Director of Public Prosecutions v Lovett
[2015] VCC 383
•11 February 2015
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-13-01344
| DIRECTOR OF PUBLIC PROSECUTIONS |
| V |
| DANIEL LOVETT |
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JUDGE: | Her Honour Judge Patrick | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 11 February 2015 | |
CASE MAY BE CITED AS: | DPP v Lovett | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 383 | |
REASONS FOR SENTENCE
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Catchwords:
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr M Regan | |
| For the Accused | Mr D Cole |
HER HONOUR:
1
Daniel Morgan Lovett you have pleaded guilty to one charge of trafficking in a drug of dependence, Charge 1; two charges of possessing a substance, material, documents or equipment for trafficking in a drug of dependence, Charges 2 and 3; one charge of having custody of a false document,
Charge 4; and three charges of possessing a drug of dependence, Charges 5, 6 and 7.
2 You have also pleaded guilty to three summary charges, being one charge of possession of a controlled weapon, Summary Charge 13; one charge of possession of cartridge ammunition, Summary Charge 14; and one charge of dealing with property suspected of being the proceeds of crime, summary Charge 16.
3 The maximum penalty in respect of Charge 1 is 15 years' imprisonment. The maximum penalties in respect of Charges 2, 3 and 4 is 10 years' imprisonment. The maximum penalty in respect of Charges 5, 6 and 7 in these circumstances is a fine of five penalty units. The maximum penalty in relation to summary Charge 13 is one year's imprisonment. The maximum penalty in respect of summary Charge 14 is a fine of 40 penalty units. The maximum penalty in relation to summary Charge 16 is two years' imprisonment.
4 The prosecutor made application for the retention of a forensic sample taken from you. The making of that order was consented to. Applications for forfeiture and disposal of certain items were also made and the making of those orders was not opposed.
5
The circumstances of your offending are set out in the Prosecution Opening for Plea which was tendered as Exhibit LA. In brief the circumstances are as follows. You trafficked in methylamphetamine between 17 April 2012 and
24 July 2012 by distributing it after it had been manufactured by
Christopher Ververis at Ververis' premises. You are also charged with possessing substances being pseudoephedrine 2,858 grams, phosphorus 81.7 grams, iodine 125.4 grams and hypophosphorous acid 3,880 millilitres
Charge 2 and material documents and equipment, Charge 3 with the intention of using those substances in the manufacture of methylamphetamine.
6 These charges are put against you on the basis that you were aiding and abetting Christopher Ververis in his possession of these substances in that you were supporting and encouraging him. Mr Ververis has been sentenced today in respect of those and other offences.
7 You and Mr Ververis were in regular telephone contact throughout the period of the charges. The frequency of that contact and the nature of your discussions is revealed in the summaries of the contents of telephone conversations between you and Mr Ververis which are set out in the Prosecution Opening. In addition to the telephone calls you made regular visits to Mr Ververis's property.
8 The prosecution is unable to establish the volume of methylamphetamine that you trafficked which was manufactured by Mr Ververis but it is clear that you were keen for Mr Ververis to manufacture methylamphetamine for you to sell and that you were selling that methylamphetamine regularly.
9
The police executed a search warrant on 24 July 2012 at
Mr Ververis's premises. In the garage police located a number of items which are listed in Schedule A to the Indictment which were material, documents and equipment which were possessed for the purpose of using them in manufacturing a drug of dependence. The large amount of equipment and material possessed is the subject matter of Charge 3. As I have said you are charged in respect of that material on the basis you were aiding and abetting Mr Ververis.
10
The substances which are the subject matter of Charge 2 included 48.3 grams of methylamphetamine which included substances and the washings from some items, 2,858 grams of pseudoephedrine, phosphorous iodine and hypophosphorous acid all of which are used in the manufacturing of methylamphetamine. A forensic officer analysed those exhibits and formed the opinion that it would be reasonable to expect that the quantity of pseudoephedrine found could produce in the order of 1,326 grams to
2,144 grams of methylamphetamine depending on the production method used.
11 On the same day you were arrested, your house was searched. A foreign travel document bearing a photograph of you in a different name was found which is the subject matter of Charge 4. In your car police located $1,010 in cash which is the subject matter of summary Charge 16.
12
On 27 July 2012 police executed a search warrant at the house where you had previously lived with your wife and son. Police located in that search a plastic bag containing methylamphetamine which is the subject matter of Charge 5. The police also found bags containing methandienone tablets which is the subject matter of Charge 6, and two vials of steroid product which is the subject matter of Charge 7. You made admissions to police as to owning the items that were found in that search. I accept that these drugs which were found were for your personal use. Police also found a knuckle duster, Summary Charge 13 and 15.38 calibre ammunition, Summary
Charge 14.
13 In sentencing you I have taken into account your personal circumstances which were outlined by your counsel and also described in the psychological report which was tendered as Exhibit L1. You are 31 years old, you grew up in the Cranbourne area. You are close to your parents. Very sadly your father is quite unwell with multiple conditions which are described in the medical material tendered as Exhibit L1. Your father had had a previous relationship and you have nine siblings and half siblings. You left school at 14 to engage in work. You completed a roof tiling apprenticeship when you were 18 but since that time have been involved in concreting. You are currently working and have had no difficulty in obtaining employment in the concreting area.
14 You have known your wife since you were at school and your relationship developed after you left home at the age of 20. You married in 2009. Your son was born in 2007. You have a second child who was born in July 2014. You and your wife have separated on a number of occasions. This appears to have been principally linked to your drug use. Your present relationship is described as very positive and your wife was in court to support you.
15
Since a young age you have been involved in competitive boxing with a considerable degree of success. You had used amphetamines from time to time but that use apparently increased after the death of a close friend in tragic circumstances in September 2008 and an injury to your back in that year. You stopped boxing at that stage and it appears from a report of
Mr Joblin that your behaviour deteriorated significantly at that time, with increase of amphetamine use.
16 You have pleaded guilty to a prior criminal history which includes one particularly relevant court appearance at the Dandenong Magistrates' Court on 15 June 2012. That matter is a prior matter for part of the offending in the current indictment. You faced charges which included a charge of trafficking amphetamine and you were sentenced to a term of imprisonment of six months. Prior to that appearance you had been on bail. You appealed that sentence and were then on appeal bail. That means that the offending on the current indictment occurred whilst you were either on bail for that offending or on appeal bail. You abandoned the appeal on 26 July 2014 and served that sentence.
17 You were released in July 2013 and you returned to live with your wife and child and obtained employment. You have been offence free since that period although I was advised that you had been arrested whilst on holiday in Queensland due to the non association laws in that State. The hotel room in which you were staying with your wife was searched and no drugs were found. Mr Joblin says that you have not used drugs since July 2012.
18 You have had a long interest in motorbikes and during your drug trafficking charges, were observed attending the club house of the Hells Angels. It appears that in Queensland you were again associating with persons involved in motorcycle clubs. I wish to make it clear that for the purposes of sentencing you I have put your connection with motorcycle clubs aside as there is no evidence that there was any direct relevance to these charges or that your involvement in Queensland was anything other than socialising.
19 In sentencing submissions your counsel particularly relied on your plea of guilty, your limited prior criminal history and your prospects of rehabilitation, particularly in light of your progress since the commission of these offences. Your counsel submitted that parity issues should have little or no relevance and that compared to Mr Ververis you had a limited criminal history and were not on parole at the time of this offending. Mr Joblin in his report is optimistic regarding your prospects for rehabilitation. He describes the impact of your friend's death and unsuccessful rehabilitation efforts you had had in the past. He says that you currently wish to demonstrate, particularly to your wife that you can maintain your commitment to remain free of drugs.
20 Mr Joblin says that the six months you spent in prison has had a significant deterrent affect on you and that you are determined to comply with your wife's ultimatum that you not use drugs. Mr Joblin says your wife and family are very powerful motivators in relation to you remaining drug free. Mr Joblin says that you have considerable psychological strength to be able to resist the temptation to relapse into drug use.
21
Evidence was given from your former boxing trainer. That gentleman described changes in your behaviour after the death of your friend, especially in relation to drugs. He is confident that you will be able to remain drug free.
I also heard evidence from a drug counsellor who has seen you four times. She is convinced that you have turned the corner. She is able to continue counselling with you in custody if that is what is required. She says that you have considerable family support and no mental health issues to impede your rehabilitation.
22
Mr Lovett, you have engaged in very serious offending. This is particularly so in relation to your involvement in the manufacturing and distribution of illegal drugs. As I said in respect of Mr Ververis the courts are regularly faced with the harm caused to individuals in the community by the distribution and consumption of illegal drugs. You were engaged in this enterprise which was a considerable business enterprise for the purposes of obtaining drugs for yourself but also to make money. You were very actively engaged with
Mr Ververis during this time. As I have said it is very important that a sentence be imposed which is severe enough to deter others from engaging in this evil trade.
23 You continued your activities despite being sentenced to a six months' term of imprisonment for trafficking amphetamine. It is an aggravating feature that you had been on bail for that offence and then were on appeal bail. I have taken into account that there has been some delay in this matter. The matter has been hanging over your head and you have engaged in positive efforts towards your rehabilitation.
24 I consider your prospects of rehabilitation are reasonably good. You have a relatively recent and short history of drug offending. You have in the past demonstrated a considerable degree of self discipline. I accept that the six months that you spent in Barwon Prison has had an impact on you. You have the support of your wife and you wish to remain in a relationship with her. The witnesses, references provided and the report of Mr Joblin all express a positive view as to your willingness and ability to stay away from illegal drugs provided you have the appropriate support. The reference supplied from your employer is evidence that you have positively re-engaged in work. You are described in that reference as being an asset to that company.
25 I do consider your prospects of rehabilitation to be reasonably good but I still consider that specific deterrence has some role in the sentence to be imposed on you, particularly in light of your continued criminality after being sentenced in the Magistrates' Court. Specific deterrence must be given some weight although reduced weight in view of your efforts towards your own rehabilitation.
26 A sentence of imprisonment is warranted for the purposes of just punishment, denunciation, general deterrence and specific deterrence. You are entitled to a significant discount for your plea of guilty. I accept that there has been considerable utilitarian benefit in that plea. I also accept that it is an expression of your remorse. I accept that your concern for your father, wife and children will impact on you heavily whilst you are incarcerated.
27 There is some overlap in the offending. I have applied the principle of totality and proportionality when considering the degree of concurrency or cumulation between sentences. It is my view that parity is a relevant consideration because of the close nature of your involvement with Mr Ververis and his manufacturing activities. I have considered parity in the sentences to be imposed although there are differences in the sentences to be imposed on you due to your different criminal history and personal factors including your prospects of rehabilitation.
28 I have taken your prospects of rehabilitation into account in imposing a shorter non-parole period than I otherwise would have.
29 Could you please stand up Mr Lovett.
30 On Charge 1 you are convicted and sentenced to a sentence of imprisonment of three years and nine months. On Charge 2 you are sentenced to imprisonment for the period of two years and three months. On Charge 3 you are sentenced to imprisonment for a period of one year. On Charge 4 you are sentenced to imprisonment for a period of three months and you are convicted in relation to each of these matters. On Charge 5 you are convicted and sentenced to pay a fine of $300. On Charge 6 you are convicted and sentenced to pay a fine of $300. On Charge 7 you are convicted and sentenced to pay a fine of $300. On Summary Charge 13 you are convicted and sentenced to a term of imprisonment of 14 days. On Summary Charge 14 you are convicted and sentenced to pay a fine of $500. On Summary Charge 16 you are convicted and sentenced to a term of imprisonment of two months.
31 The sentence on Charge 1 is the base sentence. Three months of the sentence imposed on Charge 2 is to be served cumulatively on that sentence. The total effective sentence is four years' imprisonment.
32 I fix two years as the period you are to serve before being eligible for release on parole.
33 But for your plea of guilty I would have sentenced you to a term of imprisonment of six years with a non-parole period of four years.
34 I declare that you have served 63 days of this sentence by way of pre-sentence detention.
35 I will make the order for the retention of a forensic sample given by you. I make that order because of the circumstances of your offending, the public interest and your consent to the making of that order. I will also make the orders for forfeiture and disposal that have been sought.
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