Director of Public Prosecutions v Gross
[2021] VCC 996
•3 September 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-20-0061
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| SCOTT GROSS |
---
JUDGE: | HER HONOUR JUDGE TODD | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 26 August 2021 | |
DATE OF SENTENCE: | 3 September 2021 | |
CASE MAY BE CITED AS: | DPP v GROSS | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 996 | |
REASONS FOR SENTENCE
---
Subject:CRIMINAL
Catchwords: Plea of guilty – two charges trafficking in a drug of dependence (gamma butyrolactone and alprazolam) – related summary offences – inordinate delay – established rehabilitation - circumstances of COVID-19 pandemic
Legislation Cited: Bail Act 1977; Crimes Act 1958 ; Drugs, Poisons and Controlled Substances Act 1981; Sentencing Act 1991
Cases Cited:Arthas & Anor v R [2013] VSCA 258; R v Merret [2007] VSCA 1; R v Verdins & Ors [2007] VSCA 102; Worboyes v The Queen [2021] VSCA 169
Sentence: Total effective sentence of 43 days imprisonment with a 12 month Community Corrections Order
---
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr M. Roper | Office of Public Prosecutions |
| For the Accused | Mr J. Connolly | Patrick Dwyer Criminal Law Barrister & Solicitor |
HER HONOUR:
Introduction
Plea of guilty and maximum penalties
1Scott Gross, you have pleaded guilty to two charges of trafficking in a drug of dependence (gamma butyrolactone and alprazolam), the maximum penalty for each charge is 15 years imprisonment.
2You have also pleaded guilty to the related summary offences of possessing property suspected to be the proceeds of crime, the maximum penalty for which is two years imprisonment, and the offences of committing an indictable offence whilst on bail, and contravening a conduct condition of bail, both of which carry a maximum penalty of 30 penalty units or three months imprisonment.
Circumstances of the offending
3The circumstances of your offending were set out in the Prosecution Opening for Plea, dated 11 May 2021. That document was tendered on the plea and became Exhibit A. It is attached to, and forms part of, these reasons. I will not repeat it all here but will summarise some of the facts giving rise to your offending.
4On the evening of 20 August 2018 you were a passenger in a station wagon being driven by a friend.
5At approximately 11:45pm Police pulled the car over in Doveton; they questioned you and checks were conducted. They found that there was an outstanding warrant of arrest for you; you had failed to appear at Court for driving offences.
6The Police told you that you were under arrest and asked you to get out of the car. You did so, but first took off your jacket. It was raining; the police asked if you wanted your jacket. They thought you evasive about it; they became suspicious. You were placed in handcuffs and your jacket was searched.
7They found a prescription pill container labelled Alprazolam. You were asked if you had a prescription and you did not. You were told that you were also under arrest for possession of a prescription drug.
8Constable Arnott conducted a pat down search, finding $1070 in cash. This forms the basis of summary charge 5: possessing property suspected to be the proceeds of crime.
9Police then searched your car. A large paper bag was found, containing a number of prescription medication bottles, similar to the one found in your jacket pocket. There were also three water bottles found containing a liquid that appeared thicker than water. You were asked if the substance was GBL, you replied that it was water. These items were seized and analysed.
10Your phone was seized. Whilst at the Police Station a number of text messages came through onto the screen. The messages indicated that you were trafficking drugs and in particular GBL.
11After analysis was done the total weight of the bottles’ contents was confirmed to be 2,218.1 grams of GBL. The trafficable quantity of this drug is 50g, therefore you possessed 44 times the trafficable quantity. This gives rise to Charge 1 on the indictment: trafficking in a drug of dependence.
12The prescription pills were also analysed. There were 23 plastic bottles each labelled “Kalma.” All contained 50 white tablets. The total number of tablets was 1150. A sample of the tablets was taken and found to contain alprazolam. The total weight of the tablets was 309.5 grams. The traffickable quantity of alprazolam is 0.5 of a gram. Therefore you possessed 619 times the traffickable quantity. This conduct constitutes Charge 2: trafficking in a drug of dependence (alprazolam).
13As at the date of your arrest, you were on bail for a range of other matters and faced court on 13 September 2018. This constitutes the related summary offence charge 6: committing an indictable offence while on bail. Moreover, part of your bail conditions required you to report to the Dandenong Police Station and you failed to do so on 1 March 2018. This gives rise to the related summary offence of contravening of a conduct condition of bail.
Arrest and interview
14On 21 August 2018 you were taken to the Dandenong Police Station and interviewed; you exercised your right to silence.
Prior and subsequent criminal history
15Your criminal history commences in 1996 and in 1997 your only prior conviction for trafficking is recorded; I note this was in relation to cannabis and was dealt with by way of a community-based order. The balance of your criminal history relates to what appear to be minor drug possession charges, driving and breaching intervention orders. It is not an extensive history. With the exception of the community-based order in 1997, you have been dealt with by way of fines before this event.
Subsequent history
16In the course of your plea, I was made aware of two subsequent offences that become relevant from a number of perspectives. While you were bailed on the offences before this Court on 1 October 2018, you were subsequently re-remanded on the charge of resisting an emergency worker on duty (and a breach of your bail) for which you were ultimately dealt with in the Magistrates’ Court at Ringwood on 19 February 2019. You were held in custody from the date of the offence (26 December 2018) until the date of your plea on that case, when you were convicted and fined. The other result of that disposition was that you served 54 days in custody that were not applied to any sentence.
17
The next subsequent offence was dealt with in the Magistrates’ Court on
18 September 2019 when you were dealt with for a range of drug related matters including trafficking methylamphetamine. The Court imposed a Community Corrections Order for 12 months. The result of that disposition is that, by the time you came to be dealt with for the matters before this court, you had an established history of rehabilitation, which I will return to later in these reasons.
Nature and gravity of the offending: Culpability and Degree of Responsibility
18I must address the nature and gravity of your offending, your culpability and your degree of responsibility. I am obliged to articulate where your offending fits into a range of similar offending.
19The authorities on sentencing for trafficking in drugs of dependence emphasise the harmfulness of this conduct in the community. Sentences are generally assessed first in relation to quantity of the relevant drugs. Here I note that in each case you were found in possession of amounts many times the traffickable quantity of each drug. On the scale of seriousness for trafficking simpliciter your offending is relatively high in this regard. The courts have repeatedly articulated the profoundly destructive consequences of drug trafficking.
20That said, yours is clearly street level trafficking in circumstances when you yourself have succumbed to addiction. So this is different to the cases where otherwise well people traffick at high levels to generate profit. You were, at least at that stage, both the victim and perpetrator of trafficking in drugs of dependence. Through your conduct, you were exploiting desperate people who probably had similar problems to yours, and by doing so, amplifying the kind of suffering you have both caused (to you and your family) and endured.
Personal circumstances
21I will now turn to your personal circumstances.
22You are now 43 years old. You committed these offences when you were 40.
23You were born in Melbourne, and raised in Oakleigh until the age of 10. You then lived in Wantirna until you were 23. You were raised by both parents and had a stable upbringing. Your parents are both still alive and still together. You have a twin brother who lives in Wantirna with his wife and children.
24At 23 you moved out with your girlfriend for one year and back to the family home when that relationship ended.
25You moved out again at age 25 to St Kilda, where you lived for 10 years. You met your partner Lauren in 2008 and had two children, who are now nine and five years old. You purchased a property with Lauren in Glen Waverley but separated in December 2018. Lauren and the children still reside at that property.
26You have previously admitted you were verbally abusive towards Lauren and you attributed that agitation to your drug use
27You now live back with your parents in Glen Waverley and have done since your release from custody in February 2019. It is your intention to stay there for some time and you state you are contributing to the mortgage of your previous home that you shared with your wife and children.
28In relation to your drug history, you first tried cannabis at age 14, and then acid and amphetamines at 15. From 21 you tried ecstasy and then went on to use this in large quantities. You used methamphetamines from 1999, you have also used Xanax, GHB and Buprenorphine.
29You were unemployed for a few years before starting a plumber’s apprenticeship. After 3 years you had a disagreement with your employer and left the job. You completed the last two years of your apprenticeship by building spas.
30From age 35 you worked for yourself as a plumber, stopping in 2018 due to your escalating drug use.
31You have struggled with low mood, anxiety, and paranoid psychosis.
32You were ultimately prescribed antipsychotic medication and this has contributed to an overall improvement in your mental health. I return to the timing of your treatment later in his reasons.
33You were unemployed at the time of your offending and living with your parents.
Matters in Mitigation
Plea of guilty
34You entered a plea of guilty to these charges and by doing so you saved the community, but most particularly, the witnesses, from the costs, both human and financial, of conducting a trial.
35I note that before the committal was conducted in January 2020 you offered to plead guilty to what is now Charge 1 on this indictment. The Prosecutor submitted that you had not offered to plead guilty to the second of the two trafficking offences at that time and in any event at that stage sought a hearing in the Magistrates' Court. There were ongoing negotiations, which stagnated due to the COVID-19 lockdowns.
36I have had regard to each of those matters in assessing the timing of your plea.
37Moreover, I must impose a sentence in the context of the pandemic where the benefit to you for pleading guilty is palpable. The justice system is currently under enormous strain and you have taken one more trial out of a very long list. The benefit to the administration of justice that this bestows will be recognised in a substantial way.[1] Were it not for these circumstances which have severely affected the administration of justice in Victoria your sentence would have been much higher.
[1]Worboyes v The Queen [2021] VSCA 169.
Psychological Material
38On your plea, your counsel placed reliance upon the report of Dr Gina Cidoni,[2] a letter by Dr Pasan Manawadu, psychiatrist,[3] and two letters authored by a counsellor, Sue Troupakis [4]. These materials formed the basis for submissions that your sentence ought to be moderated by reference to limbs two and five of the case of Verdins.[5]
[2]See Exhibit 3.
[3]See Exhibit 10.
[4]See Exhibit 7.
[5] Verdins & Ors [2007] VSCA 102.
39I accept that imprisonment both past and potential would be more burdensome for you on account of the fragile mental state that was evident in your first attendance on Dr Manawadu on 10 April 2019. I note that your parents encouraged you to see Dr Manawadu in the context of your recent release from custody and what was obvious to them as your deteriorating mental health. I note that at that consultation Dr Manawadu noted that you were exhibiting inadequate self-care and were labouring under a significant delusional system resulting in you misinterpreting social situations amongst other things. Dr Manawadu diagnosed a delusional disorder and prescribed a range of antipsychotic medications. It is clear that your mental state was unravelling. Although Dr Manawadu’s diagnosis does not include this opinion, it would seem common sense to say that your significant addictions were starting to have a profoundly harmful effect on your psychiatric health whether or not there were underlying organic issues.
40Around this time in early 2019 you commenced a course of counselling with a psychologist, Ms Troupakis. She notes you commenced treatment with her in March 2019 and have now attended a total of 23 counselling sessions. In the letters written by Ms Troupakis she talks about your engagement not only with her, but also gives an overview of your work with a men’s behavioural change program and with a drug and alcohol counsellor.
41Ms Troupakis writes about your remorse and how you have now come to understand the wastefulness of the time you spent serving your addiction. She talks about how you have also worked outside her sessions by reading both self-help books and literature.
42I have had regard to the submission that Verdins limb two was also engaged, such that the type of sentence that should be imposed, and the conditions under which that sentence should be served, should be influenced by your established mental health difficulties. I understand that submission, but in light of your rehabilitation and for the reasons discussed later in this sentence, I find the principle is not applicable in your circumstances.
Delay
43You were arrested on these charges on 20 August 2018 and bailed on 1 October that year; 43 days by way of pre-sentence detention are therefore referable to this indictment.
44As I have already said, you were remanded on other charges on 28 December 2018 and were released on 19 February 2019. Importantly, your sentence on that event was dealt with by way of a fine. Further, in September 2019 you were sentenced to a Community Corrections Order in the Magistrates’ Court.
45While those matters are not prior convictions for the purposes of this hearing, they become relevant into two ways: first, there is a period of 54 days in custody that I can take into account in moderation of your sentence pursuant to the Renzella principles.
46Further, the work you undertook in successful completion of the Community Corrections Order imposed in September 2019 is particularly relevant to my assessment of your prospects of rehabilitation, to which I will return in a moment.
47The delay I find in this case has been inordinate. It is not attributable in particular to anyone and you had no role in it. It started well before the delays caused by the pandemic. It bears upon your sentence in two ways. It is a source of unfairness for you. You have been in the community since 1 October 2018 with these matters hanging over your head, and the real prospect of returning to custody.
48Also significant, however is that during this period of delay you have successfully completed the Court Integrated Services Program, ongoing psychological counselling, treatment under a psychiatrist, successfully completed a Community Corrections Order and successfully completed a drug and alcohol program. I have already mentioned the report of Ms Troupakis, who has been able to follow your progress over a significant period of time, for at least two years.
49Ms Troupakis noted that you had the twin goals of gaining employment and re-establishing your role as father to your two children. You have to a substantial degree met those goals. You have been employed full-time by a company which has, through the letter of Deanne Hall, commended you as a model employee, and as a sincere hard-working person.
50You have, over time and by agreement with your former partner, resumed regular contact with your children. You have been living with your parents, putting off seeking your own accommodation until the resolution of this case. Your next goal is to establish your own home and your children’s place in it.
51The delay in your case is a very powerful mitigatory factor.[6] It has produced unfairness for you. But you have also used it to your advantage.
[6]Arthas & Anor v R [2013] VSCA 258 at [25]; R v Merret [2007] VSCA 1 at [35].
Prospects of rehabilitation
52Much is said in these courts about offenders’ prospects for rehabilitation and how they might be assessed. Normally this requires some guesswork, sometimes a bit strained, about how sincere a person is about addressing their difficulties in staying out of gaol, or dealing with their addictions.
53
In your case however, this process is easy because of the day in, day out work you have put in since your return to the community from about February or March 2019. It must have been a big ship to turn around, from the man who presented at
Dr Manawadu’s rooms in April 2019. From the psychological material, the letter of your employer, and the letter from your parents Jeff and Glenys, you have travelled a very long way under difficult conditions. Whether it be on the CISP program, the Community Corrections Order, in counselling, or at work, you now have a demonstrated track record over time of your rehabilitation. This is a very significant matter, decisive in fact, in arriving at the appropriate disposition in your case.
54This established rehabilitation has a powerful influence over how I apply the sentencing principles. I am still cognisant of the need for general deterrence in drugs cases, but your rehabilitation tells me that specific deterrence is now less important, and the protection of the community is to be maximised by not puncturing your rehabilitation, but supporting it. If general deterrence is said to work, the corollary of it must be that when someone does achieve good rehabilitation over time, the recognition of that, measured here in units of time not spent in custody, should be apparent and well communicated to others. Moreover, I regard there to be a role here for publicly and obviously rewarding such sustained rehabilitation in the hope of reinforcing in the public mind the very considerable community interest in the rehabilitation of offenders, and I am quoting there from the case of Merrett.[7]
[7]R v Merret [2007] VSCA 1 at [49].
Totality, Concurrency and Cumulation
Totality
55If it is not already clear, I have also had regard to and referenced the principle of totality, the time you have spent in custody not only on these matters but more broadly the period you spent in December, January and February in 2018/2019.
COVID-19 Pandemic
56As I deliver this sentence the Victorian Health authorities have imposed a further lockdown. Case numbers are climbing. The anxieties and uncertainty of this time persist. It is clear that for some time prisoners in Victoria have suffered the anxiety of not knowing if or when the virus will enter the prison system. You did not spend time under these circumstances but I take into account that any further time you would serve in custody would be under these conditions.
Regard to current sentencing practices
57I have had regard to current sentencing practices. No particular case is much like yours but I have had regard to the sentencing landscape.
Disposition
58Mr Gross, on Charges 1 and 2: trafficking in a drug of dependence, you are convicted and sentenced to 43 days imprisonment on each charge, in combination with a Community Corrections Order of 12 months duration. The sentences of imprisonment are to be served concurrently.
59On related summary charges 5, 6 and 8: possessing property suspected to be the proceeds of crime, committing an indictable offence while on bail and contravening a conduct condition of bail, you are convicted and sentenced to a Community Corrections Order of 12 months duration and pursuant to s40(1) of the Sentencing Act I make one Community Corrections Order in respect of each of the offences dealt with in this case.
Pre-sentence detention
60Pursuant to to s18 of the Sentencing Act I declare that you have served 43 days of pre-sentence detention to be reckoned as a period already served under this sentence.
61Mr Gross, I am now going to read you the conditions of the Community Corrections Order that I am going to impose. After I do that, I am going to give you a moment to discuss them with your barrister so that I can obtain your verbal consent to complying with the conditions of the community corrections order.
62The order will be for a duration of 12 months.
63You will be first subject to the standard conditions of a Community Corrections Order. That means you must not commit any other offences that are punishable by imprisonment during the 12 month period
64You must report to the Dandenong Community Corrections office in Walker Street, Dandenong within two days of today (telephone will be the mode for the moment).
65You are required to advise your supervisor in the Corrections office of any change of address where you are living or working and you must do so within two clear working days.
66It is a term of all Community Corrections Orders that you must submit to visits as directed and you must obey all of the instructions and directions of a Community Corrections Officer. You are not able to leave the State of Victoria without their prior permission. That is for the entire 12 months.
Special conditions
67You will be required as a special condition of the order to complete programs to further address and consolidate the issues with drug use.
68I will not be mandating mental health treatment as part of your order given the recommendations that have been provided to me. I am simply informally encouraging you to continue getting that assistance.
69Given the restrictions on imposing court ordered community work at the moment, I am not imposing a requirement that you perform unpaid community work as part of this order. I have also taken into account your current employment as a factor there.
Section 6AAA reduction
70In terms of the s6AAA requirement I am obliged to state what sentence I would have imposed had Mr Gross not pleaded guilty but been found guilty after trial and this is particularly artificial in this case, given the sentencing factors that are so closely connected to the plea, but doing the best I can, I state that for the purposes of 6AAA of the Sentencing Act I would have imposed a period of imprisonment of 2 years with a non-parole period of 15 months.
Ancillary orders
71I make the orders in relation to disposal and forfeiture for the GBL and alprazolam and the cash.
- - -
0
4
0