Director of Public Prosecutions v Martel (a Pseudonym)
[2019] VCC 377
•27 March 2019
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BENJAMIN MARTEL (a pseudonym) |
---
| JUDGE: | HER HONOUR JUDGE RIDDELL |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | |
| DATE OF SENTENCE: | 27 March 2019 |
| CASE MAY BE CITED AS: | DPP v Martel (a Pseudonym)[1] |
| MEDIUM NEUTRAL CITATION: | [2019] VCC |
[1] Sentence anonymised to protect the identity of an individual co-operating with police.
REASONS FOR SENTENCE
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Legislation Cited:
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr M Cookson | |
| For the Accused | Mr I Crisp |
HER HONOUR:
1Benjamin Martel,[2] you have pleaded guilty to one count of trafficking in a drug of dependence; namely, fentanyl. That trafficking occurred between
30 September 2016 and 7 August 2018. You have also pleaded guilty to a summary charge of possessing a prohibited weapon without an exemption; namely, a capsicum spray canister.[2] Pseudonym used
2In 2017, as a result of investigation conducted by the Drug Task Force into the illegal trafficking of fentanyl on the Darknet Marketplaces, you were identified as trafficking in that substance.
3Fentanyl is a potent synthetic opioid and is the most potent opioid used in medical treatment. It is approximately 50 times more potent than heroin and 100 times more potent than morphine, rapidly crossing the blood/brain barrier, giving an intense euphoric feeling. It is highly addictive.
4It is typically obtained from legitimate medical products or alternatively is produced in clandestine drug laboratories. China remains the primary supplier of fentanyl to Australia. It is a Schedule 11 poison.
5You operated under the name "ProSlide76"[3] on the dark net. That profile had been registered for approximately two years and commenced trading on
30 September 2016, hence the opening date of the between-date charge on the indictment.[3] Pseudonym used
6Once identified, two covert purchases were made by operatives attached to the E-Crime Squad. On 25 January 2018, they purchased from you 100 milligrams of fentanyl powder at a cost of $US297. That sample was received at a post office box. It was forensically examined, testing positive to fentanyl with a weight of .1 grams. No DNA was obtained.
7On 8 February 2018, a second purchase was made. This was advertised as "Fentanyl solution, 100 milligrams." It was received at a post office box and was labelled "Perfume Forever" with an eBay sticker. It was forensically examined, testing positive to fentanyl and with a weight of .1 grams. The DNA profile produced a mixed-source sample.
8Enquiries were made with Australia Post regarding tracking numbers and using CCTV footage. These identified you as having sent the second sample.
9On 20 May 2018, Darknet marketplace Dream Market indicated via a public post that they were banning the sale of fentanyl. You then updated your Dream Market profile, stating that you would soon be trading fentanyl over on the Wall Street Market. Your seller profile name, "ProSlide76", was located on the Darknet Marketplace Wall Street Market on 11 June 2018. The profile page was the same as you had previously used.
10On 7 August 2018, police executed a search warrant at your home. You were arrested. A number of items pertaining to the trade in fentanyl were located, including express post envelopes, parcels, nasal spray bottles and zip-lock bags. In addition, a can of OC spray was located. That is a prohibited weapon. You stated to police in your record of interview that you had purchased it online sometime earlier, but could not really explain why, other than nominating it was for self-protection.
11You provided investigators with access to your computers and Darknet accounts. You provided access to your profiles. You were interviewed on that day and made full and frank admissions and confessions. Those went beyond information already in the possession of in the investigators. You indicated you had been addicted to fentanyl for the past five or six years, and that selling the product is something that, in your words, "spilled over" from your own addiction.
12The prosecution accept that your trafficking was to financially prop up the purchase of fentanyl for your own addiction. You indicated that you had made a few thousand dollars but definitely less than $10,000 by selling fentanyl.
The prosecution do not dispute this.13You estimated that you had been selling for maybe three years. In fact, on examination, given the date of commencement of your Dream Market Darknet Marketplace profile of "ProSlide76", your offending dated back approximately two years.
14You indicated to investigators that there was one order of 500 milligrams of fentanyl which could still arrive. That parcel did arrive on 22 August 2018, and you voluntarily contacted police to advise them of that fact and to provide them with the package.
15On 28 August 2018, you made a written statement detailing your involvement in trafficking, the methods used to obtain fentanyl, and the online names of others with whom you had been dealing.
16You are a person with no prior criminal record. You are now 45 years old.
You were born in South Africa, but migrated to Australia in the late 1980s and are an Australian citizen. Your parents separated when you were six, and you indicated to psychiatrist Dr Danny Sullivan, who assessed you and has provided a report, that there had been a significance amount of dispute between your parents. You lived with your mother but saw your father on weekends.17When you were about 16 years of age, your family were subject to a dramatic home invasion. You reported always feeling anxious in South Africa because of the unsafe environment. After moving to Australia, your relationship with your father became distant. However, you did return to South Africa at various times.
18Your father was a lawyer and died ten years ago. Your mother lives in Sydney and re-partnered some time ago.
19You attended a number of different schools, reporting it difficult to settle and make friendships. You say you have always had social anxiety, describing yourself as an "introverted child." Your performance at school was average to below average. It seems you returned to South Africa for a period, though, completing Year 12 equivalent at a technical high school there.
20In 1994, you commenced studying as a mature age student in a Bachelor of Arts in Psychology at Macquarie University, but this was short lived. In 1995, you suffered increasingly disabling chronic fatigue syndrome and were unable to complete that degree.
21You returned to South Africa. It was there you developed a relationship with your now ex-wife, Katie.[4] You spent some time working in a medical support business. You suffered, though, ongoing anxiety, depression and reduced energy. In 2000, you married your wife and together made the decision to settle in Melbourne. She worked in graphic design and you obtained a job in a call centre processing insurance claims.
[4] Pseudonym used
22In 2002, you obtained work in an insurance firm, working in worker's compensation. You were employed by WorkSafe from 2004 to 2011.
Most recently, and up until you were charged with these offences, you worked for Gallagher Bassett for seven years in the risk and compliance field. Specifically, you had risen to the position of National Risk and Compliance Manager.23You have effectively been the sole breadwinner for your family. In 2000, your wife was diagnosed with primary biliary cirrhosis, a severe autoimmune condition of the liver. She has struggled to maintain employment and look after the children. She currently works two days a week as an office manager.
You and she have two children, both daughters, now aged nine and seven.24Over time, your relationship with your wife became unhappy and you underwent recurrent marriage counselling. In 2016, you agreed to separate, and since that time have maintained a cooperative relationship. Indeed, Katie was present in court and has written a letter attesting to your good character. You say she has been your main support.
25Your relationship has suffered as a result of financial strain and your mutual health concerns, her physical issues, and your ongoing depression and anxiety leading to your addictions. Specifically, in 2011 you declared bankruptcy.
This was discharged in 2014, although it was not until 2017 that your financial situation improved somewhat. You have been under financial strain, though, for some years.26You have a past diagnosis of chronic fatigue syndrome which had extensive investigation. You described during that period mental confusion as well as physical exhaustion. You tried a range of remedies without success. You had psychological input. It was not until about 2004 that you felt some improvement.
27You report long-term anxiety and some past experience of panic attacks.
You have suffered ongoing depression, including some suicidal ideation and feelings of hopelessness about the future.28You reported a gradual descent towards your use of fentanyl. You started drinking from around age 15. You had some experimentation with cannabis, amphetamines, cocaine and anabolic steroids as well as GHB and ketamine. You were prescribed benzodiazepines in the past, including Rohypnol from about the age of 17. However, you stopped using that when you had the chronic fatigue. You first used Oxycontin around 2010, rapidly developing
a dependence.29It was in 2012 when you were using Oxycontin that you read about fentanyl and decided this may be a cheaper and more effective substance. You purchased it over the internet and used it as a nasal spray. You bought amounts of up to 1 gram, which would apparently last you approximately one month. Eventually, you decided to sell leftover amounts to others as a means of financing your own use.
30A longstanding addiction is undoubtedly difficult to conquer and often takes several attempts. You are someone who has, at various times, attempted to rid yourself of your opiate addiction. You saw a psychiatrist in Sydney for some time when you were younger. More recently, you saw private consultant psychiatrist Dr Patrick Laviopierre. You have been under the care of a GP,
Dr Peter Drake, and more recently you have seen consultant psychologist Richard Wise.31According to Dr Sullivan, you satisfy a diagnosis of avoidant personality disorder or in the alternative, social anxiety disorder, both of which are set out in the DSM-V. In addition, he says you are likely to have intermittently met a diagnosis of generalised anxiety disorder with panic attacks and/or recurrent depressive disorder of mild to moderate severity. He notes both conditions may be exacerbated by substance use; namely, that opiate dependence and stimulant abuse are associated with elevated anxiety and withdrawal symptoms.
32In his view, there is a partial causal association of your mood disorder and personality disorder, both of which predispose you to substance use.
Your opiate dependence, he says, is clearly associated with impairment of judgment. I take these matters into account, though it was not urged upon me that these amounted to any Verdins consideration and I agree with that.33I have received a letter from Dr Drake who confirms you have been a patient of his since October 2017 for the management of your addiction issues. He says you are compliant with buprenorphine program and have reduced your dose. He says you are working towards a full recovery with an expectation of a return to the workforce.
34I have also received a letter from Dr Chris Larner, psychologist, who first saw you in August 2018, I assume, after your arrest. You have seen him for a total of six sessions. You presented, he says, with anxiety and depression and were on a course of suboxone which you initiated in 2017 as a means of managing your addiction to painkillers - specifically, Oxycontin.
35He has been working with you using a range of cognitive therapies. He confirms you are highly motivated to improve your circumstances, behaviours and moods. You have managed to wean yourself down to one-third of your original dose of suboxone.
36He has discussed with you this offending and confirms that you now have some clarity around your offending and are highly remorseful. He says from the work he has done with you, he feels the decisions you made around the time of your offending are particularly at odds with your current presentation. He says you now have clear goals, solid mood management strategies, good support around you, and plans in place to continue to move forward positively.
37You have a very active role in the custody of your daughters. You are supportive of your ex-wife in relation to parenting. According to him, you have been actively pursuing employment and a new relationship. He says you have made significant investment in self-development and rehabilitation, and your work with him is ongoing.
38Prior to seeing Dr Larner, you were under the care of clinical psychologist Richard Wise. You presented to his service in November 2015 to access psychological assessment and treatment. He says that at the time of that assessment, you met the DSM-V criteria for major depressive disorder, severe, with anxious distress and substance use disorder in relation to Oxycontin.
39He confirms around that time there was relational distress with your partner. You reported to him a social anxiety disorder diagnosis when you were 15, and that you had consulted with a psychiatric, Dr Lavoipierre, to treat anxiety symptoms episodically through the 12 years leading up to November 2015.
40An objective measure administered at the time of your initial assessment with Mr Wise in November 2015 indicated depression symptoms in the extremely severe range, anxiety symptoms in the extremely severe range, and stress symptoms in the severe range.
41You attended 24 subsequent sessions of psychological treatment with him between November 2015 and March 2018. That was primarily focused on improving symptoms of depression and anxiety, and in attempting to reduce your opiate use. He said you engaged well and demonstrated improvement in mood and reduction of substance use. It seems that therapeutic relationship ended when he moved to China.
42Of course, the fact that you were undergoing treatment at the same time as this offending cuts both ways. On the one hand, it shows a willingness to engage with a view to therapeutic benefit. On the other, it speaks against your prospects of rehabilitation.
43I received a letter of reference from a friend, Oscar Rowland.[5] He has known you for nearly a decade since your children were in preschool together.
He says you have a solid friendship and socialise regularly. He says you have been the breadwinner for your family and are a devoted father. He says the charges and addiction issues that led to it are inconsistent with the person he has known for many years.[5] Pseudonym used
44He confirms your day-to-day involvement in the lives of your children.
He describes you as remorseful and displaying a commitment to your sobriety, and says you are making strides in overcoming your inner demons. You have spoken with him at length about your recovery and your desire to put the negative lifestyle behind you.45Of importance has been the presence of your now ex-wife Katie at court and the contents of her letter. She has known you for over 20 years. She says for the entire time she has known you, you have been a caring, hard-working man from a wonderful family. She describes you as an incredible father who, despite struggling with addiction, has still managed to maintain jobs at senior levels and has been a devoted and present father.
46She believes your actions were those of someone sick through addiction.
She has watched you struggle with that addiction and your mental health issues for many years, while at the same time you have continued to work hard and play a major part in the lives of your girls. She confirms you maintain 40 per cent custody of your daughters and have been a strong, caring role model to them.47She notes your poor judgment in your offending behaviour, but says in her view you have a tremendous amount to offer. She says you are making great strides in your recovery, that the impact of legal proceedings has been significant, and that you are greatly remorseful for your offending.
48Trafficking in any drug of dependence is a serious offence. These courts see daily the impact of illicit drug use on persons addicted. Those who facilitate the movement of substances throughout the community should expect condign punishment. Sentences must deter the offender and others generally.
49In your case, your trafficking occurred over a period of approximately two years. Although the amount trafficked cannot be quantified, it is clear from the material that you were actively involved via the Darknet in the movement of fentanyl. Detection of such offending through the Darknet is very difficult.
50To that end, the prosecution urged that a sentence involving imprisonment plus a community correction order is warranted in your case. In contrast, your counsel submitted that a CCO would appropriately address the competing sentencing considerations.
51I have now received a community correction assessment outcome report.
You have been assessed as a medium risk of reoffending. However, you have been assessed as suitable for a community correction order. The assessor described you as demonstrating accountability, remorse and anxiety in relation to your offending. You were open and forthcoming, expressing shame and remorse. You understood the risk of incarceration and the impact that may have on you, but also on your children. You expressed a willingness for ongoing treatment.52Ultimately, I have concluded that the appropriate sentence in your case is one of a community correction order which should start immediately. Of particular influence in that conclusion are the following factors:
a.You are 45 years of age.
b.You have no prior criminal record or any matters subsequent.
c.Your addiction has been chronic and occurred in the context of longstanding and severe depression and anxiety disorders.
d.Your offence of trafficking was solely for the purpose of financing your own addiction.
e.You have not made any significant financial gain from the trafficking.
f.Upon arrest, you made full and frank admissions and confessions, including providing police with information they otherwise did not have.
g.Your cooperation with the authorities extended to providing all information required to access your devices, your profiles, and dark net handles.
h.Your cooperation extended to making a statement wherein you nominated all of those from whom you had purchased fentanyl. This information was said to be very useful to the authorities, despite the fact that it has not led to actual prosecution or participation in prosecution of another person.
53Higher courts have confirmed the desirability of encouraging offenders to nominate others with whom they are involved in criminal activity.
That encouragement must come from sentencing courts recognising and rewarding that cooperation. The authorities recognise that a demonstrated willingness to cooperate must work to mitigate punishment.54The authorities also recognise that a sentencing judge should, where possible, assess the actual value of the cooperation; that is, where such cooperation leads to either a prosecution being instituted or a prosecution case being strengthened by evidence against another offender, this ought result in a reduction of penalty.
55I cannot, in this case, make a quantifiable assessment beyond the prosecution concession that the information you have provided has been of real interest. However, the fact that provision of information does not specifically result in such an action does not detract from the willingness of a person to cooperate with authorities and to provide what information they are able. In my view, the provision of information about technology which is specifically designed to make detection more difficult should be recognised.
i. In addition, in your case, I accept that your cooperation is a sign of genuine remorse. The prosecution rightly recognise this. Your remorse has been ongoing, in particular in your expressions to your wife, your friend, your treaters, as well as Dr Sullivan and the CCO assessor.
j. Your plea of guilty also reflects an acceptance of your offending behaviour and of your remorse. It was a plea of guilty entered at a very early stage, and you are entitled to the full benefit of that plea.
k. You are and have been, since the time of your arrest, drug free. It seems that the impact of involvement with police and the legal system has finally given you the wake-up call you needed to rid yourself of substance use. You are working towards reducing the dosage of the suboxone, or buprenorphine, in an effort to rid yourself entirely of opiate dependency.
l. You have two young daughters and a positive relationship with your ex-wife, who has her own health concerns. You are actively involved in the care of your daughters.
m. You have a strong employment record and it is in your interest, your family's interests, and the community's interest that you are free to obtain paid employment and contribute to society in that sense.
n. I accept the comments of Dr Sullivan that given your fragile mental health history, time in custody would be very difficult. It was not urged on me that this is to a Verdins level, but of course I take it into account to the extent that I am able. Dr Sullivan said:
"He would be a poor fit among prisoners and is likely to experience deterioration in mood and exacerbation of anxiety."
Of course, most people experience deterioration in mood and exacerbation of any anxiety if they are incarcerated. But I must take it into account in your case in the context of your history of extreme anxiety and depression.
o. Dr Sullivan notes that in addition, you would need to transfer from buprenorphine to methadone as you would be vulnerable to being stood over for your medication. And that is another factor.
56I am mindful of the comments of the Court of Appeal in the case of Boulton and subsequent cases to the effect that imposition of a lengthy community correction order with a number of conditions can in fact address both punitive and rehabilitative concerns in the sentencing exercise.
57If you could stand, please, Mr Martel, I propose to sentence you as follows.
58On the charge of trafficking in a drug of dependence, you are convicted and sentenced to a three-year community correction order.
59The conditions of that order are as follows. In addition to the core conditions, you are to undergo supervision, you are to undergo 300 hours of community work. However, up to 150 hours of that community work can be offset by undergoing treatment. So in other words, the more treatment you undertake up to a level of 150 hours can reduce the amount of unpaid community work you are required to undertake.
60You are to be subject to assessment and treatment for drug use as directed by the Office of Corrections. You are to be subject to assessment and treatment in relation to your mental health.
61In relation to the summary charge of possessing a prohibited weapon, you are convicted and I impose a fine of $200. I grant a stay of three months in which you are to make that payment.
62I make the disposal order in the terms that were sought.
63MR COOKSON: As Your Honour pleases.
64MR CRISP: Thank you, Your Honour.
65HER HONOUR: Thank you. Mr Martel, it is a matter for you to consent or not to undertaking that community correction order. Of course, any breach of that order, whether that be by any reoffending that would be subject to imprisonment, or not complying with the directions of the Office of Corrections would result in you being breached. You would come back to me and I would re-sentence you on this offending. With all that in mind and with the conditions I have outlined, do you agree to undertake a community correction order?
66OFFENDER: I do. Yes.
67HER HONOUR: All right. Have a seat there. I will have that printed out and then you will be required to sign it.
68MR COOKSON: Just while that process is happening, Your Honour, in terms of fines, my understanding - rather than formal stays at this point is Fines Victoria might administer the fine and then provide what stay is required. Usually the order would be, therefore, a fine of $200 with Fines Victoria to deal administratively with matters of state.
69HER HONOUR: All right. Anything to say about that, Mr Crisp?
70MR CRISP: That's correct, Your Honour. It probably won't matter in this case so much.
71HER HONOUR: No.
72MR CRISP: Thank you.
73HER HONOUR: All right. Thank you very much, Mr Crisp.
74So Mr Martel, your signature is, in effect, your promise that you will comply with the conditions of that order. Make no mistake: you placed yourself in a very serious predicament. I am sure the turn of events over the last seven or eight months have really reinforced to you the serious predicament you were in. You also place others who are similarly suffering from addictions in serious situations.
75I have taken all those matters into account. You have been given an opportunity here to continue, though, the rehabilitation that you have already put in place and to get your life back on track. So I hope you take the opportunity.
76Thank you very much. Thank you, counsel, for your assistance.
77MR COOKSON: Thank you, Your Honour.
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