Director of Public Prosecutions v Loveday

[2018] VCC 1461

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR-18-01144

DIRECTOR OF PUBLIC PROSECUTIONS

v

JOEL LOVEDAY

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JUDGE:	HIS HONOUR JUDGE JOHNS
WHERE HELD:	Melbourne
DATE OF HEARING:	7 September 2018
DATE OF SENTENCE:	7 September 2018
CASE MAY BE CITED AS:	DPP v Loveday
MEDIUM NEUTRAL CITATION:	[2018] VCC 1461

REASONS FOR SENTENCE
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Catchwords:     PLEA: trafficking methylamphetamine, trafficking cocaine, possess 1-4 Butendiol, possess heroin, possess alprazolam, negligently possessing proceeds of crime ($7000 cash), and summary offence: commit indictable offence on bail

Cases Cited:R v Ververis and Ververis [2010] VSCA 7 and Chiong Teck Tion v The Queen [2016] VSCA 257

Sentence:2 years 3 months IMP (base Charge 1, trafficking methylamphetamine), 18 months (Charge 2, trafficking cocaine), 6 months (Charge 3, possess 1-4 Butendiol) 4 months (Charge 4, possess heroin), 1 month (Charge 5, possess Alprazolam), 6 months (Charge 6, negligently possessing proceeds of crime), 1 month (Summary Charge). Cumulation: 6 months of the sentence on Charge 2, 1 month of the sentence on Charge 3, 1 month of the sentence on Charge 6 and 1 month on the Summary Charge; all cumulative upon the base sentence Charge 1.

TES: 3 years, NPP: 18 months. 6AAA: 4 years 6 months, NPP 2 years 6 months.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr M. Roper	OPP
For the Accused	Ms T. Bolton	Valos Black & Associates

HIS HONOUR:

1Joel Loveday, you have pleaded guilty to one charge of trafficking methylamphetamine, you have also pleaded guilty to one charge of trafficking cocaine; both of these offences carry a maximum penalty of 15 years' imprisonment. 

2You have also pleaded guilty to a charge of possessing Butanediol, which is also known as GHB.  You have pleaded guilty to a charge of possessing heroin, you have pleaded guilty to a charge of possessing tablets of alprazolam, which I am told is an anti-anxiety medication similar to what is perhaps more commonly known as Xanax.  Each of those charges of possession of a drug of dependence carry a maximum penalty of five years' imprisonment or one year, in the case of me being satisfied it is for your own use, which has not been agitated in this case.

3You have also pleaded guilty to one charge of negligently possessing proceeds of crime, being $7000 in cash; the maximum penalty for that offence is five years' imprisonment.  You have also pleaded guilty to a relevant summary offence of committing these offences I have just mentioned whilst on bail; the maximum penalty for that offence is 30 penalty units or three months' imprisonment. 

4Relevantly, I am told that one of the matters you were on bail for whilst you committed the offences the subject of the indictment, was a charge of trafficking in cannabis.  These are serious charges.  The destruction and havoc wreaked on the community as a result of the trade and use in these substances, particularly methylamphetamine, otherwise known as ice, is well known.  General deterrence is a sentencing factor that must be given some prominence in the sentencing exercise, and I certainly do so in this case.

5Turning to the circumstances of the offence, you were 20 years of age at the time of the offending.  You were observed to have stayed at the Golden Pebble Hotel at Boronia Road, Wantirna.  It seems there was some level of surveillance from the Croydon divisional tasking unit, who observed you in the vicinity of that hotel carrying a black duffel bag.

6At about 11.45 am on 3 January 2018, police intercepted a vehicle which was driven by a female companion of yours at the time, Ms Leeson. You were in the car also.  Police advised her that they intended to search the vehicle.  Ms Leeson consented to the search stating, "Yeah, go for it, there's nothing in there that I'm aware of."

7Inside the black duffel bag that you had been carrying and which was on the rear passenger side seat, there was a plastic Pelican brand case locked with a padlock.  During the search, a large set of keys was also located.  One of the keys was used to unlock the yellow Pelican brand case, in which was found snap lock bags containing a white crystal substance, cash totalling $7000, a number of empty snap lock bags, another bag containing a white powdered substance, a set of scales, numerous other snap lock bags, either empty or containing substances, and a snap lock bag containing ten Alprazolam tablets. 

8The photographs that were tendered on the plea, being Exhibit B, are quite useful in depicting what was seized.  Subsequent analysis of the substances seized revealed the following quantities and purities.  Methylamphetamine in a total quantity of 260 g with a purity of around 81 per cent to 93 per cent, depending on which bag, was analysed.  Cocaine in the amount of 83 g with 18 per cent purity.  Butanediol, which is the GHB, 7.9 g, and diacetylmorphine, being heroin, 1.2 g. 

9You were interviewed on 3 January at Croydon police station.  You made full admissions to your possession of these items but you denied trafficking allegations, the denials not being particularly realistic in the circumstances and perhaps reflecting a level of your bravado, impulsivity, lack of maturity and other personal traits which have been canvassed on the plea. 

10In particular, when you were told during the interview that one of the items had tested positive for cocaine, you stated, "What's the percentage, do you know?  Good stuff?",  Which I took to be consistent with what is reported on the plea, as to your particular personality traits. 

11At the time of the offending, you were on bail, having been granted bail from the Ringwood Magistrates' Court on 15 December 2017, to appear there on
23 April 2018 for offences, including trafficking cannabis, possessing cannabis, handling stolen goods, possessing amphetamine and committing an offence whilst on bail. 

12I received your criminal record, which is a record that has relevance, in particular, in relation to a previous finding of guilt for trafficking cannabis, as well as possessing proceeds of crime and possessing drugs of dependence.  The criminal record is also relevant, insofar as it sets out what the learned prosecutor, Mr Roper, referred to in his submission as non-compliance with court orders.  You have been in custody since your arrest, which now comes to a total of 247 days, not including today. 

13As I have stated, these are very serious charges.  The quantities of drug that are the subject of Charges 1 and 2, together with your antecedents and circumstances, place your conduct in a category where no disposition other than an immediate gaol term can reflect the sentencing purposes of denunciation, just punishment and general deterrence.  This much is conceded by your counsel, Ms Bolton, in her helpful and realistic plea on your behalf. 

14I turn now to your personal circumstances.  The circumstances are set out in brief in Exhibit 1, which is the outline of defence submissions on the plea.  In very brief terms - your parents who are both present in court, and your stepfather is also present in court - your parents separated when you were young.  Both parents re-partnered. 

15When you were in Year 7, you were living with your father but were also couch-surfing, which I understand to mean you were staying at friend's and probably not spending any or much time at home.  Your father was wheelchair bound, had pain medication issues and also had a heroin habit, I am told.  You did attend various schools.  You got up to Year 11 level, although the only level you completed was Year 10. 

16Your personal details and circumstances are canvassed in greater detail in the very thorough report of Martin Jackson, neuropsychologist, which is Exhibit 2 on the plea.  You told him you were raised primarily by your father up until Grade 3. You attended Steiner School in Warrandyte and then Wonga Park Primary School until the end of Grade 6. 

17You were an average student at school. You had some problems at school getting on with teachers, which is consistent with what has been described in the report of Carla Lechner, Exhibit 3, as well as in the report of
Mr Jackson who notes your difficulties with compliance, in particular with figures in authority and what may well be appropriately labelled at some future stage perhaps as ‘oppositional defiance disorder’. 

18You played sport at school.  You also engaged in other productive activities in relation to music.  You went to Warrandyte High School for Year 7 and this is the period I have referred to when you were couch surfing.  Your father, you describe, as "not coping" at that stage.  You moved in with an aunt who lived in Carrum Downs.  You attended Carrum Downs Secondary College for a part of Year 8. 

19You returned to live with your father and mother, who you describe as sharing a home but not reconciled at that stage.  You went to Maroondah Secondary College until halfway through Year 9.  You had behavioural issues there.  You indicated to Mr Jackson as well as Ms Lechner on the earlier occasion in 2016 that you pretty much did what you liked because you did not like authority or being told what to do.  You stated that you were referred to a program for students, whilst at school, for having difficult in mainstream school, called Leaps and Bounds.  However, you were only there for six months before you left. 

20You changed schools again and went to Melba College, where you completed Year 10 and started Year 11.  Although as Ms Bolton told me, you did not complete Year 11.  It was sometime around then or perhaps later you were first charged in relation to cannabis trafficking.  You did start an apprenticeship as a roof tiler but lasted only a few months.  You went to TAFE to do a pre-apprenticeship course but did not complete it. 

21You smoked marijuana regularly though your teenage years at this time and that has been noted as being a problem in your history.  In particular, Ms Lechner paid some attention to that in her report, Exhibit 3.  You also worked at a fruit shop for a couple of years when you were younger, as well as a take-away food shop and bakery.  Your work history has been intermittent, although before the offending, the subject of the indictment in this court, you worked at a tyre shop and that is referred to in the prosecution opening, Exhibit A. 

22One of the central events in your life was when you were aged 15 in 2012, engaging in what is commonly known as train surfing, and you fell, being seriously injured.  You were able to lift yourself up onto the platform, people called an ambulance, you went to hospital, you had a punctured lung and a fractured skull with bleeding on the brain. 

23This injury impacted upon you, in particular in terms of your concentration, your energy levels, you wanted to sleep a lot more and I am told that these symptoms persist to this day.  Your memory was significantly affected, as were your problem solving skills and your cognitive processing, which is set out in more detail in the report of Mr Jackson. 

24Your history is also one in which marijuana abuse has been a significant factor and it would seem in the lead-up to this offending in particular, you were engaging in methylamphetamine use and abuse as well as GHB.  You have expressed, in the past, an intention that you do not want to use ice again but you were not as opposed to the prospect of GHB use.  You have also been a binge drinker of alcohol in the past. 

25You told Mr Jackson that you used to get into trouble at school because you did not like authority and just did what you wanted to do, which obviously led to difficulties at school and a disrupted schooling.  This dislike of authority perhaps has carried over into your time in custody and I have been told that you have had some difficulties in custody.  You also told Mr Jackson that you do “punch on” a bit with others, which has caused you to be disciplined in custody. 

26Whilst dealing with your personal circumstances, I also refer to the letter that was tendered on your behalf from your stepfather, which provides some balance in relation to this history that I have set out.  He states, "I came to know Joel", this is Mr Chris Koukouzika:

"I came to know Joel in 2011 through his mother and he lived with me between 2015 and 2017.  It was a pleasure to have Joel in my house and whilst living with me, he helped me with my wheatgrass business.  Knowing he has a challenging childhood, he has always been very attentive and reliable and never caused me trouble at home.  I had no problems leaving him to look after my house whilst I was away." 

27The reference goes on in similar terms.  I point out that reference, as I said, by way of balance. It does strike me, from the materials, that despite a rather bleak outlook in some respects, you have been a very frank historian to Mr Jackson and Ms Lechner, and in many ways, your personality comes through as one that whilst impulsive, and one resistant to conformity and authority, it has many positive aspects as well. 

28These reports from Ms Lechner, Mr Jackson, and also Dr Bassey, who has provided information in relation to your brain injury arising from the train surfing incident, together with the presence of your parents and stepfather in court and his reference, and the submissions of Ms Bolton, provide me with a clear picture of you as an individual, your motivations, your challenges and limitations. 

29As I have said, in part, this is down to your openness and frank approach in dealing with the professionals such as Ms Lechner and Mr Jackson.  All of these matters inform my assessment of your prospects of rehabilitation.  Mr Roper, in a succinct submission for the prosecution pointed to your criminal record and your history of non-compliance with court orders and submitted that I should view your prospects as guarded. 

30Given the matters aired in the reports of Ms Lechner and Mr Jackson and the frank discussions engaged in on the plea with Ms Bolton, there is no other reasonable way to view your prospects of rehabilitation, other than guarded. 

31However, you are young; you are 21, you were 20 at the time of the commission of these offences.  As I expressed to Ms Bolton, it is hoped that with maturity, the sobering experience of time in custody acting as a specific deterrent, and the support of your parents, you will learn to regulate your conduct.  If you do not, the consequences for you will be dire into the future. 

32Coming back to the report of Mr Jackson, these passages were canvassed on the plea and I rely upon them.  At page 13, in the final paragraph, Mr Jackson says this:

"I am of the opinion that it is far more likely that continued cannabis use between 2012 and 2016, followed by use of methamphetamines (Ice) over the last couple of years (prior to coming to prison on this occasion) are the most likely causes of Mr Loveday's deterioration in his cognitive abilities. It is know that a brain that has been damaged becomes much more susceptible to the effects of substances.  Therefore, whilst the initial traumatic brain injury in the train accident is likely to have caused a degree of permanent cognitive impairment, it is also likely that it made his brain more susceptible to the effects of drugs and alcohol, which has resulted in severe deterioration in cognition over the last six years."

33At p.15 at paragraph 7, Mr Jackson writes:

"There clearly is a nexus between Mr Loveday's cognitive impairments and the commission of the offences.  It is notable that although he was a behaviour issue at school (and possibly at home) prior to the train accident, his criminal offending did not commence until after the accident and in fact, a couple of years after.  This would certainly strongly suggest that the accident and drug use which has produced a severe acquired brain injury, has resulted in cognitive impairments and exacerbation of previous behaviour traits that are now associated with offending."

34At paragraph 8:

"Custody would certainly be more onerous for Mr Loveday due to his pre-existing behavioural traits (not like authority, etc.), but particularly now that he has a severe acquired brain injury due to a combination of a traumatic brain injury and substance related brain injury.  His lack of respect of authority, together with his attention and executive skills place him at a great risk of behaving in ways which get him into trouble with prison staff and other prisoners.  The combination of his pre-existing traits and brain injury meant that he will simply act the way he wants to act without taking into consideration what the potential consequences are.  It appears that this has led to him being "in the slot" because he has been "punching on" with other prisoners.  This is likely to continue if Mr Loveday remains amongst other prisoners who are like to not take kindly to his behaviours."

35I take into account your youth and I attribute weight to your youth in mitigating sentence.  True it is that the factor of youth can diminish as the seriousness of an offence increases and I have already made reference to the serious matters before this court, but the factor of youth is never extinguished and, in your case, I give it appropriate weight.  I take into account your plea of guilty. 

36I also take into account the hardship in custody which in part is set out in the passages I have just read from Mr Jackson.  Hardship in custody flows from your cognitive limitations or level of functioning, if I can deal with it broadly in that phrase.  Principally, it flows from that factor.  Also in combination, however, with the personality traits which have been set out by Ms Lechner as well as Mr Jackson. 

37To a limited extent, the personality traits apply to the question of hardship in custody.  But as I said, principally it flows from your cognitive functioning issues.  Your experience in custody will be different from others who do not experience those issues and will be harsher as a result, and I take that into account. 

38The nexus between your cognitive functioning and the offence is set out by Mr Jackson. I accept there is a nexus.  Mr Roper was right to express caution, if not scepticism in treating that nexus as either reducing moral culpability, or, as a factor which informs my assessment of moral culpability.  As was discussed on the plea, trafficking of this nature is not an impulsive offence. 

39Nevertheless, I find the connection between the limitations of your cognitive functioning and the commission of the offences to be present.  I consider it as a factor impacting an assessment of moral culpability.  I give it some weight, although the weight I give to it is minimal. 

40In his helpful submission, Mr Roper also provided me with two cases, one of Ververis[1] and one of Cheong Teck Tiong median mutual citation [2016] VSCA 257, it was this latter case that was the most helpful in assisting me. He also provided the relevant sentencing snapshot. I have had regard to current sentencing practices, and although not determinative, the materials provided by

[1]R v Ververis and Ververis [2010] VSCA 7

Mr Roper have assisted me generally.

41I now turn to sentence.  In sentencing you, I take into account the need to denounce your conduct, to punish you and to deter you from committing further offences.  I must also take into account general deterrence and the protection of the community, as well as your rehabilitation.  As I have stated, in a case of this kind, general deterrence is a factor which carries significant weight. 

42In relation to Charge 1, trafficking methylamphetamine, I sentence you to be imprisoned for a period of two years and three months, this being the base sentence.  In relation to Charge 2, trafficking cocaine, I sentence you to be imprisoned for 18 months.  In relation to Charge 3, possession of 1,4-Butanediol, I sentence you to be imprisoned for six months.  In relation to Charge 4, possess heroin, I sentence you to be imprisoned for four months.  In relation to Charge 5, possess Alprazolam, I sentence you be imprisoned for one month.  In relation to Charge 6, negligently possessing proceeds, I sentence you to be imprisoned for six months. 

43The relevant summary offence, committing an indictable offence whilst on bail, I sentence you to be imprisoned for one month, which will be cumulative on the other sentences.  I also direct that six months of the sentence on Charge 2 be cumulative on the base sentence of Charge 1.  I direct that one month on Charge 3 be cumulative on the sentence on Charge 1, and I direct that one month of the sentence on Charge 6 be cumulative on the sentence on Charge 1. 

44For abundant clarity, all other sentences are to be served concurrently.  That makes a total effective sentence of three years' imprisonment.  I set a non-parole period of 18 months before you are eligible for parole.  I am mindful that the non-parole period I have set as a percentage of the head sentence was one which allows for a lengthy period on parole and I do so given your youth and the other factors, in particular hardship in custody that I have referred to. 

45I declare that you have served 247 days as pre-sentence detention in this matter, that is not including today. Pursuant to s.6AAA of the Sentencing Act, but for your plea of guilty on these matters, I would have imposed a total effective sentence of four and a half years' imprisonment with a non-parole period of two and a half years' imprisonment.  I make the other orders that are sought, the forfeiture order regarding the proceeds of crime and the disposal order that is sought in relation to the matter. 

46COUNSEL:  As Your Honour pleases.

47HIS HONOUR:  Any other matters?

48COUNSEL:  No, Your Honour.

49HIS HONOUR:  That sums that up?

50MS BOLTON:  Yes, thank you very much, Your Honour.

51HIS HONOUR:  All right.  Mr Loveday, on my reckoning, you have got about ten months before you are eligible for parole and I will allow a few seconds before you are taken away. 

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