Director of Public Prosecutions v Gillard

[2015] VCC 1920

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 15-01634
CR 15-01633

DIRECTOR OF PUBLIC PROSECUTIONS

v

STEPHEN GILLARD
GEOFFREY HITCHEN

---

JUDGE:	HIS HONOUR JUDGE RYAN
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	18 December 2015
CASE MAY BE CITED AS:	DPP v Gillard & Anor
MEDIUM NEUTRAL CITATION:	[2015] VCC 1920

REASONS FOR SENTENCE
---

Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. O'Doherty	Solicitor for Office of Public Prosecutions
For Accused Gillard and Hitchen	Mr R. Richter QC Mr G. Jones	Anthony Isaacs Murphy’s Lawyers

HIS HONOUR:

1Stephen Gillard and Geoffrey Hitchen, on 14 December 2015 you each pleaded guilty to trafficking in methylamphetamine at Tutye on 17 January 2015.  You each admitted your criminal records.  The maximum penalty for this offence is 15 years' imprisonment.

2Tendered as Exhibit A and read aloud in court was an agreed summary of prosecution opening.  In summary, the pair of you travelled in Gillard's Ford Utility from New South Wales into Victoria intending to travel through to South Australia.  The passenger side airbag of the utility had been removed from the car's dashboard and in the space left behind in the dashboard you secreted three heat sealed bags, each containing a bottle containing methylamphetamine.  The three bottles contained a total of 837.5 grams of the substance that was 35 per cent pure methylamphetamine.

3The commercial quantity of methylamphetamine when mixed with other substances is 500 grams.  The commercial quantity of pure methylamphetamine is 100 grams.  The pure methylamphetamine contained in the bottles was just over 293 grams. 

4The prosecution did not assert that you had the necessary intent to traffic in a commercial quantity of methylamphetamine.  It was agreed that you possessed the methylamphetamine knowing that it would be sold.  It was agreed that your roles were that of transporters or couriers of the drugs to others unknown. 

5On 17 January you were observed by a farmer by your stationary vehicle in a side road that leads off the Mallee Highway in Tutye, a remote rural area 80 kilometres west of Ouyen.  The farmer observed the passenger side door was open and that the airbag area in the dash was removed.  He offered you assistance but you, Hitchen, refused it.  The farmer observed you, Gillard, in the scrub to the driver's side of the vehicle.  The farmer was naturally suspicious of you.  He returned to his property and sent a farm worker to get the utility's registration number. 

6After you left the farm worker returned to the spot where he had observed you and discovered that you had buried the methylamphetamine in the scrub.  He dug it up and returned to the farmer and the police were notified.  A surveillance operation was mounted.  After leaving the track you travelled into South Australia and were detected by a safety camera at Crafers, near Adelaide, that night.

7The following day you returned to Tutye in convoy with another vehicle, a Hyundai carrying two men.  You travelled down the track and tried unsuccessfully to recover the methylamphetamine.  You left the area empty handed and rendezvoused with the men in the Hyundai who had travelled past the track and parked some four kilometres east of the track on the Mallee Highway.  At that point you were arrested.  The occupants of the Hyundai fled but were soon apprehended.

8You were each interviewed under caution.  Mr Gillard, you effectively made a no comment record of interview while you, Mr Hitchen, denied anything to do with methylamphetamine.  You were each charged with trafficking in not less than a commercial quantity of methylamphetamine and remanded in custody until at committal hearing at Mildura Magistrates' Court on 17 September 2015 when the matter settled to the present charge and on an agreed facts basis. 

9Gillard, you are 39 years of age and have 24 prior findings of guilt or convictions from eight court appearances.  The last appearance was in 2000.  I was told that the court appearances in 1999 arose out of conduct that occurred in 1996 and 1997.  Accordingly you have been in no trouble with the police for at least 15 years.  Within your criminal record are six minor drug offences.

10Tendered as Exhibit 3 was a report from Pamela Matthews, psychologist, dated 23 November 2015.  You reported to her that you had never used methylamphetamine and that your financial position was parlous and you accepted your co-offender's offer to involve yourself in this crime.

11You were born in Sydney and raised in the outer western suburbs.  You are the oldest of four children.  Your father had only sporadic employment while your mother worked full time as a nurse.  Your parents have lived apart for in excess of ten years yet they cohabit a couple of days each week.  You described your father to Ms Matthews as a physical disciplinarian and a man who was emotionally abusive towards your mother. 

12You have worked since you left school, mostly at unskilled factory work and labouring jobs.  In 2001 a daughter was born to you and your partner and in 2003 a son.  The relationship broke down when your partner moved to the New South Wales central coast in 2006 or 2007.  You moved to the central coast of New South Wales in 2011 and Byron Bay in 2013, maintaining employment as a possum catcher, a driver and labourer from time to time.

13You are in a relationship with a woman that you have known since your school days and you have been together for two or three years.  You were an habitual user of cannabis from the age of 17 until you were 29 years of age.  You reported to Ms Matthews that you are in good physical health and have never had contact with counselling or psychological services.  You suffer no mental disorder although you have been adversely affected by the gaol riot that occurred on 30 June 2015.  Tendered as Exhibit 2 was your diary that lists the regime under which you were held until you were bailed, a period of six weeks or so.  Ms Matthews reported that your reaction to the riot and its sequelae "suggests a post-trauma element in his presentation."  You are an appropriate vehicle for the application of the principle of general deterrence.

14Tendered as Exhibit 1 on the plea were two references from your sister, Kristy Gillard, who also gave evidence on your plea.  Since your release on stringent bail conditions, see Exhibit 4, you have lived with her and her family.  She deposed as to your generosity to others, your skills as a landscaper and artist as well as the support you have provided to her and her family whilst you lived with her.  She witnessed your decline whilst under the rigours of the post-riot conditions in prison and noted how you have improved since your release. 

15Tendered as part of Exhibit 1 was a reference from your partner, Sarah Lonie, who writes as to your devotion to your children and the cost of exercising access to them as well as the cost of family law proceedings related to that issue.  You hope to marry.  She has missed you since your release on bail because your bail conditions required you to live with your sister in the western Sydney suburb of Emu Plains.  It is plain that she is supportive of you. 

16You involved yourself as a courier in what was plainly a commercial transaction involving methylamphetamine.  Drugs of addiction are a scourge to our society.  Those that involve themselves in this trade must expect condign punishment.  Having said that, you pleaded guilty at an early stage and are entitled to the benefit that flows to you from that plea, being that it is some evidence of your remorse and that it has utilitarian benefit in that it facilitates the course of justice.  Your time in custody after the riot of 30 June must be factored into any sentence that I impose on you. 

17You have the support of your partner and sister, however I regard your prospects of rehabilitation as guarded because of the readiness with which you entered into this criminal combination and your criminal antecedents, acknowledging that they are old. 

18Geoffrey Hitchen, you are 42 years of age and the prior criminal matters that you admitted have no role to play in the exercise of my sentencing discretion.  Mr Jones of counsel relied upon a number of matters in his plea on your behalf being your early plea of guilty, that leniency should be shown to you because you entered into an agreed statement of facts which defines your role at the lower end, that you have no relevant criminal history, that you spent seven months on remand including a period after the 30 June prison riots and that during this period on remand you received no visitors, and that any time in custody would be difficult for you because of your depressive illness.

19Tendered as Exhibit 5 was a report of Steven Woods, psychologist, dated
14 December 2015.  He consulted with you on 11 December 2015.  You reported to him a disturbing history of alcohol and drug dependence which I take to be abuse.  You told Mr Woods that you agreed to participate in the transportation of a "package" to South Australia for payment of $2,000 and some drugs for your own use. 

20You are the oldest of two children.  Your parents are dead.  You nursed both of them in the final year or so of their illnesses which brought about their deaths.  You were educated at the same high school as your co-offender, Gillard, namely Jamison High School.  You completed Year 12 in 1990.  A couple of years later you undertook further education in an attempt to enter tertiary education but this proved unsuccessful.  You have, however, undertaken vocational training in hospitality, business management and computer skills.  You maintained full employment until the death of your father in March of 2014.

21You presented to Mr Woods in a depressed state which on its face is reactive to your present predicament, although you have reacted to other stressors in your life in the same way in the past.  The other matters reported on by
Mr Woods do not attract the principles enunciated in R v Verdins, save that you may become more depressed whilst in prison and this may make your time in custody more burdensome. 

22Tendered as Exhibit 6 was a reference from a long-time family friend, Mr Rod Taylor.  He wrote of your grief at the death of your father and that the instant offending is out of character for you.  At the time of your offending you felt a number of personal pressures:  the death of your father, your fiancée's return to Thailand and the collapse of a business that you had operated with your brother.  Each of these matters operated on you so that you increased your abuse of alcohol and drugs.  These matters are not mitigating of your criminal conduct but go some way to understand the man who committed the instant offence. 

23You too are an appropriate vehicle for the application of the principle of general deterrence.  Like Gillard, your conduct must be publically denounced and justly punished.  However, like Gillard you pleaded guilty at an early stage and are entitled to the benefits that flow to you from your plea.  Your time on remand has not been without difficulty and this too must be taken into account.  You have no relevant criminal history. 

24Absent addressing your alcohol and drug abuse, your prospects for rehabilitation must be seen as guarded.  Apart from your fiancée, you have little personal support.  I just want to confirm the period of time by way of
pre-sentence detention I calculated at 219 days.  Is that so?

25MR O'DOHERTY:  Yes, Your Honour.

26MR RICHTER:  Yes, Your Honour.

27HIS HONOUR:  Thank you.  That is not including today.  Would you please stand up. 

28By these sentences I must punish each of you, publically denounce your conduct and deter you and others from committing this kind of crime, taking into account the circumstances of the offences and their effects with your personal circumstances and antecedents, endeavouring to produce a sentence which reflects and promotes the purposes of sentencing in a manner appropriate to each of you and your offending, I sentence each of you as follows.

29On the charge of trafficking in methamphetamine, Charge 1, I sentence you to 21 months' imprisonment and I fix a period of 14 months' imprisonment before you become eligible for parole.  I declare that you have each spent 219 days by way of presentence detention, not including today. 

30Pursuant to s.6AAA of the Sentencing Act 1991, I declare that but for your plea of guilty I would have sentenced you to three years' imprisonment with a non-parole period of two years.

31Now, there was an application for a disposal order which I have signed but not brought up to court with me.  No, that is not right.  I have brought them to court with me.  Please be seated, gentlemen.  I have made that order and I hand down three copies of that order. 

32In respect to the application for forfeiture, I propose to grant the order in its terms.  The utility had been altered for the specific purpose of transporting drugs of addiction from New South Wales into Victoria and potentially into South Australia.  I can see no proper reason for exercising my discretion not to forfeit that vehicle so altered in that way for the specific purpose of trafficking in a drug of dependence and I will make the order as requested.  Are there any other matters that need to be dealt with?

33MR O'DOHERTY:  No, Your Honour.

34MR RICHTER:  No, Your Honour.

35HIS HONOUR:  Thank you.  Will you remove the prisoners, please.  I want to thank counsel for their help during the course of the plea.  I would like to thank those that attended in Mildura to hear the sentence and I will now break the link.  Sine die, please.

‑ ‑ ‑