Director of Public Prosecutions v Jurd
[2021] VCC 228
•11 March 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE | Revised Not Restricted Suitable for Publication |
Case No. CR-19-00539
| DIRECTOR OF PUBLIC PROSECUTIONS |
| V |
| DAVID JURD |
---
JUDGE: | O'Connell | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 11 February 2021, 11 March 2021 | |
DATE OF SENTENCE: | 11 March 2021 | |
CASE MAY BE CITED AS: | DPP v JURD | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 228 | |
REASONS FOR SENTENCE
---
Subject:CRIMINAL LAW
Catchwords: Trafficking in a drug of dependence; Possess a drug of dependence; Principle of totality; Strong prospects for rehabilitation; Low risk of reoffending; Community Correction Order
Legislation Cited: Criminal Procedure Act 2009
Cases Cited:DPP v Jurd [2016] VCC 1353
Sentence: 12 month CCO with supervision, drug and alcohol treatment.
---
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr C. Thomson | Office of Public Prosecutions |
| For the Accused | Mr M. Gumbleton | Marcevski Lawyers |
HIS HONOUR:
Introduction
David Jurd, on 11 February 2020 you pleaded guilty to one charge of trafficking in drugs of dependence, being MDMA, cocaine and methylamphetamine. You have also pleaded guilty to one charge that you possessed drugs of dependence, being testosterone, ketamine, psilocybin, oxycodone, morphine and alprazolam.
This morning, 11 March, you pleaded guilty to an additional summary charge of breaching your parole through the commission of the offences the subject of this indictment.
Mr Thompson, who appeared on behalf of the Victorian Director, relied upon a summary of prosecution opening prepared for the purposes of trial but which was adapted to accommodate the pleas of guilty to these particular charges. Mr Gumbleton, who appeared on your behalf, took no issue with that summary.
Drawing largely upon that opening, your offending may be summarised as follows:
Circumstances of offending
On 29 August 2018, you checked into room 84 at the Best Western Buckingham International Motel in Highett. You spent the night of 30 August 2018 at your home address however the room was occupied by an acquaintance of yours, Sol Hikmet. At about 7:30 am on 31 August 2018 you returned to the motel driving a black BMW.
When you entered room 84, you found your friend Sol Hikmet deceased in a running spa. CCTV footage obtained from the motel depicts you arriving on the morning of 31 August 2018 and shortly afterwards carrying items out of room 84 and placing them in the BMW. You rang 000 and tried unsuccessfully to revive Mr Hikmet.
When police arrived you began to make a statement, but when you took out your driver’s licence to identify yourself, you dislodged a blister pack of morphine tablets which led to your arrest.
In your interview with police, you explained that when you went into the room you saw that Mr Hikmet was dead. You said that you then placed some ‘narcotics’ that were around the room into a couple of bags and a box and placed them in the car before ringing ‘000’. You said that you also wiped up a ‘bunch of lines’ that were set up on a table.
In essence, you said that you cleaned up the room because you were on parole for commercial drug trafficking and you did not want to be accused of further involvement with drugs and thereby in breach of your parole. You also said that you did not want what was found in the motel room to reflect badly on your friend.
Police searched you and the BMW and seized MDMA, methylamphetamine and cocaine in an aggregate quantity of 130 grams pure, together with an array of steroids.
DNA testing of the inner clip seal region of one of the plastic bags found in the BMW, which contained 110 grams of MDMA, showed that your DNA formed part of a mixed profile with a minimum of four contributors.
The prosecution position on the plea was that whilst you were in possession of these drugs for the purposes of trafficking, you had only just taken possession of those drugs and it was accepted that you had only just formed the requisite intent. In that sense the basis of the plea was somewhat unique.
Prior convictions
Whilst your criminal history is not particularly lengthy, it is highly relevant to the question of the disposition that should now be imposed.
On 9 September 2016 you pleaded guilty to one charge of trafficking a commercial quantity of ethylone (involving 560.5 grams with a purity of 22%). You also pleaded guilty to charges of trafficking in MDMA (83.9 grams with a purity of 15%), methylamphetamine (23.2 grams), 5-Methoxy C N N-Dimethyltryptamine (48 grams), ketamine (7.6 grams), methorphan (88.7 grams) as well as four charges of possession of small quantities of cocaine, oxymetholone, testosterone and cannabis. You also pleaded guilty to a summary charge of dealing in proceeds of crime and of using methylamphetamine.
The circumstances of that offending involved you being found asleep in the driver’s seat of your car with a glass ice pipe sitting between your legs. A search of your car and your room at your parents' house revealed the drugs and money with which you were ultimately charged. You claimed at that time that you had been selling drugs for a person who you called your boss in order to repay drug debts acquired through your addiction.
The previous offences were committed on 28 September 2015 and you were remanded in custody at that time. On 2 February 2016 you were bailed on those matters and remained on bail until 9 September 2016. On that day you were sentenced to a total effective sentence of 40 months' imprisonment. A non-parole period of 10 months was fixed. A declaration was made that you had already served 128 days of that sentence.
You were returned to custody and remained there until released on parole in March 2017. The conditions of your parole included a curfew and requirements that you reside with your parents in Parkdale and that you wear an ankle bracelet so that your movements could be monitored.
On 31 August 2018 you were arrested in relation to these offences. On 3 September your parole was revoked and you were required to serve another 26 months in custody, being most of the head sentence originally imposed in 2016. On 4 November 2020 you were again granted parole, however, you remained in custody until 9 December 2020 when I granted you bail on these charges.
You have remained on bail whilst also subject to parole. Your parole expired on 27 February 2021.
On 11 February 2021 this matter came before me as an application for a sentencing indication. At that time, I indicated pursuant to s.207 of the Criminal Procedure Act 2009 that, if you were to plead guilty to these charges, I would not be likely to impose a sentence of imprisonment commencing immediately. In providing that indication I was particularly mindful of the application of the principle of totality in combination with what I regard as particularly impressive material, which suggests that you have strong prospects for rehabilitation.
Shortly after the sentencing indication was given, a new indictment was filed and you were arraigned and pleaded guilty. The matter was adjourned to 11 March 2021 for further plea and sentence. In the interim I ordered that you be assessed as to your suitability to undertake a Community Correction Order.
Before turning to that assessment I need to say something about your background, your prospects for rehabilitation and the sentencing submissions made by counsel.
Personal history
You were born on 7 April 1991. You were aged 27 at the time of the offending and are now 29 years of age.
You were evidently brought up in a close and caring family. Your mother is a former secondary teacher and now works as a registered psychologist. Your father has worked as a senior secondary school teacher for nearly 40 years.
Although you encountered some bullying at school because of your weight, you were nonetheless an excellent student. You attended St Bede’s College and completed year 12 achieving an ATAR score of 90.9. You then commenced studying a Bachelor of Biomedical Science at Melbourne University. At that stage you intended to go on and study medicine.
Unfortunately, you seemed to struggle at university and ultimately left at the end of your second year without completing your degree. You then supported yourself selling gym memberships for a fitness club, as well as starting your own business selling skin products.
On the plea for your previous offences in 2015, a report provided by Patrick Newton, psychologist, was relied upon. According to the history you gave him at that time, you began drinking alcohol at age 17 and thereafter developed a pattern of heavy drinking on most weekends. You graduated to use cocaine at 21 as a means of boosting your self-confidence and elevating your mood. Drug use became a central part of your life and in 2015 you commenced using methylamphetamine.
You found that drug to be ‘intensely addictive’ and you became immersed in the drug-using subculture and progressively alienated from your family and former friends. Over time, you fell into debt and became involved in trafficking drugs to sustain your addiction and attempt to pay off debts. That is the context in which you came to commit those first offences.[1]
[1]DPP v Jurd [2016] VCC 1353, at [33] - [34].
In February 2016, while on bail for your previous offending, you undertook residential drug rehabilitation in a private hospital for a month followed by outpatient treatment for another month. You also attended regular Narcotics Anonymous meetings. A letter of support by psychologist Ganesh Ilango confirms that since late January 2021 you have recommenced therapy. It is anticipated you will continue to meet him for regular psychological treatment.
Whilst in custody on the last occasion you undertook university studies in a Bachelor of Psychological Sciences. Your certificate of attainment confirms that you completed 24 subjects with seven high distinctions, 13 distinctions, three credits and one pass. Your bachelor’s degree was conferred in December 2020. You have now been offered a place to study honours in that degree at Swinburne University. You will commence that study shortly.
You remain living with your parents, who have provided a helpful personal reference. In it they confirm that their relationship with you has been strengthened more recently and that you are showing yourself to be, as they put it, ‘focused and determined’.
You have also commenced work as a support coordinator which involves assisting adults with a disability who are in receipt of support through the National Disability Insurance Scheme. Your employer, in a reference, confirms that he regards you highly and is aware of your background but is nonetheless happy to employ you. A number of other personal references tendered on your behalf confirm that you appear to be well down the path of turning your life around. These matters in combination, it was submitted augur well for your rehabilitation.
Submissions
With respect to the offending, Mr Gumbleton submitted that you had only taken possession of these drugs for a very short period of time and that it was only within that time that you had formed the requisite intent to sell some of those drugs. It was, he contended, an extraordinary and unique situation in which you had reacted after finding your friend deceased. Mr Thompson, on behalf of the prosecution, did not seek to demur from those submissions and you will be sentenced on that basis.
Counsel referred to the lengthy time you have now spent in custody since 2015. You have served approximately 38 months of the 40-month head sentence imposed in September 2016. In addition, you have served approximately 37 days in prison referable to these offences. You have also served approximately 18 months (the period between March 2017 – 31 August 2018) in the community whilst subject to strict parole conditions. I note further that nine months or so of the time that you have spent in prison was spent subject to the very restrictive prison regime that was necessary to deal with the pandemic.
Given that history, it was submitted that the principle of totality must loom large in a sentencing exercise such as this and given the overall time served, it was appropriate that you now be released on a Community Correction Order. The prosecution did not contend otherwise.
Consideration
I accept the defence submission. Taking a global view of the sentences you have received, not only have you served a total effective sentence in custody of close to three and a half years but you have also served a further 18-month period in the community whilst subject to very restrictive parole conditions. Those matters, in my view, cater in large measure to the more punitive sentencing purposes such as general and specific deterrence, just punishment and denunciation that need to be emphasised when sentencing offenders for drug trafficking.
Seen in that light your circumstances now allow for greater emphasis on the sentencing purpose of rehabilitation. In that respect, in the time since you have returned to the community, you have undertaken counselling, secured employment, reconnected with your family and enrolled in an honours degree in Psychological Sciences, having completed the bachelor degree whilst in custody. For those reasons I requested the assessment from the Office of Corrections as to your suitability to undertake a Community Corrections Order.
The assessment report I have received is positive and suggests you are a low risk of reoffending. It states in part:
Mr Jurd engaged well throughout the assessment process, answering all questions put to him to the best of his ability and recollection. He was open and forthcoming with information and was able to demonstrate some insight into his offending behaviour, the precursors to his offending and his treatment needs within the community.
Having regard to that report, I intend to adopt the recommendations it makes with respect to placing you on an order for 12 months, save that I do not think it necessary in your circumstances to impose a condition that you be subject to judicial monitoring.
Sentence
On both charges on the indictment being trafficking in drugs of dependence and possession of drugs of dependence you will be convicted and sentenced to undertake a Community Corrections Order for a period of 12 months.
On the summary charge of breaching your parole – having regard to the time you have already served you will be convicted and discharged.
The conditions of the Community Correction Order that you will be required to complete are threefold; first, that you be subject to supervision from the Office of Corrections; second, that you undertake treatment and rehabilitation in respect of alcohol abuse; third, that you undertake treatment and rehabilitation in respect of drug abuse.
No declaration under s 18 of the Sentencing Act 1991 is to be made, however the service of 37 days in custody referable to the offences the subject of this indictment is noted.
Pursuant to s 6AAA of the Sentencing Act 1991 I will declare that but for your plea of guilty you would have been sentenced to a term of imprisonment of 2 years and 3 months with a non-parole period of 15 months.
I will make the orders for forfeiture and disposal sought by the prosecution.
- - -
0