Director of Public Prosecutions v Lawson
[2022] VCC 2029
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
CR-21-01990
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JACOB LAWSON |
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JUDGE: | His Honour Judge Rozen | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 2 November 2022 | |
DATE OF SENTENCE: | 24 November 2022 | |
CASE MAY BE CITED AS: | DPP v Lawson | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 2029 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Trafficking in a drug of dependence – Methylamphetamine – Plea of guilty –
Relevant criminal history of breaching community based orders – General and specific
deterrence – Substance abuse – Prospects for rehabilitation.
Legislation Cited: Drugs, Poisons and Controlled Substances Act 1981 (Vic); Crimes Act 1958 (Vic); Bail Act 1977 (Vic); Sentencing Act 1991 (Vic).
Cases Cited: R v Verdins [2007] VSCA 102; Bugmy v The Queen (2013) 249 CLR 571;
Worboyes v The Queen [2021] VSCA 169; Dawid v DPP [2013] VSCA 64.
Sentence: Total Effective Sentence of 2 years and 6 months - Non-parole period 1 year and
8 months - Section 6AAA declaration – 3 years and 6 months with a non-parole period of 2
years and 4 months.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr T. Wallwork | Office of Public Prosecutions |
| For the Accused | Mr M. Kozlowski | Ajak & Associates |
HIS HONOUR:
1Jacob Lawson, you have pleaded guilty to one charge of trafficking in a drug of dependence, namely methylamphetamine, contrary to s 71AC of the Drugs, Poisons and Controlled Substances Act 1981 (Vic). This offence carries a maximum penalty of 15 years’ imprisonment.
2In addition, you have pleaded guilty to two related summary offences:
·
Dealing with property suspected of being the proceeds of crime contrary to
s 195 of the Crimes Act 1958 (Vic), which carries a maximum penalty of 2 years’ imprisonment; and
· Committing an indictable offence whilst on bail contrary to s 30B of the Bail Act 1977 (Vic), which carries a maximum penalty of 3 months’ imprisonment.
3I sentence you on the basis of the Summary of Prosecution Opening dated 16 September 2022, which is an agreed summary. The following summary is drawn from the Opening.
Circumstances of Offending
4On the evening of Saturday 6 February 2021, you were driving a silver Mercedes sedan on Olivine Boulevard in Donnybrook. You were driving erratically and could be observed on CCTV footage falling asleep at the wheel and swerving on the road.
5You fell asleep in your car at the intersection of Donnybrook Road with the engine still running. At approximately 10:50 PM, a concerned passer-by called ‘000’, and police attended the scene and located you still slumped asleep at the wheel.
6The responding police officers removed the vehicle keys from the open window of the car, woke you and conducted a check to confirm your identity. Ambulance paramedics attended the scene and examined you, ultimately determining that you did not require any medical attention or further examination.
7As a result of these observations, the attending police formed a reasonable suspicion that you were in the possession of a drug of dependence and conducted a search of you and your vehicle pursuant to s 82 of the Drugs, Poisons and Controlled Substances Act.
8Police discovered $400 cash and two mobile phones on a pat down search of you.
9They also saw a plastic shopping bag on the passenger seat. This bag was searched and contained the following:
· $6,015.00 cash bundled in an elastic band; and
· Three plastic vacuum sealed bags each containing white crystals; these bags were later analysed and determined to be a substance containing methylamphetamine, weighing 83.6 grams with a purity of 84%. The pure quantity of methylamphetamine was 70.22 grams.
10In addition, the following items were located in the centre console:
· An open plastic vacuum seal bag containing white crystals, later analysed and determined to be a substance containing methylamphetamine, weighing 24.7 grams with a purity of 86%. The pure quantity of methylamphetamine was 21.24 grams; and
· $20.00 in cash.
11In total, the police located 108.3 grams of methylamphetamine; the total quantity of pure methylamphetamine was 91 grams (Charge 1 – Trafficking in a drug of dependence; Summary Charge 5 – Committing an indictable offence whilst on bail).
12The total amount of cash seized was $6,435.00 (Summary Charge 4 - Dealing with property suspected of being the proceeds of crime).
13These items were photographed and seized, and you were arrested and taken first to the Mill Park Police Station, and then to hospital.
14Upon your return from hospital the next day, you were interviewed by the police and you stated the following:
· During the evening you met with an associate, 'Tony Hernandez', in Donnybrook;
· Hernandez brought the drugs into your vehicle where you smoked ‘ice’ together;
· Hernandez was paranoid of passing vehicles and left your car in a hurry, leaving the drugs behind;
· The drugs belonged to Hernandez; and
· Hernandez was driving a white VE commodore at the time.
15No vehicles matching that description were seen in any relevant CCTV footage although it appears that all nearby roads were not covered by those cameras.
Objective Gravity
16At the plea hearing, your counsel submitted that the substances found in your possession belonged to Mr Hernandez and that you intended to return them to Hernandez in the knowledge that they would later be sold.
17You pleaded guilty, however, to the charge of trafficking in a drug of dependence with respect to the methylamphetamine seized by the police on the night in question; you accordingly fall to be sentenced on the basis that you were trafficking these drugs regardless of the ultimate owner.
18Trafficking in methylamphetamine is a serious criminal offence as reflected in the maximum penalty of 15 years’ imprisonment. The total quantity of methylamphetamine found in your possession was in excess of 90 grams. This is a significant quantity and an aggravating feature of your offending. I note, however, that you have only been charged with trafficking on one day. Further, there is no evidence that you were engaged in the business of trafficking drugs for profit. In light of this, I am satisfied on the basis of the agreed facts before the Court that your offending is in the low-middle range of seriousness for offending of this nature.
19In relation to the summary charge concerning the $6,435.00 suspected of being the proceeds of crime, the amount of cash seized is relatively moderate in terms of offences that come before this Court.
Personal Circumstances
20I now turn to your personal circumstances. You were born in New South Wales in 1992. You were raised by your grandparents until the age of 8, at which time you moved to Melbourne with your father to live with his new partner. Your stepmother and stepbrother subjected you to physical abuse, and you were regularly belittled by your father.
21At this time you also resumed a relationship with your mother, whom you saw every second weekend. Your mother, who was a drug user, suffered physical violence from her partners, and you have stated that you were sexually abused by family members of friends when in your mother’s neighbourhood.
22You commenced using cannabis at the age of 14, and used this substance regularly until the age of 18, at which time you ceased using due to feelings of paranoia. You have used Methylamphetamine and GHB on an intermittent basis since that time, and have oscillated between periods of abstinence and regular use.
23You left home at the age of 16 and lived with friends to avoid your family home. At the age of 19 you moved in with a girlfriend with whom you had a son. This relationship continued until the age of 25, when your partner died suddenly. Your son, who is now aged 10, currently lives with his maternal aunt. You commenced another relationship shortly thereafter which lasted until you were 28, at which time you relapsed into substance use and were incarcerated.
24With respect to your medical history, you have reported that you were hit with a tyre iron and suffered a fractured skull at the age of eighteen or nineteen.[1] You have further reported that in 2015 you nearly died after being locked in a car in 40 degree heat, and that you have felt a difference in your thinking after this event.[2]
[1] Report of Dr Aaron Cunningham dated 7 July 2022 at 2.2.
[2] Ibid.
25You completed school until Year 9, and since that time you have worked periodically as a roof plumber, directional driller and as a truck driver for your father’s company. You have a good relationship with your father, and intend to live with him upon your release from prison.
Prior Criminal History
26You have admitted to an extensive criminal history for a range of offences dating back to 2011. Many of these matters relate to driving offences which are of limited relevance in this sentencing exercise, although there are several matters which are of particular significance.
27On 16 December 2016 you were sentenced in the Melbourne Magistrates Court for a number of offences, including, most relevantly, trafficking methylamphetamine. For this offending you were sentenced to a term of imprisonment of 8 months in combination with a 12 month Community Correction Order.
28On 30 August 2018 you were again sentenced for trafficking methylamphetamine, alongside multiple other offences, this time in the Broadmeadows Magistrates’ Court. This offending constituted a breach of the Community Correction Order imposed in December 2016. You were convicted for breaching that order and its duration was extended. In addition, you were also placed on a further Community Correction Order in relation to separate offending.
29On 22 October 2020 you were convicted and sentenced for further offending, including trafficking in methylamphetamine and trafficking 1, 4-Butanediol, as well as other offences. This offending was in breach of the Community Correction Order imposed in August 2018, and you were sentenced to an aggregate term of 10 months’ imprisonment in addition to a 24 month Community Correction Order.
30I note that all of the matters contained in your prior criminal history were dealt with in the Magistrates’ Court and this is the first offending that has attracted the attention of this Court in its original jurisdiction.
Matters in Mitigation
31Turning now to factors in mitigation.
32You pleaded guilty after a contested committal at which the Informant was cross-examined. Although this was not a plea at the earliest possible opportunity, it may nevertheless still be characterised as an early plea and entitles you to a significant discount on sentence. The utilitarian value of the plea has increased due to the ongoing effects on delays and the courts brought about by the pandemic.[3] I also accept that by your plea you may be considered to have some degree of remorse for your offending.
[3] Worboyes v The Queen [2021] VSCA 169.
33You were examined by Dr Aaron Cunningham, a forensic psychologist, for the purposes of this case. In a report dated 7 July 2022, Dr Cunningham opines that you meet the DSM-5 criteria for post-traumatic stress disorder, stemming from your ‘childhood experience of abuse, trauma, and a lack of emotional connection’.[4] In Dr Cunningham’s view, your drug abuse ‘presents as a method of escaping stressful life situations and emotions’ and was ‘the main contributor to [your] offence behaviour’.[5]
[4] Report of Dr Aaron Cunningham dated 7 July 2022, p 4.
[5] Report of Dr Aaron Cunningham dated 7 July 2022, p 4.
34Your counsel submits that the principles in the case of Bugmy v The Queen[6] apply in your case because of your background of abuse and childhood trauma. In sentencing you I have given full weight to your deprived background; I do not consider, however, that your childhood experiences, as difficult as they were, reached the level of profound childhood deprivation described by the High Court in the case of Bugmy. Nevertheless, I accept Dr Cunningham’s opinion that your dysfunctional childhood contributed to your drug abuse, which was in turn causally connected to this offending, and that your moral culpability can accordingly be moderated to a limited degree.
[6] Bugmy v the Queen (2013) 249 CLR 571.
35I also note that your counsel did not place reliance on the principles enunciated by the Court of Appeal in Verdins v The Queen as a mitigating factor in your case.[7]
[7] R v Verdins (2007) 16 VR 269 at [32].
Prospects for Rehabilitation
36Dr Cunningham notes in his report that ceasing drug abuse would be the main factor in reducing your risk of re-offending. He opines that your prospects for rehabilitation are dependent on your ‘motivation to engage with treatment and maintain stability through employment and accommodation’.[8]
[8] Report of Dr Aaron Cunningham dated 7 July 2022, p 4.
37I note that you intend to reside with your father upon your release from prison and obtain employment as a truck driver for his company. Although these factors weigh in your favour, in my opinion your prospects of rehabilitation are to be approached with a degree of caution. You have multiple convictions for trafficking methylamphetamine and you have breached Community Correction Orders. Given your prior criminal history, specific deterrence is a significant sentencing consideration.
Purposes of Sentencing
38Turning now to the relevant sentencing considerations.
39As this court sees far too regularly, methylamphetamine causes an immeasurable amount of harm to our community. Given the nature and pervasiveness of this harmful substance, when sentencing those who sell it the principles of general deterrence and denunciation must assume substantial prominence.[9] As stated by the Court of Appeal in Dawid, ‘it is necessary that the sentences imposed for such drug trafficking be sufficiently severe to offset the lure of large and relatively easy profits which can be derived from the trafficking of illicit drugs.’[10]
[9] Dawid v DPP [2013] VSCA 64 [35].
[10] Ibid.
40I note that this is the fourth time that you fall to be convicted and punished for trafficking methylamphetamine. Whilst you are not to be punished again for the prior matters, your criminal history is relevant to the court's assessment of your prospects of rehabilitation and the need for specific deterrence as a sentencing consideration. Previous sentences have clearly not deterred you. In this respect, I am particularly concerned that you were arrested for the offending presently before this Court less than four months after being sentenced in the Magistrates’ Court for trafficking methylamphetamine. Accordingly, I have real concerns about your prospects for rehabilitation.
41In addition, I am also concerned about your history of breaching Community Correction Orders when you have been given the chance of serving your sentences in the community.
42Your counsel, Mr Kozlowski, submitted that the Court should impose a combination sentence of a term of imprisonment of up to 12 months and a Community Correction Order. He submitted that all of the relevant sentencing objectives - including punishment, your rehabilitation, and general and specific deterrence – can be achieved by way of such a sentence.
43The prosecution submits that, having regard to the principles of sentencing in such cases and the objective gravity of the offending, a period of imprisonment with a head sentence and a minimum non-parole period is the only sentence available.
44I have had regard to all of the above and have taken into account the statutory principle of parsimony, which is that a sentence of imprisonment should only be imposed where the relevant sentencing considerations cannot be met through a non-custodial disposition.[11]
[11] Sentencing Act 1991 (Vic), ss 5(3) and (4).
45I have accepted the prosecution submission and rejected that made by your counsel. The objective seriousness of your offending means that the applicable sentencing considerations can only be met by the imposition of a head sentence and a non-parole period. Your offending, when considered against the background of your prior criminal history - including your failure to comply with prior community based orders - is too serious for a combination sentence to be appropriate.
Orders
46Taking all of the relevant matters into account, you are sentenced as follows:
· On Charge 1, trafficking in a drug of dependence, you are convicted and sentenced to a term of imprisonment of 2 years and 5 months.
47On the related summary offences, you are sentenced as follows:
· On Charge 4, dealing with property suspected of being the proceeds of crime, you are convicted and sentenced to 3 months’ imprisonment;
· On Charge 5, committing an indictable offence whilst on bail, you are convicted and sentenced to 1 month of imprisonment.
48Charge 1 is the base sentence. I order that 1 month of the sentence imposed on summary charge 4 is to be served cumulatively upon the sentence imposed on Charge 1. The sentence on summary charge 5 is to be served wholly concurrently with the base sentence.
49The total effective sentence is, therefore, 2 years and 6 months. The non-parole period is 1 year and 8 months.
50Noting that they are unopposed, I make the disposal and forfeiture orders sought by the prosecution in relation to scheduled items 1, 2 and 5, but not items 3 and 4.
51Pursuant to s 18 of the Sentencing Act, I declare 655 days that you have already served to be by way of pre-sentence detention to be reckoned as already served under the sentence.
52Finally, pursuant to s 6AAA of the Sentencing Act, I declare that but for your pleas of guilty I would have sentenced you to an effective term of imprisonment of 3 years and 6 months with a non-parole period of 2 years and 4 months.
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