Director of Public Prosecutions v Howard

[2016] VCC 1310

IN THE COUNTY COURT OF VICTORIA Revised
(Not) Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 16-01275

DIRECTOR OF PUBLIC PROSECUTIONS

v

Regan HOWARD

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JUDGE:	HER HONOUR JUDGE LAWSON
WHERE HELD:	Melbourne
DATE OF HEARING:	2 September 2016
DATE OF SENTENCE:	2 September 2016
CASE MAY BE CITED AS:	DPP v Howard
MEDIUM NEUTRAL CITATION:	[2016] VCC 1310

REASONS FOR SENTENCE
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Subject:Criminal law – sentencing – trafficking and possess drug of dependence – youthful offender – no criminal history – Community Correction Order imposed.

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APPEARANCES:	Counsel	Solicitors
For the Office of Public Prosecutions	Ms I. Andrews	John Cain Solicitor for Office of Public Prosecutions
For the Accused	Mr T. Wraight QC	Slades & Parsons

HIS HONOUR:

1Regan Howard, you have pleaded guilty to two charges on the Indictment.  The first charge being trafficking a drug of dependence on 20 April 2016, and that is ecstasy.  The second charge is possess drug of dependence namely, methamphetamine and that is on 20 April 2016.

2In terms of maximum penalties, they are 15 years in respect to Charge 1, the trafficking in a drug of dependence, and one year imprisonment or 30 penalty units in respect to possession of a drug of dependence, where trafficking purposes are excluded.  The Crown in this case have accepted that the methamphetamine was in possession for personal use.

3You also pleaded guilty to possession of a controlled weapon, namely the knife that was found in your car and the summary offence of driving in a manner dangerous.  The penalty for possession of a controlled weapon is one year imprisonment or 30 penalty units.  In respect to drive in a manner dangerous, the penalty is two years imprisonment or 240 penalty units.

4You have admitted your prior criminal history.  I noted that there was only one previous court appearance of little, albeit some relevance, as it related to a driving offence, namely fail to stop and give way at a stop sign, and that was dealt with at Ringwood Magistrates' Court on 6 November 2015.  On that occasion, without conviction, your matter was adjourned until 4 November 2016. 

5I will briefly refer to the circumstances of the offending.  You were 20 at the time, and you are currently 20.  The offences were detected following a police intercept.  Police had observed you driving your vehicle erratically and they pulled you over in Liverpool Road, Kilsyth at approximately 2.10 pm on 20 April 2016.

6You were observed to be driving erratically at excessive speeds.  You tailgated an unmarked police vehicle and other vehicles and you overtook an unmarked police vehicle and that constitutes the facts of the summary charge drive in a manner dangerous. 

7When you were intercepted, you were spoken to and during the conversation, the police officer, Senior Constable Donnelly saw you trying to conceal a white plastic bag under the front driver's seat. 

8Thereafter, a search of your vehicle was conducted under the Drugs, Poisons and Control Substances Act 1991 and police located a plastic shopping bag which contained a large number of ecstasy pills, shared between seven zip lock bags, as well as a box of empty zip lock bags.  They also located a small black handled knife, in a sheath, in the driver's side door, storage pocket and that constitutes the summary charge, possess control weapon.

9You were arrested by Senior Constable Donnelly for possession of a drug of dependence and a pat down search conducted on you, located six zip lock bags containing a large number of ecstasy in your underwear and Senior Constable Donnelly also located a small zip lock bag containing approximately 0.55 grams of amphetamines in your wallet, which you identified as speed.  That constitutes Charge 2, possession of drug of dependence. 

10In total, you were found in possession of 1,412 ecstasy tablets and that constitutes Charge 1, trafficking in a drug of dependence.

11When formally interviewed, you told police a “made up” story about how it was that you came to be in possession of the drugs.  You said that you had met a man called "Matt" on the previous Wednesday whilst eating on St Kilda Beach with another friend.  Matt asked you if you wanted to make some money, but you said you were not interested.  He handed you the package of drugs and intimidated you with threats of harm, including putting a bullet through your head if you did not deliver the packages on subsequent phone call instructions from Matt.  You claimed that he was aware of your address and other personal details, even though you just met.

12You further claimed you did not know what to do with the drugs, so you just kept hold of them.  You denied knowing the quantity of the pills, but when asked how much they would sell for, you said you believed the ecstasy pills to be worth $15 or $20 each.

13It is now accepted that this story was concocted and that you were, at the time, moving drugs from one source to another. 

14You admitted to police that you had been speeding and further, you had no idea how fast you were travelling.  The reason for speeding and driving erratically was because you thought the unmarked police vehicle was actually somebody trying to chase you.

15When asked about the knife, you said that it was in your car because you were going to give it to your mother's boyfriend, as he was a hunter, and that it had been left in the vehicle by a friend. 

16When asked about the small amount of amphetamines located in your wallet, you admitted ownership and stated it was leftovers from the weekend.

17I am satisfied as to the explanation given by your counsel Mr Wraight, in relation to the background to the offending.  I accept that you began using ecstasy for the first time, following a number of distressing events that culminated at around the time of your offending, namely, the death of your grandfather, the failure of a long term relationship and being laid off work, coupled with the frustration of not being able to secure an apprenticeship, in circumstances where you had completed pre-apprenticeship training.

18The context of the offending was that you took the risk of becoming involved in an activity that was clearly something that you would not otherwise have been involved in, when compared with your previous background.  Whilst I accept that as being an explanation for your offending, it in no way excuses your offending. 

19I consider the circumstances of the offending to be serious, in particular, in relation to Charge 1, having regard to the amount of ecstasy that was found at the time of your arrest.

20As to the driving charge, it is accepted by you that the offending is of a serious nature.  However, I accept the submissions made that the circumstances of the dangerous driving were limited, in that the traffic was light, it was daytime and the weather was fine.  There was no other interference with vehicles or pedestrians, other than as described and there was no evidence of any loss of control of the vehicle.

21I accept that whilst the trafficking charge reveals that the possession was significant, the evidence does not disclose a sophisticated commercial enterprise, and it is supportive of you just moving a quantity of drugs from one source to another, for ongoing distribution.

22I have taken the mitigating factors into account as outlined by your counsel Mr Wraight.  Your willingness to plead guilty to the charges is noted at an early stage, at the committal mention on 15 June 2016.  I accept by your plea, you now accept responsibility for what you did and you are remorseful. I accept your plea is evidence of your willingness to facilitate justice.  I also accept that there is utility in your plea.  Your plea has spared the state the cost in the inconvenience of a trial and witnesses have not been required to come to court to give evidence, and your sentence will be discounted accordingly.

23Mr Howard, you are a youthful offender.  You were aged 20 at the time of the offending and you are currently 20 and youth is an important factor in sentencing.  I have had regard to the principles set out in a Court of Appeal decision of Azzopardi v R.[1] 

[1] [2011] VSCA 372.

24Whilst it is acknowledged that general deterrence must still play a role in sentencing young offenders, rehabilitation remains the primary sentencing consideration. Redlich JA in Azzopardi emphasised that there were a number of considerations which underlie why that is so.  He highlighted the fact that young offenders being more immature, are therefore more prone to ill-considered and rash decisions, and may lack the degree of insight, judgment and self-control that is possessed by an adult, and they may not fully appreciate the nature, seriousness and consequences of their criminal conduct. 

25Secondly, it is important the courts recognise the potential for young offenders to be redeemed and rehabilitated.  Thirdly, the court in sentencing young offenders are very much aware of the effect of gaol, particularly in adult prisons on young offenders and it is more likely that gaol would impair, rather than improve the prospects of successful rehabilitation. 

26Whilst in prison, youthful offenders are likely to be exposed to corrupting influences, which may entrench that young person in criminal behaviour, and that therefore defeats the very purpose for which punishment is imposed and also, imprisonment for any period, for a young person, carries with it a recognised risk that antisocial tendencies may thereby be exacerbated and the likely detrimental effect of adult prison on youthful offenders therefore would have adverse flow on effects to the community.

27Those principles are often cited, in respect to youthful offenders, and they have real application in the circumstances of your case. 

28I have had regard to the report of Jeremy Parker, your psychologist, and his report of 12 July 2016, comprehensively sets out in detail your past history and background which I am not going to repeat, but which I have taken into account.

29He diagnosed depression which he says has been present for over a year.  Your counsel Mr Wraight did not seek to rely on his opinion to seek to enliven the Verdins' principles, but he did rely on your condition generally and submitted that it could be taken into account to moderate deterrence.  I accept that submission.

30I have noted the significant progress that you have made following your arrest.  On 20 April 2015, you were remanded in custody and therefore - until your release on bail, you spent some 57 days in custody.  It was your first time in custody in an adult gaol setting, and that time was difficult. It is obvious that it had a great impact on you.  Your mental health status deteriorated.  You were diagnosed with depression. It has been a very solitary experience for you to go through that process of being held in custody, and that is significant punishment.

31I accept your father, Scott Howard's evidence, that you now demonstrate a more positive attitude and that you have been showing real signs of maturity and engaging appropriately with him and other family members since you have been released. 

32I noted your background in terms of education and notwithstanding your disruptive schooling, you have achieved your VCAL, and you have got a pretty good work history for a young man with your educational ability. 

33You have worked as a casual labourer for some 18 months for ‘Speed Panels’ and you have worked for some months for ‘Be Safe’ in Traffic Management.  You were unemployed at the time of the offending, and obviously that was a factor that lead to your offending behaviour.

34It is also clear to me that there were some instability in your life, but now that has all been regularised because you are now working, with the prospect of being accepted into an apprenticeship at a vineyard in the Yarra Valley.

35Mr Howard, I have taken into account the positive steps that you have taken, to address your drug use through your regular and ongoing counselling with
Mr Parker, together with the provision of the urine screens.  All of the urine screen results provided are negative and they provide objective evidence that you are no longer using drugs, and that is further supported by the evidence of
Dr Wong in his letter of 22 August 2016 which says on the basis of his clinical observations, there is no physical evidence of drug abuse.

36You are fortunate in that you have a close and loving family and you have their ongoing positive support.  I have read the reference provided by your mother Fiona and the family friend, Beau Hammerstein.  You have only one minor previous traffic offence which as I said earlier, was of little relevance and I accept that apart from this offending, you are a person who is held in high regard and I am accepting of the conclusion that this offending really was a stupid mistake on your behalf.

37You are a young man who is otherwise of good character and I accept that this aberrant behaviour that is not likely to be repeated. 

38Having regard to all of those features, I consider this is a case where you have made real and good progress towards addressing your underlying offending behaviour and overall, I am satisfied, provided you are kept on your present trajectory, that you have good prospects of rehabilitation, with a low risk of reoffending. This is a case where the features of the offending and your personal circumstances that I have particularised, do support the conclusion that a Community Correction Order is appropriate.

39Ms Andrews, the prosecutor, emphasised in her submission to the court that ordinarily, general deterrence looms large, particularly given the gravity of the offence in relation to Charge 1 on the indictment, the trafficking charge.  She emphasised that it was not at a low level.  However, given your youth and the importance of rehabilitation as a sentencing factor, she submitted a Community Correction Order was within range.

40Mr Howard, it is in your personal interests and also the community's interest to ensure that you stay on track.  So I have formulated a sentence that provides for that to happen.  I do not consider that a further gaol term is warranted. 

41In addition to the principles relating to youthful offenders that I have already referred to, as articulated in the decision of Azzopardi, I have also had regard to the guideline sentencing judgment in Boulton v R.[2]  In that decision, the Court of Appeal spoke about the negative impacts of imprisonment on youth and further, it accepted a Community Correction Order as intrinsically punitive, which is capable of deterring others and providing for specific deterrence.

[2] [2014] VSCA 342.

42The Court in that case confirmed a Community Correction Order may be suitable, even in cases of relatively serious offences, which might previously have attracted a medium term of imprisonment, and yours is such an example of a case that would have in the past, attracted an immediate term of imprisonment.

43Finally, having regard to all of the factors I have identified, I consider a Community Corrections Order is capable of satisfying all the sentencing principles of deterrence, just punishment and protection of the community, whilst offering you the best prospects of rehabilitation.

44The formal court orders will be - and you can stand up now.  On the charges on the Indictment, Charge 1 and Charge 2 and the two summary charges, Charge 6 and Charge 9, you will be convicted and ordered to serve a Community Corrections Order for the period of two years, commencing from today's date.

45You must attend Lilydale Community Correctional Services within two working days and in addition to the mandatory terms of a Community Corrections Order, you must perform 100 hours unpaid community work over that time and undergo assessment and treatment, including testing for drug abuse or dependency as directed, and you must return back here to see me for judicial monitoring on 2 March 2017 at 10 am.

46In relation to summary Charge 9, the driving in a manner dangerous charge, upon your conviction, I order that all Victorian licences or permits held by you are cancelled and that you be disqualified from obtaining any such licence or permit for a period of six months from today's date, 2 September 2016.

47It is important that you adhere to the terms of the licence cancellation, because otherwise you face potentially the charge of driving whilst disqualified, which is a charge that is punishable by imprisonment, and that would of itself constitute a contravention of your Community Correction Order.  So for the next six months, you cannot drive and then you will have to reapply for your licence in the Magistrates' Court.

48Finally, I make the orders for the disposal and forfeiture in relation to the matter sought and I make an order pursuant to s.464ZF of the Crimes Act 1958 for you to undergo a forensic procedure, for the taking of an intimate sample consisting of a scraping from the mouth.  You will have to attend the Lilydale Police Station within the next four weeks?

49MS ANDREWS:  It's after the conclusion of four weeks.  After the conclusion of the appeal period.

50HER HONOUR:  Very well.

51MS ANDREWS:  He then has a further 28 days – after the conclusion of 28 days.

52HER HONOUR:  All right.

53MS ANDREWS:  And Your Honour, my instructor has emailed your associate ‑ ‑ ‑

54HER HONOUR:  Very well.

55MS ANDREWS:  ‑ ‑ ‑ that order, in the appropriate form. 

56HER HONOUR:  All right, so we'll print out that order so that can be signed, once I finish talking.  What that means is that I consider - having regard to the seriousness of the circumstances of the offence, that order is warranted.  The order is by consent and the granting of the order is in the public interest.

57There is one final thing I must tell you.  If at the time you attend for the taking of the sample from your mouth you do not consent to that, under the supervision of an authorised member of the police force, then the sample can be taken by a blood sample and police may use reasonable force to enable that to be conducted.

58OFFENDER:  Yes, Your Honour.

59HER HONOUR:  Hopefully that will not be an issue.  They will just give a cotton bud which you put in your mouth and scrape the side of your mouth. 

60All right, so if we can print off that order, I can finalise that and we can give you all the information that you require about what you must now do in terms of your licence.  The Community Correction Order has been signed by me and I'll get you to sign that.  How many copies do you require of the forensic sample order?

61MS ANDREWS:  Three copies, Your Honour.

62HER HONOUR:  Three.  Can you copy out two more and I'll sign those and then they can be given to the Crown straight away.

63MS ANDREWS:  Thank you, Your Honour.

64HER HONOUR:  All right, that covers everything.  So thank you all for your attendance today.

65MR WRAIGHT:  Thank you, Your Honour.

66HER HONOUR:  And thank you for your assistance.  We can adjourn.

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