Director of Public Prosecutions v Hoarau
[2017] VCC 100
•17 February 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-16-00923
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| OLIVIER HOARAU |
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JUDGE: | Her Honour Judge Sexton | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 13 February 2017 | |
DATE OF SENTENCE: | 17 February 2017 | |
CASE MAY BE CITED AS: | DPP v Hoarau | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 100 | |
REASONS FOR SENTENCE
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Subject: Criminal Law
Catchwords: Possession of a drug of dependence 1,4 Butanediol
Legislation Cited: Drugs, Poisons and Controlled Substances Act 1981
Sentence: Community Correction Order for a period of 2 years with special conditions of 200 hours of unpaid community work and drug assessment and treatment programs.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms C. Duckett | OPP |
| For the Accused | Mr D. Grace QC | Marcevski Lawyers |
HER HONOUR:
1 Olivier Hoarau, you have pleaded guilty to two charges of possession of a drug of dependence. For charge 1, because of the quantity of the drug in your possession, if the court is satisfied that the possession was not for any purpose relating to trafficking, the maximum penalty is 30 penalty units or one year imprisonment or both; in any other case, the maximum penalty is 400 penalty units or five years’ imprisonment or both. I will return to this aspect shortly. For charge 2, the maximum penalty is 30 penalty units or one year imprisonment or both.
2 I sentence you on the basis of the prosecution opening read out in court[1], which is a summary of the facts. There was some dispute which seems to have resolved, but there is no dispute as to the elements of the offences.
[1] Exhibit A
3 In brief, on 14 August 2015 at about 1.40 am, you were intercepted by police in Dandenong after parking the car you were driving a short distance from a nightclub, and your car was searched.
4 The search revealed a bag in the front passenger seat containing capsules and liquids, subsequently found not to be illicit. At the time however, they raised suspicion in the police. You had a male passenger with you. Because he had been seen emerging from the passenger seat of the car where the bag of capsules and liquids was found, substances which the police suspected were illegal, the police placed handcuffs on him. You told the police to stop and that the ‘pills’ were yours, although when police asked you, you were unable to say what the ‘pills’ were. The passenger was released from the handcuffs.
5 The search of the car had proceeded meanwhile, and a box was found in the boot containing 10 plastic bottles filled with frozen liquid with labels purporting to indicate that the bottles contained water. When the police asked who they belonged to, you said they were yours. Later analysis showed these bottles to contain 9.7 kilograms of 1,4 Butanediol, also known as 1,4-BD.[2] This is the subject of charge 1. The quantity is almost 5 times the amount the law sets as a commercial quantity (2kg), almost 200 times the amount the law sets as a traffickable quantity (50g) and almost 1000 times the amount the law sets as a small quantity (10g).
[2] Part 3, Schedule Eleven, Drugs, Poisons and Controlled Substances Act
6 Despite this, it was submitted on your behalf that I should be satisfied that the drug was not in your possession for the purpose of trafficking, or put more correctly, not be satisfied that the drug was in your possession for any purpose relating to trafficking. That sort of submission is usually accompanied by the assertion that the drug was in possession for personal use, not to be sold or exchanged. In your case, that is not the assertion; nor could it be, given the amount.
7 It was submitted on your behalf that while the other (legal) substances in the car belonged to you, the 1,4-BD belonged to the passenger. It was pointed out that his criminal record shows that he is a person who in August 2015 had 6 convictions for trafficking in a variety of drugs, and 9 for possession of various drugs[3], while you had, and have, no convictions or appearances. It seems that while you prevented the passenger from being arrested for the legal substances in the passenger seat, he did not return the favour when you said that the bottles found in the boot of the car containing an illicit substance were yours. Subsequently, you were arrested.
[3] Exhibit B
8 The prosecutor informed me that while 1,4-BD can be used in the making of the drug known as GHB, 1,4-BD is also sold alone in nightclubs by the millilitre for a few dollars. The amount of the drugs in the boot of your car was capable of realising $14,000.
9 While the circumstances of you being with a convicted drug trafficker with a large quantity of drugs and other substances in your car, in the early hours of the morning close to a nightclub which is a place where the 1,4-BD could be trafficked, are highly suspicious, the prosecution conceded that there is no evidence that points to you being in possession of the 1,4-BD for any purpose relating to trafficking. Given that concession, I am unable to be satisfied on the balance of probabilities that you were in possession for that purpose.
10 Your offending on charge 1 comes down to this: it was your car, in your car were the bottles containing the 1,4-BD, and you knew the bottles were there, so you were in possession of the drug as the law defines possession. That is the basis of the plea and the basis on which I sentence you on charge 1. The applicable maximum penalty is therefore 30 penalty units and/or one year imprisonment.
11 As for charge 2, you were searched at the police station and a zip lock bag of white powder fell out of your underwear. On later analysis, it was found to contain 1 gram of cocaine, which equals the amount the law sets as a small quantity. This was a drug you were using in that period of your life as I will soon refer to.
12 I have been told of your personal history and circumstances. In brief, you are now aged 28 and were aged 26 at the time of the offences. You are a French national, the only child of your parents, and were born and raised in Reunion Island. From a very young age, you began competing in BMX, and were very successful, becoming the French Junior Champion and competing in the World Junior Championships. After completing the equivalent of Year 12, you came to Australia in 2007 to study. You had no family here but lived with a family friend. You completed an English language course, and resumed competing in BMX. You made friends there, some of who provided references for your case[4], and you had more success, winning the Australian championships, but as you were not an Australian citizen, you could not go on to compete for this country.
[4] Part of Exhibit 2
13 Between 2008 and 2010 you gained certification in panel beating and one of your teachers offered you employment. After the family friend died, you moved to Geelong with a sponsor and continued working as a panel beater and attempting to qualify for the Olympic Games in BMX. That was not possible as you were still not eligible to compete for Australia, and no longer eligible to compete for France because you were no longer a resident of France.
14 In 2011, you moved to Mount Waverley and began working in Moorabbin as a panel beater. You joined a gym and there met and became friends with the passenger in your car on 14 August 2015. In 2015, you began your own business, supported by a person who had joint occupation of the business premises and who provided a reference to the court.[5] Your business did not work out and within four months, it had closed.
[5] See reference of C. Tsimiklis, part of Exhibit 2
15 So in mid 2015, you were looking for work, you became depressed, and it was in this context that apparently your so-called friends introduced you to drugs. You began taking cocaine and other drugs with them, very quickly turning your ‘recreational’ use into heavy use. You reported to Ms Abadee, a drug counsellor[6], that you began snorting cocaine about 6 weeks before the arrest, used steroids at the gym, felt happier than you had for a long time, and enjoyed being part of a group again. On 14 August 2015, you were arrested as I have described. You told Ms Abadee that you were happy that you were forced to stop the drug use as you “liked it too much”.
[6] See report of D. Abadee dated 12 January 2017, part of Exhibit 2
16 Possession of drugs is a serious offence and clearly charge 1 is the more serious of the charges you face. From what I was told during the hearing, you now understand the serious nature of these charges, although you must have understood at the time the probable consequences of driving around with such a large quantity of an illegal substance in the boot of your car. Even if you did not know what it was, you knew it was there, and you knew your passenger was one of your ‘drug relationships’.
17 As you now know from personal experience, the possession and use of drugs has an adverse effect on the drug taker. The widespread use of drugs in our society can have very poor outcome for others in the community who come into contact with drug users, whether as family, friends or as victims of crimes committed by drug users to get more drugs. Fortunately, it seems you have been the only person to suffer the consequences of your actions in possessing drugs.
18 There are some matters that I must take into account in your favour.
19 The first of these is the fact that you have pleaded guilty. Although the plea was entered into only a short time before the trial was due to start, you are nevertheless entitled to have that taken into account in your favour and I do so. Because of your plea, the community has been spared the time and cost of a trial. As a result, I can tell you that the sentence I intend to impose is far less than would have been imposed had you been found guilty after a trial.
20 I also accept that your plea of guilty in court indicates remorse for your actions, together with other expressions of remorse in the materials I have received.[7]
[7] Exhibit 2
21 Next, I take into account the efforts you have made since the offending, to rehabilitate yourself. After five days in custody, the first time you have been in gaol, you were released on bail with conditions including that you engage in drug treatment. You began seeing Ms Abadee and between August 2015 and January 2017 (the date of her report) attended weekly counselling sessions with her. In her opinion, you have moved from drug user through the stage of treatment to what is called the maintenance stage, where there is consolidation of change over time and a commitment to remain abstinent. She describes immense improvement and change in your mood, confidence and attitude since beginning counselling and considers you to be a low risk of relapsing. You were also subject to random supervised drug and alcohol screening and on all 6 tests conducted between 1 September and 6 November 2016, your results were negative for the presence of drugs. Ms Abadee considers it vital for the maintenance of the positive changes that you continue your treatment with the professionals who you trust.
22 Ms Abadee considered there are two strong protective factors assisting you to remain abstinent. The first is your new full time employment. You have been working as a metal fabricator for the whole time you have been in counselling, and began a new job in this field about seven months ago. The second and most important is the relationship you entered after meeting a young woman at a different gym. You have been together since meeting in late 2015, and began living together in March 2016. You are engaged to be married. She wrote a very supportive reference[8], describing how you have been taken into her large family, and how you have developed strong positive relationships with them. She is in her final year of law, and is clearly a pro-social person for you to be closely associating with. She has attended some counselling sessions with you and maintains great optimism that you will learn from your mistakes.
[8] See reference of Ms Casey, part of Exhibit 2
23 All of the references[9] described your actions in possessing and using drugs as out of character, and unlike the man they all thought they knew. All of this support is vital to your rehabilitation, and the fact that you are still well regarded despite your offending shows that you have the capacity to once again be a law abiding member of the community.
[9] Part of Exhibit 2
24 Your counsel submitted that because of the factors in your favour, you should be released on a community correction order. He also referred me to a number of cases where the drug 1,4-BD was involved, and where such an order was made, even where the offence was trafficking. The prosecution conceded that a community correction order was within the range of available sentences.
25 I have decided that this is an appropriate case to make such an order. Despite the large quantity of the drug involved in Charge 1, it is an appropriate order because of your plea of guilty, your previous good character, the fact that you have not offended since these events, and your excellent prospects for rehabilitation given your work so far in treatment, the strong support and close relationships you have with pro-social people especially your partner, your employment, and your motivation to remain drug-free.
26 If you agree, I will release you on a community correction order for 2 years on both charges. That order will have the conditions that are attached to every order which are: that you must report to and receive visits from Corrections Victoria; must notify Corrections Victoria of any change of address or employment; must not leave Victoria without permission of Corrections Victoria; and must comply with any direction given by Corrections Victoria to ensure compliance.
27 I will also order that you comply with other conditions during that two years: you must perform 200 hours of unpaid community work; and you must undertake assessment and treatment for drug use. Given your rehabilitation efforts so far, it may be that Corrections Victoria will simply monitor the ongoing relationship you have with Ms Abadee, but that is a matter for them. If you could stand up please, Mr Hoarau. Do you agree to being released with conviction on a community correction order with the conditions attached?
28 OFFENDER: Yes.
29 HER HONOUR: If you are ill or there are other exceptional circumstances, this order may be suspended for a period of time. If your circumstances change, you may apply to the court for a variation or a cancellation of the order. In either case, you must notify the Community Corrections office, and I recommend you also get legal advice.
30 You should be aware, of course, that you are in full time employment and I have ordered that you do 200 hours of unpaid community work. That is a priority for you but you have over two years to do it.
31 If you do not complete a condition of this order including by re-offending, you will be brought back before me to be re-sentenced on the original charges and also be dealt with for the breach of the condition. What happens then will depend on a number of circumstances, but you should be aware that my options are limited, and one of those limited options is gaol. Do you understand what will happen if you do not complete this order including by re-offending?
32 OFFENDER: Yes
33 HER HONOUR: In the event that it is necessary to re-visit this sentence, I note that you have served 5 days in pre-sentence detention for these offences. Yes, just take a seat again, Mr Hoarau.
34 Application has been made for an intimate forensic sample to be taken from you and through your counsel you have not objected to this. I am satisfied that it is in the interests of justice, that in all the circumstances, I order that an intimate forensic sample, namely saliva, be taken from you. The sample may be taken by a doctor or nurse or other authorised person. A saliva sample is taken by wiping a swab inside your mouth. I must inform you that if you change your mind, the police may use reasonable force to enable such a procedure to take place.
35 The order of the court is that you are convicted and released on a community correction order for two years on the core conditions and the conditions that I have outlined.
36 You have also consented to an order for disposal of the drugs seized on your arrest, and I have signed that order.
37 Finally, I advise you that if you had not pleaded guilty but had been found guilty after a trial, the sentence I would have imposed would have been a term of imprisonment for eight months followed by a community correction order for two years. Yes, Mr Hoarau, you can come out of the dock and sit behind your counsel and we'll just have the documentation prepared which you will need to sign. Yes, just take a seat. Thank you.
38 That document contains all of the conditions and also the place that you must attend within two working day to begin that order. You will get a copy of that order before you leave today. Are there any other orders?
39 MS DUCKETT: Just as a matter of housekeeping, Your Honour, there was a summary offence transferred following the committal hearing and the prosecution seek to withdraw that - it's Charge 7, there should be a notice in the court file.
40
HER HONOUR: All right, thank you. Well in respect of that - summary
Charge 7, I will note that it is withdrawn, it will be marked 'struck out'.
41 MS DUCKETT: If the court pleases, thank you, Your Honour.
42 HER HONOUR: Anything further, Mr Grace?
43 MR GRACE: Nothing, Your Honour, thank you.
44 HER HONOUR: All right. Mr Hoarau, I hope that I do not see you again in court. Yes, thank you. I will adjourn until 10.30.
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