Director of Public Prosecutions v Lowe

[2012] VCC 990

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

AT MELBOURNE

CRIMINAL DIVISION

CR-12-00309

DIRECTOR OF PUBLIC PROSECUTIONS

v

CHRISTOPHER CHARLES LOWE

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JUDGE:	HER HONOUR JUDGE PATRICK
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	16 July 2012
CASE MAY BE CITED AS:	DPP v Lowe
MEDIUM NEUTRAL CITATION:	[2012] VCC 990

REASONS FOR SENTENCE

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Catchwords:

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms F. Thompson	Office of Public Prosecutions
For the Accused	Mr T. Bourke

HER HONOUR:

1    Christopher Charles Lowe, you have pleaded guilty to two charges of importing a border controlled drug.  The maximum penalty for importing a border controlled drug is ten years’ imprisonment or 2,000 penalty units or both.

2    The circumstances of your offending are set out in the Summary of Agreed Facts which was tendered as Exhibit E.  In brief, the circumstances are that you had ordered a substance which you called “methylone, bk-MDMA” from China over the internet.  A parcel containing the drugs was intercepted by Customs officers on 31 August 2010.  Four more similar parcels were intercepted on that day.  The parcels were sent from China and the contents of the parcels were declared as 'carpet cleaners'.  One parcel was addressed to an Adam Watson.  Two parcels were addressed to a Peter Smith.  Two more parcels were addressed to a Matt Lawson.  The sender’s details in China were the same on each parcel.  The parcels were opened and found to contain a substance.  The substance was analysed.  These parcels contained 3, 4 methylenedioxymethycathinone which is called 3, 4-MDMC with a purity of 84.5 to 85 per cent.  The parcels contained a total of 212.3 grams of the drug divided more or less evenly between the parcels.  The importation of the drugs in those parcels is the subject of Charge 1.

3   

On 2 September 2010, a further five packages were intercepted.  The sender’s details were the same as those of the five previous packages.  The contents of the parcels were again declared as ‘carpet cleaners’.  The addresses to which the parcels had been sent were the same addresses as had been on the previous five parcels.  The parcels each contained a substance which was analysed as being 3,4-MDMC or

4’-methylmethcathinone which is called 4-MMC.  The parcels contained a total of 130.65 grams of 3, 4-MDMC and 75.64 grams of 4 -MMC.  That amount had been divided between the five parcels in approximately equal amounts.  The importation of those five parcels is the subject of Charge 2.

4    You had opened and leased three post office boxes to which the parcels were addressed.  You had transferred a total of $7,547.20 to the account of a person in China in six transactions between 26 July 2010 and 9 November 2010.  The total amounts contained in the ten parcels were 342.95 grams of 3, 4-MDMC and 75.64 grams of 4-MMC.

5    On 18 November 2010 police executed a search warrant at your home.  A number of items were seized.  During the search you participated in a taped record of interview.  You made admissions that you had ordered narcotics over the internet and that you had done that in order to obtain the proceeds of selling it and also because you were bored.  You told police you intended to sell the substances as a complete unit.  You have admitted that you knew the nature of the substances.  You said each package cost you $500.00 and the packages came in 50 gram lots.  You said you had previously imported substances from China and sold them for around $1,500.00 a package.  You said you had sold eight to ten packages but that you did not cut the substances yourself.

6    Methcathinone is a border controlled drug and 3, 4-MDMC and 4-MMC are analogues of methcathinone and therefore border controlled drugs.  It is agreed that 4-MMC is purported to have both stimulant and hallucinogenic properties, 3, 4-MDMC is a less popular synthetic version.  The street names for 4-MMC include meph, miaow miaow, drone, MCAT and bubbles.  Various side effects are reported to result from the taking of these drugs which include euphoria and visual hallucinations.

7    You entered pleas of guilty at the committal mention on 1 March 2012. 

8    The prosecution accepts that there is no allegation of any illegal behaviour connected with certain items found during the search of your home, being the white powder and a press device which, on your instructions, was used as a watch press for your hobby.

9    A number of exhibits were tendered on your behalf, being Exhibit 1, psychological report from Mr Ian Joblin, forensic psychologist, dated 27 February 2012; Exhibit 2, further report of Mr Joblin dated 16 May 2012; Exhibit 3, letter from Dorothy Storey; Exhibit 4, letter from Chris Storey; Exhibit 5, letter from Braemar College dated 18 November 2011; Exhibit 6, bundle of certificates; Exhibit 7, newspaper cutting in relation to accused’s participation in a Certificate II in Rail Management.

10 I have taken into account your personal circumstances in sentencing you.  I have derived those circumstances from the material tendered and what was said on your behalf by counsel.

11 You are now 25 years old.  You live at home with your mother, father, younger siblings and your maternal grandmother.  Your mother, father and aunt were present in Court. You were raised in Woodend and attended a local primary school and then secondary school.  You completed Year 12.  You began a teaching course at Latrobe University in Bendigo.  You say this was in response to your mother’s demand. 

12 In June 2007 you left university against your parents’ wishes and advice.  After negotiation with your parents you became the full-time carer of your grandmother.  This was when you were 21 or 22 years old.  At that stage you became dependent on Centrelink benefits.  You had apparently been unhappy at university but also had a sincere desire to care for your grandmother.  You have completed courses organised by Centrelink.  For example you have a heavy rigid licence and a fork lift licence and have taken other courses in warehouse operations.  In April this year you obtained employment and were able to support yourself without Centrelink benefits.  You have been working as a storeman at a supermarket.

13 Mr Joblin says in his first report (Exhibit 1) that you told him that you became interested in the idea of making money from selling drugs after you had been buying ecstasy when you went to night clubs.  You conducted your own enquiries about drugs for two reasons.  These were your own financial situation and the other was connected with the elevated mood you felt when using drugs.  You told Mr Joblin that you had read various legislation and determined that this drug was not illegal.  Mr Joblin says:

“That is somewhat contradicted by his use of various names on the letterboxes which obviously represents an attempt to avoid detection.”

14 Apparently, you did say to Mr Joblin that you realised that your research may have been limited. 

15 It is Mr Joblin’s opinion that you have considerable psychological disturbance and that there are “very strong schizoid aspects” to your personality.  He considers there are sufficient symptoms to provide a diagnosis of schizoid personality.  Mr Joblin says that your attendance at night clubs was an attempt to relieve some of the symptoms of your disorder, being your difficulty in expressing emotion and having interpersonal relationships.  Your attendance at night clubs and your symptoms, in his opinion, led you to consider that you needed money.  The second motive he sets out is that you thought that the use of such a drug might overcome some of the negative aspects of your personality so that you could become more socially acceptable. 

16 Mr Joblin says that a worsening of your disorder would be expected if you were gaoled.  He says your judgment and ability to make choices or the ability to appreciate the wrongness of your conduct were not adversely affected by your condition.

17 In his second report (Exhibit 2), Mr Joblin notes that you commenced working at a supermarket stacking shelves on 15 May 2012.  He confirms the matters in his first report and says that your disorder is chronic.  Mr Joblin’s opinion is that it is very difficult to treat the symptoms of your disorder.  He is of the opinion that it would be of benefit to you to attend a psychologist.

18 Your grandmother in her reference (Exhibit 3) describes you as ‘a very kind and responsible young man’ who has been a great companion for her.  Your uncle in his reference (Exhibit 4) describes you as a very caring person who has shown remorse and extreme regret in relation to this offending.  Your uncle says that you are not so socially isolated as a result of your employment and that this has resulted in "a massive change in his attitude to life”.

19 The reference from your school (Exhibit 5) describes you as being popular with staff and students.  You are described as a shy person who despite this was made House Captain.  You competed successfully in chess and in various sporting activities.  You are described as a loyal team player.

20 In sentencing submissions, your counsel said from your instructions it appeared that it had been somewhat dispiriting caring for your grandmother.  On Fridays, which were your days off, you would go to Melbourne and nightclubs alone.  It was in that context you began to use Ecstasy.  You gained a heightened confidence or self-belief.  You were able to get access to information about products available world-wide.  Your counsel suggested, and I accept, that the availability of internet access to this type of information and ability to purchase makes the obtaining of drugs from overseas much easier than it would be otherwise.  He also submitted that you were an unsophisticated young man who was bored and with time on your hands and therefore you went on to exploring the internet and engaging in this activity.

21 Your counsel says that being detected in this offending has had a marked impact on you.  It appears that your parents became aware of your drug problems as a result of an incident a couple of months before the detection of this offending.  You have had some counselling since.  They are now more aware of your difficulties.

22

In mitigation of sentence your counsel relied on your previous good character, your lack of any prior convictions, that you are a youthful offender, the

18 months delay from offending to charge which includes 12 months delay between you being interviewed and to being charged, your good prospects for rehabilitation and the impact of incarceration on you in the light of your mental state. 

23 Your counsel also submitted I should take into account the amount of drugs involved and that your offending was always going to be detected. 

24 Defence counsel submitted that I should sentence you on the basis that it was not easy to work out whether these drugs were illegal or not and that you had been reckless as to whether they were illegal or not. 

25 Your counsel submitted that the appropriate sentence would be a term of imprisonment with immediate release on a recognisance release order.  He argued that that would have a positive impact on your rehabilitation.  Your counsel reiterated that this experience has had a deterrent effect on you.  Your counsel suggested that this case was similar to those in Coory [2011] VSCA 316 and Ullrich a decision of the County Court on 11 March 2011.  In each case the accused was given a sentence with immediate release.

26 The prosecutor submitted that the circumstances of your offending warranted an immediate term of imprisonment.  The prosecutor referred to the maximum penalty as an indication of seriousness and addressed the relevant sentencing factors as required by the Crimes Act 1914 (Commonwealth) and the common law.

27 The prosecutor drew a distinction between your situation and the situation where the drugs had been imported for the importer’s own use.

28  The prosecutor argued that this was a case of serious offending and the illegal importation of goods and that general deterrence would be a primary consideration in sentencing you.  He referred to the case of Nguyen v. Pham [2010] NSWCCA 238 in support of the proposition that importation of these types of drugs is increasing.

29 The prosecutor described your offending as having had a level of sophistication, planning and organisation.  The prosecutor submitted that the commerciality of your offending is the biggest aggravating factor.  He referred to the planning that you had undertaken and the opening of the post office boxes.  He also referred to your use of other names.  He submitted that a lot of thought had gone into your offending.

30 The prosecutor submitted that the amount of the drug imported was significant.  At the time of this importation, no thresholds had been set in the legislation.  The prosecutor submitted that as a matter of context only, it was relevant that the thresholds had now been set and that two grams of the substance would be a marketable quantity and 750 grams would be a commercial quantity.

31 The prosecutor acknowledged your plea of guilty but said the prosecution case was strong.  He acknowledged that you had been fully co-operative with the authorities.

32 The prosecutor submitted that specific deterrence ought to be given significance in your sentence.  The prosecutor submitted that the need for general deterrence would lead to stern punishment.  The prosecutor further submitted that in drug importation cases a lack of prior convictions would carry less weight but accepted that your prospects for rehabilitation are good.

33 The prosecutor submitted that the appropriate sentence would be a sentence of 18 to 24 months on each charge with three to six months to serve. 

34 In respect of cumulation or concurrency, the prosecutor submitted that it should be borne in mind that there were two separate lots of importation.

35 Mr Lowe, you have engaged in serous offending.  You decided to import these substances for the purpose of selling them for a profit.  You planned the matter carefully and took steps to disguise your involvement.  I accept that to some degree a person who engages in this behaviour may not feel that they are engaging in usual criminal behaviour because the information that these products exist and can be bought is widely available.  You may have also thought that there was some uncertainty in the law.  In saying that, it is clear to me that you did realise your activities were criminal because you attempted to disguise your importation of these items.  In addition you explained the division into a number of packages as being an attempt to evade detection in that you said that you assumed that if the packages were divided up there was more chance of them getting through.  The amount of drugs is significant although falling well short of what would now be deemed to be a commercial quantity.  You intended to make a considerable profit.  You were, in my view, clearly aware that you were able to sell the drugs in the way you were going to and for the profit you expected because it was an illegal activity.  I consider on the basis of the material before me in the plea that you were attracted to this activity by your own interest in the use of illegal drugs and the money you would be able to obtain from selling the drugs.  I consider your moral culpability to be high.

36 The harm caused to society and individuals from the importation and sale of illegal substances is considerable.  The community is caused further harm by the need to expend money to maintain checks on incoming goods in order to detect this kind of offending.

37 I have taken into account your plea of guilty which was made at the earliest stage.  I have taken into account your immediate co-operation with the police and the delay of twelve months before you were charged.  The matter was hanging over your head for that period.  It is to your credit that you managed  to find employment in the time since the detection of the offences.  The case against you was strong but your co-operation and plea of guilty have had considerable value in saving time and expense.  I also take them to be an expression of your remorse consistent with what you have told your uncle and Mr Joblin.

38 You have no prior criminal history.  This is significant in your case.  This is not a situation of you being chosen by someone else to receive drugs because you have no prior criminal history.  

39

You are a relatively young person.  You are intelligent.  You have the capacity to find work which engages you.  Despite your difficulties outlined by

Mr Joblin, you are able to succeed in academic, sporting and social activities as evidenced by the reference from your school (Exhibit 5).  I have taken into account also what was said about you in the personal references.  You have family support.  I note your remorse and co-operation.   I note you were assessed at low risk of re-offending when I had you assessed for a Community Correction Order.  I consider that you have good prospects for rehabilitation but that specific deterrence ought be given weight in the sentence imposed for the purpose of deterring you from offending again.

40 On the basis of Mr Joblin’s opinion I consider that incarceration is likely to cause you greater difficulties because of your personality problems as diagnosed by him.  I accept that diagnosis but again refer to your successes at school which indicate that you are, albeit with some difficulty, able to work well with others.

41 I have had regard to other cases in which offenders were sentenced for similar offending.  I particularly note and take into account the remarks of the Court of Appeal in Coory.  I consider your offending to have been somewhat more serious than Mr Coory’s given the level of planning, sophistication and commerciality involved noting that a lesser amount of drugs was involved in your case.  In that case the Court of Appeal confirmed that general deterrence ought be a primary sentencing consideration in such matters and that a sentence involving immediate imprisonment ought to have been imposed.

42 After taking into account the circumstances of your offending and matters in mitigation of sentence, I consider that no sentence other than a sentence involving immediate imprisonment would be appropriate for the purposes of general deterrence, just punishment and specific deterrence.  There is a clear need to discourage others who might consider engaging in a similar activity in order to make a profit.

43 After considering the totality of your offending and the principle of proportionality, I consider that there should be no cumulation of sentence.

44 In view of your relative youth, personality difficulties and good prospects for rehabilitation I have decided to fix a period to be served before release on a Recognisance Release Order that is lower than might usually be the case..

45 Charge 1 – you are convicted and sentenced to 24 months' imprisonment.

46 Charge 2 – you are convicted and sentenced to 24 months' imprisonment.

47 HER HONOUR:  Once you have served six months you are to be released on a Recognisance Release Order for a period.  The recognisance set will be $500.  That means if you breach the recognisance then you would have to pay $500, otherwise the only condition is that you are of good behaviour.  There are going to be no further special conditions

48 HER HONOUR:  So really what it means is after six months you will be released effectively on what is the equivalent to a good behaviour bond.  If you breach the recognisance by further offending you will be brought back to me for re-sentencing. 

49 MS THOMPSON:  You need to express the starting date for each of the sentences so each commences today.

50 HER HONOUR:  Each sentence commences today.  The Recognisance Release Order  commences today and will operate for 24 months.

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