Director of Public Prosecutions v Harris
[2015] VCC 1420
•8 October 2015
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR 15-00981
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MATTHEW HARRIS |
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| JUDGE: | HER HONOUR JUDGE COHEN |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 1 October 2015 |
| DATE OF SENTENCE: | 8 October 2015 |
| CASE MAY BE CITED AS: | DPP v Harris |
| MEDIUM NEUTRAL CITATION: | [2015] VCC 1420 |
REASONS FOR SENTENCE
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Subject:Sentencing; trafficking commercial quantity of drug of dependence (1,4-Butanedoil); 2 charges trafficking drug of dependence (methylamphetamine and MDMA); uplifted summary charges; dealing with proceeds of crime; possession of scheduled poison; driving whilst disqualified
Catchwords: Plea of guilty
Legislation Cited: Sentencing Act 1991 (Vic) s 6AAA
Cases Cited: DPP (Cth) v Maxwell [2013] VSCA 50; Bass v R [2014] VSCA 315
Sentence:TES: 4 years; NPP: 2 years 3 months.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms C. Segdwick (on plea) Mr B. Nankin (on sentence) | OPP |
| For the Accused | Ms D. Lamovie | VLA |
HER HONOUR:
1Matthew James Harris, you have pleaded guilty to one charge of trafficking in a commercial quantity of a drug of dependence, namely 1,4-Butanediol, and two charges of trafficking in a drug of dependence, one in respect of methamphetamine and one MDMA. You have also agreed to have heard with these charges, and have pleaded guilty to, three summary charges. These are dealing with property, namely $16,781.50 cash, suspected of being the proceeds of crime, driving whilst disqualified, and possessing a scheduled poison, namely Lignocaine.
2The maximum penalty for trafficking in a commercial quantity of a drug of dependence is 25 years' imprisonment, the second highest maximum penalty known under the laws of this state. For trafficking in a drug of dependence it is 15 years' imprisonment. For dealing with property suspected of being the proceeds of crime, it is two years imprisonment. For driving whilst disqualified it is 240 penalty units or two years' imprisonment, and for possession of a scheduled poison without a permit, ten penalty units.
3The maximum penalty for each charge reflects the relative seriousness with which charges of such nature are regarded, at their worst, by parliament on behalf of the community. I have taken those maximum penalties into account as reflecting that relative seriousness designated by parliament.
4All of these charges arise out of your activity and what was discovered in your possession on 11 March 2015. At approximately 2.40 am, you were driving a vehicle on Chapel Street, Prahran, when it was intercepted by police. It was found that you did not have a driver's licence and were in fact disqualified from driving at the time. That is the basis of the summary charge of driving whilst disqualified.
5Police searched your vehicle, with your permission, and found two black boxes carefully hidden and each containing drugs and drug paraphernalia.
6The first box, which was fixed into a hollow area of the driver's side engine cavity, held in place with magnetic strips, was found to contain rolled up plastic bags containing what was subsequently confirmed on testing to be methamphetamine or “ice”, also an ice pipe and other drug paraphernalia, and 87 purple tablets confirmed on testing to be MDMA, also known as “Ecstasy”. The second black box was concealed on the passenger side of the engine cavity and contained more plastic bags, drug-like powders, and an electronic scale. In the boot of the vehicle was a 20-litre “jerry can”, which contained a substance subsequently identified as 1,4-Butanediol. Identification papers in your name were located in the glove box.
7On the same day, police obtained a search warrant to search the bedroom you occupied in your mother's house in Cheltenham. In that room, they found a safe for which you supplied the code, and in it were found numerous deal bags, a set of digital scales, powders, mobile phones and $16,100 in cash.
8Enquiries on the same day were made at the Marriot Hotel in Melbourne, where you had been a registered guest who had failed to check out that morning. Property had already been removed from the room you had occupied, and was collected by police from the concierge. It contained a sealed envelope in your name with money in it, a travel bag, clothing and personal items, and a vacuum-sealed plastic bag system. There was $681.50 cash amongst those items.
9The cash in the safe in your bedroom, together with the cash from the Marriot Hotel, totalling $16,781.50, is the subject of the summary charge of dealing with property suspected of being the proceeds of crime.
10On testing, the substance in the jerry can found in the back of your vehicle was found to be 1,4-Butanediol, equivalent to 12.3 kg. A commercial quantity of that drug is 2 kg. That substance is the basis of Charge 1 of trafficking a commercial quantity of a drug of dependence.
11A total of 55.3 grams of methylamphetamine was found from the various searches. It ranged in purity from 80 to 90 per cent. That drug is the subject of Charge 2 of trafficking methylamphetamine. The threshold for a trafficable quantity of that drug is 3 grams, making the quantity you had with you many, many multiples of that.
12The 87 purple tablets were analysed to be MDMA, totalling 35 grams. For that drug, 3 grams is a trafficable quantity. That is the subject of Charge 3 of trafficking MDMA.
13Finally, an amount of Lignocaine was found in your possession, that being a scheduled poison, and the subject of the summary charge of possession of a scheduled poison without licence or permit.
14You were arrested that morning and taken to a police station. In a formal recorded interview, you answered "No comment" to virtually all questions. However, earlier when intercepted, and when your car was being searched by police, you had made some admissions, acknowledging after first stating that the container in the back of the car contained petrol, that it was in fact a drug. You also acknowledged that the white substance in the black boxes was “meth”, and cooperated by giving police the code to open the safe in your bedroom. The making of a "No comment" record of interview was your legal right and apparently done on legal advice.
15You have been remanded in custody since that day. That period, namely 211 days up to but not including today, will be credited towards your sentence as pre-sentence detention.
16You pleaded to these charges at an early stage, and are entitled to considerable credit for that. I am told that you entered pleas of guilty at the committal mention, being the earliest practicable opportunity, and that as a result no witnesses have been called at any hearing on behalf of the prosecution, and there has been no need for a disputed hearing either at committal or trial stage. You are entitled to the benefit of what is well recognised utilitarian value to the community from your early plea of guilty, and it also reflects that you accepted responsibility for you offending and at an early stage. In your circumstances, I also accept that your pleas of guilty are consistent with the remorse that you have expressed to others. I shall tell you what your sentence would have been had you not pleaded guilty after I tell you what sentence I have decided to impose.
17You come before this court with a criminal record for a number of relevant prior offences, although they were all dealt with in one court hearing, that being on 18 July last year. On that date, a number of occasions of offending were consolidated, including driving offences ranging from driving whilst authorisation was suspended, to driving whilst exceeding the prescribed limit of drugs; theft of a motor vehicle, use of methamphetamine, possession of both cocaine and a prescription drug, trafficking methamphetamine, and dealing with property suspected of being the proceeds of crime. All of that offending had occurred over the period from September 2012 to June 2014. You were sentenced by the Magistrate's Court last July to a Community Corrections Order with both a penalty component of unpaid community work, and also therapeutic conditions for treatment.
18It does you no credit that you engaged in such extensive prior offending, but it is consistent with what I am told to have been a sequence of difficult events in your life which led to your descent into reckless and indeed illegal activities.
19The relevance of this prior offending is, first, that you cannot claim that what I sentence you for is your first offending, or even first offending of this nature, nor that you were of totally unblemished good character. Further, the sentence imposed by the magistrate last year did not bring home to you the need to cease all offending of this type. Instead, it appears that the level of offending in trafficking drugs and dealing with the proceeds of crime in fact escalated. Also you made no effort to take advantage of the opportunity the CCO had offered for you to address your drug addiction, and indeed any depressive or similar background conditions that contributed to your own use of drugs. In other words, specific deterrence moderated by rehabilitative prospects failed, and when I address that sentencing consideration, it will inevitably receive higher prominence in my consideration of an appropriate sentence for you.
20It is apparent from the contravention report in relation to that CCO, which was tendered before me, that you made no effort whatsoever to engage with any of the opportunities for assessment and treatment offered by that order. However, I am not dealing with you for that contravention, which I expect will be referred to the Magistrate's Court soon after I sentence you.
21I accept that your criminal record does not reflect long-entrenched patterns of offending, and that it is consistent with what I am told was the timing of events that seriously impacted your personal life, leading you into reckless behaviour and into taking up illicit drug use in late 2012 or early 2013, and that you then became more heavily involved in criminal activity from trafficking those drugs to driving under their influence. I will return later to discuss the various sentencing considerations that arise out of that factual background.
22I turn now to your personal circumstances.
23You are now aged 31. Although your parents separated when you were aged three or four, you were raised in responsible and supportive and law-abiding family circumstances. Each of your parents remarried, and you have half-siblings on both sides, although I take it that you have had much closer contact at least in recent times with your mother's two sons than your father's two further sets of children, although you are in touch with the latter. You no longer have a good relationship with your father. You were never close to him, although you lived with him for a couple of years from about age 15. In fact I am told that was at your mother's instigation, because she wanted you to have a teenage, free from the extra responsibilities she saw you taking when her second husband died suddenly and leaving your much younger brothers fatherless.
24At school you achieved well, both academically, and engaging in sports and other activities. You did well enough on completing Year 12 to gain entry to a Business Certificate course at RMIT. Whilst undertaking that course you started working at Hungry Jack's, part-time, and after about 18 months you decided to leave that course and started working full-time for Hungry Jack's. You were employed by that company for almost nine years, working up through various levels of jobs until you became store manager, and were moved twice in that role, eventually managing the Chapel Street, Prahran, outlet which involved supervising, as I am told, more than 70 staff. You are said to have enjoyed that work but eventually decided to leave it as you wanted to cease shift work. This was apparently in late 2010.
25You then trained as a security guard, obtained that licence, and worked for a business called “Safety in Numbers” for about two years. Towards the end of that period, events in your personal life took a downturn, but also your driver's licence was suspended through the accrual of demerit points. That led to you losing your security guard employment as you were required to have your licence.
26I am told that you then took some casual work but by then you had moved into a social group where drug taking was accepted, and you commenced smoking methamphetamine or “ice”, socially. I am told that you had been in a happy relationship with a young woman from Canada who was studying here, and that had lasted for several years, for the last three of which you lived with her, until in 2012 her student visa expired and she left Australia to return to Canada, bringing your relationship to an end. You were understandably very upset by the ending of that relationship, and also you had to give up the home where you lived together and eventually you moved back to live in your mother's house where your younger brothers also lived.
27In that same year, your mother was seriously injured in a car accident and then when tests were conducted, she was found to be suffering from cancer. Your mother gave evidence before me, as well as providing a written reference outlining your childhood and family background, and the circumstances both prior to and following this offending. She said that in 2012 after she suffered extensive injuries in a serious car accident, it was discovered that she was suffering from cancer, and she underwent a lung resection surgery. You took a considerably supportive role for both her and your younger brothers at that time, driving your brothers to see her, coming to collect her from hospital, and over the following months while she was still unwell, you spent more time at her home and assisting. She believed you were doing security work during that time.
28Your mother says that for about 12 months before your arrest on these charges, she was aware that your behaviour had changed, and she believed you were using drugs. She clearly would not have condoned this, and says that you and your brothers knew well what was, what she calls her bottom line. She had always forbidden drugs to be brought into her house, and had more than once offered to get your counselling. She was not, however, aware of when you to court in July 2014 on a consolidation of charges, nor that you had been placed on a Community Corrections Order, let alone that you had breached it. I accept her evidence that there was an occasion when police came to her house, asking for you, but that they told her not to worry, and she assumed that this must have been in relation to driving matters.
29Your mother says that only about a month before your arrest for the charges that bring you before me, she had taken you to task, because she had smelt something burning from your bedroom which she believed to be drugs. She discussed with you that you had to be conscious of the effect on your brothers. She again offered you counselling but your reaction was that it was all right and it would not happen again. She is clearly both angry and deeply upset by your offending and the situation in which you have found yourself now in prison. However, she is also clearly willing to support you as best she can through the difficulties of facing a term of imprisonment.
30One of your half-brothers was also in court to support you, and wrote a reference for you, although I am told that your other brother on your mother's side is so angry about your offending that he has cut all communication and contact with you.
31I am told and accept, that you have now realised and feel ashamed of the impact and burden that your offending and imprisonment has placed on your closest family members and your friends.
32I have read references from two other friends who speak of you being a decent, reliable, trustworthy person, and supportive to one of them through personal difficult times. I accept that those friends wish to show their support for you and mean what they have written, and one was in court to show that support. However, I have given only limited weight to what they say, as each has known you for about two years, and that coincides with a period during which I am told you were heavily addicted to methamphetamine, at least until being remanded in custody, and your reckless behaviour and offending was occurring over that period.
33You were assessed for this hearing by Mr Bernard Healey, consultant psychologist, who outlined your background and the various events in 2012 and following which led to the major downturn in your life circumstances and to your offending. Mr Healey accepted from what you told him that you had started abusing drugs about early 2013, smoking “ice” to address your general depression and sadness and that you became heavily addicted quite quickly.
34Mr Healey says that “certainly [you] were unable to make reasoned decisions and judgments at the time of the offending”. However, your counsel concedes that there is inadequate evidence to establish on a legal basis the necessary cogent nexus between your mental health and the cause of your offending, such as would be required to enliven what are known to criminal lawyers as the Verdins principles. In other words, there is inadequate evidence in this case to support the contention that you were suffering from a mental health condition which reduced your moral culpability for this offending or the application of general and specific deterrence as sentencing factors.
35Further, it is not suggested that you are suffering a level of clinical depression or other mental health disorder which requires treatment, nor which is likely to deteriorate during imprisonment or to make a period of imprisonment more burdensome for you than for someone not suffering from such a condition.
36I accept, however, Mr Healey's view that you were emotionally vulnerable at the time you took to using methamphetamine, that your use of it was at least at a certain stage an attempt to address your depressed mood and sadness, and that this gives context to your offending. It is also consistent with your offending arising out of self-destructive and reckless behaviour, rather than being coldly planned as profit making activity. Rather, I accept that your offending developed from your own addiction to an illicit drug, the insidious consequences of which are becoming widely known through their proliferation in the community, but that it escalated to a higher level than just to service your own addiction.
37You have been in custody since your arrest on 11 March of this year. This has of course been your first experience of imprisonment. You appear to have applied yourself to keeping occupied and to accessing what rehabilitative assistance has been available, and have turned, in your own mind, to realise the consequences of the behaviour and offending that has brought you to this stage.
38I am told that you worked in the laundry at MAP until you sustained a back injury there, and then since you have been at Port Phillip Prison, you have been working assembling cabinets. I accept that you have also undertaken some courses, although you forgot to bring the certificates to court. I am told that you completed a two-day course in occupational health and safety, and another called “Change on the Inside”. I am aware that the availability of courses and programs to prisoners on remand is much more limited than for those after sentencing. Your decision to access what programs have been available is consistent with what I am told has been your realisation of the enormity of what you have done, and the need to use your time to do what you can to address the causes, to try to prevent it from ever happening again.
39Clearly your own drug addiction must be addressed, and although you seem to have been drug free since in custody, the underlying causes and how to avoid relapse in the future are still necessary to be addressed. I am told that you have made enquiries as to the availability of residential drug treatment at Odyssey House, but as you will not be assessed for that until you are released from prison is imminent, it is a reflection that you have at least at this stage resolved to address drug treatment in a serious manner.
40Your time in prison so far does reflect that it has had considerable salutary effect on you, and that has made considerable impact on you. You have expressed both remorse for your offending and for its impact on your family, and the resolution to address your drug abuse to try to avoid relapse or further offending when you are released. I accept that you are experiencing and have expressed genuine remorse for your offending.
41Your time in custody has also been partly affected by suffering a back injury for which you were prescribed pain killers. You apparently also have a need for considerable further dental treatment, some of which has been undertaken but you will not have access to fuller dental treatment until sentenced.
42I turn now to specific sentencing considerations. I must assess the objective seriousness of this offending. At the outset it was conceded by your counsel that this trafficking of drugs was at a serious level. You were involved in trafficking three different types of drugs. The quantities were each many multiples of the threshold quantities for the respective drugs under those charges. Together with the amounts of cash found, that is over $16,000, this reflects that the level of trafficking was of significance, and well above the type of street level trafficking which is often found when users of drugs take to trafficking to earn enough to support their own habits but not much more.
43It was submitted on your behalf that the objective seriousness of Charge 1, that being the most serious charge of trafficking in a commercial quantity of a drug of dependence, should be regarded as lower than the nature of that charge usually compels, because the substance the subject of the charge was said by the prosecution at the bail hearing[1] to be worth only about $1 per gram in street trade, and thus does not reflect high money making potential.
[1] Judge wrongly said Committal Hearing during sentencing
44I was referred to the case of the DPP v Maxwell [2013} VSCA, as standing for support that less remunerative drugs may appropriately attract lower sentences even if in commercial quantities, and that it is open to an offender to establish on the balance of probabilities that he stood to derive little or no benefit from the drug offence, even if it involved a commercial quantity.
45I am told that 1,4-Butanediol is commonly trafficked as a substitute for the drug known as GHB. The quantity you had of this substance was 12.3 kg, so on an estimate of $1 per gram, it was worth approximately $12,300. Of more significance, in my view, that it was more than six times the quantity designated by parliament to be a commercial quantity of that drug. So the offence primarily takes its seriousness from being well over a commercial quantity of that drug. I take note of authorities that say however that there is not a sliding scale to equate the sentence to how much over the threshold quantity the amount trafficked is.
46Without any further information as to what you paid for that drug, I am unable to assess how potentially profitable for you it was likely to be. I cannot therefore accept on the balance of probabilities that you stood to derive little or no benefit from the trafficking a commercial quantity of that drug. However, I do accept that it was unlikely to be worth to you what commercial quantity of either methamphetamine or MDMA would have been, as although I have not been provided with estimates of their street value, experience in this court informs me that each of those drugs commonly is sold for very considerably more than $1 per gram.
47I take into account that there was a degree of planning and some concealment in your offending, taking into account that the black boxes were hidden in the engine cavities in your vehicle and contained drugs and their accoutrements, and also from the fact of the retaining of a hotel room, and the nature of the equipment found there. However, there was not a high level or sophisticated concealment, in that the hotel room was apparently in your name, and what was in the car and your bedroom was self-evidentially easily linked to you.
48I also accept that you became involved in trafficking drugs because of your own drug use, so although you were operating at a significantly higher level than simply to feed your own addiction, your involvement did not commence for purely money making motive, and it had escalated simultaneously with your personal serious level of addiction.
49Finally, I cannot overlook as an aggravating factor that you committed these offences whilst subject to a Community Corrections Order, which was imposed for multiple offences but including some for similar although lower scale drug offences.
50Overall I assess the level of seriousness of the offences of trafficking these drugs at the lower end of the medium range of seriousness for these respective offences.
51The quantity of cash admitted to be the proceeds of trafficking drugs is substantial, although no doubt there are greater amounts found in some cases.
52The charge of driving whilst disqualified is of concern because you had faced two previous charges for driving whilst your licence was suspended, and appear to have flaunted the disqualification period. Also I infer that you decided to keep driving to use your ability to drive for drug trafficking activities, and indeed you were detained whilst driving drugs in your vehicle on this occasion.
53I accept that the possession of Lignocaine was for personal use, apparently to treat your own dental pain, and therefore at a low level of seriousness of that offence.
54In my view, general deterrence and denunciation of drug trafficking are the most important sentencing factors in this case. General deterrence means that the sentence should send the message to others tempted to engage in drug trafficking that it will attract serious punishment. There is now widespread recognition of the proliferation and very damaging effects of drugs of the nature you were trafficking, and those who seek to profit by trafficking them, must expect serious punishment, even if they are drug users themselves. Denunciation of this type of offending is important to the community.
55Specific deterrence must also be considered and applied - that means to deter you from further offending. It arises particularly in this case as your previous court appearance for similar but lesser charges did not achieve that. However, in my view, the salutary effect of having been in custody for the first time and for the last seven months has in effect already imposed specific deterrence and lessened the need or the importance of that consideration in determining the ultimate duration of your sentences.
56I accept that there is also considerable scope in your case for rehabilitation as a sentencing consideration. It does not outweigh general deterrence or denunciation, but I do give it some weight in your case. That is even though you are older than can be described as a youthful offender, when rehabilitation often takes primacy, and you have a relevant prior criminal history. That is because your criminal history was all acquired in a relatively short period before the offending for which I sentence you, reflecting a major change in your life, and recourse to drug abuse and reckless conduct flowing from that. In contrast, your history until 2012 seems to have been of responsible living, engaged in employment, a stable relationship, and supportive interaction with your family, especially your mother and younger brothers, and also with friends.
57You have been assessed as being of average intelligence, and have reasonable academic achievement and considerable work experience behind you. You have told your mother, friends and Mr Healey, that you realise the consequences of your offending, are ashamed and take responsibility for it, and are also resolved to address your drug problems and the reasons for them so as not to relapse in the future.
58With these circumstances and resolve behind you, and with the ongoing support of your mother, one of your brothers at least, and potentially other half-siblings and friends, there are in my view good prospects that on your release from prison you can re-establish a stable and responsible life for yourself. However, that is all subject to remaining abstinent from the drug use which seems to have been the main cause that led to your offending.
59Taking into account the seriousness of the circumstances of the trafficking offences to which I have already referred, and the importance of general deterrence and denunciation as well as the other sentencing considerations, no sentence other that imprisonment is appropriate on the trafficking charges, and this was conceded by your counsel. Because there is a real prospect for you to be able to re-establish yourself in a responsible lifestyle on your release, I have balanced the length of the term of imprisonment with the need for it not to be so crushing as to destroy your current determination to address your drug abuse. I have also given full weight to your early plea of guilty and other cooperation with police.
60Although there are three charges on the indictment involving different types of drugs, and indeed three further summary charges, I take into account that all charges arise from your conduct on the same day and arose out of what was found in your possession on that day. There was also some overlap between the indictable and summary charges. For example, the possession of the cash was not only an offence in itself - possession of property suspected of being the proceeds of crime - but also evidence that the drugs found in your possession were being trafficked by you, although it was certainly not the sole evidence, given the other paraphernalia found with you.
61Accordingly, there will be considerable concurrency between the sentences I impose, although some cumulation to reflect that there were three different types of drugs being trafficked and of course the cash found.
62Finally, I have looked at the sentences brought to my attention both by the prosecution and defence in this case, and of course there are those and many more of these types of offences. These were brought to my attention and I have had regard to them as relevant to current sentencing practices for this type of offending. These obviously vary quite widely in the sentences imposed, as do the particular factual circumstances on which they were imposed, and of course the circumstances of the individual offenders. I have not undertaken close examination of similarities and differences with the present case. As has been stated in other cases, other sentences can only be an indicator of a range of sentence that is open, and as a general guide. I refer specifically to the case of Bass v R 2014 VSCA 315 at paragraph 207.
63I have decided that a lower than average non-parole period is appropriate in this case, due to what I take to be genuine remorse, an early plea of guilty and good prospects of rehabilitation; but ultimately the grant of parole is a decision for the Parole Board.
64Would you stand up now please. Matthew Harris, on each of the charges on the indictment, you are convicted and sentenced as follows.
65On Charge 1, trafficking a commercial quantity of 1,4-Butanediol, you are sentenced to three years and six months' imprisonment - that is the base sentence.
66On Charge 2 of trafficking methamphetamine, you are sentenced to 18 months' imprisonment. On Charge 3 trafficking MDMA, 15 months' imprisonment.
67Further, on Summary Charge 15, dealing with cash suspected of being the proceeds of crime, you are convicted and sentenced to eight months' imprisonment. On Summary Charge 21 of driving whilst disqualified, you are convicted and sentenced to one month imprisonment. On Summary Charge 22, possession of a scheduled poison, you are fined $250 without conviction.
68I direct that three months of the sentence on Charge 2, two months of the sentence on Charge 3, and one month of the sentence on Summary Charge 15 be served cumulatively on each other and on the sentence imposed on Charge 1. That leads to a total effective sentence of four years' imprisonment. I fix a non-parole period of two years and three months' imprisonment. I declare 211 days of pre-sentence detention as reckoned served. That comes off both the head sentence and the non-parole period, and I direct that that be recorded in the court records, and it will be deducted from your sentence administratively.
69On the summary charge of driving whilst disqualified, that is Summary Charge 21, as this was not your first offence for driving whilst you knew you were forbidden to do so, I have decided to impose a further disqualification on your eligibility for a driver's licence. However, due to the non-parole period I have fixed, the disqualification period will have little practical impact as it will expire before you become eligible for parole. On that charge I order that any driver's licences you hold be cancelled and that you be disqualified from obtaining a further licence for 12 months.
70I am required under s.6AAA of the Sentencing Act to state what your sentences would have been if you had not pleaded guilty but been found guilty of each of these charges at trial. I state that the sentences I would have imposed are: five years nine months on Charge 1, two years nine months on Charge 2, two years and three months on Charge 3, 12 months on Summary Charge 15, three months' imprisonment on Charge 21, that is driving whilst disqualified, and a $500 fine on the poisons charge. With orders for some cumulation, I would have imposed a total effective sentence of six years and six months' imprisonment, and a non-parole period of four years and six months.
71Now finally, I propose to make suitable disposal and forfeiture orders, and note that they were not opposed. However, there is an issue with the wording of the drafts that I want to raise, so I have not yet signed those. You can take a seat Mr Harris, while first I will ask both sides' lawyers to check the structure of the sentence and that the arithmetic adds up before I go to the disposal and forfeiture orders. Does either side raise anything in that regard?
72MR NANKIN: Not in that regard Your Honour.
73HER HONOUR: All right. You want to raise something else, yes, can I just point out to you, I did wonder whether because three charges were on the indictment, whether I needed to state the total effective sentence for that, and then cumulate anything from the summary charges onto that total effective sentence. I do not see any difference in the ultimate result, but for example if there had been two indictments, it would have been done separately and well that simply was not canvassed during the hearing and it was only when I came to structure it I wondered whether this is correct. I think the total's correct, but I query whether either of you say I should structure it by a total effective sentence in the first place on the three charges on the indictment?
74MR NANKIN: My understanding is that Your Honour's current structure is appropriate.
75HER HONOUR: All right. What have I done that you wanted to bring to my attention?
76MR NANKIN: It was something minor Your Honour.
77HER HONOUR: Yes?
78MR NANKIN: It was just when you referred to the value of the 1,4-Butanediol that was referred to, I think Your Honour referred to it being referred to committal, it was referred to at a bail application, that's what I'm thinking of ‑ ‑ ‑
79HER HONOUR: Bail application, sorry, yes, I am sorry.
80MR NANKIN: Yes, but also at that bail application, the value was put as an approximate. So when Your Honour said that it's valued at 12,000, I'd just be mindful that it is an approximate.
81HER HONOUR: I thought I actually said approximately ‑ ‑ ‑
82MR NANKIN: You may have.
83HER HONOUR: ‑ ‑ ‑ if I did not, I will add it in, because I only meant it as an approximation. It was the - what was put to me was that that is the only time the value has been mentioned.
84MR NANKIN: That's right. Your Honour dealt with it in a very general way in any event.
85HER HONOUR: I did, I did.
86MR NANKIN: But I just thought I'd mention it.
87HER HONOUR: All right. I think it was - I thought I said approximate, I certainly viewed it as approximate only.
88MR NANKIN: I believe Your Honour did mention the word approximate and then ‑ ‑ ‑
89HER HONOUR: But maybe I did not for the total.
90MR NANKIN: ‑ ‑ ‑ moved to, I guess, an actual ‑ ‑ ‑
91HER HONOUR: An actual calculation?
92MR NANKIN: Yes, a total value which I ‑ ‑ ‑
93HER HONOUR: Yes, my point is I cannot tell how much of that is profit and there is an onus on the defence to show on the balance of probabilities that the person did not stand to make much profit.
94MR NANKIN: That's right.
95HER HONOUR: Well that is one of my points in that as well as the overall issue of the basic structure being a commercial quantity.
96MR NANKIN: I take absolutely no issue with any of the points Your Honour made, just that that value is approximate.
97HER HONOUR: I make sure I, on revising it, if I have not got the word ‑ ‑ ‑
98MR NANKIN: Thank you.
99HER HONOUR: ‑ ‑ ‑ approximate in in both places that I will use it a second time. Ms Lamovie first of all on that structure of the ‑ ‑ ‑
100MS LAMOVIE: I have no issue with the structure, I don't think there's anything incorrect about that.
101HER HONOUR: That is fine, I have only - that is the ultimate conclusion I came to but I thought I would raise it with you because it had not been canvassed.
102MS LAMOVIE: I can't see any problem with it Your Honour.
103HER HONOUR: All right. Now on the ‑ ‑ ‑
104MS LAMOVIE: There's just one thing before which I'll mention, in relation to the final penalty which is the fine, I'm going to seek a stay of three months for my client to make arrangements in custody.
105HER HONOUR: All right. I will allow a stay of three months. I do not think it will make any difference in the long run. All right. In relation to forfeiture. Both of these orders have been ambivalent that one is as to disposal and one as to forfeiture. They read "Upon the conviction of Matthew Harris on" we will call it 8 October because it is today, "Of a Schedule 1 offence, namely trafficking in a drug of dependence/commercial quantity." Sorry that is how the forfeiture order reads. The disposal order reads, it has got the same inherent problem to it, but it talks of a number of Schedule 1 offences namely trafficking in a drug of dependence/a commercial quantity. Now my understanding is trafficking a commercial quantity is a Schedule 2 offence - automatic forfeiture. Schedule 1 encompasses all indictable offences, it just does not make quite clear what we are ‑ ‑ ‑
106MR NANKIN: This is an - it is not intended to be forfeited under the automatic forfeiture provisions, if that assists.
107HER HONOUR: All right. So you are relying on these being indictable offences under Schedule 1?
108MR NANKIN: Yes, Your Honour.
109HER HONOUR: Well in that case do we not amend by delete- - -
110MR NANKIN: We can amend the wording, rather than saying "Up and under" just a "Schedule 1 offence." So "Offences" amended to "Offence" and we can remove - so it reads. "Upon the conviction of Matthew Harris on 8 October 2015 of a Schedule 1 offence namely trafficking a drug of dependence."
111HER HONOUR: Get rid of commercial quantity?
112MR NANKIN: Keep commercial quantity sorry, I didn't complete the sentence.
113HER HONOUR: Well the actual schedule relates to more than just Charge 1.
114MR NANKIN: Sorry the actual?
115HER HONOUR: The schedule of what is to be - sorry the schedule to the order relates to all three trafficking offences. So my suggestion it be, that the disposal order leave it as a number of Schedule 1 offences or of three Schedule 1 offences and get rid of the commercial - it looks as if it is relating only to Charge 1 and yet it ‑ ‑ ‑
116MR NANKIN: Yes, I see what Your Honour's saying.
117HER HONOUR: It encompasses the deal bags for everything and the powder substances and the MDMA tablets and the lot so to speak.
118MR NANKIN: Yes.
119HER HONOUR: And the bottles of - that is the schedule, sorry that is Charge 1. But it is just, if you want all of that disposed of under it and it is not opposed, it just seems to me to marry it up, it should say "Upon the conviction of Matthew Harris on 8 October 2015 of it can be a number of Schedule 1 offences of trafficking in a drug of dependence."
120MR NANKIN: I can redraft that way Your Honour, if that assists. I also note that says "Or in connection with the commission of the offence or was derived or realised directly or indirectly by that person in the commission of the offence," sometimes that may ‑ ‑ ‑
121HER HONOUR: Yes, well that therefore covers all the deal bags and all of that stuff but it does not ‑ ‑ ‑
122MR NANKIN: But not the substances, the subject of the other charges.
123HER HONOUR: ‑ ‑ ‑ the other substances, so my associate I think has it in an electronic form from you and can make the changes and I will just sign them and forward them on.
124MR NANKIN: That would be most helpful.
125HER HONOUR: Now, next question is this. The forfeiture order, which relates to the cash and mobile phone and the assorted keys and hardware. The cash is the subject of a summary charge, not an indictable charge. I am not sure where that comes in under the Schedule 1. It could be seen as incidental to the trafficking charges as I said, it is really both evidence of trafficking as well as an offence in its own right. But the actual sum of $16,781.50 was the subject of a summary charge.
126MR NANKIN: Yes, I appreciate that point too Your Honour but I guess.
127
HER HONOUR: Again, I know I am being pedantic but these
are ‑ ‑ ‑
128MR NANKIN: No I understand that.
129HER HONOUR: ‑ ‑ ‑ orders that have some impact and should be corrected if possible to be as accurate as possible.
130MR NANKIN: I would submit that the cash found is related to the trafficking, albeit can be the subject of a summary charge of its own. However if Your Honour would prefer the wording to be amended, I'm in Your Honour's hands.
131HER HONOUR: Well as worded at the moment it relates solely to Charge 1 on the indictment. So if that is acceptable to the defence, I will sign it at that stage. I just wanted to raise that it is a ‑ ‑ ‑
132MS LAMOVIE: I think it would be more accurate to say - reflect the summary charge that it's attached, but it relates to directly so ‑ ‑ ‑
133HER HONOUR: All right. Well then we come to the Confiscations Act and where the - and I think I have left it on my desk, no it is here, it is all right. Well it is a question of where the power derives from. There must be a power ‑ ‑ ‑
134MR NANKIN: As I understand it, that charge - the summary charge just reflects the fact that accused had in his possession, proceeds of crime. But the forfeiture order sought is related to the - well I guess the property obtained by the accused through his offending, which would be the trafficking.
135HER HONOUR: So yes it is derived from it, yes. So then probably we leave it as it is worded, just in respect of Charge 1?
136MR NANKIN: That's what I would be submitting Your Honour.
137MS LAMOVIE: I don't have a difficultly Your Honour, it's possibly six of one or half a dozen of the other and, we've had this conversation, this will now be on transcript if ever it becomes an issue.
138HER HONOUR: I deal with confiscation matters a lot and they do become issues. I just want to make sure I am using the right powers. Any way it is made by consent under s.34(1). This is worded to be made by consent and under s.34(1) we do not need to specify the schedule and the like, so I will sign it in its current form then, other than amending the date.
139MR NANKIN: As Your Honour pleases.
140HER HONOUR: Mr Harris I know that is very technical and probably is not what is a major concern to you - the forfeiture order and the disposal order because they were not being opposed. The bottom line for you is that the total effective sentence is four years' imprisonment with a minimum period before you can be eligible for parole of two years three months, of which seven months counts - when I say seven months, 211 days but that is very close to seven months, is already reckoned served. You can take a seat, I will sign this first.
141MR NANKIN: Your Honour I just note the disposal order doesn't name the drug of dependence, I'm not sure if that was intended - sorry the charge, doesn't name the charge, the Schedule 1 offence.
142HER HONOUR: Does not have to now, does it? Because it says “a number of”.
143MR NANKIN: A number of, a number of Schedule 1 offences.
144HER HONOUR: Yes. I do not think it has to, given that it is conceded what it is.
145MR NANKIN: To be honest I am not sure Your Honour, I just wanted to bring it to you attention.
146HER HONOUR: Yes, I am not sure either, yes, I am not in control of the computer and to keep changing it is a difficult ‑ ‑ ‑
147MR NANKIN: It seems more than sufficient to me, I just thought I would raise it.
148HER HONOUR: All right. Yes, no thank you. I am just having the final order processed so I can sign it now and given the time of day it is important for it to be done as soon as possible for Mr Harris to be taken away from the court. All right. I signed the orders now and that concludes this matter. I will ask that Mr Harris be removed from the court room please. Adjourn the court till 10.30 tomorrow? 10.30 tomorrow morning.
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