Director of Public Prosecutions v Galbraith
[2022] VCC 1837
;
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
CR 22-01030
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ROBERT GALBRAITH |
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JUDGE: | HIS HONOUR JUDGE HIGHAM | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 20 October 2022 | |
DATE OF SENTENCE: | 21 October 2022 | |
CASE MAY BE CITED AS: | DPP v Galbraith | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1837 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Sentence – possess drug of dependence – trafficking drug of dependence – possession of identification information – deal with property suspected of being the proceeds of crime – commit an indictable offence whilst on bail – plea of guilty
Legislation Cited: Sentencing Act 1991 (Vic) s 6AAA
Cases Cited:Gregory v The Queen [2017] VSCA 15
Sentence: Combination Sentence of 9 months’ imprisonment and Community Corrections Order for 18 months
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms H. Lethlean | Office of Public Prosecutions |
| For the Accused | Ms S. Tatas | Sarah Pratt and Associates |
HIS HONOUR:
1Robert Galbraith, you have pleaded guilty to:
· four charges of possession of a drug of dependence (Charges 1, 2, 3 and 6), for each of which the maximum penalty is five years' imprisonment;
· two charges of trafficking in a drug of dependence (Charges 4 and 5), for each of which the maximum penalty is 15 years' imprisonment; and
· one charge of possession of identification information (Charge 7), for which the maximum penalty is three years’ imprisonment.
2You have also pleaded guilty to:
· two summary charges of dealing with property suspected of being proceeds of crime (Summary Charges 7 and 8), for each of which the maximum penalty is two years’ imprisonment; and
· one summary charge of committing an indictable offence whilst on bail (Summary Charge 10), for which the maximum penalty is three months' imprisonment.
3Tendered as Exhibit 1 on the Plea was a Summary of Prosecution Opening which set out the agreed facts of your offending. In brief, the circumstances of your offending were as follows.
4At the time of your offending, you were residing in Australia on a Special Category Visa by virtue of your status as a New Zealand citizen. Between 19 September 2021 and 8 November 2021, Australian Border Force (ABF) intercepted three separate shipments, all containing multiple bottles of 1,4-Butanediol and labelled as various types of essential oils.
5Consignment 1 contained 975.9 grams of 1,4-Butanediol, consignment 2 contained 984.3 grams of 1,4-Butanediol, and consignment 3 contained 11,006.4 grams of 1,4-Butanediol.
6
Bottles recovered from each consignment returned a positive presumptive test for 1,4-Butanediol. The consignee on each shipment was listed as Robert Galbraith with a delivery address of a unit at 50 Haig Street, Melbourne Victoria 3000. Victorian Police were notified, took possession of the consignments under warrant, and commenced an investigation (Charges 1-3, laid on the factual basis
of your attempted possession of drugs of dependence).
7
On 11 February 2022, for unrelated charges of possessing property suspected of being proceeds of crime, you were bailed by the Melbourne Magistrates' Court to
12 April 2022. On 25 February 2022, members of the major drug squad executed a search warrant at your residence at a unit at 60 Pearl River Road, Docklands. Present at that address were Jessica Bisset and Michael Charallam, who were both allowed to leave after providing their details to police.
8You later attended the property, where you were apprehended by police and taken up to your apartment. Upon search of your person, police located an unlocked mobile phone and placed it on a kitchen bench. You retrieved the phone and a struggle ensued, requiring multiple police members to detain you, during which time the phone was locked. You were handcuffed and removed from the apartment.
9During the search of the apartment, police located the following items:
· an apple mobile phone, three sim cards, an HP laptop, an Apple iPad Tablet and a white Samsung Tablet;
· a total of 14.2 grams of methylamphetamine found throughout the apartment (Charge 4);
· numerous Snap Lock bags located in various areas, including on your person;
· eight individually packaged bags in the ‘Jobon’ labelled box in the master bedroom;
· a plastic bottle of viscous liquid confirmed to be 9.6 grams of 1,4-Butanediol (Charge 5);
· five plastic bags containing five white oblong tablets, analysed as 5.7 grams of Alprazolam and Xanax mixed with another substance (Charge 6);
· photocopies of passport and drivers licence details in the name of Matthew Pinczes (Charge 7);
· Commonwealth Bank
card in the name of Hattie Turner (Summary
Charge 7);
· $1750.00 in cash (Summary Charge 8);
· a black Seagate hard drive; and
· various indicia of trafficking, including empty deal bags and digital scales with drug residue on the weight plate.
10Subsequent analysis of your mobile phone and SIM card revealed various conversations between yourself and other individuals, indicating that you have engaged in the business of trafficking 1,4-Butanediol and methamphetamine between 21 February and 24 February 2022 (Charges 4 and 5).
11Further material recovered from the devices linked you to the Haig Street property, to which consignments 1-3 had been addressed.
12Upon your arrest you were taken to City West Police Station and, after a largely ‘no comment’ interview, you were charged and remanded in custody, where you have since remained.
13Charges 4 to 7 and Summary Charges 7, 8 and 10 were all committed whilst you were on bail. That fact aggravates the seriousness of your offending.
14I turn now to your personal circumstances.
15You were born in August 1988 and are now 34 years of age. You were aged 33 at the time of this offending. You are a New Zealand citizen and you left school in Year 8 and commenced farm work. You later became a member of the New Zealand Armed Forces, before running a logging business.
16You had a long-term intimate relationship for 11 years, which gave you four children, now aged between 11 and 16. In or around 2017, and in quick succession, your business failed and your relationship ended. You then moved to Australia in search of a new start. However, once here and unable to cope with your apparent misfortune, you turned, for the first time in your life, to drug use. You began using methamphetamine on a regular basis and then using GHB daily in addition.
17You nonetheless commenced a new relationship and in 2020 a son was born of that relationship. However, the relationship ended three months later and you now have no contact with that son, who would be your fifth child. Shortly thereafter, your father passed away. You then suffered a severe back injury requiring surgery and the pandemic took hold. Your drug use escalated. It seems you were accepted for admission by Odyssey House, but you disengaged before your placement commenced. By the age of 32, you were fully drug dependant and no longer able to work in the various employments that had kept you financially stable up to that point.
18You report using 1 gram of methamphetamine and 60 millilitres of GHB daily at the time of your arrest. You turned to trafficking to support your dependency and your other financial needs.
19This was the context for your offending although, of course, it does not excuse it.
20You have a limited but relevant prior criminal history consisting of possession of drugs of dependence, which is similar to the index offending. You have appeared before the courts on three prior occasions between 2018 and 2021, receiving fines on each occasion, both with and without conviction. This is your first time in custody and I am told it has had a salutary effect upon you. You have produced two negative screens (out of two drug tests) and have applied yourself to obtaining qualifications whilst in custody to better improve your employment prospects (see Exhibit 4RG).
21You are, however, receiving long-acting injectable buprenorphine in custody. I enquired as to the circumstance of that fact on your Plea, which was held yesterday, and it is of great concern Mr Galbraith that you are leaving custody with an opioid dependency which you did not have at the time of your arrest. It is a matter of great concern to the Court.
22Exhibit 4RG on the Plea was a Mental Health Assessment Summary Report, authored by Gregory Lane and dated 10 October 2022. You have no history of mental illness, which your presentation confirmed. Further, there was no evidence of cognitive distortions, or deficits, nor any formal thought disorder, nor suicidal ideation. You were focussed upon the future and have a positive current mood state, absent any report of identified depressive traits.
23However, Mr Lane noted that,
“[Mr Galbraith] reported experiencing multiple psycho-social stressors that led him to misusing illicit substances and making poor life choices. Mr Galbraith presented today as stable in his mental state and appeared to be very driven in his personality style. However, he appeared to have very high expectations about his ability to re-integrate back into the community and make a success of his life. Query whether he has unrealistic expectations? Mr Galbraith could benefit from learning practical psychological skills to self-manage his mood and emotions, to self- soothe and support him focus on achieving his pro social life goals. Mr Galbraith may have unresolved self-esteem, loss and change issues which he could explore with a psychologist.”
24
That is a very helpful and a very astute assessment of your personality presentation Mr Galbraith. Mr Lane recommended that ongoing assessment and treatment of your mental health be made a condition of any
Community Corrections Order (CCO) in order to promote wellbeing and reduce the likelihood of reoffending.
25Ms Tatas, learned Counsel on your behalf, submitted, in effect, that the Court should pass a sentencing disposition that would allow your release in the near future, if not immediately.
26In support of that submission, Ms Tatas pointed to your plea of guilty, which was indicated at the earliest opportunity (the second committal mention), which she submitted was evidence both of your remorse and of your willingness to facilitate the administration of justice. Ms Tatas also reminded me that your plea in the time of the COVID-19 pandemic brings with it particular benefit, which the higher Court has said must be recognised. She also pointed to your prospects of rehabilitation, having regard to your relatively minor criminal history, your past work ethic, the ongoing family support of your mother, your readily employable skill set (I am told you can be an excavator) and your proposed address with a pro-social acquaintance (Mr O'Shea (Exhibit 5RG)).
27Ms Tatas also pointed to the onerous burden of the uncertainty as to your prospect of deportation because of your New Zealand citizenship.
28Ms Gurry, Counsel on behalf of the Director, whilst identifying for me all the relevant sentencing purposes, conceded that a combination sentence, combining a term of imprisonment with a CCO, was within range for this offending.
29Mr Galbraith, those of us who sit in the criminal courts day after day are aware of this simple truth: drugs are tearing out the heart of our community. Our community is losing a generation, particularly to methamphetamine, which brings with it the horrors of dependency. Those who participate in what can only be described as an evil trade can certainly expect to be severely punished if and when they come before the courts. Mr Galbraith, as you would know, what might start out as a fun Saturday night, what might be regarded as recreational use that can be easily controlled, can quickly spiral into the horrors of addiction. In that dependence, many lose everything, including their lives. Your own short-lived experience must show you how close you have come to losing everything.
30The trafficking offences to which you have pleaded guilty are serious offences, as is clear from the maximum penalty which Parliament has seen fit to impose. The quantity, role, duration of offending, and the motivation of the offender's involvement in offending are all important indicia of offence seriousness.[1]
[1]Gregory v The Queen [2017] VSCA 15, 2 [24].
31
I am satisfied in relation to Charges 1 to 3 that you attempted to possess
1,4-Butanediol for purposes relating to trafficking, having regard to the quantity involved and to the later indicia of your sale of that drug. As for the trafficking offences, they are of a relatively low level in terms of their quantity and in terms of the duration, but, nonetheless, such offending wreaks untold damage and despair amongst our community.
32Mr Galbraith, 1,4-Butanediol is itself a drug of dependence that is becoming of greater concern to this Court. Its use in conjunction with methamphetamine is becoming more commonplace and because it takes longer to metabolise within an individual user, it presents elevated risk of overdose, which our emergency rooms are confirming.
33As to your role, I am satisfied to the requisite standard that you were in the business of the onward sale of drugs, albeit on a small scale. The benefit to you from your involvement in this enterprise was both being able to feed your own habit, as well as some, although I cannot identify how much, financial gain. You have become immersed very quickly in the drug dealing world, as is evidenced by your conduct around the seized mobile phone, to which I have already made reference. Your offending is aggravated by the fact that Charges 4 to 7 and the related summary offences were all committed whilst you were on bail.
34Mr Galbraith, in sentencing you I must have regard to a range of different factors. I must give effect to the principle of general deterrence, that is to deter others from behaving as you did, and to specific deterrence, that is deterring you from ever repeating such offending. I must consider the need to protect the community, I must express the community's denunciation of your conduct and I must take into account the effect of your crimes upon the community. I must have regard to current sentencing practices and the statutory maximum penalties for the offences to which you have pleaded guilty. I must ensure, as far as possible, that you are rehabilitated and reintegrated into society. In short, I have to balance your personal circumstances with the circumstances of the offending as I find them to be. I must also pass no greater sentence than is necessary in all the circumstances of the case, as I find them to be.
35General deterrence, specific deterrence, and denunciation are all highly relevant sentencing purposes in your case. In sentencing you I have had regard to all the matters urged upon me, so succinctly and ably, by your Counsel:
· your early plea of guilty, that has a utilitarian value of saving the community the time and the expense of a trial and has particular value in the time of the COVID-19 pandemic, which must be recognised;
·
I also have regard to your prospects of rehabilitation. As far as I can see,
Mr Galbraith, they are excellent should you be able to remain drug free; and
· I also have regard to the uncertainty that is hanging over you as to your future status in this Country
36I have tried to fashion the sentence, Mr Galbraith, which finds a suitable balance between the competing interests of all those matters I have identified.
37On Charges 1 to 3, you are sentenced to an aggregate sentence of three months’ imprisonment and a Community Corrections Order of 18 months.
38On Charge 4, you are sentenced to a term of imprisonment of seven months.
39On Charge 5, you are sentenced to a term of imprisonment of three months.
40On Charges 6 and 7, you are sentenced to a term of imprisonment of one month on each of the charges.
41On Summary Charges 7 and 8, you are sentenced to an aggregate sentence of one month.
42On Summary Charge 10, you are sentenced to a term of imprisonment of one month.
43I order that one month of the sentence on Charge 5 and one month of the aggregate sentence on Charges1 to 3 run cumulative to each other and cumulative to the sentence on Charge 4. That makes a Total Effective Sentence of nine months’ imprisonment and a Community Corrections Order of 18 months.
44I declare that you have served 238 days of the sentence I have passed upon you today and I direct this be entered into the records of the Court.
45
I want you to understand that I am concerned about
your medical treatment and, in my view, it is in your best interest to have an appointment with a doctor in the Corrections context before you leaves.
46I will now turn to the Community Corrections Order, Mr Galbraith. So, there are mandatory terms, the core conditions, which are essentially that you must do what Corrections ask you to do, including:
· not to commit another offence for which you can be imprisoned; and
· you have got to report to Melbourne Community Correctional Service at 50 Franklin Street within two clear working days of the Order starting. The Order will start on the day you are released.
47The conditions that apply in addition to the core ones are that:
· you must complete one hundred hours of unpaid community work and I am ordering that all hours of treatment and rehabilitation satisfactorily undertaken are to be counted as hours of unpaid work;
· you are to be under supervision of a Community Corrections Officer for 18 months;
· you must undergo assessment and treatment, including testing for drug abuse and dependency, as directed by the regional manager;
· you must undergo any mental health assessment and treatment, and that means psychological, neuropsychological, psychiatric or treatment in a hospital or residential facility, as directed by the regional manager. It seems to me that you would require some complex treatment to address both your alcohol and other drug needs, but also any mental health issues that may underpin them; and
· you have got to reside at an apartment at 118 Russell Street, Melbourne VIC 3000 for a period of 18 months, which is with Mr O'Shea who is identified as a pro-social support.
48Mr Galbraith, do you consent to being placed on a Community Corrections Order?
49OFFENDER: Yes.
50HIS HONOUR: All right, now you have got a copy of the CCO there?
51OFFENDER: Yes.
52HIS HONOUR: Then you sign that and then that will come back to me and I will sign it and then we will make sure that copies get to you.
53Pursuant to s 6AAA of the Sentencing Act 1991 (Vic), and it is a somewhat artificial exercise as is now recognised, had you not pleaded guilty you would have been sentenced to a Total Effective Sentence of two years and two months, with a non-parole period of 19 months. All right, thank you very much.
54I will stand down.
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