Director of Public Prosecutions v Gould
[2016] VCC 322
•17 March 2016
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT BALLARAT
CRIMINAL DIVISION
Case No. CR-15-01260
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ADAM TROY GOULD |
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JUDGE: | HIS HONOUR JUDGE PUNSHON | |
WHERE HELD: | Ballarat | |
DATE OF HEARING: | 15 March 2016 | |
DATE OF SENTENCE: | 17 March 2016 | |
CASE MAY BE CITED AS: | DPP v Gould | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 322 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr P.A. D’Arcy | OPP Victoria |
| For the Accused | Mr R. Alexander | Harper Buscombe & Madden |
HIS HONOUR:
1 Adam Troy Gould, you have pleaded guilty to one charge of importing a marketable quantity of MDMA (charge 1), one charge of importing a marketable quantity of amphetamine (charge 2), one charge of trafficking in amphetamine (charge 3), one charge of importing cannabis resin (charge 4) and one charge of possession of methylamphetamine (charge 5). You also pleaded guilty to three summary charges namely, storing unauthorised explosives (charge 15), possessing a prohibited weapon (charge 11) and possessing the proceeds of crime (charge 13).
2 The prosecutor opened the circumstances of the offending by reading from a written opening and also by elaborating on the details. There is common ground about the facts on which I am to sentence you.
3 In short, police executed a warrant at your premises on 5 September 2014. On arrest you attempted to conceal 3 separate packages of methylamphetamine. One package contained about a gram which you had for your own use. Another two contained about half a gram that you were to give to others who had loaned you similar amounts in the preceding week. The fourth bag was pointed out by you in your bedroom. It was accompanied by syringes and contained about 1.6 grams of methylamphetamine. This constitutes charge 5.
4 The summary charges concern your possession of fireworks (charge 15), a slingshot (charge 11) and two pinball machines (charge 13).
5 Charge 3, trafficking, is constituted by the exchange of about $1000 worth of amphetamine along with cash for the pinball machines, the sale of what you described as 8 balls (about 3.5 grams of amphetamine) on somewhere between 4 and 8 occasions as well as the sale of other relatively small amounts of amphetamine to friends to help you cover your costs and feed your own drug habit. You also told police you were trying to wean people off ice.
6 The amphetamine you transacted was imported by you via three or four mail packages sent to you and purchased through the Silk Road website using bitcoins. The amphetamine was imported in the form of paste in DVD cases and on each occasion about 20 grams was imported. As well as selling the amphetamine for modest amounts you also gave some to people at parties. Customs also seized a further two importations containing 20.3 grams of paste (5.1 grams pure) and 28.9 grams of paste (13 grams pure). These five or six importations of amphetamine constitute charge 2. It was whilst interviewing you about the seized imports that you told police about the other imports and your drug activity generally.
7 You also imported about 4 grams of hashish or cannabis resin from the Silk Road site. You smoked this with tobacco. This constitutes charge 4.
8 Finally, you also imported MDMA on four occasions. These importations were intercepted and contained 114 tablets (16.5 grams pure), 15 tablets and powder (1.8 grams pure), 106 tablets (12.07 grams pure) and 10 tablets (0.9 grams pure), a total of 31.27 grams pure. This constitutes Charge 1.
9 Charge 1 occurred between 29.12.2013 and 24.2.2014. Charges 2 and 3 occurred between 1.1.2014 and the day of your arrest. Charge 4 occurred on 1.2.2014. Charge 5 occurred on the day of your arrest.
10 Your record of interview with police was very extensive. You were open and frank. You volunteered information about importations of amphetamine and trafficking unknown to the police. This clearly is very important.
11 You must benefit from your pleas of guilty which need to be seen in the setting of your admissions to police. Formal pleas were entered at committal. In the circumstances, particularly given the need to identify appropriate charges and the factual basis for sentencing, I regard these pleas as early pleas. I accept that you are remorseful and that your pleas are accompanied by remorse. Of course your pleas also have utilitarian benefits.
12 You live with your father and mother. Your father gave evidence on the plea as well as an appeal which was heard contemporaneously. I was impressed by your father. Both your parents are in poor health, particularly your father. Family hardship that would result from your imprisonment would be exceptional. There was no challenge to the evidence that your father, indeed both your parents, would probably have to go into nursing care without your support. You described your occupation as a carer for your parents.
13 You have a criminal history but have never been imprisoned although you have received suspended sentences.
14 The appeal I referred to concerned the restoration of a suspended sentence of 3 months imprisonment for possession of a taser device. I found that it would be unjust to restore the suspended sentence of 3 months imprisonment because of exceptional circumstances which have arisen since the order suspending the sentence was made. I extended the period of the order by a further 9 months from today’s date.
15 Your criminal history involves drug offending including trafficking, causing injury, damaging property, driving offending including driving whilst suspended and driving whilst disqualified as well as driving in excess of the prescribed alcohol concentration and dishonesty.
16 A number of documents were tendered on your behalf: a report from Carla Lechner, dated 6 October 2015, a medical certificate form Dr Azam Chowdhury concerning an injury to your right wrist, a drug counselling report from Hepburn Health Services, dated 25/9/2015, two letters from The Ballarat Group Practice dated 24 August 2015 and 26 October 2015 concerning your mother’s health and a report from 28 Drummond North Medical Practice, dated 12 May 2015 concerning your father’s health. I marked these Exhibits 1 to 5 respectively.
17 Your counsel also provided an eight page ‘Defence Outline of Submissions on Plea’, which I will mark as Exhibit 6.
18 Your counsel sketched your personal background, which was also summarised in the written submissions. You are 40 years old and are currently awaiting surgery for the injury to your wrist.
19 You have been in three significant relationships. The last long term relationship ended when your partner suicided. This relationship as well as the one immediately preceding it were marked by mutual drug use. Following your partner’s suicide your life entered a downward spiral that you found difficult extricate yourself from. However, prior to this for much of your life you have worked well. You told Ms Lechner that your partner’s suicide totally destabilised you with subsequent escalation in your drug use.
20 Like so many people who commit drug related offending you have favourable rehabilitation prospects provided you can remain drug free.
21 You have a history of using various drugs including cannabis, heroin, amphetamine and methylamphetamine. In short, you have a long history of poly-substance abuse. You have been receiving regular drug counselling since March 2014. Of course you were receiving this counselling during the period of your offending. I am prepared to accept that you have made progress since your arrest although you still need support if you are to cease using drugs completely. The writer of the report form Hepburn Health Services thinks you will continue on a positive trend. Your father thought you were showing signs of a more positive attitude towards drugs.
22 Prior to this morning I was unaware that you were currently subject to a Community Correction Order. That order having begun on 25 January this year. It seems you were placed on that order as a result of the driving offending which breached the suspended sentence to which I referred a moment ago.
23 I had you assessed to determine your suitability for release on a Community Correction Order and it was the contents of this assessment report that alerted me to the fact that you are already on such an order. After reading the assessment I have real concerns about your capacity to remain drug free. However the obligation to do so is essentially on you.
24 As well as detailing your personal history, Ms Lechner made several points of psychological relevance. She thought you presented with symptoms of a “Stimulant Use Disorder – in early remission”. She noted you take anti-depressant medication. She detailed some sensitive matters that I do not intend to detail in these reasons to respect your privacy. She thought these matters contributed to your long standing depressive mood disorder and that you abused drugs as a means of “self-medication”. You have been suicidal in the past.
25 Ms Lechner thought your arrest on the current matters and the very real prospect of imprisonment has acted as a much needed “wake-up call” to precipitate your path to rehabilitation. She thought you a genuine man who found it hard to understand how you have ended in the position you are now in. She considers you have the capacity to reflect on the impact of your conduct on yourself and others. Your depression has not been successfully treated to date. She said you express shame for your offending. She thought your rehabilitation would be best addressed within the community.
26 Your counsel submitted that the importations were unsophisticated. You did not expect the drugs to arrive after you ordered them on the internet. Your counsel also submitted that your trafficking was naïve, without you understanding the seriousness of what you were doing or perhaps even that it constituted trafficking, given the motivation and the absence of a profit motive. These propositions were not challenged by the prosecution and I accept that there is a valid point to be made.
27 Your counsel submitted that I should not impose penalties that would require immediate incarceration. As noted earlier, I had you assessed to determine your suitability for release on a Community Correction Order. The prosecution accepted that sentences of imprisonment for the charges of importation and release on a Community Correction Order for the trafficking charge was within range.
28 Broadly speaking, that is the approach I will take as indicated in discussion yesterday. I am familiar with the matters referred to s16A Crimes Act 1914 (Cth).
29 It was agreed between the parties that I am able to impose an aggregate sentence for the charges of importation.
30 On the Commonwealth charges of importing, charges 1, 2 and 4 you will be convicted and sentenced to an aggregate term of 15 months' imprisonment. The sentence is to begin today and you are to be released forthwith on entering into a recognisance in the sum of $1000 to be of good behaviour for a period of 18 months.
31 On the indictable charge 3, trafficking amphetamine, indictable charge 5, possession of methylamphetamine and summary charge 13, possessing proceeds of crime, you will be released on a Community Correction Order for 18 months. You will be under supervision, you are to undertake 100 hours of unpaid community work, you are to undergo assessment and treatment for alcohol, drugs and mental health.
32 On each of summary charges 15, store unauthorised explosives (fireworks) and 11, possess prohibited weapon (a slingshot) you will be convicted and fined $150. That is a total of $300. I grant a stay of 6 months.
33 I will make the Disposal and Forensic Samples Orders sought. A police officer may use reasonable force to obtain the forensic sample and my reasons for making this order will appear in the Order.
34 Had you not pleaded guilty I expect I would have sentenced you on the importing charges to a total effective sentence of about 21 months' imprisonment.
35 Anything that counsel can identify that needs correcting or adding?
36 MR ALEXANDER: I don’t know whether forfeiture order sought had been modified, Your Honour, to reflect - - -
37 HIS HONOUR: I have signed the forensic sample order. I have not got the forfeiture order at the moment. Was there some agreement about - - -
38 MR D'ARCY: Yes, there was, yes, Your Honour.
39 MR ALEXANDER: And agreement that the money be returned to - - -
40 HIS HONOUR: All I need to know is that the - - -
41 MR D'ARCY: But it's not on the - - -
42 HIS HONOUR: Say that again.
43 MR ALEXANDER: It's still on it, Your Honour.
44 MR D'ARCY: I understood it was removed from the schedule, Your Honour. Could I have a look at the order?
45 HIS HONOUR: Yes, certainly.
46 MR D'ARCY: Yes, they're in the form I expected, Your Honour.
47 MR ALEXANDER: Yes, Your Honour.
48 HIS HONOUR: that order will have to be prepared. I think I will let my Associate do that without me looking over his shoulder so I will leave the Bench. Can you both check it when he prepares it to make sure it is in correct form.
49 MR D'ARCY: Yes, Your Honour.
50 HIS HONOUR: Ordinarily the crown prepares the recognisance release form as well but you not being the Commonwealth you may not have the document.
51 MR D'ARCY: We did have a copy but Your Honour's Associate very kindly volunteered to do that.
52 HIS HONOUR: He is very helpful.
53 ##A:S# (Short adjournment.)
54 HIS HONOUR: You can come out of the dock, Mr Gould, you can come out of the dock now. Come to where your counsel is and he will assist with you signing those two documents. Thank you, Mr Alexander.
55 MR ALEXANDER: Thank you, Your Honour.
56 HIS HONOUR: Your client is free to go.
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