Director of Public Prosecutions v Harris
[2018] VCC 1320
•23 August 2018
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
GENERAL LIST
CR 18-00315
Indictment No. H10752354
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| PETER HARRIS |
---
| JUDGE: | HIS HONOUR JUDGE HIGHAM |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 17 July 2018 |
| DATE OF SENTENCE: | 23 August 2018 |
| CASE MAY BE CITED AS: | DPP v Harris |
| MEDIUM NEUTRAL CITATION: | [2018] VCC 1320 |
REASONS FOR SENTENCE
---Subject: CRIMINAL LAW
Catchwords: Sentence – trafficking in a drug of dependence – prohibited person
possess an imitation firearm – plea of guilty
Legislation Cited: Drugs, Poisons and Controlled Substances Act 1981 (Vic), s 71AC(1);
Control of Weapons Act 1990 (Vic), s 5AB(2)
Sentence: Total effective sentence of 10 months’ imprisonment and a Community
Correction Order for a period of 18 months
Section 6AAA declaration: 21 months’ imprisonment---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr J Livitsanos | Solicitor for the Office of Public Prosecutions |
| For the Accused | Mr S Johns QC (Plea) Ms S Radovic (Sentence) | Radovic Lawyers |
HIS HONOUR:
1Peter Harris, you have pleaded guilty to one charge of trafficking in a drug of dependence, namely cocaine, and one charge of being a prohibited person possessing an imitation firearm. The maximum penalties for your offending are, respectively, a term of imprisonment of 15 years, and a term of imprisonment of 10 years.
2The circumstances of your offending are as follows.
3On 30 December 2016 you sourced an amount of 56 grams or 2 ounces of cocaine from your up-line supplier, Mr Robert Ale. The brief of evidence demonstrates the role that you played in sourcing the drug, including arranging for the finance to be delivered to your up-line supplier and arranging for the drugs to be collected.
4Between 6 and 9 January 2017 you sourced 84 grams or 3 ounces of cocaine from the same up-line supplier. Mr Ale contacted you to see if you needed any more drugs, as his supplier was going away on holiday. Over the next 48 hours you discussed quantity and price, both with your up-line supplier, Mr Ale, and with your partner in your own trafficking enterprise, Ji Veltmeyer. It appears that your credit rating was such that Mr Ale would allow you to take the cocaine, and then settle your outstanding bill at a later stage.
5Between 23 and 26 January 2017 you sourced a further 56 grams or 2 ounces of cocaine from your up-line supplier. Again, discussions were had as to when the goods would be paid for, and when they would be collected, either by yourself or by your partner, Mr Veltmeyer. The relevant evidence is set out in detail in exhibit 2B of the summary of prosecution opening which was tendered on the plea. I annex a copy of that summary document to these reasons.
6Thus it can be seen that between 30 December 2016 and 26 January 2017 you trafficked a total of 7 ounces or 196 grams of cocaine.
7In relation to Charge 2, the imitation firearm was located in a kitchen cupboard during a search of your home on the day of your arrest in March 2017.
8During your record of interview you stated that the imitation firearm was from a fancy dress-up party on the weekend, where someone dressed up as a cowboy. However circumspect I may be about that explanation, nothing was tendered on the plea by the prosecution to satisfy me to the requisite standard of the falsity of that account. I sentence you on that basis.
9I turn now to your personal circumstances. You were born on 12 August 1986 and have just turned 32. You were 30 at the time of the offending. You grew up in Melbourne’s outer south-eastern suburbs, with your parents and two younger siblings.
10You told Ian McKinnon, consultant psychologist, that you had a great family. You describe your upbringing in a positive manner, particularly that your parents' relationship was harmonious and that you were never subject to any form of mistreatment as a child. You maintain good relationships with your parents and your siblings. Indeed, you are still living at the family home.
11Your childhood was one of stability, loveband security, clearly demonstrated by your ongoing positive relations with your parents, siblings, and extended family.
12Over the last decade, both your parents have been treated successfully for cancer. More recently, in the course of 2018, you have lost two grandparents.
13You attended local primary schools and completed your secondary schooling at Berwick Secondary College. You report your schooling was without difficulty, that you had a wide circle of friends, and you graduated with your year 12 certificate.
14After high school you successfully completed an electrical apprenticeship, and it is in this field that you have since worked. You established your own company in 2010. I observe that at this point your life, notwithstanding occasional binge-drinking of alcohol, was following a solid and law-abiding path. Yours was the story of many young Australians. It seems that the values with which you had been imbued by your loving family also enabled you to be a loyal friend.
15Tendered on the plea as exhibit 4PH was a bundle of materials, including a report from Dr Anthony Cidoni, consultant psychiatrist, dated 23 May 2018; a report from Mr Patrick Newton, clinical and forensic psychologist dated 7 July 2018; a report from Mr Ian McKinnon, consultant psychologist, dated 10 July 2018; and a report from Ms Amanda Brown, drug and alcohol counsellor, dated 9 July 2018. There was also a report from Ms Julie Brown, clinical psychologist, dated 8 December 2016, and a collection of references and testimonials from family, friends and work colleagues, and from your new partner.
16I have read and considered all of that material. The clinical and forensic witnesses are all consistent in their assessment of your presentation.
17You began using drugs in your late teens when you were out with your friends on weekends, starting with MDMA and amphetamines before progressing to cocaine by the age of 20.
18In 2012, when you were around 25 years of age, one of your closest friends committed suicide. He had been depressed for some considerable time prior to his suicide. You had been aware of his depression, and you had attempted to be there for him and to be a support.
19It is clear that his death impacted greatly upon you. You describe being racked with guilt for not providing enough assistance to your friend before his death.
20Unfortunately, you did not seek any counselling at that time for your emotions of guilt and grief, but instead increased your drug use, in an attempt to manage that grief. In short, you internalised your sense of guilt, blamed yourself when you were not to blame, and turned to drugs as a form of self-medication.
21After the death of your friend your drug use escalated, from "recreational” up to daily usage and dependence.
22You told Mr Patrick Newton[1], that your escalating drug use led you to becoming more entrenched in the drug subculture. Your life became progressively devoted to obtaining drugs, to using drugs, and then recovering from the effects of drug use. Not surprisingly, your ability to maintain relationships with people other than your drug peers became severely compromised, as did your ability to work.
[1] Report dated 7 July 2018, part of exhibit 4PH
23Your drug use further escalated in 2014 when a relationship ended. I am told you would use up to 3 or 4 grams of cocaine on weekends. With a neglected business, your source of income eventually dried up to the point where it certainly would not support your drug habit. Eventually this led you to trafficking in cocaine to obtain the income that your own drug use demanded
24You had no involvement with the criminal justice system until on your arrest in July of 2016. On 9 December 2016 you appeared in front of the Dandenong Magistrates' Court for offences of trafficking cocaine and ecstasy, possessing ecstasy and a prescription drug, and knowingly dealing with proceeds of crime.
25Plea material was placed in front of the Court, including a report by Ms Julie Brown, clinical psychologist, dated 8 December 2016, again part of exhibit 4PH. You told Ms Brown that the last time you had used any illicit substance was around two weeks prior to your arrest for those matters, the arrest date being 8 July 2016.
26You reported to her that you were particularly plagued with thoughts of remorse regarding your offending behaviour, particularly in relation to the impact of your offending upon your parents, who were confronted with police officers traipsing through their home, as they were forced to realise that their son that they had nurtured and loved was involved in drugs.
27It appears, in light of subsequent material tendered on this plea that you had minimised your usage of cocaine in your self-report to Ms Brown.
28The Magistrate dealt with you by means of a conviction and placed you on a Community Correction Order for 18 months. The offending for which you fall to be sentenced today started but three weeks after the commencement of that Community Correction Order.
29You were, however, not breached in relation to that original order, but you were permitted to complete it, and you fulfilled all the conditions including community work and treatment. That has enabled this Court to form a clearer view of the prospects for your rehabilitation.
30In this regard, on the plea I heard evidence from your drug and alcohol counsellor Ms Amanda Brown, who also provided a report dated 9 July 2018, part of exhibit 4PH.
31You have been seeing her since November 2017. She gave evidence, and I accept that from her, that Corrections were very satisfied with the manner in which you had completed your earlier order. She stated that you maintained no signs of antisocial personality disorder, no disturbances, psychological issues, and that you have been very dedicated to treatment.
32This is consistent with the opinion of Mr Patrick Newton, that you would not meet the criteria for any related disorder, mood disorder or adjustment disorder at this time. You have been supplying clean urine screens since the commencement of treatment.
33You reported to Ms Brown that your greatest regret was the impact that your actions have had upon your family. That may be viewed in one way as a mere repetition of what you told Ms Julie Brown before your sentencing in the Dandenong Magistrates' Court in 2016 and your then almost immediate return to offending. However, in my view, in light of your subsequent actions, including remaining drug-free, that expression may be viewed now as a genuine expression, not only of remorse but also of your shame at your offending.
34Mr Newton also further identified insight and remorse. You told Mr Newton:
"I was stuck in a hole, taking drugs and selling to cover my addiction. Also I wanted to block out my problems and I was trusting the wrong people".
35Such words demonstrate some insight into what it was that led you to offend. You say:
"I'm so sorry. I can never take back what I've done, although every day I wish I could, so I'm doing everything I can to prevent ever heading down that path again. I feel guilty for the pain and suffering I have caused, not only [to] the family and friends supporting me from day dot, but [also to] those who I have affected by taking and selling drugs and their families".
36Your mother Robin gave evidence on the plea, and she speaks of how you have returned to your own business as an electrician, and of the work ethic that you are now displaying. She told me that you had opened up in counselling, but after the death of your friend you shut down, and that you now talk about everything. Your mum feels like she has got her “old Pete” back. She also speaks in my view with great grace and generosity of the impact your new relationship, has had upon you.
37You have been with your partner Hannah for approximately 18 months. She is currently living with you in your parents' home. You report that she is a pro-social influence rather than a bad one, because she does not take drugs and she is opposed to them. Reading between the lines, I took the view that while she remains supportive of you throughout these proceedings, she has made it very clear to you that if you return to drugs you will lose her.
38I have heard of your decision to terminate the child that your partner was carrying, as you did not want to be absent for the child’s early days. That also, in my view, shows some maturity, which bodes well for your future.
39Mr Livitsanos in sentencing submissions on behalf of the prosecution, submitted that yours was not an enterprise of low-level trafficking. You were sourcing cocaine in multiple quantities of an ounce. Thousands of dollars were exchanged. Your role in the enterprise was that you orchestrated the trafficking whilst your business partner, Veltmeyer, was involved in the physical movements of the drugs and the money. That was a description of respective roles which your counsel did not seek to dispute. General deterrence, said Mr Livitsanos, was a primary sentencing consideration.
40In addition, this offending commenced but three weeks after a Community Correction Order had been imposed for the same kind of offending, thereby enlivening specific deterrence. Mr Johns QC, submitted that recovery does not necessarily take place overnight. Whilst that may be true, this was not a case of you returning to drug use, but rather returning within three weeks to the very same offending for which you had been placed on the original Order.
41The prosecution accepted, as indeed do I, that you have a good family; that you are now in a loving relationship; and that there was an early plea. Nonetheless Mr Livitsanos submitted that the objective gravity of the offending was such that a term of imprisonment needed to be served.
42Your counsel, Mr Johns QC, submitted that the appropriate sentence did not have to be gaol, but could be met by the further imposition of a Community Correction Order. He submitted that your plea was entered at an early opportunity, and that it ought to attract a full sentencing discount, as evidence of acceptance of wrongdoing and facilitating the administration of justice. It brought with it the benefit of saving the community the time and cost of a trial; and it should be viewed as an expression of remorse.
43Whilst not shying away from the fact that this offending occurred but three weeks after the imposition of a Community Correction Order, Mr Johns emphasised the fact that you have completed the terms of that order and all of its conditions. He submitted that you have not come before the courts for any further offending.
44He submitted that you presented with excellent prospects for rehabilitation in the light of your relative youth; your early plea; the insight that you are now beginning to demonstrate into your offending; your proactive engagement with treatment addressing the underlying causes of your drug-dependence; the fact that you have remained drug-free; your dissociating with your former drug peers; and the totality of matters for which you have been before this Court all occurred within a relatively limited period of time and arises out of similar circumstances.
45Mr Harris, those of us who sit in the criminal courts day in, day out, are aware of this one simple truth: drugs are tearing the heart out of our community. Our community is quite simply losing a generation.
46Those who participate in this evil trade can expect to be punished if and when they come before the Court. Because what might start out as a fun Saturday night, what might be regarded as "recreational" and as consumption that can be controlled, can quickly spiral into the horrors of addiction. And in addiction, Mr Harris, as I am sure you know, many people lose everything, including their lives.
47Your own lived experience must show you how near you came to losing everything. You have been very fortunate, Mr Harris in that you have managed to retain the love and support of your family, many of whom sit in this Court now, and that you have found a new partner with whom you intend to start a life.
48It is not possible to establish the purity of the drug that was trafficked, but what is clear is that over a period of four weeks you trafficked 196 grams of cocaine, which is an amount just under 0.4 of the commercial quantity of the drug.
49You were sourcing drugs from a large wholesaler and on-selling those drugs in smaller amounts but still in wholesale quantities. You were not a trafficker selling to end-users so you could afford your own fix; you were up a level from that. You were the orchestrating partner in the enterprise that was sourcing drugs in ounce deals, and multiples thereof. Thousands of dollars were exchanged between your enterprise and those from whom you bought your stock.
50You went back to this trade three weeks after you had avoided going to prison for similar offending. You are not to be punished again for matters in respect of which you had already been sentenced. However, the renewed offending so shortly after the imposition of what may have been thought to be a very lenient sentence by some raises the need in my view for specific deterrence, that is to remind you that if you offend again you are going to be in even bigger trouble, and the need also to protect the community, as the community requires protection from anyone that is prepared to make drugs available.
51Mr Harris, in sentencing you I must have regard to a range of different factors. I must give effect to principles of both general deterrence and specific deterrence. I must deter others from behaving as you did, and I must deter you from any repeat of such behaviour. I must express the community's denunciation of your conduct and I should also promote, if possible, your rehabilitation.
52I must take into account the effect of your crime upon the community, and I must also have regard to current sentencing practices and the maximum penalties imposed by Parliament. In short, I have to try and balance your personal circumstances with the circumstances of your offending
53Clearly, in my view, principles of general and specific deterrence and denunciation are the primary sentencing considerations in this case.
54I have taken into account and give full effect to your early plea of guilty; your developing insight into your offending; your engagement in treatment; which is and I am sure will be continuing; your remorse; the great steps forward that you have made in the process of your rehabilitation; the protective factors constituted by the ongoing love and support of your family and of your new partner Hannah.
55However, Mr Harris, in my view the objective gravity of your offending is such that a term of imprisonment must be served. However, I have crafted a sentence that is intended that you be punished, but also that you do not lose hope. Do you understand me, Mr Harris?
56OFFENDER: Yes.
57HIS HONOUR: On Charge 1, trafficking in a drug of dependence, I sentence you to a term of imprisonment of nine (9) months, and to a Community Correction Order of eighteen (18) months.
58The conditions of the Community Correction Order are supervision, 100 hours of unpaid community work and continuing engagement in treatment from Ms Amanda Brown, who is your drug and alcohol counsellor. There will be a condition of mental health treatment, as directed.
59There will also be a condition of judicial monitoring. Mr Harris, this means that you come back in front of me and we have a chat about how life is going, and you have an opportunity to discuss with me certainly how you recover from the term of imprisonment, but also what you feel the challenges are of the order, what is expected of you and the like. Many come in front of me and find it is of use. I hope you do that. But it just shows that you are not going to be on your own, all right?
60On Charge 2, being a prohibited person possessing imitation firearm, I sentence you to a term of imprisonment of four (4) months. I am going to order that one (1) month of that sentence on Charge 2 runs cumulative to the sentence of Charge 1.
61That makes a total effective sentence of ten (10) months' imprisonment, and then a Community Correction Order of eighteen (18) months.
62Pursuant to section 6AAA of the Sentencing Act 1991 (Vic), had you not pleaded guilty you would have been sentenced to a term of imprisonment of twenty-one (21) months.
63Ms Radovic, I am going to make the disposal orders that were sought on the last occasion.
64MS RADOVIC: Yes, Your Honour.
65HIS HONOUR: And the forfeiture order as well, Ms Radovic.
66MS RADOVIC: Yes, Your Honour.
67HIS HONOUR: Again, that is all by consent.
68My associate is going to bring a document to you.
69Do you consent to being placed upon the Community Correction Order?
70OFFENDER: Yes.
71HIS HONOUR: The first judicial monitoring appointment, it seems a long way away, but it is 5 August 2019, and that is at 9:30 am. That will be about six weeks after your release, all right?
72I know this is difficult for those who love you. Mr Harris, you have a future. You clearly have a future. The person that you were before you lost your friend is still there, all right? But really what is happening is, you are in effect, after you come out from prison, you are given an opportunity.
73I would wish you, as indeed your mum and dad and Hannah and everyone would wish, to take that opportunity, all right? And if down the track you are able to go to schools and say, "This is how bad, this is what drugs are doing", then that is where you give back to the community.
74I will just read out the conditions. You must perform 100 hours of unpaid community work over a period of 18 months as directed by the regional manager. I order that all hours of treatment and rehabilitation that are satisfactorily undertaken are to be counted as hours of unpaid community work.
75You will be under the supervision of a Community Corrections officer for a period of 18 months; treatment and rehabilitation for drug abuse; mental health treatment and assessment; judicial monitoring; and as another order, I order that you continue engaging in treatment from Ms Amanda Brown. And that treatment, therefore, is something that the Community Correction Order just, if you like, monitors and supervises to ensure that it is happening, because clearly you have a very constructive therapeutic relationship with her.
76All right, so I have signed it. Ms Murphy is going to come - you can go with her, Ms Radovic, if you wish - Ms Murphy is going to come and get your signature to agree to the order.
77This will be your first time in custody, so I am going to mark that on custody management issues. Ms Radovic, anything else in relation to custody management issues? No medication?
78MS RADOVIC: Your Honour, apart from - no, apart from the hernia if that's still in any sort of ‑ ‑ ‑
79HIS HONOUR: Have you had that operation, or is that still awaiting?
80OFFENDER: Yeah, that's all - yep.
81HIS HONOUR: That is all right. Any problems with it?
82OFFENDER: Nup.
83HIS HONOUR: No, it is all good. All right, so look, when you are in reception you will be asked about any health issues. It is very important that you engage at that time, all right?
84All right then, Mr Harris. Stick to the course that you are on. It is possible to do that in prison, all right? And you are able to reflect, and you are able to reflect on what you have outside, and those who love you will be waiting for you. All right?
85OFFENDER: Thank you.
86MS RADOVIC: As Your Honour pleases.
87HIS HONOUR: All right, yes. You can take him down.
88MS RADOVIC: As Your Honour pleases.
---
0
0
0