Director of Public Prosecutions v Leighton
[2021] VCC 2163
•16 December 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-21-01346
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JAMIE LEIGHTON |
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JUDGE: | HER HONOUR JUDGE DALZIEL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 18 October 2021 | |
DATE OF SENTENCE: | 16 December 2021 | |
CASE MAY BE CITED AS: | DPP v LEIGHTON | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 2163 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – Sentence
Catchwords: Trafficking a drug of dependence – Early plea of guilty – COVID-19 considerations – Long period of pre-sentence detention – Mental illness – Intellectual disability – General deterrence
Legislation Cited: Sentencing Act 1991 (Vic)
Cases Cited:Worboyes v The Queen [2021] VSCA 169; Haddara v The Queen [2016] VSCA 168
Sentence: Convicted and sentenced to a total effective sentence of two years and seven months’ imprisonment with a non-parole period of eighteen months.
Section 6AAA: Conviction with a total effective sentence of 3 years and 6 months’ imprisonment with a non-parole period of 2 years and 6 months.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms Vivienne Jones | Office of Public Prosecutions |
| For the Accused | Mr Ashley Halphen (Plea) Ms Natasha Freijah (Sentence) | Emma Turnbull Lawyers |
HER HONOUR:
1Jamie Leighton, you have pleaded guilty to a charge of trafficking methylamphetamine, possession of property reasonably suspected of being the proceeds of crime and breaching a Personal Safety Intervention Order.
2In the evening of Friday 11 September 2020, a woman, Ms Bowden, arrived at a house in Sale, where you were. Eventually you came out of the house and got in her car, and she drove away with you in the passenger seat.
3You were not supposed to be within 5 metres of Ms Bowden or to have any contact with her, due to a Personal Safety Intervention Order which had been made in July 2020, and so being with her on this occasion contravened that Order. (Summary Charge 4).
4Not long after you had gotten into her car, police pulled over Ms Bowden’s car. She was breath tested and given an oral fluid test, and then the police decided to search her car, as they had a reasonable basis for believing there were drugs in the car.
5You were also searched, with the police finding the following items in your pockets:
(i)three separate quantities of cash, specifically: $1830, $6050 and $272;
(ii)two wallets; and
(iii)two mobile phones.
6You were searched further and found to be in possession of a small case which you had concealed in the front pocket of your underwear. This case contained numerous small plastic bags filled with a white crystal substance.
7You were arrested and taken to Sale Police Station. On the way there you tried to dispose of an additional bag of methylamphetamine whilst you were in the divisional van.
8The cash found in your possession gives rise to summary charge 3, possession of property reasonably suspected of being the proceeds of crime. The total amount of cash was $8,152.
9When you were interviewed you said that you knew there had been a personal safety intervention order, but Ms Bowden had told you that she had had it removed. You said the money was on you because you were on the way to buy a second-hand car. You claimed that the drugs were Ms Bowden’s and you had only taken possession of them when the police pulled her over, in the mistaken belief that you would not be searched.
10You admitted trying to dispose of the drugs in the police vehicle, and provided the passcodes to the two phones in your possession.
11When the police examined the phones, they found messages going back to 31 August 2020 indicating that you were involved in selling drugs. Taking these messages, and the drugs in your possession on 11 September 2020, you have pleaded guilty to trafficking methylamphetamine between 31 August 2020 and 11 September 2020.
12The total weight of methylamphetamine in your possession was 109.4 grams. The purity of the substances was between 78 and 86%, so the pure quantity was 92 grams. The commercial quantity of methylamphetamine is 50 grams pure or 250 grams mixed. The amount in your possession was less than half of the mixed threshold quantity and approaching double the pure threshold.
13By your plea you have admitted that the cash in your possession was reasonably suspected of being the proceeds of crime, that is trafficking. Regarding the summary charge 4, I accept that this was a low level breach and did not involve any misconduct in addition to being in contact with Ms Bowden.
Personal Circumstances
14You are now 37 years old. You were born in Sale, and are the eldest of three children. When you were 15 you were placed with a foster family. You have lost contact with your parents and siblings.
15While at school you struggled academically and completed Year 8. You found work in labouring and in 2013 you had work on an oil rig, for a few years. This was your last real job.
16When you were a child you were assessed as having an intellectual disability, I was told that your IQ was assessed at 57. You previously had a case manager through DHHS, and are now approved for assistance under the NDIS. The current plan provides funding, managed by your plan management provider, for support in finding and maintaining accommodation, assistance with getting employment, improving your interpersonal skills and reconnecting with your family. You will have a support worker who can assist you in dealing with Corrections and to set things in place before and upon your release.
17In view of the more than 12 months you have served on remand, your lawyers did not seek an expert report regarding your mental state, as this would have led to a further delay in your matter coming to sentence.
18You have a lengthy criminal history, dating back to 2004 when you were in your early 20’s. This history indicates problems with alcohol and your behaviour to begin with, including assaults on police. Then from 2013 there are breaches of intervention orders, violent offending, as well as dishonesty offending. Your first drug based conviction was in 2014, for possession of amphetamine.
19From 2014 to 2020 there are dishonesty offences, breaches of bail, driving offences, breaches of community correction orders, further drug possession charges, and in 2017 a charge of trafficking methylamphetamine. For that charge, and other charges, you received an aggregate sentence of imprisonment of 9 months.
20In 2017 you were sentenced to a combination of jail and a CCO, with a Justice Plan. You were dealt with for breaching that CCO in August 2019. You have had several other CCOs, with treatment conditions, imposed since 2013, which you seem to have breached. Although not apparent on your Criminal Record, the Disability Overview Report indicates that you have been put on Justice Plans more than once since 2014, and that although you managed to complete the 2014 Order, your engagement with later orders was minimal, and you found it difficult to engage with Disability Justice.[1]
[1]Disability Overview Report, page 3
21I was told that at the time of the offending before me you were living an unstable life, couch surfing, and using Ice daily.
22A reference was provided to me by your friend Ms Roberts who speaks well of you, and the friendship you have had for several years.
23Despite the concerns your offending and criminal record give rise to, regarding your prospects for rehabilitation, your counsel submitted that your current situation, in particular the support worker funded through the NDIS, will provide personalised assistance to you on your release, including maintaining a drug free lifestyle.
Matters In Mitigation
24I take into account that you have pleaded guilty at the earliest opportunity. Your plea of guilty has utilitarian value, and has facilitated the administration of justice. The benefit to the community from your plea is considerably greater due to the effect of the pandemic on the operations of the court;[2]
[2]Worboyes v The Queen [2021] VSCA 169, [39].
25Your time on remand has been made more onerous by reason of the pandemic, with lockdowns and no personal visitors. Despite the difficulties on remand, you have been free of drug use, working and doing courses to help you make better decisions in future.
26You do have an intellectual disability, which I accept will have had some impact on your culpability for your offending. I also accept that it will have made your time in custody more difficult to negotiate and manage. Finally, you are not an appropriate vehicle for the full weight of general deterrence.
27Your prospects of rehabilitation are improved by the NDIS funding and assistance you will receive.
Other Sentencing Considerations
28Trafficking a drug of dependence is a serious offence, carrying a maximum penalty to 15 years imprisonment. Because of the prevalence of trafficking of methylamphetamine when sentencing you I am required to give additional weight to the principle of general deterrence.[3] I will mitigate the weight given to that factor to a moderate degree, due to your intellectual disability.
[3]Haddara v The Queen [2016] VSCA 168
29In assessing the gravity of a particular case of trafficking, the quantity of drug is a relevant factor, although it is not the only or most important factor to consider. The messages on your phones demonstrate you were engaged in trafficking methylamphetamine, and that in so doing people had accumulated significant debts to you. The period of the charge covers 12 days. Whilst you told the police that you were holding the drugs for your companion, and there is no evidence to contradict this, I find that explanation for your possession of these drugs unconvincing. The amount of methylamphetamine in your possession was nearly double the commercial quantity threshold for the pure amount of that drug, and was approaching half the mixed threshold. Of course, you are to be sentenced on the basis that you did not know that, but the quantity of drug in your possession was nevertheless significant. Even accepting that your culpability is diminished to an extent by reason of your intellectual disability, this is a moderately serious instance of the offence of trafficking.
30The principles of denunciation, protection of the community and just punishment must be given force in arriving at your sentence. I consider you do need to be deterred from committing further offences, and that your prospects of rehabilitation are at best guarded. I note in this respect, your extensive criminal history, your repeated breaches of Court orders, and your intellectual disability which makes it difficult for you to address the issues leading to your offending.
31In view of your history, and your intellectual disability, finding ways to live your life that do not involve criminal activity will require work and assistance. Habits are hard to break, and you will need support in doing so. Whilst it is positive that you have stayed clean whilst on remand, and have been using your time well, this is just early days for your rehabilitation.
32I was referred to a number of cases by your counsel regarding past sentences for offending such as yours.[4] Those cases provide some assistance in understanding past sentencing practice, but I note that each involves offending prior to the change in the commercial quantity threshold amounts,[5] so a comparison by ratio, rather than by weight, is to be made.
[4]Exhibit D1, Defence Submissions on Plea dated 15 October 2021, paragraph 22.
[5]1 November 2017
33Both your lawyer and the prosecution submitted that it would be open, and appropriate, to impose a sentence of imprisonment close to the time you have already served on remand, and a community correction order. Your counsel also submitted that a sentence of time served would also be appropriate.
34Following the hearing of your plea I requested and received (a) a statement of disability confirming you have an intellectual disability (b) a Disability Overview Report (c) a Justice Plan and (d) an Extended Pre-Sentence Assessment report.
35These reports indicate that you present a high risk of reoffending, and that your past performance on community based dispositions has been poor. You told the Corrections assessor that you would prefer to serve your sentence without a CCO, as you felt a CCO would be constricting. You said you did not think you could keep to a CCO longer than 12 months.[6] The Corrections assessor found you unsuitable for a CCO.
[6]Extended Pre-Sentence Assessment - Outcome Report, page 5
36The Disability Overview Report noted that you would need significant support to attend any required appointments, and that given your history and presentation you would require intensive support and treatment, tailored to your level of functioning, to address your offending behaviours.
37The Justice Plan also notes that you will need significant support to engage with Disability Justice and a Justice Plan. The author of that report noted that Disability Justice could work with your NDIS provider to promote your participation and engagement with treatment intended to assist you improving your consequential thinking, emotional regulation, and self-management.
38Whilst I can see the benefits of a community correction order for you, with a Justice Plan, I do not think that there is a realistic possibility of you complying with the order. Imposing such an order would be setting you up to fail, and to re-sentencing by me at a later date. In making this assessment I note the content of the reports, your past failures, and your stated position to the Corrections assessor that you do not want to be placed on an order.
39Whilst I have some concern about you not receiving supports, I take comfort from the fact that you are receiving support through NDIS, with assistance including addressing your problem solving skills, emotional regulation, and support finding work.[7]
[7]See Exhibit D2, Letter of Support by Phoenix Specialised Youth Disability Services dated 5 October 2021
40As I have indicated, I consider that Charge 1 is a moderately serious instance of the offence of trafficking, and thus the time you have spent on remand since 11 September 2020 is inadequate to meet the sentencing requirements, even if it were combined with a CCO. Furthermore, in view of my assessment of the gravity of your offending, I do not think that a sentence of imprisonment which could be combined with a CCO, even taking into account your pre-sentence detention, would be adequate. Mr Leighton, the sentences are:
41Charge 1 - trafficking drug of dependence – 2 years and three months' imprisonment
42Summary Charge 3 – dealing with property reasonably suspect of being the proceeds of crime – six months' imprisonment.
43Summary Charge 4 – breach PSIO – three months' imprisonment.
44Three months of sentence on Summary Charge 3 and one month of sentence on summary Charge 4 are to be served cumulatively upon each other and the sentence on Charge 1.
45This leads to a total effective sentence of two years and seven months. I set a non-parole period of 18 months.
46Pursuant to s18 of the Sentencing Act, I declare that you have already served 461 days as pre-sentence detention not including today, and I direct that be entered into the records of the court.
47Pursuant to s6AAA, I declare that if you had not pleaded guilty, I would have sentenced you to three and a half years imprisonment with a non-parole period of two and a half years.
48I will make the forfeiture order and disposal orders sought by prosecution and note on the forfeiture order that the iPhone is to be retained by police until you have an opportunity to get your personal information from it.
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