Director of Public Prosecutions v Middleton

[2016] VCC 1735

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-16-00553

DIRECTOR OF PUBLIC PROSECUTIONS

v

SHANE MIDDLETON

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JUDGE:	HIS HONOUR JUDGE STUART
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	17 November 2016
CASE MAY BE CITED AS:	DPP v Middleton
MEDIUM NEUTRAL CITATION:	[2016] VCC 1735

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr J.B. Saunders
For the Offender	Mr C.T. Farrington

HIS HONOUR: 

1Shane Middleton, you have pleaded guilty to one charge of trafficking in a drug of dependence in a commercial quantity, one charge of storing a firearm in an insecure manner, one charge of possession of a drug of dependence, one charge of being a non-prohibited person possessing a registered general category handgun and one charge of handling stolen goods and recklessly dealing with proceeds of crime. In relation to the third charge of possessing a drug of dependence, I find the charge proven and dismiss the charge pursuant to s.76 of the Sentencing Act 1991.  In addition, you have pleaded guilty to a summary offence of committing an indictable offence whilst on bail. 

2The maximum penalties for the offences are: Charge 1, 25 years' imprisonment; Charge 2, four years' imprisonment; Charge 4, on a first offence, seven years' imprisonment; Charge 5, 15 years' imprisonment; Charge 6, ten years' imprisonment, and on the summary offence three months' imprisonment.

3At the time of the offending you were 25 years old.  On 1 November 2015 you received a gunshot wound to your leg and you were driven to the Werribee Hospital in a Ford sedan registered to your partner, Renee Comeadow.  She attended in a different vehicle.  CCTV shows that you remained in the passenger seat of the vehicle whilst the driver, a Matthew Jameson, and Ms Comeadow entered the hospital.  They were then referred to another hospital and the same CCTV footage shows that she received the car keys from Mr Jameson, entered the driver's seat of the Ford, you remaining in the passenger seat, while Mr Jameson leaves in the vehicle which Ms Comeadow had originally arrived in.             

4A short time later you and Ms Comeadow attended at the Sunshine Hospital.  She entered the hospital and then returned to the vehicle a short time later with hospital staff.  You were placed on a hospital trolley and taken into hospital and Ms Comeadow parked the vehicle, retaining the keys.  You were attended to by medical staff at the hospital and because of the nature of the injury suffered you suffered, police were alerted who arrived a short time later.  You were both spoken to by the police but were not co-operative.

5After being seen by the medical staff you discharged yourself.  Police then conducted a search of the Ford in the presence of both of you.  In the course of the search a calico bag in the front passenger seat-well was found, inside of which were two vacuum sealed bags containing a large quantity of white tablets with ladybug emblems imprinted on them.  Each had "one thousand" written in blue on the package.  These pills were subsequently analysed and found to be ecstasy tablets.  That finding relates to Charge 1, although there were other items that were later found at the premises where you were living relevant also to Charge 1, which I will come to in due course.

6In addition, during the course of the search of the car, a black zip-up pouch in the rear of the vehicle was found which contained four rounds of .25 calibre ammunition and a grip from a handgun.  That finding relates to Charge 2.

7On 1 November you were both arrested and taken to the Sunshine Police Station but you were not interviewed.  The following day, 2 November, police then undertook a search of your premises at 23 Mintaro Way, Seabrook.  During the course of that search investigators located a broken package containing a large quantity of white pills, again with ladybugs imprinted on them and the number "one thousand" written in blue on the package.  These pills were the same as those located in the vehicle and Charge 1 relates to that finding also.  In addition, four small snap-lock bags each containing various types of pills were found, those also relate to Charge 1. The pills seized both in the car and at the premises had a total weight was 652.3 grams, a commercial quantity being 500 grams.

8A small quantity of cannabis, being 12 grams, was found, and that relates to Charge 3 which I have found proven and dismissed, and as well a drug test kit.

9In addition, a silver collared Smith and Wesson handgun and ammunition were found and that relates to Charge 4.

10An Outlander caravan valued at some $45,000, which had been stolen earlier, between 15 and 16 January that year, and a Yamaha R1 motorcycle valued at $16,000, stolen between 22 and 23 March 2015, were found.  That caravan and motorbike relate to Charge 5, handling stolen goods.

11Finally, various items of jewellery were found and Charge 6 relates to a bracelet and a gold necklace valued between $20,000 and $30,000.  That relates to charges of recklessly dealing with property reasonably suspected of being proceeds of crime.

12You had, on 17 September 2015, been bailed from the Melbourne Magistrates' Court in relation to other matters to re-appear on 18 December last year.  Thus, you committed these offences whilst on bail and the summary offence of committing an indictable offence or offences whilst on bail relates to that matter.

13You have a criminal history, which, in the main, relates to matters dealt with in the Children's Court.  They include, in 2008, being a non-prohibited person in possession of an unregistered Category A long-arm, for which you were dealt with by way of a fine without conviction.

14Your appearances in the Magistrates' Court which are of relevance commence on 19 January 2010 where you were dealt with in relation to two charges, one of possessing MDMA, ecstasy, and one of using MDMA, and were dealt with by way of a fine without conviction.

15In addition, on 14 May 2013, you were dealt with for failing to answer bail and possess anabolic steroids.  Again, on that occasion you were fined but with conviction.

16Finally, on 4 December 2014, you appeared at the Moorabbin Magistrates' Court in relation to a driving matter and more relevantly, on a charge of dealing with property suspected of being proceeds of crime.  You were dealt with in relation to that charge by way of an aggregate fine of $1200 with conviction.

17Your criminal history is of a limited kind but there are, so far as I am concerned, two matters of relevance, the last matter and the failing to answer bail, which were dealt with, as I have said, in 2013 and 1014.

18Your mother was present in court yesterday, as she is today.  She wrote a letter dated 13 November 2016, which became Exhibit SM1.  It was a letter that assisted me enormously in better understanding you and your background.  It is appropriate that I should read out some portions of that letter.  She wrote:

"Shane is our youngest son; he has a brother, Simon who is 29, and a half-sister, Rayne who is 36, married with three sons of her own.  His childhood was a happy time filled with good friends and sport - baseball, football, soccer, basketball, cricket - you name it, he played it.  He excelled in baseball and eventually this became his world.  By nine he was playing U12 state league with Cheltenham Baseball Club, he played Rep for DBA in 3 successive years and represented Australia in the Junior World Series in Japan when he was 12.  This led to his selection into U14 State squad who won the National Baseball Championships in 2004.  Shane holds the most prestigious honour of being the only junior in Cheltenham's history to be awarded the Most Valuable Club Player.  He was, like many others, being ‘looked at’ by U.S. baseball scouts who earmark young hopefuls.  Shane had promising prospects of being very successful in baseball."

19She then continues that this dream was over as a result of an injury to your pitching arm.  A little later in her letter she writes:

"Shane enjoyed high school, but I think only because it provided him with a broad social group and of course lots of opportunities to play sport.  He didn't really fare so well academically; he was disengaged and needed lots of remedial work.  As a teacher myself, I see now that Shane had learning difficulties and these were never addressed in primary school, and, as in many cases it’s often too late and/or too hard once a student has reached secondary level.  The personal outcomes of each student is not the priority like it is in primary school.  I don't hesitate in saying that both his schools let him down, as did I."

20Later she continues:

"Shane had for most of life, until 15, 16 at least, been leading a highly disciplined and timetabled life with his baseball commitments and had few friendships outside of the sport."

21Later she continues:

"I honestly struggle to give any sequential account of the next few years in terms of Shane's employment history, but in 2007, when Shane was 17, I was diagnosed with breast cancer and underwent 18 months of treatment.  In March 2008, Shane's father suffered a stroke.  I don't really know if this impacted Shane so much, but it certainly effected the quality of time we were able to spend as a family."

22She continued describing an incident in her letter that occurred in September 2008 where a close friend was murdered at a gathering that you and your brother were present at.  This, she writes, has affected you deeply.

23In the concluding paragraphs she writes:

"Neither of my boys ever showed an interest in motor bikes or the life perceived by outlaw motorbike clubs; no-one was more surprised when Shane became involved with the Finks.  He was introduced into it by friends and I can see that the attraction was brotherhood, the camaraderie.  Exactly what hooked him into baseball.  Like many of Shane's interests it ended up consuming him and taking over his life.

Shane met Renee Comeadow in 2013 and they became engaged in January 2015.  They have a beautiful daughter together, Ava Victoria, who is the love of their lives and ours.  Renee has been solid in her support and commitment to Shane and I believe they can make a good life together.  Renee is a strong girl and has endured a lot because of her association with Shane, but she believes in him and the promise of better times.  She is well supported by her immediate and extended family, who I must also add are supportive of her choice of partner in Shane.

I hope this flimsy account of Shane's past can help you look past his external appearance and give you some appreciation of what is under all that self-depracating ink." 

24It has indeed.

25In a letter written by Adam Thurston, which became Exhibit SM2, he wrote of you the following:

"Shane is a person of good moral character.  I understand this statement may seem hard to believe given the circumstances, but from my personal dealings with Shane I believe it is true nonetheless.  I have known Shane for almost 2 years now and in this time I have seen him through many ups and downs.  However, my interactions with Shane have allowed me to see him as a decent, hard working and family orientated man.  Shane has shown loyalty to his friends, work colleagues and family.  But most importantly, he is dedicated to his fiancée Renee Comeadow and is a devoted father to their two and a half year old daughter, Ava.

From the middle of 2015, I placed Shane through the majority of the courses and relevant training that is required of him to begin his career as an Aluminothermit welder, here at NUGROUP rail solutions.  Our company services both privately owned railway systems and the Government owned rail sector throughout the whole of Australia.  On several occasions Shane was required to complete onsite training and through this Shane really proved himself to not only myself, but also the Managing Director of NUGROUP rail solutions with his eagerness to learn and demonstrated drive of becoming the best at his job as Aluminothermit Welder.  I feel strongly about Shane's future as an Aluminothermit Welder in the Rail sector and I believe if he is given the chance to do something that he is passionate about, he will grow into the person I know he can be. 

I will have a full time job for Shane when and if he gets released."

26It is plain from these two references that you are a man who, when engaged, engages completely in whatever the activity is that you seek.  You are plainly a man who has skills and dedication, not only to your family but also to your child.  You have demonstrated this dedication in a number of other different ways, both sporting and in the course of employment, as attested to by Mr Thurston.

27You are now 26 years old and I do not intend to rehash your personal history, other than in some aspects, because they have been comprehensively set out in your mother's letter.  It is sufficient to say that you left high school at Year 8 and commenced a pre-apprenticeship in carpentry and then commenced an apprenticeship in that same trade.  You left that apprenticeship after two years, never having attained a formal qualification.  You then were employed for some two years in the glass industry, installing shower screens and balustrades.  You were also involved in a number of jobs in the construction industry and most recently you drove a tow truck which you own in part with your brother.

28I have also had the benefit of reading the psychological report of Lisa Jackson, who set out in detail your personal history and your mental health history which includes two psychiatric admissions when you were 18/19 years old  at Monash Hospital, and six months later another admission following suicide attempts by way of carbon monoxide poisoning.  This apparently was prompted by the murder of your friend, which I have adverted to, in the main.

29On the last page of her report, Ms Jackson writes:

"His own development was characterised by the emergence of disruptive behaviours and poor impulse control in both childhood and adolescence.  He had a problem with aggression, defiance and violation of rules that resulted in dis-engagement from education, a history of juvenile offending and difficulties at home.  This pattern of behaviour appears to satisfy a diagnosis of Oppositional Defiance Disorder with a co-occurring Conduct Disorder up until 18, with the latter giving some explanation in regard to his offending behaviours.  His adult history suggests that his symptoms have progressed to exhibit features of an Anti-Social Personality Disorder but there is also evidence to suggest a pre-existing mood disorder and this is reflected in his positive response to Epilim, a mood stabiliser."

30It also appears that you commenced smoking cannabis at the age of 16 and using methamphetamine at the age of 20, though you were not addicted to either.

33There has indeed been a significant change in your behaviour over a period of time, leading you in the end to this court.  You have the capacity, without doubt, when you are released from custody, to make a useful contribution to our community and to your young family as well as your parents.  Whether you choose that course in the end or continue on the course which you have adopted in recent times is entirely one for you.

34Mr Thurston also spoke of your remorse in this way: "I have spoken with Shane over the past year and I feel he is incredibly remorseful for his actions and is willing to do whatever it takes to make reparations financially and emotionally, if possible."

35Your pleas of guilty were entered late but they have resolved this matter.  I would have anticipated that if there had been a trial it would have lasted for some one to two weeks with the potential of not insignificant amount of legal argument in addition.  By pleading guilty to this plea indictment, you have eliminated the need for such a trial and so the utility of your pleas of guilty must be taken into account, and I do.  Further, I am satisfied that these pleas of guilty do demonstrate some remorse for what you have done.

36Following your arrest you were later bailed on 12 April 2016 on stringent conditions.  However, you were re-remanded in relation to other offences the following month on 26 May and have been in custody ever since. 

37You have, in my estimation, a reasonable prospect of rehabilitation provided that you make a decision to change your ways.  As I have said, to support your family is perhaps one of the most important matters that face you when you are released.

38General deterrence, that is deterring others from offending, is the principal sentencing factor in this matter.  There is also need in this case for specific deterrence; that is, deterring you from further offending of this kind. 

39Trafficking in drugs of dependence is an evil trade, it causes destruction of some people's lives and one need only come to this court from time to time in order to see it, should anyone wish to.  Thus, your conduct in relation to the trafficking over a period of two days in a commercial quantity, must be denounced.  There is also a need to denounce your conduct in relation to the offences of handling and recklessly dealing with proceeds of crime. 

40A perturbing feature of the offending before me is your possession of a handgun. 

41In the end the sentence that I impose must be one which I consider, in total, to be appropriate.  I believe I have achieved that objective.  Please stand.

42On the charge of trafficking in a drug of dependence in a commercial quantity I sentence you to be imprisoned for three years.  That sentence is the base sentence.  On Charge 2, unlicensed and destroying cartridge ammunition, I sentence you to be imprisoned for a period of one month.  On Charge 4, being a non-prohibited person possessing a registered general category handgun, I sentence you to be imprisoned for a year and a half.  On Charge 5, handling stolen goods, I sentence you to be imprisoned for a period of two and a half years.  On Charge 6, recklessly dealing with proceeds of crime, I sentence you to be imprisoned for a period of one year.  And on the charge of committing an indictable offence whilst on bail, I sentence you to be imprisoned for a period of one month.

43On the base sentence of three years, I direct that eight months on Charge 4 be served cumulatively.  I direct that one year of the charge of handling stolen goods be served cumulatively.  I direct that three months on the charge of recklessly dealing in proceeds of crime be served cumulatively, and I direct that the whole of the sentence of the summary offence of one month be served cumulatively upon each other and upon the base sentence.  This produces a total effective sentence of five years' imprisonment and I set a non-parole period of three years.

44I state that but for your pleas of guilty under s.6AAA the sentence I would have imposed would have been a sentence of seven years with a minimum of five years.  I declare that pre-sentence detention is 211 days.  Take a seat, Mr Middleton.

45Does that deal with the matters, subject to the other orders being signed, Mr Saunders?

46MR SAUNDERS:  Yes, Your Honour, the only dispute is in respect of that one order but we can perhaps leave them all until Monday morning ‑ ‑ ‑ 

47HIS HONOUR:  I will sign those other orders in chambers.

48MR SAUNDERS:  Thank you.

49HIS HONOUR:  Are there any corrections?

50MR SAUNDERS:  No, Your Honour.

51HIS HONOUR:  Any corrections, Mr Farrington?

52MR FARRINGTON:  No, Your Honour.

53HIS HONOUR:  Yes, remove Mr Middleton please.

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