Director of Public Prosecutions v Green

[2021] VCC 1628

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR-20-01393

DIRECTOR OF PUBLIC PROSECUTIONS

v

VERNON JAMES GREEN

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JUDGE:	HER HONOUR JUDGE GWYNN
WHERE HELD:	Melbourne
DATE OF HEARING:	5 October 2021
DATE OF SENTENCE:	22 October 2021
CASE MAY BE CITED AS:	DPP v Green
MEDIUM NEUTRAL CITATION:	[2021] VCC 1628

REASONS FOR SENTENCE

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Subject:  Criminal law

Catchwords:            Trafficking in a drug of dependence; possession of a drug of dependence

Legislation Cited:     Sentencing Act 1991

Sentence:                3 years 9 months imprisonment; non-parole period of 2 years 4 months.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms P. Thorp (for Plea) Ms M. Koufidis (for Sentence)	Office of Public Prosecutions
For the Offender	Mr C. Morgan (for Plea) Mr N. Jane (for Sentence)	Stary Norton Halphen

HER HONOUR:

1Vernon Green, you have pleaded guilty on indictment to five charges of trafficking in a drug of dependence and one charge of possession of a drug of dependence.

2You have also entered guilty pleas to related summary offences of deal with property suspected to be the proceeds of crime, affix numberplate not issued to that vehicle and committing an indictable offence whilst on bail.

3In sentencing you for your crimes I am obliged to  consider the maximum penalties for the offences which you have committed. The maximum penalty for trafficking in a drug of dependence is 15 years' imprisonment.  For the charge of possess drug of dependence, the maximum penalty is one year in circumstances where the court is satisfied on the balance of probabilities that the offence was not committed for any purpose related to trafficking and, in any other case, a penalty of five years imprisonment.

4In terms of the summary offences, the maximum penalty for deal property suspected to be the proceeds of crime is two years.  The numberplate charge carries a maximum penalty of 10 penalty units, and committing an indictable offence whilst on bail carries a maximum penalty of three months' imprisonment.

5These maximum penalties reflect the seriousness with which Parliament regards each of these offences.

The offending

6The circumstances of your offending, Mr Green, were set out in a document entitled 'Summary prosecution opening', dated 27 September 2021.  This is an agreed document and reflects your acceptance of the elements of the offences to which you have entered your guilty pleas, as well as the factual basis on which you fall to be sentenced.

7In short compass, on 28 December 2019, at approximately 8.13 pm, you were observed by police to be lying down on the street outside 155 Beach Street, Port Melbourne in front of a white Ford utility vehicle with registration SMH  259 attached to it.

8Senior Constable Declan Fietz and Senior Constable Jared Simpson were travelling along Beach Road.  Senior Constable Simpson observed you lying on the ground between the white Ford and a black Volkswagen Coupe and to be reaching up to the front of the Ford.

9Senior Constable Simpson stopped the police car and told Senior Constable Fietz what he had observed. They then parked alongside the Ford, by which time you were sitting in the driver’s seat of the white Ford.

10Senior Constable Fietz spoke to you and in his observations you appeared nervous and to be avoiding telling him what you were doing in that area.

11Senior Constable Fietz conducted a registration check on SMH 259, specifically on the plates attached to the Ford and determined that the registration plates belonged to a silver Ford Laser sedan and that they had expired.  This forms the basis for summary Charge 10, altered number plates.  Senior Constable Fietz observed that the interior of the Ford was messy.

12He asked you for your licence and you stated that you did not have it with you, but gave Senior Constable Fietz your licence number.  He then checked the VicRoads and Police database which indicated that you had an outstanding warrant for handling stolen goods.  As a result you were then placed under arrest.

13Ultimately your vehicle was searched by Police.  On opening the front passenger door a bag containing drugs literally fell from the vehicle.  The details of what was located by Police and how it was found and/or packaged is set out in full in the Crown opening.  As indicated earlier, I have had full recourse to that document’s contents.

14You told Police that everything in the vehicle was yours.  In terms of a summary charge of deal with property suspected to be the proceeds of crime, that involves police locating a total of $2,565 in cash, a bank card in the name of Andrew Eve, Dior perfume, a Kathmandu down jacket, and a black Lenovo laptop and grey Lenovo laptop in your vehicle.

15The trafficking in a drug of dependence charges are made out as follows:

a.Charge 1 – trafficking in methylamphetamine. A total combined weight from seven items located by police was 184.5 grams of mixed drug, comprising 130 grams of methylamphetamine;

b.Charge 2 - trafficking in methylene-dioxy-methamphetamine. The total combined weight from six packages containing tablets, each of different colours containing MDMA seized from your car was 170.2 grams, containing approximately less than 100 grams of MDMA;

c.Charge 3 - trafficking in diacetyl morphine (heroin). From three separate plastic bags the total combined weight of items containing heroin seized from your car was 19.8 grams;

d.Charge 4 – trafficking in cocaine. In three separate plastic bags the total combined weight of items containing cocaine seized from your car was
10 grams;

e.Charge 5 – trafficking in cannabis. 6.1 grams of cannabis was located;

f.   Charge 6 - possess a drug of dependence, namely clonazepam and diazepam. Six blister pack portions contained a total of 20 yellow tablets identified as diazepam and a plastic bag containing 75 white tablets was identified as clonazepam.

16At the time of your offending you were on bail to appear at the Heidelberg Magistrates' Court on 12 February 2020, forming the basis summary Charge 11 of committing an indictable offence whilst on bail.

17In the circumstances of your case, and under a quantity-based sentencing regime, the quantity of drugs is a significant indicator of the seriousness of a drug offence. 

18In assessing the gravity of your offending I note the following, in accordance with Schedule 11 of the Drugs Poisons And Controlled Substances Act 1981:

a.a traffickable quantity of methylamphetamine in a mixture is 3 grams. You therefore had approximately 61 times that quantity;

b.a traffickable quantity of MDMA in a mixture is 3 grams. You had approximately 56 times that quantity;

c.a traffickable quantity of heroin in a mixture is 3 grams. You had approximately six times that quantity;

d.a traffickable quantity of cocaine in a mixture is 3 grams. You had approximately three times that quantity;

e.a traffickable quantity of cannabis is 250 grams. You had significantly below that amount.

19A commercial quantity of methylamphetamine is 50 grams pure or 250 grams mixed. Whilst the quantity found in your possession clearly exceeds the commercial quantity threshold, the Crown case is put on the basis that it could not be proved beyond reasonable doubt that you intended to traffick a commercial quantity, and you will be sentenced accordingly in relation to that drug.  Obviously the amount that you did have of methylamphetamine was at the high end of a charge of trafficking simpliciter.

20You have pleaded guilty in circumstances where you are charged with drug trafficking on a single date, that being 28 December 2019, based on your possession for the purposes of sale.  You will be sentenced on that basis.

21Obviously the amount of cannabis, cocaine, and heroin found in your possession for the purposes of sale was relatively low.  This is to be contrasted with the amount of MDMA and methylamphetamine you had in your possession for the same purpose which was not in insignificant quantities.

22However, in your case, the drugs cannot be seen in isolation as you had a range of illicit substances in your possession that were designed for on-sale into the wider community.  I accept that overall, this is indicative of an intention to traffick drugs at a level which exceeds low level dealing. The amount, combination of drugs and packaging in various amounts and weights would support that finding.  In addition you had scales and a substance, creatine, which you could use to mix drugs with.

23You told Police in your interview that you were doing so to relieve a significant debt of some $60,000 and that you were involved in drug sales at the behest of those to whom you owed monies.  You would deliver as required, referring to yourself as a delivery boy.  The Crown case is not inconsistent with this account.

24On any view of it though this is in a central role in a drug trafficking business which exposed you to the risk of arrest and shielded those who are higher up the chain.

25Either way, for your own needs, you were prepared to be involved in the pernicious trade of drug trafficking.  It is a lucrative business with enormous negative and devastating impact on the community through the offending that results from drug addiction, the physical and mental health impacts and the behaviours drugs then produce.

26General deterrence, denunciation and community protection are important parts of the sentencing mix and the message needs to be clear to those who may be tempted to engage in such activities that stern punishment will result - in an effort to deter such activity.

27During your plea an issue did arise in relation to the sentencing threshold for Charge 6, possess a drug of dependence.  As outlined earlier, if I am satisfied on the balance of probabilities that your possession of these drugs was not for the purposes of trafficking, then the maximum penalty which attaches is one year imprisonment. Otherwise, the maximum penalty is one of five years' imprisonment.

28I am satisfied that the penalty which attaches to the charge of possess a drug of dependence is one of five years' imprisonment.  In making that determination I observe that police located seven different drugs of dependence in total, in varying amounts, and packaged in varying amounts in snap lock bags, the typical accoutrement of the drug trafficker.

29In addition, digital high-precision scales were located and part of your record of interview with police included details of sales previously made by you, in recent proximity to the charge date of 28 December 2019.  In addition, an investigation of a white iPhone found with you at the time of your arrest was analysed by police and included details of buying and selling at least methylamphetamine, cocaine, MDMA and cannabis.

30You will not be sentenced on the basis of those sales given the charge date and circumstance, it simply creates the background to assess your intention for the charge of possess drug of dependence, the subject of Charge 6.

31In your record of interview of police you were asked at question 171 whether or not you were using drugs yourself or just selling them.  You denied using drugs.  You did tell the police that you wanted the Valium for a friend in a wheelchair to help him sleep, but gave little further detail as to the arrangement in relation to the Valium.

32Your plea was based on your use of drugs and alcohol at the time of your offending, but, given the opportunity to do so, no evidence was called on this argument.  In fact there was no evidence that you are or were a personal user of either clonazepam or diazepam.

33The overall circumstances establish that you are effectively what I described in your plea as a “one stop shop” or, alternatively, as you told police, your position was one of a delivery driver.

34In the circumstances of your offending I accept the prosecution submission that the principles of general deterrence, community protection and denunciation all loom large.

Personal circumstances

35Material on this was confined by very brief written and oral submissions.  No evidence was called or materials tendered.  I was told that you were born on the 13^th day of April 1989.  At the time of the offending, you were aged 30 years.  I was also told you are the eldest of five brothers.

36On enquiry I was told that you grew up regionally.  Your childhood was made difficult by your experience and physical aggression from two of your brothers, one of whom is apparently schizophrenic, and the other has anger management issues.  Your father was an alcoholic.

37You had the misfortune to witness physical and verbal abuse between your parents.  As a result of these disruptions in your home you began spending less time at home from the age of 13 years and left home altogether by the time you were 17.

38I was told that you began drinking regularly from the age of 13 years and struggled with alcohol addiction. At the same time you apparently began smoking cannabis, which escalated to regular cocaine use by the time you were 18 years of age and your drug use moved to amphetamine in your 20s.

39To your credit, you managed to obtain a Year 11 education. Your school life was also not a happy one and you were severely bullied due to your height and the fact that you wore glasses. You had few, if any, friends.

40Again, despite these negative experiences and, also to your credit, you began and completed an apprenticeship which resulted in your qualification as a diesel mechanic.  You have primarily worked in a self-employed capacity.

41You now instruct that, at the time of your offending, the majority of your disposable income was devoted to your drug and alcohol use during which you incurred significant debts. Your record of interview also discloses a resort to offending in the context of debts you developed, although does not allege they are drug related.  This debt, in whatever way it arose, contextualises your offending but it certainly does not excuse it, nor was it sought to do so.

42In 2020 you married Pei Li.  She has a child from a previous relationship.  You describe this as a supportive relationship and one which continues.  It is your intention to return to this relationship, and that is your primary motivator for a more positive future.

Plea of guilty

43On 24 June 2021 you made an application to exclude evidence alleged to have been illegally obtained, that being the drugs located by police in your possession on 28 December 2019.  The challenge was to the circumstances of the search of your vehicle by police on that day, which would have also impacted on the admissibility of your record of interview in which you made fulsome admissions.

44Ultimately I ruled that the evidence located by police from the search of your vehicle on 28 December 2019 should be admitted in any trial.  At that point and after further discussions with the prosecution you determined to plead guilty to the current indictment.  You cannot be criticised for running a legitimate argument. The ruling essentially facilitated the next stage, resolving to your plea of guilty.  I note that the terms of Charge 1 altered in that context to a charge of traffic simpliciter as opposed to trafficking in a commercial quantity of methylamphetamine.

45It is relevant that on 22 October 2020 you offered to plead guilty to substantially the same charges as those that appear on the indictment before me.  That offer was not accepted by the prosecution at that time.

46Your plea has utilitarian benefit.  It has saved the court the time and expense of contested proceedings. This has occurred in the context of the court needing to respond to the impact of the COVID-19 pandemic.

47Whilst a defence may have been difficult to mount once the search by police of your vehicle was ruled as admissible, your plea provides certainty and finality to all parties in circumstances where the court’s operations have been significantly disrupted and many trial dates remain as yet unfixed.  In that sense it still has or does have additional utilitarian value.

48Given your indications of a willingness to plead guilty at a much earlier stage, combined with the comments in your record of interview, I do accept that your plea of guilty is one of remorse.  These factors will all be taken into account in your favour.

Criminal history

49You do have an admitted criminal history.  On 4 November 2010 you appeared at the Ballarat Magistrates' Court in relation to minor driving offences and were placed on an adjourned undertaking for a period of seven months, with a requirement that you attend and participate in a road trauma awareness seminar.

50Approximately six months later, on 31 May 2011, you appeared at the Ballarat Magistrates' Court in relation to charges of reckless conduct endangering life, driving while suspended, and failing to stop a vehicle on police request.  On that occasion you were convicted and sentenced to two months' imprisonment, to be served by way of an intensive corrections order.

51On 4 November 2013 you appeared at the Warrnambool Magistrates' Court in relation to a variety of driving offences and two charges of failing to answer bail. On that occasion you received a sentence of six months' imprisonment. You were required to serve three months of that sentence with the remainder being suspended for 24 months. You were also fined.

52You appealed that decision and on 26 November 2019 your appeal from the Magistrates' Court to the Warrnambool County Court took place. Your appeal was allowed and you were convicted and sentenced to an aggregate of three months' imprisonment, of which 24 days were reckoned as having already been served.

53On the 22 February 2016 you appeared at the Melbourne Magistrates' Court in relation to a range of driving offences and received a sentence of four months' imprisonment, of which 52 days was reckoned as having already been served. Again you were also fined.

54On 9 July 2018 you appeared at the Ararat Magistrates' Court in relation to a range of driving offences and were convicted and sentenced to four months' imprisonment, as well as again incurring fines.

55This reflects some six court appearances over a period of some eight years and primarily, if not entirely, relates to driving offences.  I am told that, at the time, you worked as a mobile diesel mechanic in country areas and it was in those circumstances that you primarily offended.

Prospects for rehabilitation

56In some ways this perhaps augurs well for your rehabilitation.  Your prior history is not one with direct relevance to the charges on your indictment. It is scattered over many years.  As a direct consequence for your offending you have now spent some 206 days on remand.  In the context of your prior history this is the most significant period over which you have been incarcerated.

57The majority of your remand has been during the Corrections response to the COVID-19 pandemic. This has required remanded prisoners to be isolated for the first 14 days of their remand, and has meant more limited access to rehabilitative programs, direct contact with friends and family, and general movement within the prison system. In my view this makes both the remand and sentenced prisoner experience more difficult than it would be at other times.

58That context also includes the current reality that COVID-19 has now been identified in the prison system. Accepting that appropriate protective interventions are in place, I also accept that any prisoner may have additional concerns for their wellbeing.

59Your experience overall, and the time you have served to date is capable of already acting as a degree of both sanction and deterrent, and your hopes for returning to a more normal life would indicate that your prospects for rehabilitation remain live.

Sentencing

60I do make the ancillary orders as sought for disposal and forfeiture of scheduled items. 

61Otherwise, the basic purposes for which a court may impose a sentence are firstly punishment, secondly general deterrence, thirdly specific deterrence, fourthly rehabilitation, fifthly denunciation and certainly protection of the community.  Given my assessment as to your prospects for rehabilitation at this time, there is a basis to reduce somewhat the need to protect the community from you and reduce somewhat the need for specific deterrence, however they do still have relevance.

62In sentencing you, I must have regard to a range of matters such as the seriousness of the offending, your culpability for it, your personal circumstances and those any victims.  I am also required to balance the interest of the community in denouncing criminal conduct with the interest the community clearly has in seeking to ensure where possible that offenders are rehabilitated, and are reintegrated safely back into society

63I have taken into account the relevant sentencing guidelines referred to in Section 5 of the Sentencing Act 1991. I have taken into account current sentencing practices for the offences to which you have pleaded guilty and, importantly in your case, the principles of totality and proportionality.

64On summary Charge 10, affix numberplate not issued for the vehicle, you are convicted and discharged.

65On summary Charge 11, commit indictable offence whilst on bail, you convicted and fined the amount of $1,000.

66In relation to the charges on the indictment I propose to impose an aggregate sentence, as I am satisfied that the offences are founded on the same facts, or form, or are part of, a series of offences of the same or a similar character.  In so doing, I again bear in mind the principles of totality.

67On the six charges on the indictment you are convicted and sentenced to three years and eight months' imprisonment.

68In relation to summary Charge 8, deal with property suspected to be the proceeds of crime, you are convicted and sentenced to three months' imprisonment, of which one month is cumulative on the sentence otherwise imposed.

69Your total effective sentence is one of three years and nine months' imprisonment.

70Given your non-existent history for offending in this way, I see genuine merit in an extended period of supported return to the community through the benefits of the parole system. That system is capable of fostering your rehabilitation whilst at the same time being responsive to any non-compliance to a parole order.  That, in combination, is capable of protecting the community.

71I therefore fix a non-parole period of two years and four months' imprisonment. 

72206 days are reckoned as having already been served.

73Section 6AAA of the Sentencing Act requires me to state the sentence that I would have imposed if you had not pleaded guilty to the offences. If not for your pleas of guilty you would have been sentenced to a total effective sentence of four years and 10 months' imprisonment with a minimum of three years and six months before being eligible for parole.

74Madam Prosecutor, is there anything I have missed from your end?

75MS KOUFIDIS:  No, Your Honour.

76HER HONOUR:  Mr Jane?

77MR JANE:  No, Your Honour.

78HER HONOUR:  Thank you.  I will now close the court until Monday and give you the opportunity, Mr Jane, to speak with Mr Green in private.

79MR JANE:  As the court pleases.

80HER HONOUR:  Thank you

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