Director of Public Prosecutions v Goding

[2012] VCC 516

IN THE COUNTY COURT OF VICTORIA
AT MELBOURNE
CRIMINAL DIVISION Revised
Not Restricted
Suitable for Publication

Case No. CR-12-01027

DIRECTOR OF PUBLIC PROSECUTIONS

v

CHRISTOPHER GODING

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JUDGE:	HER HONOUR JUDGE RIZKALLA
WHERE HELD:	Melbourne
DATE OF HEARING:	16 November 2012
DATE OF SENTENCE:	7 December 2012
CASE MAY BE CITED AS:	DPP v Goding
MEDIUM NEUTRAL CITATION:	[2012] VCC 516

REASONS FOR SENTENCE

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Catchwords:

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms L. Skoblar	Commonwealth Director of Public Prosecutions
For the Accused	Mr B. Johnston	Haines & Polites

HER HONOUR:

1 Christopher Goding, you pleaded guilty before me to one count of possess a drug of dependence, namely Ketamine, pursuant to s.73(1) of the Drugs, Poisons and Controlled Substances Act of Victoria, so that is a Victorian offence; and a second charge, which is a summary offence, uplifted to this court of importing a prohibited import, namely Ketamine, contrary to s.233(1)(b) of the Customs Act, that being a Commonwealth offence.

2       The quantity of the drug involved is 1043.25 grams of the pure drug. It is the same drug that we are talking about in relation to both charges. That makes the drug a large commercial quantity. Commercial quantity is 1000 grams under both State and Commonwealth legislations.

3       As both counsel agreed in the plea in this matter, this case is a somewhat unusual one in that the drug, Ketamine, rarely comes before the courts as a large commercial quantity and indeed as a large commercial quantity imported in this manner.

4       At the relevant time, the only relevant offence for the importation of this particular drug is the charge that you face. That had, at the time that you did it, a maximum penalty of a fine not exceeding $110,000. Since then, as was discussed at the plea hearing, the legislation has altered and the importation of that same drug in the same circumstances now, would in fact attract a maximum penalty of life imprisonment. So there is a significant difference.

5       There has been clearly a re-evaluation of this drug and the importation of it into the country, by the legislation. However, as was accepted by the parties and is accurate at law, you fall to be sentenced on the basis of the penalty that was applicable at the time, not the current penalty.

6       Further, it has been agreed that the fact that there has been a change in that law cannot in anyway influence the manner in which you are sentenced on the Commonwealth matter. As for the State offence at the relevant time, it is accepted because of the quantity involved, the presumption is it was not for personal use unless you established otherwise on the balance of probabilities, which you did not seek to do. Consequently the maximum is five years' imprisonment.

7       So the five years' imprisonment applies to the State charge. Again, in this case, the parties agree the law is that you cannot rely upon the fact that the Commonwealth offence at the time only had a maximum penalty of a fine in asking the court to interpret that to reflect a less serious penalty under State legislation.

8       It is also accepted, as was pointed out by your counsel, that this is a large commercial quantity but that in itself under these provisions, does not per se increase the length of the penalty as it does under some other provisions. It does of course mean that I have to look at that amount when I am looking at where this falls in the scale of seriousness for the position under the State offence.

9       So having got those matters clear and out of the way, in relation to the factual basis of this offending, that was summarised and it was agreed and marked as an exhibit. Exhibit A was tendered in the case so it will be annexed to this sentence. Consequently, I do not propose to go through all the circumstances of that summary in detail save to say that on 15 March of last year, you arrived in Melbourne having left Melbourne on 6 March of the same year to go to India.

10      When you arrived, you were searched as part of initially a baggage search where a dog picked up the presence of the drug on your luggage. Receipts were found in your luggage for some $3000 to a company in India which you were unable to satisfactorily explain and on that basis you were searched and found to have strapped to your person, in a compression stocking, five packages containing off-white powder found to be Ketamine. It had a total weight of 1600 grams but a pure weight, as I said, of 1043.25 grams.

11      As a result of that, a record of interview was conducted by Customs but you declined at that point to provide any answers. You were charged on summons on 11 August 2011 but that was unable to ultimately be served and a warrant was issued on 23 January this year, executed on 14 February this year and charges filed in the Magistrates' Court on 30 April 2012.

12      A contested committal took place in this matter on 18 June. It was a short committal in relation to one witness only and was accepted by both counsel in the vernacular to be a lawyer's committal, to test certain legal concepts in the evidence. After you were committed, you indicated you would plead guilty to the charges.

13      It was suggested by your counsel that there was some delay in this case, a seven month period or so, from the time that you were spoken to until the time that a charge or summons was issued in November and then finally served as I have described.

14      I have looked at the chronology on the basis of the submission there should be perhaps some moderation in sentence. But looking at the circumstances, as I indicated at the time, in my view there is no type of delay here that can be sensibly reflected in sentence. It is not a delay that has had any real significant prejudice to you and there is no demonstrated effect outside the expected stress of course attendant upon awaiting criminal charges but that has not been a significant weight in my view and therefore it is not something that I would recognise in sentence.

15      Because, as I said earlier, this is an unusual drug in terms of the quantity involved, the Crown were not in a position to file any material in terms of the value that such a drug may have if it were sold either at street level or in a larger quantity. The agreed position was that given the amount of drug involved and the fact that it has a use in terms of being used as a party drug, there would have been clear potential for significant gain from that quantity if it were to be on-sold but it really cannot be taken much further than that, in terms of some guidance for sentence.

16      Similarly, the Crown were not able to provide any cases in terms of sentencing precedents for this particular drug being utilised in offending such as in your case. But I was given a chart and some material that relates to cases for pseudoephedrine which the Crown submitted reflected the area and type of sentencing range that ought to be considered. The chart was tendered and again I will annexe it to the sentence should it be required for future reference.

17      The Crown ultimately took me through relevant considerations and submitted that the appropriate range in your case was a sentence of somewhere between 30 and 38 months' imprisonment as a maximum sentence with a non-parole period of between 18 and 28 months' imprisonment.

18      The thrust of submissions on your behalf in the plea in terms of final sentence was that this is a case where it may well have been appropriate to use a community based disposition and if that were rejected, which I indicated it was, then any sentence that was imposed by way of imprisonment should be one that has a disparate between the maximum and minimum term, with a significantly lower minimum term because of your personal circumstances and what was submitted to be good prospects of rehabilitation.

19      I will just go now briefly to some of the matters raised on your behalf in terms of your personal circumstances. You were 30 years of age at the time, single and you have now, as I understand it, gone back to reside with your parents. Your family are genuinely supportive you. They were in court on the plea and are here today. You have two sisters, a brother and parents, all of whom are prepared to assist you. You are the only person, being the youngest child in that family, who has come before criminal courts.

20      Drugs have been an issue for you since you were reasonably young. Around the age of 16 I am told you began using various drugs, in particular heroin, which by the age of 20 you were using intravenously. You then started using Ketamine, the drug in this offending.

21      You are one of those persons who, as your counsel submitted, can be referred to as a long term functioning user of heroin. That is, you have generally been able to work throughout and therefore you have purchased that drug from legitimate funds from your work. You have tried various rehabilitation over the years but up to this date that had been unsuccessful. You have also tried using Methadone and other substitute medications to assist you but again that has not resolved the issue for you.

22      At around March 2010, so prior to this offending, your partner at the time, with whom you have a child who is now about six years of age as I understand it, and she also had a step-child, left that relationship and went to reside in Byron Bay with her new partner and the children.

23      It seems as a result of that you spiralled downwards in terms of your ability to function, your emotional and mental health and, you rented in a shared house in Caulfield where you were residing with a number of other drug users. It was put therefore that you were not in fact in what was your normal environment at the time of this offending and that was the context where you were having difficulty and struggling with the issue of being without your partner and your child that you determined to undertake this offending.

24      You decided apparently to go to India to get this drug and that you would sell some and use some. It was also put to me that if you were successful in selling the drug you would use the money from that to buy your drug of choice, which is in fact heroin.

25      Since the offending, as indeed before, you had been working generally, although somewhat on and off around this time, your brother has in recent times been able to provide you with work on building sites to assist you and I am told he can do so in the future. You have skills in that area and you have got no physical health issues that would stop you working. Further, it is not argued that you have any mental health issues such that are debilitating or indeed that would attract Verdins type considerations.

26      It was submitted to me therefore that you are a good prospect for rehabilitation if you can deal with this drug issue. You realise you need to become drug free, you have some insight into that, but as I said that has not been a path that has been an easy one for you up to the present time.

27      You were assessed by a forensic psychologist, Mr Michael Bilyk, and a report was obtained and exhibited on your behalf. I am not going to go through all the details of the history that he set out in that report but I do take it into account. In particular, in summary, his assessment was that at the time you did have real difficulties because of the unknown whereabouts of your daughter, as a result of the relationship breakdown which he said affected your mood and indeed your substance use. He thought you were a chronic substance user and at the time that was accompanied with this emotional turmoil and it put you into the environment where the offending was committed.

28      He thought you had at the time poor problem solving skills, that you needed professional intervention in relation to your substance use and the escalation of it and your dependence on it, if you were going to avoid future offending. He noted the development of a mental health care plan to address longstanding mood difficulties would be another matter that would assist you in the future.

29      The one aspect that he does go to, which is relied upon in terms of some moderation in sentence on the Verdins' principle, was his opinion that imprisonment could contaminate you given your vulnerable state and compromised mood. He saw that there had been some previous suicidal and self harm ideations and, in his words, "There may well be further psychological decline".

30      On that basis, your counsel made a submission that that material supported a conclusion that you would do time in custody harder than a person without your mental health status, that is your depression and your mood disorder. I do not find that that is something that will create a significantly more burdensome position for you such that it can be given any real weight in terms of moderation of sentence and I note that there is a real aspect of reactive depression, in terms of these proceedings, which was not fully explored in that material.

31      In terms of matters relevant to sentence, your counsel directed me to Lacey's case where he sought to rely upon the principles there that were discussed by the Court of Appeal. That related to a young addict who had a long criminal history that was drug-related and was offending on a street level to purchase more drugs for his habit. It could have been said, and was said in that case, that he was offending as a result of a compulsion and addiction rather than having any real choice.

32      Your counsel sought to put your case in the same light. I do not accept that to be a real comparison. Yours is not a case of a person who is at a level that is desperate, as Mr Lacey was, who had such a family history and environment that he was compelled to enter into that type of offending in order to keep himself functioning. Indeed, as I said, you were in fact on the path of attending rehabilitation and you had been supervised over by the Correctional Services in this State. You had, up until that point, been a reasonably well functioning person. You had been employed for most times prior to this offending. There seems to me no real comparison with Lacey's case and I do not regard therefore that there should be any mitigation or moderation in sentence on the basis that you were compelled to offend because of your ongoing addiction and, that you had no real choice.

33      As for your future prospects, your counsel relied upon the fact that you have good support in the community and I accept that. I also accept that is a good indicator for rehabilitation. Further, that you have motivation to pursue your rehabilitation once you are out of custody and that that would be enhanced by a longer period of parole to assist you. I also accept that.

34      It was argued that I should accept that those matters mean that you are a low risk of re-offending. I do accept that that does exist for you and that you are presently motivated to deal with your drug issues but any prospect of rehabilitation and lowering of the chance of re-offending all depends on you being able to deal with the drug issues. Consequently, any prospect has to be guarded by that proviso.

35      You are entitled, in this sentence, to real credit for your plea of guilty. Even though it was not at any early stage, I accept it was early in the sense that the committal was on a limited basis. It should be noted that it was largely a utilitarian plea, there was a very strong Crown case given the manner in which you were apprehended and the fact that the drugs were strapped to you, but I accept that it is an indicator of remorse by you for your conduct and I accept that you have taken responsibility for what you did in relation to this offending and you have saved the cost and time of any trial to the State. That is something you are entitled to credit for.

36      You do admit prior convictions, none of this seriousness, and all, I am told, relating to previous drug use. In relation to the prior matters, in particular, because of the relevant time of this offending you had been placed on a community based order some weeks beforehand, they do assume some relevance. Your previous convictions are not numerous. You have three separate entries on two occasions before the Magistrates' Court.

37      On 18 February of last year, you appeared for possessing heroin and cannabis, for dealing in properties suspected of being proceeds of crime and fraudulently using a number plate. You received a community based order for 12 months on the special condition you undergo treatment for your drug issues. That was only some weeks before you committed this offending. You would have been well aware then of the ramifications of what you were doing and the fact that you were breaching that order at the time you offended.

38      The other matters that are on your record were in 2012 and heard on 13 July. There was a group of offending of theft and obtaining property by deception, 10 charges. Six charges, apparently of that, took place in 2008 but they were dealt with in 2012. The others relate to possess heroin and possess a controlled weapon. That was the day in fact you were arrested for these offences and were found to have the drug and weapon on you.

39      Consequently, they are technically not prior matters but as I say they have relevance in terms of the fact that you had been before the courts in 2011, you were placed on that community corrections order and that you have committed those other offences, so it is a matter regarding rehabilitation.

40      The Crown submitted, and I accept, that it has to be seen as an aggravating factor that you had been recently before the court, recently given a supervisory order and you went ahead and committed these offences.

41      Also submitted on your behalf were personal references. One from Jennifer Vince who is a friend and godmother of your daughter. One from your brother, Mr Andrew Goding, setting out a history which was very useful in terms of the way in which he saw you falling into this offending; and another from Meryl Wodetzki, another person who was a friend of your family. All of those speak very well of your general character and they are suggestive of you having very good prospects of rehabilitation if you can sustain staying away from drug use.

42      In terms of the nature of the offending itself, the Crown pointed out I must take into account that these offences require denunciation. General deterrence is relevant as is specific deterrence. Protection of the community must be balanced against your rehabilitation. The nature of the offending is serious because of the amount involved. The authorities make it plain that courts need to deter others from committing this type of offending and bringing this type of drug into this country.

43      In terms of your role in this offence, the Crown submit, quite correctly, that you were the principal offender. There is no evidence anybody else was involved and that is a relevant sentencing consideration. As the Crown also submitted, it was relatively sophisticated. There was clearly planning, you had done research and that was evident from the contents of your computer in relation to the drug and the risks that you faced in terms of the offences for bringing it into the country, as well as researching the drug itself. So it is not an offence that you committed without weighing up the consequences should you be caught.

44      Unlike many who are sentenced for these matters, who are mere couriers, you were the ultimate end recipient of this drug. You would have been well aware of the amount therefore that was involved. Something that is often not the case for couriers and other type of offenders.

45      Just stand forward please. Taking into account all of the competing matters in this case, I propose to sentence as follows:

46      In relation to the State offence, possess a drug of dependence; you are convicted and sentenced to 30 months' imprisonment, that is two and a half years, and I direct that you serve 15 months of that sentence before you are eligible for parole.

47      In relation to the Commonwealth charge; you are sentenced and fined the sum of $5000 and I grant a stay of 90 days in relation to that fine.

48      I further make the orders sought by the Crown in relation to destruction of the drug involved.

49 I make a declaration that you have already served 21 days of this sentence and under s.6AAA of the Sentencing Act 1991, had you not pleaded guilty I would have imposed a sentence of three years and four months, that is 40 months' imprisonment and I would have directed that you serve two years and four months of that sentence before being eligible for parole.

50      Thank you. You may take Mr Goding down.

51      COUNSEL:   Thank you.

52      HER HONOUR:  Thank you.  Thank you both.

(See Prosecution Plea Opening attached.)

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