Director of Public Prosecutions v Hayes
[2015] VCC 58
•30 January 2015
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
CR-14-01880
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| CAMERON HAYES |
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JUDGE: | HER HONOUR JUDGE PULLEN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 27 January 2015 | |
DATE OF SENTENCE: | 30 January 2015 | |
CASE MAY BE CITED AS: | DPP v Hayes | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 58 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Ms A. Bhai | Office of Public Prosecutions |
| For the Accused | Mr G. Chisholm | Balmer & Associates |
HER HONOUR:
1 Cameron Hayes, you have pleaded guilty to one charge of trafficking a drug of dependence in a commercial quantity, specifically 1,4-Butanediol (GHB) and one charge of trafficking in a drug of dependence, namely methylamphetamine on Indictment No. E11492698. The maximum penalty applicable is, in the case of commercial quantity, 25 years’ imprisonment, and trafficking methylamphetamine, 15 years’ imprisonment.
2 You have also agreed, pursuant to s145 Criminal Procedure Act 2009, for this court to sentence you for the summary offence that on 7 May 2014 you fraudulently altered a licence under the Road Safety Act 1986. The maximum penalty applicable to that offence is ten penalty units or two months’ imprisonment.
3 Your offending arises out of events that occurred, in the case of trafficking in a commercial quantity, between 26 March and 6 May 2014, that is, over a period of approximately six weeks (three transactions). The charge of trafficking in methylamphetamine related to offending between 3 and 22 April 2014, approximately three weeks (two transactions).
4 It is not necessary for me to recount in great detail the facts of this matter, as they are on transcript, the matter having been opened in some detail by the learned prosecutor, consistent with Exhibit A. I proceed to sentence you on the basis of the facts as summarised by the prosecutor and discussed during the course of your plea hearing. It is sufficient for present purposes to simply say your offending, in my opinion, is most serious.
5 You have also admitted an extensive criminal history for offences involving drugs.
6 I turn to a brief summary of your offending. You were 42 years of age at the time of this offending, and are 43 at sentence.
7 On 26 March 2014 you met with an undercover police operative, Eddie. You had with you a plastic drink bottle containing liquid. That liquid contained 406.1 grams of 1,4‑Butanediol (GHB).
8 You told Eddie there was about “8 mills extra”, that it cost you “$300 a bottle” more than it normally costs, and that there were only a couple of sources of this around, and it was not easy to get. You told Eddie you would be able to do a better price than currently if he kept coming back. You then gave Eddie the bottle in exchange for $800.
9 Eddie asked you if you were able to supply “some shards” of methylamphetamine. You said you could, at $1600 for an “8 ball” (3.5 grams) or $5,500 for “a half” (14 grams). You told Eddie “you come highly recommended so I think we’ll be good”, and told Eddie “next time when I meet you – and in time you’ll come to my house – but for the moment I’ll come and when I drive just follow me and we’ll go to another spot.”
10 Approximately a week later, on 3 April 2014 at about 3.00pm, Eddie telephoned you. Eddie told you “I have a party” and requested “half of these juice” [GHB] and “a bit of this Tina” [ice]. You told Eddie “I can do it in 10 minutes.” You both subsequently met with you driven to that location by Andrew Mitchell. You and Mr Mitchell drove to a carpark in Clayton where you got out of your vehicle and went and sat with Eddie in his car.
11 You were holding an olive-oil bottle containing liquid. That bottle contained 496.6 grams of 1,4‑Butanediol.
12 You told Eddie “I was prepared, I didn’t know how much you were gunna want today, so I’ve got half a gram.” You took four plastic bags from your pocket and placed them in the middle of the console. Each contained a crystal substance. You gave Eddie the bottle containing the 1,4‑Butanediol and the plastic bag that contained 3.5 grams of methylamphetamine in exchange for $1,400.
13 You told Eddie “I’ll introduce you to my flatmate who might drop things off to you”, and you then introduced Mitchell to Eddie. Eddie and you discussed the price of “a half ounce of shards”, and you told Eddie you used the terms “drink” and “food” for GHB and ice.
14 Approximately 19 days later, at about 2.30pm, Eddie rang you asking for “two litres of drink” and “food like last time”. You met in the same carpark as the transaction on 3 April.
15 In exchange for $4,400, you gave Eddie a Golden Circle bottle containing liquid, specifically 2003.6 grams of 1,4‑Butanediol and a snaplock bag containing 3.5 grams of methylamphetamine.
16 Approximately two weeks later, on 6 May, Eddie phoned you again asking for “one full of this food”. You said “I’m going to need maybe a couple of hours”. At about 11.40pm you sent Eddie a text message stating “I have it mate”, and you agreed to meet the following morning.
17 On 7 May, at 5.30am, police executed a search warrant at your home. You were arrested, taken to Prahran Police Station and interviewed. In that record of interview you answered “no comment” to the questions asked by police, which, of course, was your right.
18 The total amount of 1,4‑Butanediol supplied by you to Eddie on the three transactions, 26 March, 3 April and 22 April, was 2,906.3 grams (2.9 kilograms). The commercial quantity of this drug is two kilograms.
19 The total amount of methylamphetamine supplied by you to Eddie, on 3 April and 22 April 2014, was seven grams.
20 During a search of your home police located a Victorian driver’s licence in the name of Blake Harper with a photo of you on it. This is the subject of the summary charge to which you have pleaded guilty. Police also located a fraudulent change of name certificate from the Registration of Births, Deaths and Marriages (I note as discussed with counsel not the subject of a charge before me). You subsequently used both documents to change your name on the database with LJ Hooker, Clayton, Estate Agents. The latter being part of the circumstances of the summary charge (I note not a separate charge) to which you pleaded guilty.
21 You were committed to the County Court at a committal mention on 22 October 2014 and pleaded guilty at that time. This matter proceeded by way of straight hand‑up brief.
22 I was advised that Mr Mitchell had been charged with two counts of trafficking in a drug of dependence, his matters listed at Moorabbin Magistrates’ Court on 27 January 2015. I discussed with counsel whether or not issues of parity arose for consideration. Both Ms Bhai and Mr Chisholm submitted it was not appropriate for the reasons outlined, and on the transcript of the plea hearing, to consider principles of parity when sentencing you and I proceed on that basis.
23 You have pleaded guilty to these charges and you are entitled to have that fact taken into account in your favour, and I do so. The community has, by your pleas of guilty, been spared the time and cost of a trial and witnesses have been spared the need to give evidence upon your trial.
24 Further, I have taken into account in your favour you intimated early your intention to plead guilty to these charges. In the circumstances, I am prepared to accept your plea of guilty indicates remorse for your actions. I am concerned, however, about the extent of your remorse, given, in part, your extensive criminal history.
25 I turn to your criminal history and refer to some of those appearances. Your first court appearance was on 2 June 2000 and the most recent on 28 June 2013. The offending before me breached a suspended sentence imposed on 28 June 2013 at the Moorabbin Magistrates’ Court. Significantly, your prior criminal history also contains a number of charges involving drugs.
26 On 2 June 2000, which was your first appearance at court, you were before the court for trafficking ecstasy and amphetamine, as well as use and possess those drugs.
27 You appeared on 1 June 2004 at Melbourne Magistrates’ Court on possession of amphetamine, then on 12 September 2005 at Melbourne Magistrates’ Court on charges of possessing a drug of dependence (not identified) and possession of drugs of dependence ketamine and amphetamine. In relation to drug offending, you have in the past, been on Community-Based Orders, as they were then known, and failed to comply.
28 You appeared at Ringwood Magistrates’ Court on 20 June 2011 on charges including possessing GHB, possessing methylamphetamine and use methylamphetamine, and were again placed on a Community-Based Order. You were dealt with for failing to comply with that order on 13 June 2012.
29 On 28 June 2013, you were before the court for possessing methylamphetamine, possessing GHB, and sentenced to eight months’ imprisonment, wholly suspended for two years. That suspended sentence being breached by your offending before me and to which I have previously referred. You had also breached a previous suspended sentence imposed on 20 June 2011 (not breached by your offending before me) which was also dealt with at Moorabbin Magistrates’ Court on 28 June 2013. Significantly, it would appear that on that date in June 2013, you were well aware you had breached an earlier suspended sentence and you were given yet another opportunity to be on a suspended sentence. Just eight months after that sentence, however, you committed offences before me.
30 You are not before me to be sentenced for the breach. The significance is that you were on a Court order (specifically subject to a suspended sentence) and yet you re-offended. This is relevant to my assessment of your rehabilitation prospects.
31 I was told something of your personal history and circumstances by Mr Chisholm, who appeared on your behalf, who relied in part upon a report from Ms Carla Lechner, Consultant Psychologist, dated 29 December 2014. I turn to that report.
32 Ms Lechner noted, as do I, your prior history of offending of a similar nature. You described a long history of drug abuse, which Ms Lechner described as currently in early remission in a “controlled environment”. Your involvement with the law had coincided with an escalation in your illicit drug use. Prior to that you had a successful career as a horse trainer.
33 This is your first time in custody, and you described the experience as “most salutary”. According to Ms Lechner, you are in the early stages of rehabilitation and would continue to need ongoing support to maintain abstinence.
34 Ms Lechner provided details of your background and history.
35 Turning to your history, you said your parents had separated about fifteen years prior to your mother’s death in 2008. You had limited contact with your father and no contact with your older sister. You are single with no dependants.
36 You grew up in Knoxfield and attended Knoxfield Primary School, then completed VCE at Ferntree Gully High School. During your high school years, you developed an interest in horses and were involved in pony clubs and competitions. You also enjoyed playing basketball. You described your home life as “brilliant ... perfect upbringing”.
37 After leaving school you travelled to the United States and worked on horse farms, eventually saving enough money to purchase an Arabian mare. From that you progressed to buying and selling Arabian horses. By the age of 27 you had won seventeen national titles over four different countries, two world championships and trained horses for the Crown Prince of Saudi Arabia and the royal family in Qatar. When you were earning well you were spending well and using drugs. Your drugs also escalated upon the death of family friends in France.
38 You had previously completed detoxification programs at Windana and De Paul House but had relapsed quickly.
39 At interview with Ms Lechner, you showed symptoms of depression but not to the point of being clinically depressed. You denied thoughts of suicide or engagement in self-harm. You did not evidence disordered thought. You had the capacity, in the opinion of Ms Lechner, to reflect upon the impact your behaviour had on yourself and others and had considerable insight regarding the damage drugs had on your life. Testing by Ms Lechner revealed your score on the Beck Depression Inventory was in the “mild” range.
40 You described, not surprisingly, being devastated by your mother’s death. There had been long periods of “no contact” with your father, you said, for no particular reason. Your social network was mostly within the drug culture and you were aware you needed to cut ties with that network to sustain your rehabilitation.
41 Turning to your drug and alcohol history, you described to her using benzodiazepine and Xanax in the past. You also described having developed a “diabolical” GHB habit and that in the past you had tried “cocaine, LSD, marijuana and heroin”, however, the latter not on a regular basis. In the past you had been prescribed anti-depressants, however had ceased taking them. You did not appear to have an issue in relation to excessive alcohol consumption.
42 In custody, you described working as a billet and had attended courses. Four certificates were tendered (Exhibit 3) to which I will shortly refer.
43 In Ms Lechner’s opinion, you had symptoms of Stimulant Use Disorder, in early remission in a controlled environment. In custody, you had not accessed illicit substances and you instructed you no longer had “cravings”. In her opinion, you would benefit from drug rehabilitation counselling upon release from prison.
44 In the opinion of Ms Lechner, the onset of your drug addiction coincided with the death of close friends overseas and your loss of motivation to work in your chosen career. Your offending was directly related to supporting your habit. In her opinion, you require considerable support and supervision upon your release to maintain the goals you had made to date. In your late 20s, you had lost your sense of identity and future direction. In her opinion, you had the capacity to reflect on the impact of your behaviour on yourself and others. She described that you were involved in a voluntary program promoting education regarding “safe” drug use. The timing and content of this course was not clear to me, nor it seemed to Mr Chisholm. I do not draw any adverse inference to you for that lack of clarity.
45 In Ms Lechner’s opinion, your rehabilitation was in its infancy, however you were motivated to remain abstinent from drug use.
46 As I said, a number of certificates of courses undertaken by you in custody were placed before me. From Kangan Institute a Certificate II in Cleaning Operations, a Certificate II in Kitchen Operations, a Completion Certificate for Introduction to Problem-solving Program and completion of the Release Related Harm Reduction Program.
47 I was also told you had commenced a drug course in custody, however, had been unable to complete that due to a problem with your shoulder and back, making it difficult for you to sit in group sessions. Since then you said you have not been able to become involved in such counselling again. I discussed with Mr Chisholm the apparent lack of reference by Ms Lechner to this course, having at least been commenced by you, which would have been the case as at the date of her interview with you on 16 December 2014. There was no material before me confirming completion and/or attendance at any drug course. Again, I draw no adverse inference given the paucity of that information, although there is not any independent confirmation of completion of drug courses in custody.
48 There were two urine analysis results showing negative results for use of illicit substances at testing in August and September 2014, which were also tendered.
49 Your counsel, Mr Chisholm, prepared a written outline of submissions for your plea hearing and addressed them during the plea. He conceded an aggravating feature of your offending was that you were on a suspended sentence and subject to a Court order, which you breached by this offending. I expressed, again, my further concern about that, in that on the same day that suspended sentence was imposed, you were also dealt with for breaching an earlier suspended sentence to which I am also referred. I stress again, not relevant to your offending before me. You were clearly advised by the magistrate of the implications of breaching a suspended sentence and yet, as I said, eight months after the suspended sentence that is before me was imposed, you committed the current offending.
50 Mr Chisholm provided further details of your background and history, confirming your instructions to Ms Lechner that you had a stable upbringing with support from your parents.
51 Your mother passed away in 2008. She suffered chronic pain and medical tests were unable to ascertain the cause of that. She was prescribed tablets for her pain. You were the one who found her at the time of her death and attempted CPR but were unsuccessful. The autopsy revealed an open verdict in relation to the cause of her death.
52 You have an older sister, as I said, and you confirmed you do not have any contact with her.
53 Mr Chisholm confirmed that your heavy drug habit began in your 20s and led to your various Court hearings from 2000.
54 You have had one previous relationship of some duration when you were between 21 and 26 years of age, however were not currently in a relationship.
55 Reference was made to your anxiousness in custody directed specifically to Ms Lechner’s report, page 2. I can understand and appreciate such might cause you a level of anxiety and would make your time in custody, arguably, more difficult for you. I accept that, as did Ms Bhai, who appeared for the prosecution during your plea hearing, and this is a relevant sentencing consideration.
56 Mr Chisholm relied on your ability to work hard prior to you commencing drug use and that because of your achievements prior to dependence upon drugs, he submitted you had the ability to be rehabilitated. A significant proportion of his plea was directed to submissions regarding your rehabilitation prospects. In part, Mr Chisholm relied on you currently being employed within the prison as a unit billet, a position of some responsibility given to prisoners who behave appropriately and/or well in custody.
57 I was also advised you had the support of Ms Jennifer Lock, a worker at Inner South Community Health, who would be able to offer you accommodation with her when you return to the community.
58 Mr Chisholm also relied upon your efforts in custody to cease drug use. The first two weeks in custody you were detoxifying, which you found difficult. In custody you had remained drug free, with two urine analysis samples before me, to which I have previously referred, returning negative results.
59 Mr Chisholm conceded, as noted by Ms Lechner, that your rehabilitation was in its infancy.
60 Mr Chisholm urged that your rehabilitation prospects were such that I could be satisfied you would be rehabilitated and this was discussed at length with Mr Chisholm.
61 During the course of his oral submissions, Mr Chisholm directed me to the decision of DPP (Cth) v Maxwell[1] (KM) relevant to, in particular, sentencing for Charge 1 in that case, referable to Charge 1 before me, of trafficking in a commercial quantity of GHB. I, of course, note the different charges faced by KM in that case and I also note, in passing, that KM, in that case, apparently did not have any relevant prior convictions [see paras 37 and 44].
[1] [2013] VSCA 50
62 Mr Chisholm also referred me to the decision of Boulton & Ors v R[2], relevant to his ultimate submission that beyond the 265 days you had served in custody by way of pre-sentence detention up to and including 26 January 2015, you should be sentenced to a Community Corrections Order. He elaborated upon that submission with reference to the decision in Boulton during the course of his submissions, and the transcript will reveal our discussion of that.
[2] [2014] VSCA 342
63 I also discussed, at some length, your rehabilitation prospects. Whilst one must never give up hope of your chances of eventual rehabilitation, I have at best, guarded optimism, particularly in light of your extensive prior criminal history involving drugs. Further, you have breached Community-Based Orders when you had been given opportunities by the Court in the past to address your drug use by attending for counselling. You have made attempts towards rehabilitation, entering Windana and De Paul House, however, had relapsed quickly after leaving. One hopes you can be rehabilitated but ultimately this will be up to you.
64 Mr Chisholm urged, relying upon the decision of Boulton, that your rehabilitation would be more effectively achieved through a Community Corrections Order with appropriate conditions attached. He submitted the community interest ultimately was that you not re-offend. Of course, your rehabilitation prospects are a relevant consideration. Also relevant to sentence are the principles stated in s5 Sentencing Act 1991. Ultimately, each case must be determined on its own facts and circumstances and taking into account all relevant sentencing considerations which include all matters in mitigation of sentence.
65 Also relevant are all matters personal to you, including your early plea of guilty to these charges. I must also, however, consider the gravity of your offending, which involved a number of transactions and the period of time over which the offending occurred. You were a polydrug trafficker (ie: both GHB and methylamphetamine). Also relevant is your extensive prior criminal history, including charges of trafficking (albeit dated).
66 These factors are some of the relevant considerations when determining whether or not to accede to your counsel’s submission that the appropriate disposition would be a sentence incorporating a Community Corrections Order.
67 Turning to the decision of Maxwell, Mr Chisholm submitted that not only was the quantity of drug involved in the commercial trafficking charge relevant, but also the level of reward. The total reward you received was $6,600, which also included the value of the methylamphetamine. As such, he urged that the sentence, particularly in relation to Charge 1, should reflect that low level of reward. Ms Bhai did not disagree with that submission.
68 Mr Chisholm submitted, whilst specifically not abandoning his primary sentencing submission of a Community Corrections Order as part of the disposition, if I determined a term of imprisonment was the only appropriate disposition, he urged there be some cumulation between Charges 1 and 2, and total concurrency in relation to the summary charge. Mr Chisholm was not urging a straight sentence of 265 days, ultimately his submission was that you could be assessed for and, if suitable, be sentenced to a Community Corrections Order.
69 Ms Bhai, who appeared on behalf of the prosecution, referred to your extensive relevant prior criminal history and your previously breached rehabilitation orders. She expressed concern in relation to the Community-Based Order imposed in 2011, and your description to Ms Lechner that your return to drug use at that time was to enable you to get to your appointments with the Corrections Officer.
70 Ms Bhai conceded, as I previously stated, your “relationship history” may make you more anxious in custody and was a matter I could take into account in mitigation of your sentence and, as I said, I have.
71 Ms Bhai submitted your offending was not just as a street trafficker and I agree. You had drugs on hand immediately the first time you met with Eddie. Further, you were able to access more drugs and in increasing quantities (relevant to Charge 1). You also introduced to another person, Mr Mitchell, as part of this, who you said would assist you in the future drug transactions with Eddie.
72 She urged, and I accept, you were at a level above a basic ‘street trafficker’.
73 Ms Bhai submitted that whilst the monetary reward received by you was quite small, a total of $6,600, the reward obtained enabled you to support your habit, described by you to Ms Lechner at that stage as being “diabolical”. The money obtained also assisted you to maintain your rental payments. Ms Bhai conceded there was no evidence you were living a “grand lifestyle”, and I agree.
74 Ms Bhai referred to the need for general deterrence when sentencing you for this offending, also the need for specific deterrence, given your extensive prior criminal history for drug-related offending.
75 Regarding your remorse, she submitted there was some remorse by you through your plea of guilty, although questioned your level of remorse, submitting your intention was to introduce drugs into the community and that you, of all people, knew of the dangers through your own drug use and volunteer work to those who would use substances.
76 Ms Bhai submitted that the fact the drugs went to a police operative was not a mitigating factor. I agree.
77 Ms Bhai submitted, relevant particularly to the decision of Boulton & Ors, that given the nature of your offending, your prior criminal history, and that your offending occurred whilst on a suspended sentence, your offending was so serious that the only appropriate disposition was an immediate term of imprisonment, that is, that a Community Corrections Order, as part of the disposition, was not within the range of appropriate dispositions. A sentence beyond the days served to date, she submitted, was warranted.
78 As well as matters personal to you to which I have referred, including your prospects of rehabilitation as I find them to be, I must also take into account matters such as deterrence, especially general deterrence, which is of considerable importance in a case such as this.
79 There is also the need for specific deterrence when sentencing you, as you have an extensive prior criminal history. In addition, your offending before me occurred over a period of time and on a number of occasions and involved two types of drug. You had the opportunity to desist after each occasion, however, did not. You stopped when arrested by police.
80 I do, however, note that whilst it appears the police may have initially contacted you, according to the submission by Mr Chisholm, and requesting you supply drugs to them as part of a covert police operation, you nevertheless, at the very first meeting, acknowledged your preparedness to supply drugs in the future, if asked. You were a willing participant.
81 I must also consider the question of protection of members of the community from you and bear in mind the likelihood of your re‑offending. I do have concerns in this regard, such directly linked to the likelihood of your re-offending and your ability to maintain drug abstinence when in the community which is, of course, yet to be tested.
82 I am called upon by the Sentencing Act 1991 to manifest the community’s denunciation of your conduct and generally to impose a just punishment.
83 On Charge 1 on the indictment, you are convicted and sentenced to 3 years’ imprisonment.
84 On Charge 2, you are convicted and sentenced to 12 months’ imprisonment.
85 On the summary charge you are convicted and sentenced to 5 days’ imprisonment.
86 Charge 1 is the base sentence and I direct that 3 months of Charge 2 be served cumulatively upon Charge 1. I direct the sentence of 5 days for the summary charge be served concurrently with Charge 1.
87 That results in a total effective sentence of 3 years and 3 months' imprisonment and I direct you serve a period of 2 years in custody before you are eligible for parole.
88 Pursuant to s6AAA Sentencing Act 1991, had you pleaded not guilty to these charges and been found guilty of them I would have sentenced you to a term of imprisonment of 5 years and set a non-parole period of 3 years.
89 I declare, pursuant to s18(4) Sentencing Act 1991, that you have spent 268 days in custody by way of pre-sentence detention up to and including 29 January 2015, and I direct that be entered into the records of the court.
90 The prosecution made application for a forensic sample pursuant to s464ZF Crimes Act 1958. This was consented to by counsel on your behalf, and I make the order in the terms sought based on the seriousness of the circumstances of your offending and your prior convictions. It will be for a saliva sample and I must advise you the authorities may use reasonable force in order to obtain that sample.
91 The prosecution also made application for a Disposal and Forfeiture order. Mr Chisholm consented on your behalf to the order being made, with the exception of requesting your personal photographs and personal files on the computer seized by police be retrieved by you. By agreement between the parties, as I understood, you were able to have someone attend the police station, subject to police approval of that person, to access your computer and download/retrieve your personal photos and personal files prior to the computer being destroyed.
92 I stated during the course of the hearing that I would postpone signing the Order for Disposal and Forfeiture until 3 March 2015, at approximately 9.00am, to give you an opportunity to arrange for someone to attend at the Prahran, or some other, police station to download/retrieve your personal photos and personal files on that computer. I left it with counsel to advise me, prior to 3 March, if there was any problem with that access having been obtained. If I had not heard from the parties by 3 March 2015, I would make the Disposal and Forfeiture Order in the terms sought by the prosecution, which would include the disposal and forfeiture of your computer.
93 All right, PSD right?
94 COUNSEL: Yes, Your Honour
95 HER HONOUR: Excellent. All right, I think I have signed the 464s, they're coming back to you and the other just remains as we've discussed. Thank you very much. If you could please remove. Thanks very much, Mr Hayes. Thank you, counsel, for your assistance.
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