Director of Public Prosecutions v Mann (a pseudonym)
[2024] VCC 885
•13 June 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| SETH MANN (a pseudonym) |
---
JUDGE: | HIS HONOUR JUDGE CAHILL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 6 June 2024 | |
DATE OF SENTENCE: | 13 June 2024 | |
CASE MAY BE CITED AS: | DPP v Mann (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 885 | |
REASONS FOR SENTENCE
---
Subject: Trafficking in a drug of dependence (possession for sale)
Catchwords: Guilty plea – in possession for sale – single episode – more than three times the commercial quantity – below mid-range offending – early guilty plea – relevant criminal record
Legislation Cited: Drugs, Poisons and Controlled Substances Act 1981 (Vic); Sentencing Act 1991 (Vic).
Cases Cited:Berisha v The Queen [1999] VSCA 112; McAleer v R (2015) 45 VR 258; Boulton v R (2014) 46 VR 308; DPP v Apostolopoulos [2016] VSCA 201; Piacentino (2007) 15 VR 501; Dawid v DPP [2013] VSCA 64.
Sentence: 12 months imprisonment and 18 month Community Correction Order
---
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr D Gray | Office of the Director of Public Prosecutions |
| For the Accused | Mr L Gwynn | Valos Black & Associates |
HIS HONOUR:
1Seth Mann,[1] you have pleaded guilty to one charge of trafficking in a drug of dependence, namely methyl amphetamine. [2]
[1] A pseudonym.
[2] Drugs, Poisons and Controlled Substances Act 1981 (Vic) s 71AC (1).
2You have also pleaded guilty to the related summary offence of resisting an emergency worker on duty.
3The maximum penalty for the trafficking offence is 15 years imprisonment.
4The maximum penalty for the emergency worker offence is 60 penalty units or six months imprisonment.
Circumstances of Offending
5Your offending occurred on 1 August 2023.
6The circumstances are set out in the Prosecution Summary. [3] They are agreed facts.
[3] Exhibit A: Summary of Prosecution Opening for Plea.
7Around 8:30 PM, two police officers approached a Ford Territory wagon stationary in a car park at Parkdale. You were in the driver’s seat. You had a front seat passenger with you.
8When they asked you to get out of the car, you did, and walked about 10 metres to another car, where you placed a satchel bag underneath it. When one of the police officers asked you about the bag you turned away. Believing you might run off, he grabbed you. You swung your arms to resist your arrest. After a short struggle, police took you to the ground where you released your hands and they handcuffed you (Summary charge 7 – Resist Arrest).
9They asked you, ‘what’s in the bag? Gear?’, you replied ‘yeah’.
10When Police asked you whether you had any drugs on your person, you replied, “there is a little bit there” and nodded to the ground where there was a Ziploc bag containing a crystalline substance.
11Police retrieved the satchel bag. It contained a set of digital scales and a number of Ziploc bags, which contained a crystalline substance.
12Next day, when police searched your home, they found another Ziploc bag containing a small quantity of crystalline substance.
13When analysed, all substances in your possession, which weighed 236.7 grams, contained methyl amphetamine.
14The quantity of pure methyl amphetamine was 198 grams.
15A commercial quality of pure methyl amphetamine is 50 grams.
Chronology of proceedings
16You were remanded in custody following your arrest.
17After a contested committal hearing, when you faced more serious charges, you entered your plea to the trafficking charge now on the Indictment.
Criminal History
18You have admitted a criminal history.
19You have served three prison terms for trafficking in a drug of dependence; and one prison term for possessing items for manufacture of a drug of dependence.
20On 12 June 2001, you were sentenced to four months imprisonment for trafficking amphetamine.
21On 8 June 2004, you were sentenced to an aggregate prison term of 14 months for trafficking a drug of dependence, a firearms offence and drive whilst disqualified.
22On 26 November 2011, in the County Court, Melbourne, you were sentenced to three years and six months imprisonment, with a non-parole period of two years, for possession of equipment for the manufacture of a drug of dependence and a firearm.
23On 5 December 2013, you were sentenced to two years and six months imprisonment with a non-parole period of 21 months, for trafficking methyl amphetamine and weapons offences, as well as driving while disqualified.
24As well, on 10 April 2017, you were sentenced to 37 days imprisonment for possession of methyl amphetamine and a firearm.
25And on 3 May 2017 and 31 August 2021, you were convicted of possessing methyl amphetamine, amongst other offending.
26Your counsel, Mr Gwynn, told me on 29 November 2023, you were sentenced to 4 months imprisonment, with 21 days presentence detention declared, for unrelated offending.
Personal Circumstances
27You were born in September 1979. You were 43 years old when you offended. You are now 44.
28Your personal circumstances are set out in the psychological report [4] of Sandra Cokorilo, who interviewed you on 23 May 2024.
[4] Exhibit 1: Psychological report of Sandra Cokorilo.
29You are the second youngest of seven children.
30Your family were churchgoers.
31You said, between the ages of five and eight, you were sexually abused at church but, instead of protecting you, your parents told you “to forget about it”. You said they beat you if you spoke about it and remained friends with the perpetrators.
32You felt they failed to protect you and betrayed you. It profoundly impacted your relationship with them, and your siblings.
33After year eight, you left school, which you disliked, and home.
34At first, you lived with friends and later, with partners, but mostly you have lived on your own.
35When you left home, you began drinking alcohol and started using cannabis. At 16, you first used amphetamine.
36You said, in the time leading up to your offending, you were using a gram of methamphetamine daily.
37You explained your drug use is a form of self-medication and escapism.
38Between periods in jail, you have worked as a butcher, a slaughter man, a tree lopper and an excavator.
39For five years, prior to your arrest, you operated an excavation business. You were living in a private rental when you offended.
40In prison, at Marngoneet, you live in one of the shared accommodation cottages and work in the kitchen. You are prescribed buprenorphine for your addictions.
41You have also completed a number of courses including the 10 module Atlas remand program (20 hours),[5] and “Alcohol and me” and “Ice and me”. [6]
[5] Exhibit 4: Certificates of Completion of "Atlas Remand Program".
[6] Exhibit 5: Certificates of Completion.
42You still have a vehicle and an excavating machine, and you hope to get back into excavation work when you are released from prison.
43You have engaged with the Department of Justice release employment team, [7] and “Reboot” a social enterprise reintegration employment company.
[7] Exhibit 2: Two letters from Julie Levy.
44The company manager wrote: “[Seth] has shown a determination and clarity for his future pathway that many don’t. [Seth], with a wealth of operating experience, is eager to get some operating tickets so he can increase his chances of gaining employment opportunities. Through our interactions with [Seth], we feel he understands the fact building stability in his life is important… Upon release, we will be coordinating training and mentoring for [Seth], as we look to putting him forward to employers we work with.” [8]
[8] Exhibit 3: Letter of Jobe MacShane.
45A long-time friend, whom you helped when she was at a low ebb, will assist with administrative work when you reestablish your business. [9]
[9] Exhibit 7: Letter of your friend dated 4 June 2024.
46Ms Cokorilo administered a number of psychological tests.
47In her opinion, you suffer post-traumatic stress disorder and depressive disorder related to your untreated childhood trauma and emotional distress.
48She recommends AOD and mental health treatment to reduce the risks of you reoffending.
49In her opinion, prison is likely harder for you than someone without your conditions.
50In relation to your index offending, you told Ms Cokorilo, the drugs in the satchel were not yours.
51Nevertheless, by your guilty plea, you acknowledge you were in possession of them for sale.
52You also had small quantities of methyl amphetamine, which you were using yourself, in your shorts pocket, and at your home.
53You said in relation to resisting police arrest, it was a “split-second lapse of judgement… fight flight response”.
54You said you regretted it and regret all your involvement with illicit drugs.
Defence Submissions
55Your counsel, Mr Gwynn, in comprehensive written [10] and oral submissions, acknowledged your offending was serious.
[10] Exhibit 6: Defence Submissions for Plea.
56In mitigation of penalty, Mr Gwynn relied on:
(a) your guilty plea, in his submission, made at the earliest opportunity, for its utilitarian value and as evidence of remorse;
(b) your background of disadvantage;
(c) your PTSD and depression, related to that disadvantage, which, in his submission, engages Verdins:
(i)limb 2: a sentence that fosters your rehabilitation and treats your mental health is a more appropriate sentencing disposition; and
(ii)limb 5: a sentence of imprisonment is likely to weigh more heavily on you.
57He submitted your progress in prison, your work skills and your age, are protective factors for your rehabilitation.
58He also submitted, because you have served another prison term, for offending which occurred prior to your arrest for the index offending, the totality principle has application.
59He submitted, in all the circumstances of your case, a composite sentence of a prison term and a Community Corrections Order, conditioned to address the causes of your offending, can achieve sentencing purposes.
Prosecution submissions
60Mr Gray, who appeared for the prosecution submitted, because you were found in possession of a substantial quantity of methyl amphetamine, your offending is serious. And, accordingly, general deterrence is an important sentencing consideration.
61He submitted, because prison sentences for drug trafficking and possession of equipment for drug manufacture appear not to have deterred you in the past, specific deterrence is another important sentencing consideration.
62He also submitted, for the same reason, I should be guarded about your prospects of rehabilitation.
63He accepted, in the circumstances, your guilty plea was made early.
64He also accepted your background of disadvantage is mitigatory, in his submission, to a modest degree.
65And he accepted prison will be harder for you than a person without your psychological conditions.
66He submitted, overall, because of the seriousness of your offending, a prison term with a non-parole period fixed, is the appropriate sentence for you.
Analysis
67You knew the satchel contained drugs. It is plain, from the quantity, more than three times the commercial quantity, they were drugs, in your possession, for sale.
68While the quantity is significant, I cannot let it overwhelm the sentencing calculus.
69The prosecution acknowledges it cannot prove you knew the drugs were at least a commercial quantity. It does not allege the drugs were yours.
70There is no evidence before me to suggest you were involved in the business of drug trafficking. When police searched your home, they did not find any drugs, other than the small quantity for personal use, scales, bags, cash or other accoutrements of drug trafficking. There was no data on your phone indicative of any drug trafficking.
71I accept your role in the trafficking episode, which was your possession of the drugs, when police apprehended you, was limited.
72Overall, on the scale of objective seriousness, I assess your trafficking offence to fall below midrange.
73Your scuffle with police was brief. The level of violence associated with your resistance to arrest was relatively low. No police officer was hurt. I assess the objective seriousness of this crime to be lower end.
74Your drug trafficking is nevertheless serious.
75Because methyl amphetamine is capable of causing grave harm in the community, general deterrence is an important sentencing consideration. [11]
[11] Berisha v The Queen [1999] VSCA 112, [33]; and see Dawid v DPP [2013] VSCA 64, [35].
76And, because previous prison sentences do not appear to have to deterred you, weight must be given to specific deterrence as well.
77A custodial sentence is required.
78However, there are factors which moderate the sentence and the type of sentence I will impose.
79Firstly, you are entitled to a clear sentencing benefit for your guilty plea which was made at the earliest opportunity, in the circumstances.
80Secondly, I accept, by your guilty plea and your expressions of remorse, you are sorry for your offending.
81Thirdly, I accept, because of child sexual abuse, and your parents uncaring response, you have suffered post-traumatic distress and depression. You lost the opportunity for a normal upbringing which is has led to emotional dysregulation and distress.
82Fourthly, I accept because of your psychological conditions, prison is harder for you.
83While your criminal record is relevant to the weight to be given to specific deterrence and my assessment of your prospects of rehabilitation, your impressive response to your imprisonment and your good work ethic, give me some confidence for your reformation.
84Importantly, with time in prison to think, you have realised, at your age, you must change your lifestyle.
85It is in your interest and also in the community’s interests that you do not reoffend.
86In accordance with the principles of proportionality and parsimony, I will ensure the sentence I impose is proportionate to the gravity of your offending and is no more severe than is necessary to achieve the purposes of sentencing. [12]
[12] Sentencing Act, section 5(3); Piacentino (2007) 15 VR 501, [47].
87And, applying the totality principle, I will moderate your sentence to take into account you lost the opportunity for some concurrency of the prison sentence a Magistrate imposed while you were in custody for the index offending.
88Overall, I am satisfied a composite sentence of a jail term with a CCO, conditioned to assist you to continue your rehabilitation under supervision in the community, can meet all sentencing objectives in your case. [13]
[13] See McAleer v R (2015) 45 VR 258, [25] quoting Boulton v R (2014) 46 VR 308, [120]-[121]; DPP v Apostolopoulos [2016] VSCA 201,
89Because the two offences for which you are to be sentenced arose out of a single episode, I will impose an aggregate sentence for them.
90Mr Mann, by the sentence I impose, I must denounce your conduct, punish you, and deter you and others from committing crimes of the same or similar kind. I must also look to your rehabilitation.
91Considering the circumstances of your offending, your personal circumstances and antecedents, and endeavouring to produce a sentence which reflects and promotes the purposes of sentencing in a manner appropriate to you, on the charges of trafficking in a drug of dependence and resisting an emergency worker you are convicted and sentenced to 12 months imprisonment in combination with a CCO.
92The duration of the order will be 18 months.
93The standard conditions of a CCO are:
(a) You must not commit any offence that is punishable by imprisonment during the term of your order. If you do, you will be liable to imprisonment for contravention of the order and resentencing for the current offences;
(b) You must report to the community corrections service stated on your order within two working days of today;
(c) You are required to advise your community corrections supervisor of any change of address where you are living or working, and you must do so within two clear working days; and
(d) You must submit to visits as directed and comply with all instructions and directions of a community corrections officer. You cannot leave the state of Victoria without their prior permission.
94I will also impose 4 special conditions to your order, namely,
(a) Supervision;
(b) Drug rehabilitation and treatment;
(c) Mental health rehabilitation and treatment; and
(d) Judicial monitoring.
95Your first judicial monitoring session will occur on 17 February 2025 at 9.30 am.
96I declare you have already served 218 days of your sentence, by way of presentence detention.
97While there is some artificiality in the process, I declare, but for your guilty plea, I would have sentenced you to two years and nine months imprisonment and fixed a minimum non-parole period of one year and nine months.
98I make an order for disposal of the resealable bags, digital scales and bags of methyl amphetamine and crystals which police seized.
99The prosecution made an application, under the Confiscation Act 1997, for forfeiture of your mobile phone.
100I observed there is no evidence before me you used the phone in connection with any crime or the phone itself was proceeds of crime. While it is possible you might have intended to use it in connection with a future drug trafficking offence, I cannot conclude it was likely so.
101Accordingly, I indicated I could not be satisfied the phone is tainted property.
102In response to this indication, the prosecution withdrew the application. Accordingly, no forfeiture order was made.
---------------------------------------
0
5
0