Director of Public Prosecutions v Jurd
[2016] VCC 1353
•9 September 2016
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR 16-00907
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DAVID JURD |
---
| JUDGE: | HER HONOUR JUDGE HOGAN |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 15 August 2016 |
| DATE OF SENTENCE: | 9 September 2016 |
| CASE MAY BE CITED AS: | DPP v Jurd |
| MEDIUM NEUTRAL CITATION: | [2016] VCC 1353 |
REASONS FOR SENTENCE
---Subject: 1 charge of trafficking in a commercial quantity of a drug of dependence,
Catchwords: 5 charges of trafficking in a drug of dependence, 4 charges of
Legislation Cited: possessing a drug of dependence, 1 summary charge of possessing Cases Cited: property suspected of being the proceeds of crime and 1 summary Sentences: charge of using a drug of dependence and 1 summary charge of using a drug of dependence - not a principal in drug trafficking business, but assisted principal by storing drugs and driving them and principal to points of distribution - ice addict paying off debt to principal - role on scale of seriousness between low to mid-range - cooperation with police - early remorseful pleas - exceptional progress in treatment for addiction and excellent prospects of rehabilitation - first offender aged 24 at time of offending - mitigating circumstances warranting mercy by way of short and disproportionate NPP - TES 40 months with NPP 10 months.
APPEARANCES: | Counsel | Solicitors |
| For the Office of Public Prosecutions | Mr J. S. Livitsanos | Solicitor for Office of Public Prosecutions. |
| For the Accused | Mr P. Morrissey | Tony Hargreaves Solicitors |
HER HONOUR:
1David Ernest Jurd, you have pleaded guilty to one charge of trafficking in a commercial quantity of a drug of dependence, which carries a maximum penalty of 25 years imprisonment; five charges of trafficking in a drug of dependence, each of which carries a maximum penalty of 15 years imprisonment; and four charges of possessing a drug of dependence, each of which carries a maximum penalty of one year's imprisonment, if trafficking is excluded as a purpose for possession, or five years’ imprisonment, if trafficking is not excluded as a purpose for possession.
2With the exception of Charge 7, relating to cannabis, there was no material put forward on any specific charge which would enable me to exclude trafficking as a purpose for your possession on Charges 5, 6 and 10. Thus, the maximum penalty of five years' imprisonment applies to those offences.
3In relation to Charge 7, it is conceded by the prosecution that the cannabis was a small quantity and I am satisfied on the balance of probabilities that it was for personal use, rather than trafficking. Thus the maximum penalty for that offence is five penalty units.
4In addition, you have consented to two summary offences being uplifted from the Magistrates' Court and have pleaded guilty to those offences. They are one charge of dealing with property suspected of being the proceeds of crime, which carries a maximum penalty of two years' imprisonment, and one charge of using a drug of dependence, which carries a maximum penalty of one year's imprisonment.
5The circumstances of your offending are summarised in the prosecution opening, Exhibit A. On 28 September 2015, police attended Keith Street Parkdale where you were asleep in the driver's seat of your vehicle, with a glass ice pipe sitting between your legs. On being awoken by police, you endeavoured to conceal the ice pipe. Police searched your vehicle and found a number of snap-lock bags containing different drugs, containers of capsules, the ice pipe, various mobile phones and cash totalling $5,520.
6Police also searched your address at Parkdale, where you lived with your family. In your bedroom, they found snap-lock bags containing three different substances, vials of two different substances, and an electronic safe containing numerous white tablets. A further search of your vehicle revealed more mobile phones, more snap-lock bags containing various substances, a small quantity of green vegetable matter, a vial of liquid, and a snap-lock bag containing white powder in your wallet.
7When interviewed, you made admissions to having been in the vehicle smoking ice and to trafficking in the drugs located by police, stating that you moved drugs for your "boss" in order to repay a debt. You claimed not to know the name of your boss or where he lives and agreed that the police would be unable to verify your version of events without you "snitching".
8An analysis of the various drugs found in your car and bedroom reveal the following:
9Charge 1, trafficking in MDMA, 83.9 grams with a purity of 15 percent. (The traffickable quantity of this drug is 3 grams).
10Charge 2, trafficking in methylamphetamine, 23.2 grams. (The traffickable quantity of this drug is 3 grams).
11Charge 3, trafficking in 5-Methoxy C N, N-Dimethyltryptamine, 962.4 grams, with a purity of 5 percent, that is, 48 grams in total. (The traffickable quantity of this drug is .5 of a gram).
12Charge 4, trafficking Ketamine, 7.6 grams, with a purity of 29 to 46 percent. (The traffickable quantity of this drug is 3 grams).
13Charge 5, possession of cocaine, 2.3 grams.
14Charge 6, possession of Oxymetholone, 11.4 grams.
15Charge 7, possession of Cannabis L, (unquantified).
16Charge 8, trafficking in a commercial quantity of Ethylone, 560.5 grams, with a purity of 22 percent. (The commercial quantity for trafficking purposes of this drug is 500 grams).
17Charge 9, trafficking in Methorphan, 88.7 grams, with a purity of 11 to 65 percent. (The traffickable quantity of this drug is 2 grams).
18Charge 10, possession of Testosterone, 10.4 grams.
19The summary charge, Charge 9, dealing with property suspected of being the proceeds of crime, relates to cash totalling $5,520 found in your car.
20The summary charge, Charge 10, using a drug of dependence, methylamphetamine, relates to your admission to having smoked methylamphetamine in the ice pipe which was found in your car.
21You are presently aged 25 years, having been born on 7 April 1991. You come before the court with no prior criminal history. On your behalf, Mr Morrissey told the court that you grew up in a close and caring family, comprising your mother, a former secondary teacher and current practicing psychologist; your father, a secondary teacher who is the Director of Faith and Religious Education at the college where he is employed; and your younger brother. (Indeed, your immediate family and a very large number of extended family and friends, were in court at the plea hearing to support you). You struggled with obesity from an early age, which resulted in you being bullied at primary and secondary school. However, you were a diligent student and completed Year 12 with a high ATAR score of 90.9, which gained you entry into a Bachelor of Biomedical Science course at the University of Melbourne.
22You had an ambition to go on to study medicine, but you did not settle at university and, after failing a number of subjects, discontinued your degree at the end of your second year. After dropping out of university, you obtained a job selling gym memberships for a fitness club. You also set up a business of your own, which involved the sale of anti-ageing and skin products.
23Following your arrest, you told police that a shipment of your business products, which you had imported, had been stolen from you. The products were destined for bikies and you were threatened that you either had to get the products to them, or return the money that they had paid to you. You were $55,000 in debt. You admitted to police that, by this stage, you were smoking a lot of methylamphetamine and you needed to borrow money because of the situation in which you found yourself. You told police that the person from whom you had borrowed the money, whom you referred to as your boss, procured the drugs which were found in your car and your bedroom. You stated that he had made a loan to you of $55,000 on the basis that, if you did not have the cash to pay him back, then he required you to do some "favours". You were unable to pay him and the favours consisted of you storing his drugs and driving him to addresses at which he would sell the drugs. You stated that he gave you directions as to what you were required to do and had told you that the amount that you needed to repay him for the loan was $75,000. You told police that your boss had told you that you had "made" this amount for him in the ten or twelve weeks preceding your arrest during which you had worked for him, so you were proposing to cease performing the favours for him.
24Your mother gave evidence on the plea and also provided a written reference, part of Exhibit 1. You were a much wanted child, who finally arrived after she and her father had been married for ten years. She described you as a beautiful and generous boy, who was family-oriented and chatty. She said that you had always been a "big boy", who stood out because of your size, and confirmed that this had caused you to be bullied at school and you had become quite obsessed with fitness and played basketball and engaged in body building from a young age. You had a girlfriend from Year 12 at school, but this relationship ended while you were at university and you did not seem to make any new friends at university. After you dropped out of university, your mother thought that you were doing quite well in your work of selling gym memberships and, also, your skin products.
25She stated that, in 2014, you started clubbing a lot and would stay out very late. She described you as ceasing to be the dependable and loving young man whom she had known. This was exemplified in you failing to attend two significant funerals of people who were important to you and the family, even though you had promised that you would attend. You also failed to be around to be a support to her when your father was absent on two overseas trips in 2015, despite vowing that you would do so. Your mother stated that, on the occasions that you were briefly at home, you seemed agitated and your mobile phone would ring a great deal. At that time, she thought that this was all part of you asserting your independence.
26On the Friday morning, before you were arrested by police, and whilst your father was still away overseas, your mother had been lying awake wondering when you would come home. She was unable to sleep, so went into your bedroom to make your bed, hoping that that would encourage you to stay at home and catch up on some sleep. She was horrified to find a large bag containing pills beside your bed. She opened the curtains of your room to let in the light and was appalled to see your car outside with you asleep in it. Your brother went out to awaken you and when she questioned you about the pills, you stated that they were not yours and you would get rid of them immediately. Your father came home from overseas on the Sunday and you were there for lunch, but were distracted and uncommunicative. She stated that your family were deeply shocked when police arrived to search their home in the early hours of Tuesday 29 September 2015 and the revelation of your drug use and criminal activity was very alarming to them.
27Your mother stated that, after you had been arrested, she checked your room and found many used small zip-lock plastic bags tossed behind items on the shelves in your room. She also found dozens and dozens of unopened letters, most of which were unpaid credit card, car repayment and hire purchase accounts, or statements showing overdrawn bank accounts. She said the bills dated back to April 2015 and you had just thrown letters in a pile and ignored them, and your affairs were in a mess. In addition, most of your clothes were missing. She later located those in your car when she picked it up after police had finished searching it. She stated that it appeared that you had been living out of your car, which was littered with clothes, empty takeaway packages and sleeping bag. This is borne out by police photographs of your car which comprised part of Exhibit C.
28Your mother stated, that prior to your arrest, you had been hiding from your family and friends, but after you were remanded in custody, you slowly came back. She stated that in July 2015, you had lost your voice and your hoarseness had caused you to cease being able to perform your job selling gym memberships. After a week in custody, during which you ceased using illicit drugs, your voice returned. She said that you talked to her about the difficulty of withdrawing from ice and you became very emotional about what you had done. She said that you felt remorseful and guilty and would sob and sob. She described you as a person who had always struggled with your emotions and wondered whether you had used illicit drugs to help cope with them.
29After you were released on bail, your mother stated and she and your father and brother kept a close eye on you. You underwent intensive rehabilitation as an inpatient for one month, during which your family were permitted to visit briefly, only once per week. You then underwent outpatient treatment for another month and, since then, you have been attending Narcotics Anonymous or Crystal Meth Anonymous, either five or six times per week. As your bail conditions included a curfew, your parents would usually pick you up from those meetings in the evenings.
30Your mother stated that she had seen a big change in you as a consequence of your rehabilitation programs. You now openly discuss things with your family, particularly when you are struggling with your emotions. You had become disconnected from the family, but have now reconnected. In addition, you have made a concerted effort to get fit again and have been doing outreach work, which involves going to speak to various groups about the problem of drug addiction. Further, this year, you enrolled in a Bachelor of Health Science at Swinburne. Your mother said that you have decided that you wanted to work in this area, so that you could help people with addiction. I extended your bail until today to enable you to sit an exam for your course on 30 August 2016. I am told today that you did, indeed, sit that exam and that it went well for you.
31In addition, you have been undertaking part-time work selling solar panels, a fact referred to in a written reference from your father, which echoes many of the sentiments expressed in your mother's evidence. He, too, speaks of the shock of learning of your drug addiction and witnessing your fight to rehabilitate yourself, during which he has admired your persistence and strength of character.
32Your mother stated that she could not understand how you became involved in getting loans from unsavoury sources or involved with clients who were bikies. After you dropped out of university, the friends that you had from school or from playing basketball seemed to fade away and you made new friends through the gym industry. As you were working in Essendon, over the other side of the city from your home in Parkdale, she did not get to meet any of your new friends who apparently came from the "body building world".
33Tendered as Exhibit 2 on the plea was a report from Mr Patrick Newton, forensic psychologist, dated 9 August 2016. Mr Newton confirmed much of your personal history which had been detailed to the court by your mother. He also took a history that you had begun to drink alcohol at age 17 and developed a pattern of regular heavy drinking most weekends, usually more than ten standard drinks on most Saturday nights. You would consume other drugs with alcohol, as well. You had begun to use cocaine at age 21 in social settings, as a means of boosting your self-confidence and elevate in your mood. It had become a central part of your social activities, and you then graduated to the use of methylamphetamine in 2015.
34You told Mr Newton that you found methylamphetamine intensely addictive and had engaged in heavy use from the outset, such that there were few, if any days, when you did not use the drug between first starting to take it and the date of your arrest. You described to him the detrimental effect it had on your capacity to work, your relationship with family and others, and your ability to remain focused on your goals in life. You described that you had become increasingly immersed into the drug-using subculture and concomitantly alienated from your family and other mainstream activities. By the time of your arrest, you were using approximately 1 gram of methylamphetamine each day and your thoughts, emotions and general lifestyle were all becoming increasingly unstable. You also told Mr Newton about the theft of your business products and how you had been utilising your profits from your business to support your drug addiction. You found yourself unable to pay off the money you had borrowed and, so, became involved in criminal offending as a means of working off your debt.
35Mr Newton assessed your addiction as sufficiently severe to warrant the diagnosis of a Severe Methylamphetamine-Use Disorder according to DSM-5 criteria. He noted that you had withdrawn from methylamphetamine whilst in custody, and confirmed the extensive rehabilitation which you had undertaken, as outlined to the court by your mother.
36He stated that you expressed remorse and regret for your actions, which you had previously rationalised as being no more problematic than facilitating the recreational pursuits of other young people. He stated that you had now developed insight into the problems caused by addiction. You had become increasing horrified to think that you had contributed to those problems, by facilitating the substance use of others, and are now committed to assisting the recovery of other addicts. Also, you have developed a clear relapse prevention plan.
37Mr Newton did not consider that you suffered any psychological disorder, but stated that your personality remains in the process of forming and the full maturation of your identity had been forestalled by involvement with the illicit drugs. He stated that you explicitly disavowed any lingering acceptance of the counterculture, anti-authoritarian or risk-taking behaviours that are fundamental in the drug using subculture.
38He considered your intelligence to fall in the upper end of the average range, which should enable you to pursue a professional career, if you are motivated to do so, and indicates that you have a good capacity to benefit from further educational and therapeutic intervention.
39He considered that you are now in remission from a severe drug addiction, have accepted responsibility for your actions, initiated positive changes in your life and have already undertaken much of the rehabilitation that he normally would have recommended. He noted that there were no dispositional or other psychological factors to suggest that you would be prone to repeat offending and that you had found your period of incarceration on remand confronting, frightening and aversive.
40He stated that you now experience significant shame for your offending and have expressed remorse openly. You enjoy the support of your extended family and a group of prosocial friends. Your mental health is stable and your general behavioural adjustment is now good. You have stable accommodation and good prospects to develop sound work skills. He considered these factors correlated with a lower, rather than higher, risk of reoffending and that you had good prospects of being rehabilitated to a productive life in the community.
41Tendered as Exhibit 3 at the plea hearing was a report from Ms Amanda Brown, senior clinician from Lamberti Associates Rehabilitation Consultants, dated 9 August 2016. Ms Brown also gave oral evidence at the hearing. She has worked as a counsellor in the area of alcohol and drug dependence for some years. Lamberti Associates is a private rehabilitation service and, in 2014, she began work there when Mr Lamberti became unwell. She has remained as the senior clinician following his death.
42On 6 January 2016, whilst you were still in custody, she consulted with you concerning your suitability for treatment. She assessed that you had been severely addicted to ice for some months preceding your arrest, and she had given evidence to assist your bail application.
43Following your release from custody in February 2016, she has overseen your clinical rehabilitation program up until the present time. She noted that you had undergone withdrawal from your dependence upon ice whilst in custody and reported that you did well during the 28 day residential program. You were very social, could articulate feelings and took a supportive role with some other drug-addicted clients.
44Once released from the residential program, you undertook an outpatient program at Malvern Private Hospital, which involved you attending group and individual counselling from 9.30 am to 12.30 pm on Monday to Friday for 28 days. After completing the outpatient program, you have continued individual weekly counselling sessions with her to the present time. Also, on occasions, you have contacted her outside these sessions. In addition, each week, you have provided three urine samples for drug screening and no illicit substances have been detected.
45Ms Brown confirmed that you have been attending Narcotic Anonymous on five or six occasions per week. She said that you were initially reluctant to admit that you were a drug addict and were forced into treatment by reason of your legal situation, but had reached a point where you are now excited by living a narcotic free lifestyle and have settled well into Narcotics Anonymous and made friends there.
46At the time of her report, you had completed Step 4 of the 12 Step Program and had taken on a position of responsibility with that organisation, by going to hospitals and other drug treatment units, to speak about the process of recovery from drug addiction. She stated that you had expressed your gratitude for the connection that you now feel with your family, the community and your Narcotics Anonymous friends. I have been told this morning that you now have reached Step 11 of the 12 Step Program, which is very impressive progress in a very short time.
47In Ms Brown's opinion, you have excellent prospects of rehabilitation. She stated that, whilst you were addicted to ice, you stayed away from your family as much as possible. This was because you were lost in the drug using environment of nightclubs and weight lifting. However, you had made a significant turnaround in your approach, and are now much closer to and more open with your family since admitting your addiction and living in recovery. She noted that you had also enrolled yourself in a three year Bachelor of Health Science course at Swinburne University and have done well on assignments on the course.
48She considered that you had taken your treatment intervention seriously and had made a great effort to rehabilitate yourself and are in a "better position than most" to recover, especially with the support of your family and your commitment to continuing your education. She stated that you also liked to be fit and eat well and have reported taking your Narcotics Anonymous friends with you to regular attendances at a gym.
49She was aware that there was a history of alcoholism on your father's side of the family. This apparently effected your paternal grandfather and four of your father's siblings. She stated that one uncle who had been alcohol-free for 30 years had come down from Sydney and had had a discussion with you about substance dependence. Amongst the references forming part of Exhibit 1 is a letter from your uncle, Steven Jurd, consultant psychiatrist, specialising in drug and alcohol addiction. He himself went through a period of heavy drinking and drug use in his youth. He mentions the unhappy history of addiction in the family, but, also, a pattern of sustained recovery. He comments that you have made a solid start to your recovery from addiction, and emphasises the importance of supporting that recovery.
50Ms Brown stated that addiction is an inherited condition and you need to beware that, as an addict, you will need to be in a recovery program for the rest of your life. However, she stated that, as you had been through a relatively short intense period of addiction, your prospects of rehabilitation may well be superior to those who have undergone a very long term addiction.
51She considered that you had gained insight now into how your life would deteriorate very quickly if you were to use illicit drugs again, and you have no desire to do that as you are grateful for managing to get your uncontrollable compulsion to take ice, under control. She said it was significant that you had managed to remain drug free since you were arrested in September 2015.
52She said it was highly unlikely that you would use illicit drugs again as you are now very aware of the suffering that you had caused your family, and now understand how drug abuse also impacts upon the community.
53Tendered as Exhibit 1 at the plea hearing were 18 personal references. These were authored by your parents and other relatives, family friends, staff from your secondary school and some other drug addicted persons whom you met whilst undergoing rehabilitation. What emerges from the many references is that you grew up in a close loving family, with high moral standards. Prior to your drug addiction and offending, you were regarded as a courteous, sociable, kind, generous, community spirited, academically-successful person who was expected to have a bright future. Those who knew you prior to arrest express their shock upon learning of it. However, they also write of their admiration for the way you have accepted responsibility for what you have done, shown remorse, committed yourself to rehabilitation and reconnected with your family and the community.
54One family friend stated, "David comes from a solid loving beautiful family. He had every opportunity to be successful and got caught up in something that he lost control of. To this day, I am at a loss to understand how this could have occurred". [1] Another who regards himself as your de facto uncle, because your parents had taken him into their home as a 19 year old refugee prior to your birth, speaks of seeing you grow up into "a loving, respectful and considerate man". He sees your offending as having occurred, as you attempted to find a sense of direction in life, following the breakup of a long term relationship with your girlfriend and your dropping out of university. He expresses the view that you were "naive in relation to some of the friendships you sought and maintained, as you tried to find your place in the world". However, he also states that you now understand, not only how addiction endangered your life and jeopardised your future and broke your parents hearts, but also how your actions have caused harm to other people who consume drugs. Like a number of the other referees, he expresses the belief that you are grateful to have been given a second chance and have now found a sense of direction and self-worth and are doing your best to make amends for your actions. [2]
[1] Reference by Susanne Graham, friend of the Jurd family for 21 years, part of Exhibit 1.
[2] Reference by Gui Alfonso Henriques, dated 10 August 2016, part of Exhibit 1.
55There is a strong theme in the references of you having been prepared to help others, including the history of coaching basketball and generally listening to and caring about people and their situations. Those referees who came to know you whilst undergoing rehabilitation with you, write of you being honest in your assessment of your drug addiction and genuine in your desire to rehabilitate yourself to a drug free and positive life, as well as being supportive to them in their endeavours to rehabilitate themselves. The references are an impressive testament to you having been a moral reliable and trustworthy person prior to this offending and you trying to do your utmost to recover to be that person again.
56Mr Jurd, you must be left in no doubt as to the serious nature of your offending. Illicit drugs are a hideous blight on our society. Those who traffic in them feed the misery of fellow human beings, as addiction to drugs takes its toll adversely on their physical and mental health, their capacity to study or work and their ability to retain or make meaningful relationships, family ties and friendships. It adds an enormous burden to our society in terms of the associated criminal offending and the financial toll on our criminal justice system, our health system and our correctional facilities.
57Unhappily, trafficking in illicit drugs is a very prevalent offence and, in recent times, the Court of Appeal in this state has made it plain that, generally speaking, hitherto current sentencing practices for trafficking, particularly in a commercial quantity, have been too lenient and should be increased.
58In sentencing for these offences, the court must denounce your conduct and place emphasis upon general deterrence, so that others who might be minded to engage in this illicit and pernicious trade will be appropriately punished.
59Your counsel, Mr Morrissey, has acknowledged that the only sentence appropriate for your offending is a term of imprisonment, albeit that he has urged the court to consider a shorter than usual non-parole period.
60The gravity of your offending is reflected in the maximum penalty of 25 years imprisonment, which Parliament has assigned to the offence of trafficking in a commercial quantity of an illicit drug, Charge 8. Also, there is a maximum penalty of 15 years imprisonment on each of five other charges of trafficking in a variety of drugs. There can be no doubt that you were enmeshed in a drug culture, and you have admitted as much to police. However, I must be mindful that the trafficking charges for which you are to be sentenced comprise possession of the relevant quantities of the various drugs over only a two day period, namely 28, 29 September 2015. In fairness, I also should acknowledge that the most serious charge of trafficking in a commercial quantity is at the lower end of the scale for that particular offence, in that the quantity involved was 60.5 grams over the commercial quantity, and had a purity of 22 percent. The other trafficking charges vary in the extent to which they exceed the traffickable amount for the particular drug involved, as well as their percentage of purity, which, on some charges, varies in range in relation to the particular drug in question.
61Having examined the depositional material, exhibits and heard submissions from Mr Morrissey and the prosecutor, Mr Livitsanos, I am satisfied on the balance of probabilities, that your role was not that of an executive or principal in the business of drug trafficking. On the night of your arrest, police took photographs of your vehicle, part of Exhibit C. These show that the interior of your car and boot were strewn with a significant quantity of disordered clothing, a sleeping bag, drink bottles, polystyrene food containers, aluminium cans, confectionary and potato chip wrappings, crumpled garbage bags and pieces of paper, envelopes and other rubbish.
62I accept that you were, in effect, living in your car, albeit that you had a bedroom at your parents' home, at which your attendance was increasingly erratic. I accept your mother's evidence in this regard, which accords with the state of your car in the photographs. I am satisfied that, in the months leading up to your arrest, your life was out of control because you had descended within a relatively short time into an intense addiction to ice.
63In my view, the state of your vehicle and your mother's evidence, together with the fact that you were found by police asleep in your car, after having just smoked an ice pipe, are not consistent with you being a careful and successful organiser of an illicit drug enterprise. Rather, they are the signs of a chaotic lifestyle of a drug addict, or as you put it to police in your record of interview, "a dipshit who was smoking ice in their car".[3]
[3] Answer to Question 211 of the record of interview, p.24.
64There are also several referees who refer to your altered and unreliable behaviour in the lead up to your arrest. Although your account to police was, at times, confusing, you had been awaken by them, after having just smoked ice. I accept Mr Morrissey's submission that in those circumstances, it is unlikely that you would have had the wherewith-all to quickly invent a story about paying off a debt by doing favours for a drug trafficker.
65I accept that, in the months preceding your arrest, your behaviour was out of character with the decent, moral upbringing and lifestyle which you had been living up until 2014 and 2015. It would appear that you were an emotionally vulnerable person for a number of reasons. You had battled obesity and teasing at school from a relatively early age and seem to have developed an obsession with your body image, leading to an attraction to body building and, ultimately, the use of steroids. In the couple of years prior to your offending, your history of fine academic success had come to an end with you failing your course at Melbourne University and being called to account by the University Board. Apparently, you found it difficult to adjust to the end of a relationship with a young woman who had been your girlfriend since Year 12 at school. In this context, you ended up working in the gym industry in Essendon, which led you into contact with persons involved in the illicit drug trade, both there and in nightclubs. I note that Mr Newton commented upon the fact that your personality had not matured. This factor, perhaps coupled with a genetic predisposition to addiction on your father's side, appears to have rendered you ill-equipped to deal with the adverse influence of the people whom you encountered at this vulnerable stage of your life. The result was a very rapid and severe addiction to methylamphetamine and what your counsel described as your "spectacular fall from grace".
66The fact that one is an addict is not, of itself, a mitigatory factor, but is an indicator of lesser moral culpability than the ruthless, money driven greed of a non-addicted trafficker. However, your role was higher than a desperate drug addict who lives on the streets and divides a deal which he has purchased to on-sell, in order to support his habit. You stored drugs for the principal of this enterprise in a safe in your bedroom, and ferried them and him, at his request, so that he could distribute them. This was a role which considerably facilitated the distribution of illicit drugs. You benefited financially in that, by performing these services, you paid off the debt you owed to your boss. However, there is no evidence of enrichment on your part. I accept your mother's evidence that your financial affairs were in a mess and that you were in debt to various financial institutions.
67There is no evidence that you personally sourced the drugs found by police, or that you made any decision about how they were to be distributed. The only evidence is that, according to you, you were subject to the direction of your boss. I accept, in all the circumstances, that that is likely to have been the case. Doing the best that I can, I would rate your role as somewhere between the low to middle range of seriousness in terms of drug trafficking.
68In your favour, there are some powerful mitigating factors, which, I must say, have attracted my sympathy, notwithstanding the gravity of your offending. They are as follows.
(1) That you cooperated with police by giving a full and frank Record of Interview, albeit, as I have said, that you chose not to reveal the identity of your "boss".
(2) You cooperated with police in the search of your vehicle and your home and the opening of the safe, in which drugs were stored.
(3) You pleaded guilty at the earliest opportunity and I am satisfied that yours is a truly remorseful plea. Indeed, in your record of interview, you had indicated to police that having repaid your debt to your boss, you proposed to discontinue your assistance to him, "because I know firsthand what ice does to people". [4]The material tendered on the plea by way of the two reports and many references is further evidence of your remorse. By reason of your early and remorseful pleas of guilty, you are entitled to a high discount on the sentence which, otherwise, would have been imposed.
(4) You are a person with no prior convictions and no contact at all with the criminal justice system. You endured a difficult time following your arrest for a period of four months before you were given bail. Not only were you withdrawing from your ice addiction, initially in police cells and then at the Metropolitan Remand Centre, but you had the misfortune to be in custody for 118 days at a time of 22 hour lockdown following prison riots. I accept the evidence of your mother and the various referees as to the difficulties you faced on remand, but that, in spite of them, you adhered to your resolve to remain drug free and rehabilitate yourself.
(5) Once released from custody on 2 February 2016, you complied with onerous bail conditions. Up until the variation of conditions on 23 May 2016, you adhered to a curfew between 9 pm and 6 am and a ban on driving a car, in addition to reporting to police three times per week. On 23 May 2016, the curfew was altered to between 11 pm and 6 am and the driving ban was lifted, but you were obliged to continue to report to police three times per week. You have adhered to these bail conditions to the present time.
(6) The evidence as to your commitment to rehabilitation and the progress that you have made whilst on bail I consider to be exceptional. At the time of your arrest, you had a habit of 1 gram of methylamphetamine per day and what Mr Newton diagnosed as a Severe Methylamphetamine-Use Disorder. You have done all that you could, to follow recommendations concerning inpatient and outpatient treatment and ongoing counselling. You have regularly attended Narcotics Anonymous and Crystal Meth Anonymous and are progressing well through the 12 steps program. You have now been drug-free for almost one year.
(7) You are presently aged 25 years and, at the time of offending were 24 years old. Although you do not come within the definition of "young offender" the Sentencing Act, you are still a young man and, in the light of your previous good character, your remorse and your commitment to rehabilitation, I consider that your prospects of rehabilitation should be given significant emphasis in the sentencing process. In this regard, I note that, in addition to applying yourself to treating your drug addiction, you, also, have commenced a course of study and taken on part time work. To my mind, this shows significant resolve in the context of you having an inevitable further immediate custodial sentence hanging over your head. I agree with the views of Ms Brown and Mr Newton and regard your prospects of rehabilitation as excellent. These prospects are fortunately fortified by your intelligence and your wonderful supportive family and friends and your genuine sense of shame for having offended. In all of the circumstances, I do not consider that specific deterrence needs emphasis in sentencing you.
[4] Answer to Q 471 of the Record of Interview, P.51.
69Although the Court of Appeal has emphasised that there should be an uplift in sentences for trafficking in illicit drugs, particularly trafficking in a commercial quantity, I do not understand that to mean that in an appropriate case, a merciful sentence should not be imposed. Whilst acknowledging that the gravity of your offending is such, that the only appropriate sentence is an immediate term of imprisonment, I consider that the mitigating factors which I have mentioned, and in particular, your excellent prospects of rehabilitation, warrant the exercise of mercy by my setting a non-parole period which is unusually low and disproportionate to the head sentence which I intend to impose. In my view, it is appropriate to give you the opportunity, sooner rather than later, to build upon the rehabilitative gains which you have already made, otherwise those gains may well be lost if you remain in a custodial environment for a lengthy period.
70In determining an overall sentence, I consider that some modest cumulation is appropriate in the light of all of your offending having occurred at the same time, over only two days, in order to arrive at a just total effective sentence which reflects the gravity of your overall offending, but which is not a crushing sentence. Would you please stand up Mr Jurd.
71On Charge 1, trafficking in MDMA, you are convicted and sentenced to be imprisoned for a period of nine months.
72On Charge 2, trafficking in methylamphetamine, you are convicted and sentenced to be imprisoned for a period of five months.
73On Charge 3, trafficking in 5-Methyox-N, N-Dimethyltryptamine, you are convicted and sentenced to be imprisoned for a period of nine months.
74On Charge 4, trafficking in Ketamine, you are convicted and sentenced to be imprisoned for a period of three months.
75On Charge 5, possession of cocaine, you are convicted and sentenced to be imprisoned for a period of two months.
76On Charge 6, possession of Oxymetholone, you are convicted and sentenced to be imprisoned for a period of three months.
77On Charge 7, possession of Cannabis L, I am satisfied that the possession was of a small quantity and not related to trafficking in cannabis. You are convicted and fined $100.
78On Charge 8, trafficking in not less than a commercial quantity of Ethylone, you are convicted and sentenced to be imprisoned for a period of two years and seven months.
79On Charge 9, trafficking in Methorphan, you are convicted and sentenced to be imprisoned for a period of nine months.
80On Charge 10, possession of testosterone, you are convicted and sentenced to be imprisoned for a period of three months.
81In relation to the summary offences, you are sentenced as follows:
82On Charge 9, dealing with the proceeds of crime, you are convicted and sentenced to be imprisoned for a period of three months.
83On Charge 10, using a drug of dependence, ice, you are convicted and fined $300.
84The base sentence is that imposed on Charge 8, trafficking in not less than a commercial quantity of Ethylone, namely, two years and seven months. I direct that two months on Charge 1, one month on Charge 2, two months on Charge 3, one month on Charge 4, two months on the indictable Charge 9 and one month on the summary Charge 9 is served cumulatively upon the base sentence and upon each other. Save for such cumulation, all other sentences are to be served concurrently.
85The total effective sentence is thus 40 months imprisonment. I direct that you serve a period of 10 months imprisonment before becoming eligible for parole. I declare a period of 128 days pre-sentence detention to be time reckoned as already served under the sentence imposed this day.
86Pursuant to s.6AAA of the Sentencing Act, I declare that, had it not been for your pleas of guilty, the total effective sentence imposed would have been seven years, with a non-parole period of five years.
87In the light of your conviction on Charge 8 for trafficking in a drug of dependence in a commercial quantity, and upon being satisfied that the property referred to in the schedule of this order is a drug of dependence and property prescribed by the regulations that was used, or intended to be used in or in connection with the commission of the offence, or is derived or realised directly or indirectly by you or another person from the commission of the offence. Pursuant to s.78(1) of the Confiscation Act 1997, I order the forfeiture to the state of the property referred to in the schedule. I further direct that it be placed in the custody of the Chief Commissioner of Police and be held by him until 28 days from this date, or the conclusion of any appeal proceedings where it may be tested and/or analysed and then destroyed. There are some 59 items which are listed in the appended schedule to this order.
88Further, as you have been convicted of Charge 8, pursuant to s.34(1) of the Confiscation Act 1997, I order that the amount of $5,520 cash be forfeited to the minister.
89Finally, pursuant to s.464ZF(2) of the Crimes Act 1958, I order that you undergo a forensic procedure for the taking of a scraping from the mouth in accordance with subdivision 30A of Part 3 of the Crimes Act 1958, until a sample of sufficient standard is obtained for placement on the database. I consider this order is justified by reason of the seriousness of the circumstances of your offending. Mr Jurd, compliance with this last order involves you being given a cotton bud which you will be required to insert inside the check of your mouth, so that a sample of saliva can be taken. You do need to understand that, if you do not cooperate with the taking of a sample, then police may use reasonable force to enable that to be obtained.
90Now Mr Jurd, it is probably difficult for you to absorb everything at this stage, but the net result is that you have a total effective sentence of 40 months imprisonment. I have directed that you serve ten months of that before becoming eligible for parole and I have already declared as time served the period of approximately four months that you have already served in prison.
91Clearly, whether you get parole is not a matter for me, it is for the Parole Board, but this court does sincerely wish you well in your rehabilitation.
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