Director of Public Prosecutions v Geyer
[2013] VCC 1668
•7 August 2013
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case Nos. CR-11-01483
CR-12-01564
CR-12-01821
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JUSTIN CHRISTOPHER GEYER |
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JUDGE: | HER HONOUR JUDGE PATRICK | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 7 August 2013 | |
CASE MAY BE CITED AS: | DPP v. Geyer | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1668 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr D. Porceddu | |
| For the Accused | Ms S. Cannon |
HER HONOUR:
1 Justin Christopher Geyer, you have pleaded guilty to charges on three indictments and uplifted summary charges.
2 In respect of Indictment A10960874, you have pleaded guilty to one charge of being a prohibited person in possession of an unregistered firearm. The maximum penalty for that offence is 15 years' imprisonment. You have also pleaded guilty to one charge of being a prohibited person in possession of a registered firearm. The maximum penalty in respect of that offence is ten years' imprisonment.
3 The circumstances of that offending are that on 15 April 2010 police searched a locked storage shed which had been hired by you. The police found two unregistered firearms, being a Winchester make 12 gauge calibre pump action shotgun and a Baikal make 195K-A model 12 gauge calibre Category A bolt action shotgun. Police also found one registered firearm, which was a Boito shortened shotgun. That firearm was registered to another person and had been reported stolen on 27 January 2010. All the firearms were in working order.
4 You were prohibited from possessing firearms because in December 2008 you were sentenced to an aggregate sentence of two months' imprisonment wholly suspended for 12 months in respect of indictable offences. Forfeiture was sought of the firearms and the making of that order was consented to.
5 In respect of Indictment A10960874.1, you pleaded guilty to two charges of handling stolen goods. The maximum penalty for that offence is 15 years' imprisonment.
6 The circumstances of that offending are that when police searched a factory which had been leased by you on 15 April 2010, they found a 2003 Subaru Impreza car which had been reported stolen on 2 December 2009. Police also found stolen vehicle registration plates.
7 In respect of Indictment A10960874.2, you pleaded guilty to one charge of trafficking in a drug of dependence. The maximum penalty for that offence is 15 years' imprisonment. You also pleaded guilty to one charge of trafficking in a drug of dependence in not less than a commercial quantity. The maximum penalty for that offence is 25 years' imprisonment. You pleaded guilty to five charges of possession of a drug of dependence. In respect of Charge 3, the maximum penalty is five penalty units. In respect of Charges 4 to 7, the maximum penalty in these circumstances is one year's imprisonment. I am satisfied on the balance of probabilities that you did not possess those drugs for the purpose of trafficking.
8
The circumstances of that offending are that police, in November 2009, were investigating the trafficking of methylamphetamine in the Cranbourne and Frankston areas. Police intercepted phone calls on mobile phones between
7 January 2010and 15 April 2010. The police discovered that there were a number of people in a drug trafficking syndicate. You were a member of that syndicate, although not the controller and main person behind the syndicate, who was Lee Hearnden.
9
Charge 1 of trafficking in a drug of dependence relates to the following circumstances. The syndicate was involved in a continuing drug trafficking business, preparing, distributing and selling methylamphetamines. The call extracts set out in the Summary of Prosecution Opening, tendered as Exhibit A, demonstrate that you were in regular contact with Mr Hearnden and other
co-offenders about arrangements about the preparation, distribution and sale of methylamphetamine and gathering the required funds. The prosecution case is that in respect of that charge you trafficked in not less than 446.8 grams of methylamphetamine which was prepared by syndicate members on 12 April 2010. On 15 April 2010 that amount of drugs was found at a Langwarrin unit by police. You were at the unit with another co-offender. The prosecution case is put on the basis that those drugs were possessed for the purposes of sale.
10 In respect of Charge 2 of trafficking in a not less than a commercial quantity of methylamphetamine. Again the prosecution case is put on the basis that you possessed drugs for the purposes of sale. On 15 April 2010 your residential address was searched. The police found 874.5 grams of methylamphetamine. A further 365.7 grams was found at a storage facility. This was the same storage facility where the guns were found to which I have previously referred. The total amount of methylamphetamine that the police found on 15 April 2010 was 1238.2 grams. A commercial quantity is not less than 500 grams.
11
Also found at your residential address were cannabis L, not more than
28.9 grams (Charge 3); .4 grams of cocaine (Charge 4); one gram of ketamine (Charge 5); .3 grams of MDMA (Charge 6); and 38 tablets containing methandienone with a total of 20.9 grams of that substance (Charge 7).
12 The prosecution sought an order for the taking of a forensic sample from you in relation to this indictment. The making of that order was consented to. Forfeiture was also sought and that was consented to also.
13 You were arrested on 15 April 2010. You spent some time in custody and were later released on bail. You have spent 196 days in pre-sentence detention.
14
There was a contested committal hearing in respect of the charges between
1 and 10 August 2011. A number of related summary offences were uplifted to this court. The prosecution sought to withdraw Charges 5, 8, 9, 10, 12, 13, 14, 18, 22, 24, 28, 29 and 30.
15 You pleaded guilty to Charges 17, 23 and 27. Those are all charges of possession of a prohibited weapon. The maximum penalty in relation to those charges is 240 penalty units or imprisonment for two years.
16 Charge 17 relates to an ASP baton found at the Langwarrin unit on 15 April 2010. Charges 23 and 27 relate to a samurai sword and crossbow found during the search of your storage shed. A forfeiture order was sought in relation to those items and the making of that order was consented to.
17 In sentencing you I have taken into account your personal circumstances. You are now 33. You had a very disrupted and impoverished upbringing. Both your parents had significant drug issues when you were young. It appears that your mother has dealt with those issues and is no longer involved with illegal drugs. Your father spent most of his life in gaol. There was a brief period of reconnecting with you when you were 16. Your father passed away four to five years ago. You did not have a close emotional connection with your mother but you are now a lot closer to her than you were previously.
18 You were in State care from a young age until you were about nine. You had a considerable amount of instability whilst you were growing up. You did not do well at school and were expelled in Year 9. You have been engaging in drug use since you were 12 or 13, commencing with cannabis. You have continued to use cannabis occasionally, although it appears that your use of other illegal drugs became much more of a problem.
19
After leaving school, you have had a solid work history. You worked as a concreter for many years and in later years you began a concreting business in partnership with Mr Hearnden. It appears that that association and the lifestyle that you were leading led to increased drug use on your part. A report was tendered from Ms Carla Lechner dated 25 March 2013.
Ms Lechner says that you told her that for about four months, at around the time of these charges, you were using up to $20,000 worth of cocaine a week.
20 Prior to your arrest you were living with your then partner, Ms Belinda Aitkin, and your daughter. Your daughter is now six years old. You and Ms Aitkin have separated in difficult circumstances. Since your release, you have been caring for your daughter, assisted by your mother.
21
You had a brief relationship with another woman, who had a son. Sadly, he was born prematurely and had many medical problems. He is now about
15 months old and you do not have contact with him. You did attempt to provide assistance to your son's mother and your son.
22 Since your release on bail you have been employed in the mines and in road construction.
23 You admitted a prior criminal history. It is noteworthy that that prior criminal history did not commence until 2006. The history is not extensive but includes serious matters of violence. It is also of relevance that in February 2009 you were sentenced in the Southport Magistrates' Court in Queensland to charges which involved drug offending. It appears that you effectively were sentenced to time served, which was 41 days.
24 In sentencing submissions your counsel relied on a number of matters in mitigation of sentence. She said that the sticking point at the committal was in relation to an amount of drugs with which you have not now been charged. She says that a realistic offer was made at an early stage and that there have been genuine efforts to resolve the matter. She submitted that this demonstrated genuine remorse on your part. She submitted that you would be entitled to a discount for your plea of guilty for reasons of utility and also as an expression of genuine remorse.
25 In respect of the delay in this matter, your counsel submitted that that was relevant to your prospects for rehabilitation, as you had not offended in the period since you were charged. You have also ceased illegal drug use, although I note that Ms Lechner says that you continue to use cannabis occasionally.
26 Your counsel also relied on your past employment record and your maintenance of employment after your release from custody. She also referred to your care for your daughter, whom she described as the primary focus in your life.
27
Your counsel submitted that having had the matters hanging over your head had exacerbated your underlying issues with depression, and relied on
Ms Lechner's diagnosis of worsening clinical depression. She submitted that that would make your time in custody more difficult. Your counsel also submitted that any period of imprisonment would weigh heavily on you because of your concern about your daughter.
28 Your counsel addressed parity issues. The co-accused in this matter who were involved in the syndicate have now been sentenced by myself and another judge. Your counsel said that your situation was clearly distinguishable from the situation of Mr Hearnden. Mr Hearnden was sentenced by Her Honour Judge Lewitan on 8 March 2013 to a term of imprisonment of six years with a non-parole period of four years. Your counsel said that your role was very subordinate to that of Mr Hearnden. She also distinguished your situation from that of Mr Hearnden in respect of a number of points.
29
A number of your co-accused have been sentenced on lesser charges and to a lesser role. Your counsel referred to, and it is relevant to refer to, the sentencing of another co-accused, Ludwig, who was sentenced by
Her Honour Judge Lewitan on 22 February 2013. Your counsel distinguished Mr Ludwig's situation from your situation. Mr Ludwig received a sentence of 45 months with a non-parole period of 30 months.
30 Your counsel submitted that it should be taken into account that your role in the drug offending occurred in the context of your own drug abuse problems and in the context of a rapidly escalating drug habit.
31 In respect of your prior criminal history, your counsel submitted that these matters were limited and said that it should be taken into account that this would be your first lengthy term of imprisonment. She submitted that specific deterrence ought not be the most significant sentencing consideration. In respect of the firearms and handling goods, she addressed these matters and submitted that they were not of a serious nature effectively. She said there was no suggestion that there was any use of any firearms in respect of the drug trafficking syndicate, and I accept that submission.
32 Your counsel submitted that the appropriate sentence would be a head sentence at the mid to low range of the Crown range with a non-parole period at the bottom end of the Crown range. Your counsel sought on your behalf a sentence which would allow for the opportunity of a lengthy period of parole, as that that would assist your rehabilitation.
33 The prosecutor, in his sentencing submissions. addressed parity issues, particularly in relation to Mr Hearnden. The prosecutor drew attention to amounts of drugs that were found in your possession that were not subject of charges in respect of Mr Hearnden. The prosecutor submitted that in terms of the syndicate, your role was that of a person who was an active participant and a very trusted person and just below Mr Hearnden.
34 The prosecutor's instructions were that the appropriate head sentence would be in the range of four and a half to six years with a non-parole period of three to four years.
35 Mr Geyer, your offending is clearly very serious. You possessed guns that you were not supposed to have. You had no legitimate reason for having them. You possessed three other weapons, again for no legitimate purpose. That is concerning, especially in the context of your prior criminal history involving violence. You had a car and number plates which had been stolen at a factory leased by you.
36 These offences were committed during a time when you were engaged in the most serious offending of trafficking in methylamphetamine. You face two charges in respect of that, of trafficking and trafficking in a not less than a commercial quantity. You possessed small amounts of other drugs, which I am satisfied was not for the purposes of trafficking.
37
It appears from the circumstances of these offences, and what you told
Ms Lechner, that you were thoroughly engaged in a lifestyle involving illegal drugs. You used large quantities and funded that use and other lifestyle purchases through your involvement in the preparation, distribution and sale of methylamphetamine.
38 In respect of the trafficking charge, the amount involved was almost a commercial quantity. In respect of the trafficking in not less than a commercial quantity, the amount involved was more than four times more than the commercial quantity. The preparation, distribution and sale of illegal drugs is an evil trade. You were well placed to see the consequences and harm to individuals in society as a result of the use of illegal drugs. The sale of illegal drugs makes profits out of the weakness of other people. It causes misery and disruption in society.
39 You had served a short term of imprisonment of 41 days in Queensland in 2009 for drug offending. That did not serve to warn you. It should have served to warn you. The sentence I am imposing must be enough to warn you and others against getting involved in the evil business of drug trafficking.
40 I am satisfied that your role was less than that of Mr Hearnden but still was a very significant involvement and a greater involvement than other syndicate members. You were in a legitimate business with Mr Hearnden and were trusted by him. I accept that your offending occurred in the context of your own drug use, but you also used money to support your lifestyle.
41 I consider that your rehabilitation prospects are reasonably good. It is concerning that you did not stop offending in relation to drugs after the period of imprisonment in Queensland. It is also concerning that you have continued to use marijuana but it is encouraging that you stayed away from illegal drugs after your release from custody despite the difficulties in your life. Very importantly, during the period of delay between your arrest and ultimately remand, you did not re-offend.
42 You have a limited criminal history which is relatively recent. You have a history of hard work and application of various skills. You have demonstrated a capacity to operate business of a legitimate sort. That is to your credit given your very difficult background. I accept that you have looked after your daughter and that you wish to support her. You have pleaded guilty and have demonstrated remorse. All of those things support my conclusion that your rehabilitation prospects are reasonably good. Despite that, I consider that specific deterrence must have some weight in your sentence in order to discourage you from further offending on your release from custody.
43 Your plea of guilty has considerable utilitarian value in saving the time, expense and trauma of a trial or trials. Your plea of guilty was not made at the earliest opportunity but I note that there have been changes in the position of the prosecution. I also accept that your plea of guilty is an expression of your remorse in the sense that I accept that you deeply regret this offending, especially because of the effect your offending and your incarceration will have on your daughter. I accept that your concern for her will make imprisonment more difficult. I have taken those matters into account in moderation of sentence. You are, of course, entitled to a significant discount for your plea of guilty.
44 Ms Lechner has diagnosed you as having, at the time when she assessed you, clinical depression which was worsening. That appears to have been related principally to the consequences of your offending but I accept that that situation will make imprisonment more difficult for you and that that should lead to some moderation of sentence, especially because this is your first lengthy term of imprisonment.
45
Questions of parity are clearly relevant. The sentences in relation to
Mr Hearnden and Mr Ludwig are of particular relevance given their role. The other persons who have been sentenced, including by myself, had lesser roles and received commensurately lesser sentences. I have had the benefit of reading Her Honour's Reasons for Sentence in both matters. I have taken those sentences into consideration, especially in relation to your respective roles and your joint criminal liability for the amount of drugs found at the Langwarrin unit which was the subject of Charge 1 on Indictment A10960874.2. That was a charge of trafficking simpliciter. You were all clearly involved in the syndicate headed by Mr Hearnden but there are significant differences in your offending and in the individual circumstances.
46 Even taking matters of mitigation into account, the seriousness of your offending clearly warrants a significant term of imprisonment for the purposes of denunciation, just punishment, general deterrence and specific deterrence.
47 In considering the sentences to be imposed and the degree of cumulation, I have applied the principles of totality and proportionality. I have said that your prospects for rehabilitation are reasonably good. For those reasons a crushing sentence ought not to be imposed and a sentence ought to be imposed which would encourage your rehabilitation. Your rehabilitation is in the interests both of yourself and of the community. I have taken your rehabilitation into account, particularly when setting the non-parole period.
48 Mr Geyer, could you stand up, please?
49 In respect of Indictment A10960874, you are sentenced as follows:
50 On Charge 1, being a prohibited person in possession of an unregistered firearm, you are convicted and sentenced to two years' imprisonment. In respect of Charge 2, being a prohibited person in possession of a registered firearm, you are convicted and sentenced to one year's imprisonment.
51 Those sentences are to be served concurrently with each other, resulting in a total effective sentence on that indictment of two years' imprisonment.
52 The forfeiture order in respect of the firearms will be made.
53 In respect of Indictment A10960874.1, you are sentenced as follows:
54 On Charge 1 of handling stolen goods, you are convicted and sentenced to eight months' imprisonment. On Charge 2, handling stolen goods, you are convicted and sentenced to two months' imprisonment. Those sentences are to be served concurrently. The total effective sentence in respect of that indictment is eight months' imprisonment.
55 In respect of Indictment A10960874.2, you are sentenced as follows:
56 In respect of Charge 1, trafficking in a drug of dependence, you are convicted and sentenced to two years and six months' imprisonment. In respect of Charge 2, trafficking in a drug of dependence not less than a commercial quantity, you are convicted and sentenced to a term of imprisonment of four years. In respect of Charge 3, possession of a drug of dependence, you are convicted and fined $150. In respect of Charge 4, possession of a drug of dependence, you are convicted and fined $300. In respect of Charge 5, possession of a drug of dependence, you are convicted and fined $300. In respect of Charge 6, possession of a drug of dependence, you are convicted and fined $250. In respect of Charge 7, possession of a drug of dependence, you are convicted and fined $500.
57 Six months of the sentence on Charge 1 is to be served cumulatively on the sentence on Charge 2. The total effective sentence in relation to that indictment is four years and six months' imprisonment.
58 I make the order for the taking of a forensic sample from you. I make that order because of the seriousness of your offending, your prior convictions and because the order was not opposed. In fact, the order was consented to.
59 Mr Geyer, the authorities will come to take a sample from you by way of a saliva swab. I am required to warn you that you must co-operate with them. If you do not co-operate, they are allowed to use reasonable force and to take a blood sample. So I am sure you will co-operate with them when they come to do that.
60 The forfeiture order will also be made in respect of that indictment.
61
In respect of the summary charges, on Summary Charge 17, you are convicted and sentenced to two months' imprisonment. In respect of
Charge 23, you are convicted and sentenced to one month imprisonment. In respect of Charge 27, you are convicted and sentenced to two months' imprisonment, those sentences to be served concurrently with each other. The total effective sentence in respect of the summary charges is two months' imprisonment. The forfeiture order sought will be made in respect of those charges. Charges 5, 8, 9, 10, 12, 13, 14, 18, 22, 24, 28, 29 and 30 are struck out, as withdrawn.
62 Six months of the sentence on Indictment A10960874 is to be served cumulatively on the sentence on Indictment A10960874.2. The sentence on Indictment A10960874.1 is to be served concurrently with the sentence on Indictment A10960874.2. The sentence on the summary charges is also to be served concurrently.
63 The total effective sentence on the three indictments is five years' imprisonment. I fix three years as the period you are required to serve before being eligible for release on parole.
64 I declare that you have served 196 days by way of pre-sentence detention to be deducted administratively.
65 In respect of Indictment A10960874, but for your plea of guilty, I would have sentenced you to a term of imprisonment of three years with a non-parole period of 18 months.
66 In respect of Indictment A10960874.1, but for your plea of guilty, I would have sentenced you to a term of imprisonment of 15 months with a non-parole period of nine months.
67 In respect of Indictment A10960874.2, but for your plea of guilty, I would have sentenced you to a total effective sentence of six years and six months with a non-parole period of four years.
68 But for your plea of guilty in respect of the summary charges, I would have convicted and sentenced you to a term of imprisonment of four months.
69 The total effective sentence on the three indictments, but for your plea of guilty, would have been seven years and four months with a non-parole period of four years and six months.
70 So the sentence I am imposing today is five years with a non-parole period of three years.
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