisonment;
-two charges of recruiting a child to engage in criminal activity, for which the maximum penalty is 10 years' imprisonment; and
-two charges of traffick a drug of dependence to a child, for which the maximum penalty is 20 years' imprisonment.
[1]Samuel Furnell is a pseudonym
2You have also pleaded guilty to:
- two transferred summary charges of commit an indictable offence whilst on bail, for which the maximum penalty is 30 penalty units or three months' imprisonment;
- one transferred summary charge of contravene certain conduct conditions whilst on bail, for which the maximum penalty is 30 penalty units or three months' imprisonment;
- one transferred summary charge of use an unregistered motor vehicle on a highway, for which the maximum penalty is 25 penalty units for a first offence or 50 penalty units for subsequent offences; and
- one transferred summary charge of fraudulently use registration label or plate, for which the maximum penalty is also 25 penalty units for a first offence or 50 penalty units for subsequent offences.
3You are currently aged 32, having been born on 17 July 1986, and you were 31 years old at the time of the offending.
4You have a history of previous convictions for similar and other offending to which I will refer in more detail later.
5The circumstances of your offending are as follows.
6You had been in a relationship with the complainant for a period of 5 months. After the relationship ended in February 2018 you began harassing her through text messages and phone calls.
7Between 1 February 2018 and 30 March 2018, you sold methylamphetamine to a 20-year-old female friend on three or four occasions. Each exchange was $50 for 0.1 of a gram.
8On the afternoon of 8 March 2018, you picked up two boys, both aged 14, from a country train station. You and the two children drove to the Melbourne area. You were observed to sell small amounts of drugs to people on the street in the Melbourne area.
9On 23 March 2018, you drove to Melbourne to purchase methylamphetamine with a 17-year-old girl you had met at a party some two weeks earlier. Together you returned to a rural address where you agreed to sell 1.7 grams to a buyer for $600.
10This conduct is represented by Charge 1: trafficking in a drug of dependence.
11On 26 February 2018, after trying to make contact with the complainant, you attended her address to collect items that had been left out for you. You kicked the front door several times and were yelling. The complainant called 000. You then kicked the back door and the garage door, causing a dent to the garage door. You left the address prior to the police attendance, but were later arrested and interviewed that evening. This conduct is represented by Charge 2: damaging property.
12On 10 March 2018, the complainant received a letter dated 5 March 2018 from the Commonwealth Bank informing her that an application made in her name for a credit card and was unsuccessful. You had used the complainant's personal details in an attempt to obtain the credit card. This conduct is represented by Charge 3: attempting to obtain property by deception.
13As a result of the criminal damage offending, the police issued a Family Violence Safety notice. This was replaced by an interim Family Violence Intervention Order on 1 March 2018 at the Magistrates' Court. Conditions of the intervention order included you being prohibited from:
a. committing family violence against the complainant;
b. intentionally damaging any property of the complainant, or threatening to do so;
c. contacting or communicating with the complainant by any means;
d. entering within 200 metres of where the complainant resides; and
e. getting another person to do anything you must not do under the Order.
14Between 6 March 2018 and 12 March 2018, you persistently contravened the interim Family Violence Intervention Order by engaging in the following conduct:
(a)Between 6 and 7 March 2018, you used the complainant's personal details to access her phone, email address, Facebook, Instagram and Snapchat accounts to prevent her from accessing those accounts. As a result, the complainant's phone was rebooted and factory reset, her SIM card had been cancelled and her phone number was switched to a Telstra account. Two of the complainant's Facebook accounts had been reactivated, but she had no access to them. Her gmail account also had a message saying: "get a verification code by text message at ………54." 54 are the last two digits of your phone number.
(b)On 6 March 2018, you attempted to contact the complainant a total of 11 times between 5am and 10.10pm from your mobile.
(c)On 7 March 2018, you attempted to contact the complainant twice at 9.05am and 5.30pm from your mobile phone.
(d)On 8 March 2018, you drove your car and stopped in the driveway of the units where the complainant resided. This was within 200 metres of her home. You then drove the car a little further up the street and parked. You instructed others to mark graffiti on the complainant's roller door. This caused the complainant to fear for her safety.
(e)On 10 March 2018, you telephoned the complainant at 3.07am. You made two further attempts to telephone her at 5.16pm.
(f)On 12 March 2018, you drove a hired car within 200 metres of where the complainant resided. You then instructed others to mark graffiti on her roller door. This caused the complainant to fear for her safety.
15This conduct is represented by Charge 4: persistent contravention of a Family Violence Intervention Order.
16On 11 March 2018, the complainant received a parcel from Optus containing a SIM card at her address. The parcel was addressed to her, but the postal address on the package had your residential address.
17The package originally had been delivered to your address and was found by your mother, who provided it to the complainant.
18You had used the personal information you had obtained during your relationship with the complainant that was kept on a handwritten note to order the SIM card on 7 March 2018. This conduct is represented by Charge 5: obtaining property by deception.
19On 8 March 2018, in the early hours of the morning, you drove a 14-year-old boy and a 14-year-old girl in a hired Subaru Forrester within the vicinity of the complainant's address. You parked in the driveway of the units where she lived and showed the two children the address. You then drove further up the street and parked. You gave the children a can of spray paint and asked them to graffiti her garage door in exchange for “puff” (also known as methamphetamine).
20The girl spray-painted in silver-coloured paint the word "dog" and a picture of a penis on the complainant's garage door, whilst the boy kept watch. When the boy returned to your vehicle, you gave him an amount of methamphetamine in exchange for the criminal damage. You and he smoked the methamphetamine from a glass pipe. This conduct is represented by Charge 6: recruit a child to engage in criminal activity and Charge 7: traffick a drug of dependence to a child.
21On 11 March 2018 you attended a party in Golden Square. You met a girl at the party who told you she was 17 years old. You supplied her with methylamphetamine. This conduct is represented by Charge 8: traffick a drug of dependence to a child.
22On 12 March 2018 in the early hours of the morning, you drove another girl aged 14 and your aforementioned 20-year-old female friend within the vicinity of the complainant's address. You then drove further up the street and parked.
23You gave the girl and your friend the can of spray paint and asked them to graffiti the complainant's garage in exchange for “bud” (also known as weed). They spray-painted the words: "mut, dog, rat, slut, mole, skank, [town]'s biggest slut” and “Suck cock for rock you shard dog" and painted a picture of a penis in black paint on the concrete of the complainant's driveway. This conduct is represented by Charge 9: recruit a child to engage in criminal activity.
24On 16 February 2018, you were released on bail for other offences. The condition of your bail was that you reside at a specified address.
25You breached a condition of your bail by not residing there.
26You also contravened your bail by committing a number of indictable offences whilst on bail, including persistently contravene a family violence order and trafficking a drug of dependence to a child.
27The conduct referred to above is represented by Summary Charge 23, that is, contravene certain conduct condition of bail (the residence condition), Summary Charge 11 of commit an indictable offence whilst on bail by persistently contravening a family violence intervention order and Summary Charge 20 (as amended) of commit an indictable offence whilst on bail by trafficking a drug of dependence to a child.
28On 30 March 2018, you drove a Mitsubishi Magna sedan which was unregistered at the time, the registration having expired on 11 June 2016. At the time you were driving, the vehicle had registration plates that belonged to another vehicle. This conduct is represented by Summary Charge 31 of use unregistered motor vehicle on highway and Summary Charge 32 of fraudulently using registration label or plate.
29I now turn to your personal circumstances.
30As I noted earlier, you are now 32 and you were 31 at the time of this offending. You had been in a relationship with the complainant for a period of five months. After the relationship ended in February 18, you began harassing the complainant through text messages and phone calls.
31You are the adopted son of your mother, a nurse and your father, an academic. You have a supportive family and you graduated from high school after completing Year 12.
32You started an apprenticeship as an electrician.
33You were good at sport and were drafted by a VFL Football Club to play with them, which you did for three years.
34In 2010-11 you returned to Melbourne and started a relationship with another lady. You ran your own electrical business and you had stable accommodation.
35Your life unwound when you were introduced to the drug “ice” in around 2013. You rapidly developed an addiction.
36In 2015-16 you returned to your home town in an attempt to rebuild your life. In October 2017 you commenced the relationship with the complainant. This relationship broke down in February of 2018 and this precipitated your further offending.
37Although your criminal history reflects your first drug convictions, commencing in 2014, your history of offending encompasses offending most years since 2009. Early offending reflects repeated road traffic offences, as well as dishonesty offending involving burglary, theft and obtaining property by deception. The drug convictions commenced in 2014, with convictions for possessing cannabis and amphetamine and include a context of weapons, dishonesty and assault charges.
38From there you have descended into a repeated pattern of serious offending, breaching every opportunity to address your drug and other issues through court-directed community orders which had been imposed in lieu of imprisonment.
39Back in 2009, you breached a community-based order and were then given a wholly suspended sentence, which you again breached. You first served prison time on that breach in 2011.
40You served a three-month sentence in 2011, then received a community correction order in 2014 for drug, assault and weapons offences. Later that year, you received another community correction order for deception charges. You breached both those orders and received yet another community correction order in 2015 for road traffic and bail offences.
41You breached that order also by further offending, and in 2016 were sentenced to an aggregate sentence of 12 months' imprisonment, with six months to serve before being eligible for parole, for burglary, theft, family violence and further road traffic offences.
42You served that sentence, and were again before the court in October 2017 for offences including persistent contravention of a family violence intervention order, recklessly cause injury, possess methylamphetamine, commit an indictable offence whilst on bail and threat to inflict serious injury. For that offending you received a sentence of 90 days’ imprisonment and yet another community-based order, this time for 15 months.
43Within four months of that order commencing you breached it by committing the serious offences for which you are before me today. This will be the fifth time you have breached a community order by further offending, commencing with the community-based order made way back in January 2009.
44Clearly, the message has not got through to you. Whilst the tragedy of your addiction must be considered, it has never been accepted as excusing criminal conduct. However, some consideration should be given to your vulnerability because of that condition. You are an intelligent man with a good qualification, capable of maintaining a decent life with good material reward. You have at one stage run your own business. You have a supportive family. You have had many opportunities given to you by the courts, representing the community's interests in trying to assist you to rehabilitate yourself.
45In the present circumstances, the emphasis that would otherwise be given to a more lenient disposition in order to reflect your rehabilitation must give way to the protection of the public from you, punishment, denunciation of your conduct and specific deterrence as well as general deterrence to deter others.
46Your offending is serious. It was sustained over a period of two months, involved a variety of offending, including dishonesty, traumatic harassing and insulting behaviour to your ex-partner, general trafficking in drugs and truly exploitative engagement with children, including drug trafficking to and recruiting of a child as young as 14 to engage in criminal activity. That pernicious conduct, in particular, is utterly deplorable, as you are the conduit to them of the degraded and tragic life that you yourself currently experience.
47In my judgment, the purpose or purposes for which the sentence is imposed cannot be achieved without a sentence of imprisonment and for a significant period.
48In mitigation I accept:
· your plea of guilty, both for its utilitarian value as well as expression of remorse;
· that your offending was committed in the context of an established addiction to drugs;
· your commitment to rehabilitation whilst being in custody;
· the continuing support you have from your family;
· the fact that you have the capacity, with the support of your family, to change your life;
· that your prospects of rehabilitation, whilst bleak, are not extinguished; and
· that you have reflected on your position and your acts whilst you've been in custody, as evidenced by the letter that you forwarded to me today.
49Mr Furnell, could you please now stand?
50On Charge 1 of trafficking in a drug of dependence, you are convicted and sentenced to six months' imprisonment.
51On Charge 2 of damaging property, you are convicted and sentenced to one month’s imprisonment.
52On Charge 3, of attempting to obtain property by deception, you are convicted and sentenced to three months' imprisonment.
53On Charge 4 of persistent contravention of a family violence intervention order, you are convicted and sentenced to six months' imprisonment.
54On Charge 5 of obtaining property by deception, you are convicted and sentenced to six months' imprisonment.
55On Charge 6 of recruiting a child to engage in criminal activity, you are convicted and sentenced to six months' imprisonment.
56On Charge 7 of traffick a drug of dependence to a child, where the child was 14, you are convicted and sentenced to two years' imprisonment.
57On Charge 8 of traffick a drug of dependence to a child, where the child was 17, you are convicted and sentenced to 12 months' imprisonment.
58On Charge 9 of recruiting a child to engage in criminal activity, you are convicted and sentenced to three months' imprisonment.
59On each of summary Charges 11, 20 and 23, you are convicted and sentenced to one month’s imprisonment.
60On each of summary Charges 31 and 32, you are convicted and fined $250.
61Charge 7 is the base sentence.
62I direct that three months of the sentence imposed on Charge 4, two months of the sentence imposed on Charge 6, six months of the sentence imposed on Charge 8 and one month of the sentence imposed on Charge 9 be served cumulatively on the sentence imposed on Charge 7 and upon each other. The sentences are otherwise concurrent.
63The total effective sentence is three years' imprisonment.
64I direct that you serve a minimum period of two years' imprisonment before being eligible for parole.
65The sentence starts today. You can take a seat for a moment.
66Pursuant to s.18(4) of the Sentencing Act, I declare that the period of 197 days, not including today, be reckoned as time already served under this sentence and I direct that the fact of this declaration and its details be noted in the records of the court.
67Pursuant to s.6AAA of the Sentencing Act, I declare that, but for your plea of guilty, the total effective sentence that would have been imposed is five years' imprisonment, with a minimum period of four years to be served before eligibility for parole.
68At the plea hearing the prosecution sought a disposal order, to which you consented, for property used or in the connection with the offending and I have made that order today.
69Are there any other matters from either counsel?
70MR CORDY: No, Your Honour.
71MS HARTMAN: No, Your Honour.
72HIS HONOUR: Thanks for your assistance to each counsel, and to you, Mr Cordy, during the course of the month that you've been here on circuit, thank you.
73MR CORDY: Thank you, Your Honour.
74MS HARTMAN: Thank you, Your Honour.
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