Director of Public Prosecutions v Lambert (a pseudonym)
[2022] VCC 1201
•23 May 2022
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
DIRECTOR OF PUBLIC PROSECUTIONS
| v |
| NICK LAMBERT (a pseudonym) |
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JUDGE: | Her Honour Judge Gaynor | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 17 May 2022 | |
DATE OF SENTENCE: | 23 May 2022 | |
CASE MAY BE CITED AS: | DPP v Lambert (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1201 | |
REASONS FOR SENTENCE
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Catchwords:
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms J. Malobabic | |
| For the Accused | Mr S. Ranjit |
HER HONOUR:
1 Nick Lambert[1], you have pleaded guilty before me to one charge of trafficking in a drug of dependence and one charge of possessing a drug of dependence. You have also pleaded guilty to the following summary charges, which have been uplifted pursuant to the Criminal Procedure Act to be dealt with in these hearings.
[1] A pseudonym.
2 The facts underlying your offending are as follows. On 16 April 2021, at about 1 o'clock in the morning police were patrolling in Bacchus Marsh when they saw a white utility with its light on parked out in front of a house in
Evans Court, Darling. It eventually left and was then intercepted by police, which had it identified via an IRIS device that it was registered to you. On approaching the utility police saw you were sitting in the driver's side and a second person, Kimberley Powers[2], was in the passenger seat. You were asked to produce identification, told police you did not have you driver's licence and only a learner's permit with you, confirmed the car was registered to you and handed police a business card with your name on it.
[2] A pseudonym.
3 A search of the car was then undertaken and police saw in searching you, the corner of a zip lock bag sticking out of the waistband of your pants. This was found to contain a large quantity of crystal-like substance, you telling police that this was ice.
4 The substance was later weighed and examined and the bag was found to contain 233.6 grams of 84 per cent purity. This underlies Charge 1 on the indictment, trafficking in a commercial quantity of a drug of dependence, namely, methylamphetamine.
5 You were then place under arrest and the car searched. There, five ecstasy MDMA tablets were located in a zip lock bag in the console, possession of which underlies Charge 2 on the indictment, possessing a drug of dependence. A set of scales was found in the passenger seat and the knuckle duster, which is one of the summary offences, found under the rear seat. A blue jacket containing the following items was found and a black wallet with a driver's licence in your name and $1500 in cash. That relates to the charge of dealing with property suspected of being the proceeds of crime. And a 9 millimetre cartridge of ammunition which underlies the summary charge of possessing a cartridge of ammunition.
6 You were taken to the Bacchus Marsh Police Station for questioning but indicated you would not respond to questions in a purported record of interview.
7 The maximum penalties are as follows. The maximum penalty for trafficking in a commercial quantity of a drug of dependence is 25 years' imprisonment. The maximum penalty for possession of a drug of dependence is 5 years or
400 penalty units. The maximum penalty for dealing with property being the proceeds of crime is two years' imprisonment. The maximum penalty for possessing a cartridge of ammunition if 40 penalty units and the maximum penalty for possessing a prohibited weapon is two years' imprisonment.
8 I now turn to your personal circumstances. You are now 32 years of age. You endured an incredibly difficult upbringing. Your mother left your father soon after you were born, coming to Melbourne when you were six months old. You did not know your father when you were growing up and only met him for the first time in gaol in 2017.
9 Your mother, herself, was a heroin addict and you spent a period of time in gaol, having early memories of being in a woman's prison with her. You then went to live a maternal aunt and then were placed in foster care at age three. You believe you were in at least eight foster placements over the next few years. But when you were five, you lived with your maternal grandmother and her partner until you were 10. You were close to her. You described to Alison Maynard, a psychologist, whose report dated 24 July 2017, was tendered on the plea that both your grandmother and her partner were alcoholics but had a good upbringing with her, describing chickens in the backyard, chops and vegetables every night and watching the football while your grandmother and her partner drank VBs.
10 Your grandmother took you to school every day and you described a closer relationship with her than any other significant adult. Your mother came to the house many times while you were living with your grandmother but she was not welcome there and you recall violence, windows being smashed and so forth.
11 As a child you watched your mother inject herself with heroin and at times overdosing.
12 When you were 10 your grandmother was murdered, her partner assaulting her and smashing her head on the table. You saw this happen. You ran out of the house over the road. An ambulance came but she died soon later.
13 You were then placed back into foster care and had a number of placements over the years, recalling living underneath stairs in a small room in a church and with many other children in group homes.
14 Despite all of this, you did manage to achieve a good level of education. You attended numerous primary schools and secondary schools but you are literate and told Ms Maynard that you were good at writing stories, although you found it more difficult to concentrate on your academic work, particularly after the death of your grandmother. You could not focus anymore and were ultimately, expelled from school for using cannabis, which you apparently took in order to fit in with other children at school.
15 You did achieve Year 10 and then underwent a carpentry apprenticeship for 18 months but left after you discovered you were being underpaid. You then started plastering and stayed in this trade for seven years, becoming fully qualified in the process.
16 You had a good work history. Although, it suffered more and more over the years as a result of you using ice. You apparently began using amphetamines from the age of 15 and have experimented with speed, cannabis and ecstasy. You started using ice on the weekend with friends but from the age of 17 it escalated to daily use.
17 In 2016 you went into a rehabilitation program for 18 weeks and stayed clean at this time.
18 You were in a relationship with a woman named Amber[3] for five years from
age 17. Both of you used drugs, primarily ice on a daily basis and separated when you were 23. She left you. You have a daughter from that relationship. You told Ms Maynard that you felt confused and betrayed when the relationship ended, as you had a very strong emotional connection with your daughter. Amber then began a relationship with an older man, whom you later found out had served time for paedophilia, that is, interfering with his nephew and you worried about your daughter. Ultimately, she was taken from your former partner and is being raised by Amber’s mother
[3] A pseudonym.
19 When you broke up with Amber there were periods of homelessness where you couch surfed, had no permanent place to live and you told Ms Maynard that you often felt that you were intruding on people you stayed with and then moved on.
20 You began another relationship with a drug free young woman, named Jessie[4] but that relationship ended.
[4] A pseudonym.
21 You have a long prior criminal history, which is unsurprising, beginning in 2011. Over the years you have been dealt with for motor car theft, possessing amphetamine, driving under the influence of alcohol, speeding offences, burglary, theft, handling and receiving stolen goods, retention of stolen goods, obtaining property by deception, dealing with the proceeds of crime, possessing a prohibited weapon without exemption and driving whilst disqualified.
22 You were ultimately placed in gaol and whilst in gaol were part of the MRC riots. Ultimately, you received a sentence from His Honour Judge Allen, which also outlined your extraordinarily difficult background and I noted in the case management assessment that one of your difficulties in gaol had been that you were badly assaulted and treated there.
23 According to the testing done by Ms Maynard, you have been suffering post-traumatic stress disorder for some time as a result of your childhood experiences, in particular the experience relation to your grandmother and eventually you were released in 2019.
24 You set up your own plastering business. It appears that you have a very strong work ethic but also, and we had a discussion about this during the plea. You become somewhat addicted to work. You work very long hours because you enjoy the physical work. You enjoy the distraction that it provides from your own intrusive thoughts and emotional difficulty. And indeed, the last time you out of gaol you went to live with your partner, Jessie but the excessive hours you worked put an end to that relationship.
25 Ultimately, COVID came along and that very much interfered with the business you had set up. You began drifting back into associating with old drug using friends, relapsed into drug use and ended up offending in the way you have, appearing before the court this time for very serious offending, that is, trafficking ice in a commercial quantity.
26 You have stated that you possessed that amount of ice for your personal use. I find that very difficult to accept, particularly given the set of scales found in the car. The trafficking charge arises simply from the amount. Although, apart from the scales, nothing else in the way of trafficking paraphernalia was found on you.
27 You have done well in gaol. There have been a couple of incidents, mainly relating to you using illicit buprenorphine in gaol but you have spent the entire time at the MRC, which is a difficult place to be on remand or to stay in for any particular period of time. You have also undergone a number of strict restrictions within the gaol arising from the COVID-19 pandemic. You are working as a billet.
28 One of the issues for the court in relation to your application to be placed on a drug alcohol treatment order has been the fact that you have a number of prior convictions, have been gaoled and the fact that the charge that I must deal with today is a serious charge with a maximum penalty of 25 years imprisonment.
29 Having said that, I accept that you eventually pleaded guilty after a contested committal hearing and that you suffer from a serious psychological condition, which is not assisted by gaol, indeed, that you can find gaol and often do find gaol often a great deal more difficult to negotiate than prisoners who are not suffering from such a serious psychological condition.
30 My concern is that to be placed on a drug and alcohol treatment order you must receive a sentence of imprisonment which is four years or less. I do accept that the principles enunciated in the High Court case of Bugmy, do have application to your case. Bugmy states that persons who have been subjected to particularly traumatic and difficult backgrounds are often less morally culpable for subsequent offending because the effect of that early trauma can be the capacity to learn from mistakes, move on and cease offending is generally compromised. And I accept that that is the situation in this case.
31 I also regard the fact that you have completed an apprenticeship and have been able to compile a work history and indeed, set up your own business are very much to your credit, given the circumstances of your upbringing, which seem to involve a generally tragic scenario where you are born to a drug dependent mother, spend your earliest years in gaol, find solace in the care of your grandmother and then witness her murder. In addition, you have essentially had no one but yourself in the years then following. You were placed in multiple foster care homes. That you went on to develop
post-traumatic stress disorder and form a relationship with a drug dependent partner and develop your own drug addiction is in some respects not surprising in the circumstances.
32 The reports I have received, both via the clinical advisor report and the case management report find that you do meet the pre-requisites to be placed on a drug and alcohol treatment order. It is proposed when you leave gaol that you reside at [street address omitted] in Laverton, with a friend Ginger Clayton[5], who was contacted by the case manager, Megan Kew, who wrote the case management assessment report. Ms Clayton said she was comfortable with you living there in a property, which is a three bedroom unit. You would be sharing only with Clayton. You have been friends with her since you were 17. She is not a drug user and/or a person who has been involved in crime. She is aware of your issues and she said she would do anything for you. She was aware also not only in relation to your current offending but the issues you have undergone in your life, your previous offending and substance dependency issues.
[5] A pseudonym.
33 The prosecution stance is that it is accepted that you do meet the legislative pre-requisites for placement on a drug and alcohol treatment order. There were concerns about your prospects of rehabilitation but ultimately, it seems that overall there is not much in the way of opposition to you being placed on the order.
34 In all the circumstances, therefore, I am going to place you on a drug and alcohol treatment order but first I must proceed to sentence you.
35 On the charge of trafficking in a drug of dependence in a commercial quantity, you are sentenced to three years' imprisonment. On the charge of possessing a drug of dependence, you are sentenced to one month's imprisonment. On the charge of dealing in the proceeds of crime, you are sentenced to one month's imprisonment. On the charge of possessing the cartridge of ammunition you are fined $200 and I will give you three months to pay that. And on the charge of possessing a prohibited weapon you are sentenced to one month imprisonment. I am not going to order any cumulation in relation to the second charge on the indictment or the summary matters for which I have gaoled you. The total effective sentence is therefore three years' imprisonment.
36 There are two parts to any drug and alcohol treatment order. They are the treatment and supervision part, which contain four conditions which you must not breach, very much like the court conditions on a
Community Corrections Order. Then there are also the special program conditions.
37 The core condition will last for three years. That is because the three years' imprisonment I have imposed upon you is effectively suspended, so that you can be placed on the drug treatment order. The special conditions, if you like, last for a period of two years. The core conditions are that whilst you are on the order for the next three years you must not commit another offence punishable on conviction by imprisonment.
38 So, that does not have to be much, Mr Lambert. All it has to be is an offence for which you theoretically could be sent to gaol, such as stealing a box of matches from Woolworths. You must attend the Drug Court when required by the court. You must report to the Melbourne Drug Courthouse within two clear working days after the order is imposed, that is, by Wednesday of this week. Although, I understand some other arrangements have been made because you are still suffering from COVID. You must report to and accept visits from members of the Drug Court. You must undergo treatment for drug dependency, as specified by the Drug Court. You must give notice of any change of address of at least two clear working days to a specified Drug Court officer. You must not leave Victoria without the permission of the Drug Court and you must obey all lawful instructions of the Drug Court team.
39 There will be the following program conditions, which will be that you submit for drug testing as directed. You submit to detoxification or other treatment as directed. You must attend vocational, educational and employment programs as directed. You must submit to medical, psychiatric and psychological treatment as directed. You must not use a drug of dependence. There will also be a curfew condition between
9.00 pm and 6.00 am. You are to reside at [street address omitted] in Laverton. You are not to associate with Kimberley Powers and you are excluded from going into the suburb of Bacchus Marsh. Are you prepared to enter this order,
Mr Lambert?
40 MR LAMBERT: Am I able to ask one thing?
41 HER HONOUR: Pardon?
42 MR LAMBERT: Am I allowed to go to the Bacchus Marsh Police Station myself or that is a no?
43 HER HONOUR: No. It is an exclusion zone condition that you are not to go to the suburb of Bacchus Marsh.
44 MR LAMBERT: Yeah. That's fine. Yeah. I understand fully.
45 HER HONOUR: Have you got any possessions or something that you need to pick up from there?
46 MR LAMBERT: Yes. That's why. That's the only reason why I was asking.
47 HER HONOUR: That is why. All right. What you need to do is have a discussion. I will give you permission to attend Bacchus Marsh only for the purposes of collecting your possessions. Otherwise, you are not to go there. And for heaven's sake, Mr Lambert, when you do go there do not think, oh, I might drop in and see a few friends. I am here for the day. All right?
48 MR LAMBERT: No way. I promise I won't. No.
49 HER HONOUR: You are only allowed to go there to pick up your things and to leave. All right.
50 MR LAMBERT: Yes. Understood.
51 HER HONOUR: Are you prepared to abide by those conditions and enter the order, Mr Lambert?
52 MR LAMBERT: Yes. I am.
53 HER HONOUR: Good. All right. I have signed the forfeiture and disposal orders. Do I need to make a s6AAA declaration, Madam Prosecutor,
Ms Malobabic?
54 MS MALOBABIC: I think - I'm not sure, Your Honour.
55 HER HONOUR: I do not think I do, actually. I am only saying that because I want that to be true really. Look, I will make the order anyway just in case.
56 MS MALOBABIC: Thank you, Your Honour.
57 HER HONOUR: Pursuant to s6AAA I declare that had you not pleaded guilty I would have sentenced you a term of imprisonment of four and a half years and order that you serve a minimum term of three and a half years. All right. Thank you. I think that is everything.
58 MR LAMBERT: I appreciate it.
59 HER HONOUR: Now, Mr Lambert, good luck on this.
60 MR LAMBERT: Yep.
61 HER HONOUR: I hope you get well soon. When I leave the Bench my associate is going to speak to your solicitor about how we get the DATO order to you for signing and just remember the talk that we had about not flinging yourself into work and forgetting about what you are meant to do on this order. All right?
62 MR LAMBERT: A hundred per cent. Does that mean I get released today?
63 HER HONOUR: I think you are supposed to. Yes.
64 MR LAMBERT: Yes. Okay.
65 HER HONOUR: All right.
66 MR LAMBERT: Okay. Goodbye.
67 HER HONOUR: And I will probably see you at some stage when I am sitting in the Drug Court. So, I will look forward to seeing how you are going. All right. I wish you all the best of luck and I am quite sure you can do this, Mr Lambert.
68 MR LAMBERT: Thanks, Your Honour.
69 HER HONOUR: I thank both counsel.
70 MR LAMBERT: I thank you. I appreciate it.
71 HER HONOUR: Not at all Mr Lambert. You deserve it.
72 MR LAMBERT: Thank you.
73 HER HONOUR: I thank both counsel, both of you particularly helpful on this plea, made my job very easy. Thank you very much. Yes. Very well. We will adjourn to 9.30 tomorrow morning. Thank you so much.
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