Director of Public Prosecutions v Hough
[2020] VCC 1534
•25 September 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
CR-20-00637
| The Director of Public Prosecutions |
| v |
| Michael Davis Thomas Hough |
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JUDGE: | HIS HONOUR JUDGE JOHNS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 11 September 2020 | |
DATE OF SENTENCE: | 25 September 2020 | |
CASE MAY BE CITED AS: | DPP v HOUGH | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 1534 | |
REASONS FOR SENTENCE
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Catchwords: CRIMINAL LAW – Sentencing – Commonwealth and Victorian offences - Plea of guilty - Trafficking a drug of dependence – Import marketable quantity – Possession of drug of dependence – Personality Disorder.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms R. Avis | Office of Public Prosecutions |
| For the Accused | Mr R. de Vietri | Victoria Legal Aid |
HIS HONOUR:
1 Michael Davis Thomas Hough, you have pleaded guilty to one charge of importing a marketable quantity of a border controlled drug, three charges of trafficking in a drug of dependence, one charge of attempting to possess a drug of dependence and one charge of possessing a drug of dependence.
2 The maximum penalty for the importing charge, namely Charge 1 on the indictment, is 25 years imprisonment. The maximum penalty for the trafficking charges, namely Charges 2, 4 and 5 on the indictment, is 15 years for each offence. The maximum penalty for attempting to possess a drug of dependence, being Charge 3, is 5 years. The maximum penalty for Charge 6 of possession, as we have just referred to, is in fact a monetary penalty due to the small quantity is being for your own use. I have, in fact, found that you fall within the lower sentencing category for that based on the low quantity and the matters I have accepted in relation to your background, and principally from the report of Dr Davis as to your cannabis use.
Circumstances of Offending
3 The circumstances of your offending were outlined in the 'Summary of Prosecution Opening' dated 8 September 2020, which was Exhibit A on your plea and forms part of these reasons.
4 The logistics of how you imported drugs into Australia was well documented in the helpful detail provided in the Prosecution’s summary. I do not intend to reiterate this detail for the purposes of this sentence and will provide a general overview of your offending.
5 Your offending was detected as part of Joint Taskforce Icarus ('JTF Icarus') and its Operation Vitreus. This operation is a collaborative effort between Victoria Police, Australian Border Force and Australia Post to identify drugs hidden in packages sent through the Australian postal mail service.
6 During the JFT’s investigation into your activity it became apparent that you were conducting a business importing border-controlled drugs by ordering these substances from the dark web, or through encoded messaging applications. You bought drugs using cryptocurrency to mask your digital footprint when deals were struck with suppliers.
7 Between 29 March 2019 and 31 October 2019, you trafficked drugs including LSD, MDMA and cocaine. You also attempted to possess ketamine. Upon execution of a warrant at your residence you were also found to be in possession of cannabis, as I have just detailed.
Importation, Possessing and Trafficking of Controlled Substances
Charge 1 – Importing marketable quantity of border-controlled drugs: cocaine and MDMA
8 Between 18 June and 11 October 2019, you repeatedly imported border controlled drugs; namely MDMA and cocaine in the form of four packages containing a total of 277.8 grams (of which 208 to 244 was pure) and 27.2 grams of cocaine (of which 13 to 16 grams was pure).
9 The combined total weight of your importation was 305 grams (221 to 260 grams pure).
10 Your modus operandi for this offending was the same in each case. You would use the dark web, whilst utilising a TOR browser to conceal your activity, and order a package concealing either MDMA or cocaine to be shipped to Australia.
11 Each of the four packages, which were addressed to a parcel locker in your name, was intercepted. The packages were unpacked, and drugs were found stowed in various vessels - included in toys, board games and envelopes.
Charges 2, 5 and 6 – Trafficking LSD, trafficking MDMA and possessing cannabis
12 On 31 October 2019, a search warrant was executed by JTF Icarus on your residence at 13 Normdale Road, Bentleigh East. The evidence found during the search substantiated Charges 2, 5 and 6 on the indictment.
13 You were home at the time, having been cautioned and lawfully arrested during the search. At this time you admitted to police that there were 'ecstasy pills' in your room and 'some weed' in your bed.
14 There were items obtained during the search, including;
a) A mobile phone;
b) A driver’s licence;
c) Australia Post slip with a package number;
d) A set of digital scales; and
e) Clothing which matched those worn by you on 28 and 29 October to the East Bentleigh Post Office, as outlined relating to Charge 4.
15 In relation to Charge 2, trafficking LSD, a Nokia phone was seized in your possession. A series of messages were retrieved which outlined your activities of buying and selling LSD to members of the public.
16 In relation to Charge 5, in the top draw of a desk in your bedroom a clear Ziploc bag containing 55 star-shaped yellow tablets, being MDMA with a net weight of 26.3 grams and a purity of 23 per cent, was located.
17 6.3 grams of cannabis was also located in a Ziploc bag in the vicinity of your bed.
Charge 3 – Attempting to possess ketamine
18 Charge 3, attempting to possess ketamine, was established after a package addressed to you was intercepted on 9 October 2019 by the same method as relating to Charge 1, with the exception that the package was sent within Australia rather than originating from overseas.
Charge 4 – Trafficking Cocaine
19 Between 16 October 2019 and 25 October 2019, you texted a person with the pseudonym 'Sugar Barbie' regarding the buying and selling of cocaine. In short, you promised to supply 'Sugar Barbie' with cocaine. It was implicit in the texts that 'Sugar Barbie' lived close by, as she was able to physically attend your residence to retrieve the cocaine.
20 On 24 October 2019, a red package arrived at the Bentleigh East Australia Post Delivery Centre. The package had a ‘mail stopper alert’ attached, which resulted in the centre contacting Victoria Police. Upon Victoria Police inspecting the package they found a black resealable bag which held another plastic bag containing cocaine.
21 On 28 October 2019, you presented to the Bentleigh East Australia Post Delivery Centre asking for the red package after a collection card had been left at your residence. You provided staff with your driver’s licence and mobile phone number in order to retrieve the package.
22 After some searching the postal worker was unable to locate the package. You decided to return the next day.
23 On 29 October 2019 you returned, however the package could still not be located. In response you became agitated, saying the package was of high importance and you needed it urgently.
24 Later that day you received a text from a prospective customer asking if you had any 'Charlie', the street name for cocaine, to which you replied that you did not and were having 'mail issues at the moment'.
25 Taken as a whole, the package and text messages indicate you knew the package contained cocaine, which you intended to sell.
Personal Circumstances
26 Your personal circumstances were outlined in your counsel’s 'Outline of Defence Submissions' dated 7 September 2020. This was Exhibit 1 on your plea and also forms part of these reasons.
27 You were born in Queensland on 20 September 1989. You are currently 30 years of age. You are the middle sibling, having a younger and older sister.
28 During your early life your family lived in Papua New Guinea ('PNG'), as your father undertook missionary work as an Anglican priest and your mother undertook public health and HIV/AIDS awareness work.
29 At the plea hearing your counsel described your time in PNG as disruptive, as you moved around frequently, finding it difficult to form any enduring friendships.
30 When you were aged between 14 and 15 years of age you and your family returned to live in Ballarat, Victoria, where your father served as Bishop of Ballarat from 2004 to 2010.
31 You completed high school up to Year 11, showing academic promise with a mathematic scholarship at Ballarat Grammar School, however you ceased attending halfway through Year 12 before obtaining your Victorian Certificate of Education.
32 Subsequently you have obtained a Certificate II in Horticulture, a Certificate III in Groundskeeping and a Certificate III in Gravedigging, all from Holmesglen TAFE.
33 After leaving high school the relationship with your family, particularly your father, became strained. I am told these relationships are somewhat mended, as you now speak to your father and are close to your younger sister, who currently lives in Canberra.
34 Sadly, in late 2019 your mother passed away a few weeks after you had been remanded in custody. I am told you held a special relationship with your mother, who was a steadfast supporter of yours. Due to being remanded in custody and not wishing to draw any unwanted attention, you did not attend her funeral.
35 Your employment history after leaving high school is diverse; having worked for a horticulture company, as a labourer, at a flower farm and as a groundskeeper.
Drug use and conduct prior to arrest
36 Submissions prepared by counsel on your behalf indicate that your problematic drug use started approximately 30 months ago, after the breakdown of a five year long intimate relationship. You described the relationship as abusive and toxic.
37 Over the 30-month period prior to your arrest you consumed cocaine daily, also taking MDMA, LSD and ketamine on the weekends, as you went out during the evenings. You also used cannabis frequently.
38 At some point your misuse of these substances graduated to trafficking and the resultant offending subject to this sentence. Your drug use continued unabated and you reported to Dr Michael Davis that at your peak you would use cocaine every 40 to 45 minutes, up to a total of 2 grams daily. I accept that you were a heavy user of the substance, as submitted to me.
Gravity and Moral Culpability
39 The submissions were also made in relation to what I should find in relation to your moral culpability, and submissions generally in relation to the gravity and level of the offending.
Diagnosis of Personality Disorder
40 Evidence was called from Dr Michael Davis, and of course his helpful report was tendered. In very brief terms, he made a diagnosis of Mixed Personality Disorder with borderline narcissistic and histrionic features, along with a co-morbidity of Cannabis Use Disorder, Stimulant Use Disorder and Major Depressive Disorder. Of course, the psychological or psychiatric label that is placed on an individual is not so instructive, it is more an issue of what that diagnostic label means in terms of drivers of behaviour.
41 Dr Davis' detailed findings and clear evidence provided me with a good understanding of you as an individual. It also provided me with an understanding of how you have developed in such a way that has led you to engage in the offending that is before me. By that I mean it is largely explanatory, together with other factors in your case including, of course, substantial drug use.
42 The important features of your personality, as set out by Dr Davis – sitting within other circumstances such as family context and other issues of development – have led me to conclude that you are a particular individual who had a need for validation. In lay terms, low self-esteem perhaps compensating with grandiose notions, and hence Dr Davis' reference to narcissistic features.
43 As I observed during the plea hearing itself, that combination of features helps explain the drug user becoming the – 'nightclub dealer' is my phrase - someone who has gravitated towards trafficking to satisfy an underlying personality need. The connection between these features – that is, your personality disorder and the offending – is remote, however, and it is mixed with many other factors personal to you including drug use.
44 Whilst I find the evidence of Dr Davis very helpful in assessing your moral culpability in a very general and holistic sense, considering all of your circumstances, and the circumstances of the offending, I do not find that either the severity of the disorder or its connection with the offending warrants the specific mitigation envisaged by the analysis of cases such as Verdins and Brown.
45 Some very moderate mitigation may be able to be derived from your personality disorders and challenges that may present in the future in relation to your experience in custody. These fade into the background when one considers, as I have, that this is your first experience of an extended period of custody. You have experienced it already in the context of the COVID-19 pandemic, which has resulted in a much more restrictive and isolated experience, and of course, significantly, I accept that the loss of your mother has weighed particularly heavily on you and has been a particularly burdensome feature of your experience in custody to date.
Plea of Guilty
46 You have a limited history, with one relevant prior matter. Your plea of guilty has come at an early stage and there is a very strong utilitarian value to pleas in the current environment, in particular.
Remorse
47 There were submissions made to me that I should find some qualified remorse – particularly in the context of what has been said about your personality structure and features. I do not find that there is a significant degree of remorse in your case, however - as I have stated - you are entitled to a significant discount by virtue of your early plea of guilty and the significant utilitarian value it attracts, as well as its reflection of your acceptance of wrongdoing and the need for punishment, and those matters are matters I also take into account in assessing your prospects of rehabilitation.
Prospects of Rehabilitation
48 I find that you have some prospects of rehabilitation. On balance, I consider that your prospects of rehabilitation are reasonable, however concerns will remain in relation to your vulnerability to gravitating towards offending such as trafficking in order both to satisfy either addiction or a need to be the person who can provide such substances to others giving you the validation that I have referred to earlier.
49 In matters such as importation of these substances, and indeed the trafficking offences, there is a very significant general deterrent consideration. Drugs are a scourge on our community. The trafficking of them is a very serious offence, as is the importation of them into our community, and the maximum penalty of 25 years imprisonment is reflective of that. I also consider that in your case some specific deterrence is necessary and the sentence must reflect that.
50 I have assessed the gravity and the circumstances of the offending. I have had particular regard to the case of Matthews and what it states as to the mode of importation. The mode you opted for, of utilising the dark web and importing through the mail system, is not a matter that mitigates the circumstances of the offending. As I observed on the plea, the mode of offending may say something about you as an offender. In your particular personal circumstances, importation by post using the dark web was the mode of offending that you gravitated toward, and the best that can be said of that is that it does not appear that you are in the midst of a criminal milieu, as perhaps importers in the past may have been considered to be.
Sentence
51 Turning now to sentence.
52 On Charge 1, importing a marketable quantity of a border-controlled drug of dependence, you are sentenced to be imprisoned for three and a half years.
53 That sentence is to commence six months from today. In relation to that sentence I set a non-parole period of two years, and just to be clear, for that non-parole period you will be eligible for parole two and a half years from today. That is, of course, subject to the pre-sentence detention declaration that I will make shortly.
54 On Charge 2, trafficking in a drug of dependence, you are sentenced to 12 months imprisonment.
55 On Charge 3, attempting to possess a drug of dependence, you are sentenced to one-month imprisonment.
56 On Charge 4, trafficking in a drug of dependence, you are sentenced to 12 months imprisonment.
57 On Charge 5, trafficking in a drug of dependence, you are sentenced to nine months imprisonment.
58 On Charge 6, possessing a drug of dependence, you are sentenced to pay a fine of $500 with conviction. I am not sure I have the correct PSD.
59 Pursuant to s.18 of the Sentencing Act I declare that you have served 330 days of pre-sentence detention, excluding today, and I direct that this be administratively deducted from the sentence that I have imposed today.
60 Pursuant to s.6AAA of the Sentencing Act, but for your pleas of guilty I would have sentenced you to a total effective sentence of five and a half years imprisonment with a non-parole period of four years.
61 I make the forfeiture and disposal order that is sought in relation to the iPhone - I think it was, that was sought - used in the offending, and the disposal order of the items as contained in the schedule of that order.
62 Now, just in relation to pre-sentence detention - I've had this conundrum previously. So that 330 days is declared. I note what we discussed at the outset, Ms Avis - that we don't think of it in terms of an aggregate sentence – but if I could just step outside of that for the moment and indicate that if I regarded this as a total effective sentence of four years imprisonment with a non-parole period of two and a half years I would expect that non-parole period to be less the 330 days.
63 MS AVIS: My understanding would be that it would – effectively it comes off the State penalty first, because that will be the one that commences today.
64 HIS HONOUR: Well, then that causes a problem, doesn't it?
65 MS AVIS: No, because the - - -
66 HIS HONOUR: Because I've said that the - - -
67 MS AVIS: Well, the way - - -
68 HIS HONOUR: - - - (indistinct words).
69 MS AVIS: Well, the way that it can be – sorry, my instructor's just been – lost her connection. She's on a - trying to get back into the hearing. My understanding is that you could set the commencement of the Commonwealth sentence to commence upon the cessation of the State penalty, so there would not be the gap between the – any PSD that was declared and the commencement with the start of the Commonwealth date. So the Commonwealth sentence is to be served six months prior to the end of the completion of the State sentence. Is that correct?
70 HIS HONOUR: Well, yes. I mean, I – that's one way of expressing it, I suppose. I was saying six months from today, six months into the State sentence - which is the normal way you'd understand cumulation - but it occurs to me if I say six months – if it commences six months into the sentence and then there's 330 days attached to the State sentence - - -
71 MS AVIS: It's six - - -
72 HIS HONOUR: - - - effectively he won't get any PSD for the Commonwealth sentence.
73 MS AVIS: It's six months from the completion of the State sentence. I can see Mr de Vietri looking confused. I'm not sure whether he has some submissions to make?
74 MR de VIETRI: If I could firstly agree with Your Honour's observation that, as Your Honour's pronounced the sentence, the effect of that is that the PSD would not come off the Commonwealth sentence. So - - -
75 HIS HONOUR: Can I attach the PSD to the Commonwealth sentence?
76 MR de VIETRI: The way in which Ms Avis has expressed it I think would be one way of doing it. Another way, I think, would be to – rather than saying 'to commence six months from today', would be to – I withdraw that. I think what Ms Avis is suggesting is that the commencement is attached to - - -
77 HIS HONOUR: I think it's perhaps easier, if I can – maybe if you can get hold of your instructor, Ms Avis, just to see whether I can state that the PSD attaches to the Commonwealth sentence, because then – if we step outside the artificiality of it for a while then you've got a total effective sentence of four years – or three and a half years starting in six months' time with a non-parole period of two and a half years, or two years starting in six months' time – and of that three and a half years with a two year non-parole period 330 days are already served.
78 MR de VIETRI: Ms Avis, you're on mute?
79 MS AVIS: Purposely. I was trying to take instructions. (Indistinct words) multi-tasking. Just bear with me one second.
80 HIS HONOUR: I mean, the other way of doing it, which I think some judges do, is you just throw – I've endeavoured to give a sentence that reflects totality and some substantial concurrency, given what I consider to be some overlap in the overall offending, but some judges would just make it all concurrent and, yes, I don't think that really - - -
81 MR de VIETRI: (Indistinct words).
82 HIS HONOUR: - - - achieves the aim, but if you – the way that the situation's set up with Victorian offences have to sort of standalone, effectively. If PSD just comes off them and I've given a start date - - -
83 MR de VIETRI: Couldn't Your Honour (indistinct words) - - -
84 HIS HONOUR: I mean, even if I say six months into the - - -
85 MR de VIETRI: But that's what I was going to suggest, Your Honour. Could Your Honour order the Commonwealth sentence to commence after having served six months of the State sentence? I think that's what Ms Avis was suggesting and that was the submission I was trying to make before. Rather than six months from today, six months into the serving of the State sentence, and that has the effect that Your Honour is trying to achieve with a slightly different framing of the order.
86 HIS HONOUR: And then what happens to the rest of the PSD?
87 MR de VIETRI: Well, administratively the State sentence, which is - - -
88 HIS HONOUR: So you've got 330 days.
89 MR de VIETRI: That's true. That's more than six months.
90 HIS HONOUR: If I say six months into the State sentence the Commonwealth sentence commences – effectively it starts today.
91 MR de VIETRI: It starts today. My assumption would be that administratively then the Commonwealth sentence has to have some time deducted off it as well.
92 HIS HONOUR: Well, you'd think so. That would be - - -
93 MR de VIETRI: Yes.
94 HIS HONOUR: All right. Well, I suppose that at least makes clear what my intention is.
95 MR de VIETRI: Intention, yes.
96 HIS HONOUR: So what did I say? I said six months from today. All right, I'm going to amend what I said in relation to Charge 1. The other sentences stand. Instead of the sentence on Charge 1 being three and a half years with a non-parole period of two years, commencing six months from today, that sentence is to commence once six months of the State sentences have expired.
97 MR de VIETRI: So the effect of Your Honour's order now is that Mr Hough is, as of today, partway through serving his Commonwealth sentence. He's 330 days minus six months - - -
98 HIS HONOUR: Yes.
99 MR de VIETRI: - - - into serving his Commonwealth sentence and will be - - -
100 HIS HONOUR: Yes.
101 MR de VIETRI: - - - eligible for parole at some stage in - - -
102 HIS HONOUR: That's my intention.
103 MR de VIETRI: Yes.
104 MS AVIS: Yes, Your Honour. That would be the neatest way, I think, and to kind of - - -
105 HIS HONOUR: All right. Well, that's what the orders will reflect and when this dog's breakfast of a sentence is published that's what it will read, neatly.
106 MS AVIS: Can I just raise one issue? Both me and my instructor – I think it was the internet connection – missed the sentence for – I missed the one for Charge 3, but also in regards to Charge 5?
107 HIS HONOUR: Charge 3, attempting to possess a drug of dependence; one month imprisonment.
108 MS AVIS: Yes. And five?
109 HIS HONOUR: Charge 5, nine months.
110 MS AVIS: Nine months? Thank you. It just cut out, the internet, at that point.
111 HIS HONOUR: All right, thank you. It always seems to be a brain twister. All right, thank you everyone. No other orders needed at this time?
112 MS AVIS: No, Your Honour.
113 MR de VIETRI: No, Your Honour. As the court pleases.
114 HIS HONOUR: Adjourn the court.
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