Director of Public Prosecutions v Miller

[2019] VCC 1664

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

AT WARRNAMBOOL
CRIMINAL JURISDICTION

CR 19-01077

DIRECTOR OF PUBLIC PROSECUTIONS

v

ZACHARY MILLER

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JUDGE:	HIS HONOUR JUDGE DEAN
WHERE HELD:	Warrnambool
DATE OF HEARING:	14 October 2019
DATE OF SENTENCE:	16 October 2019
CASE MAY BE CITED AS:	DPP v Miller
MEDIUM NEUTRAL CITATION:	[2019] VCC 1664

REASONS FOR SENTENCE
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Subject:

Catchwords:  Trafficking in a commercial quantity of methylamphetamine; Possess drug of dependence; Prohibited person possess firearm; Youthful offender; Relevant criminal history; Hardship of imprisonment; Totality; Risk of institutionalisation;

Legislation Cited:
Cases Cited:  R v Piacentino [2007] VSCA 49
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms J. Fallar	Office of Public Prosecutions
For the Accused	Mr T. Sullivan	Paul Vale Criminal Law

HIS HONOUR: 

1Zachary Miller, you have pleaded guilty to the following charges – 

2One count of trafficking in a commercial quantity of a drug of dependence, contrary to s.71AA of the Drugs, Poisons and Controlled Substances Act 1981. The maximum penalty for that offence is 25 years imprisonment.

3One count of possession of a drug of dependence contrary to s.73 of the Drugs, Poisons and Controlled Substances Act 1981. The maximum penalty for that offence is five years imprisonment.

4One count of being a prohibited person in possession of a firearm, contrary to s.5 of the Firearms Act 1996. The maximum penalty for that offence is 10 years imprisonment.

5You have also pleaded guilty to the following related summary offences –

6One count of dealing with the proceeds of crime, contrary to s.195 of the Crimes Act 1958. The maximum penalty for that offence is two years imprisonment.

7One count of possession of ammunition, contrary to s.124(1) of the Firearms Act 1996. The maximum penalty for that offence is a fine of 40 penalty units. And;

8One count of possession of a prohibited weapon, contrary to s.5AA of the Controlled Weapons Act 1990.  The maximum penalty for the offence is two years imprisonment.

9You pleaded guilty at committal mention, and I have taken your early plea into account in your favour in mitigation of sentence.

10You have admitted a criminal history in relation to a range of offences, including possession of weapons, dishonesty, driving and drug-related matters. 

11Of significance for sentencing purposes in this case is a conviction on appeal in the County Court at Warrnambool on 1 November 2016 for two counts of trafficking methylamphetamine and one count of trafficking cannabis, for which you received 12 months detention in a Youth Justice Centre.

12Further, on 19 February 2018, you were sentenced to 12 months imprisonment with a non-parole period of six months for offences of driving in a manner dangerous, dishonestly retaining stolen goods, theft of a motor vehicle, and other associated offences.

13You served 10 months of that sentence, and were released from custody on parole in November 2018.  Your offending in this instance occurred just weeks after the completion of that sentence.

14A prosecution opening was read to the court and tendered in evidence, and your offending may be summarised as follows –

15On 22 February 2019, police executed a warrant pursuant to the Drugs, Poisons and Controlled Substances Act at premises occupied by you in Purnim, a small town 20 kilometres from Warrnambool.

16Located at the premises and in your car were the following items: 

(i) a total of 166 grams of methylamphetamine in seven deal or storage bags - 126.5 grams of that was pure methylamphetamine and a commercial quantity of that substance is 50 grams;

(ii) $8,550 in cash;

(iii) a pen pistol;

(iv) 16 Ritalin tablets made up of methylphenidate, a schedule 11 drug under the Drugs, Poisons and Controlled Substances Act;

(v) a taser, and;

(vi) two .22 calibre bullets.

17You were arrested and interviewed by investigating police.  You admitted possession of the cash and methylamphetamine, but otherwise made no comment to questions put to you.  You were remanded in custody and have remained in prison since that time.

18It is plain from this summary that at the time of your arrest, you were engaged in the business of drug trafficking, as evidenced by the quantity of methylamphetamine in your possession and the cash.  Trafficking in a commercial quantity of illegal drugs of dependence is plainly a serious offence, and the sentence I impose must be calculated to deter others from committing this destructive crime.

19Illegal drugs of dependence, and in particular, methylamphetamine, cause immeasurable damage to our society in regional cities and towns, and these communities must be protected from people like you.

20Specific deterrence is also a significant sentencing consideration in your case, having regard to your criminal history and the fact that your offending occurred shortly after your release from prison.

21Your prior conviction for trafficking methamphetamine and cannabis is also of relevance in this regard.  You offended for profit and to fuel your own abuse of drugs. 

22I now turn to your personal circumstances. 

23You were born in Warrnambool on 5 February 1996 and are now aged 23.  You are therefore a youthful offender and you are of youthful appearance.  I have taken your youth into account in arriving at an appropriate proportionate sentence in your case.  Your future rehabilitation is an important matter for me to balance in the sentence that I arrive at.

24I accept that your childhood and formative years were characterised by disruption and disadvantage.  You left school in Year 8 and at the age of 14.  Your employment history is a limited one, although you have worked for extended periods of time as a farm hand.

25I accept that you have a significant history of drug addiction which began at the age of approximately 17, following the death of your stepfather, to whom you were close.

26You have the continuing support of your family, comprising your mother, two sisters, and two brothers.  Your mother is currently suffering from lymphoma, and her prognosis is poor.  This is a matter of great concern to you and has increased the hardship of imprisonment upon you.

27I also accept that you have made progress whilst in prison and have not used illegal drugs of dependence.  However, in my opinion, whilst you are a youthful offender, your prospects for rehabilitation are to be approached with caution, and those prospects are dependent upon you remaining drug-free.

28By operation of s.3 of the Sentencing Act 1991, trafficking in a commercial quantity of a drug of dependence is a category 2 offence. Therefore,
by operation of s.5 of the Act, I am required, subject to qualifications not relied upon in your case, to impose a term of imprisonment upon you for that offence.

29I have also had regard to principles of totality in your case, as you have recently served a term of imprisonment, and with the exception of approximately three months, you have been in prison since December 2017. 

30Whilst you are not currently undergoing a sentence and will not therefore serve consecutive sentences, in my opinion, it is appropriate for me to have regard to the overall effect upon you of recent terms of imprisonment you have served and the term of imprisonment that I will now impose upon you - see generally R v Piacentino [2007] VSCA 49, per Eames JA.

31I also accept that there is, in your case, a risk of you becoming institutionalised. 

32In the result, the sentence of the court is as follows –

33On the charge of trafficking in a commercial quantity of a drug of dependence, you are convicted and sentenced to three years and six months imprisonment.

34On the charge of possession of a drug of dependence, you are convicted and sentenced to one month imprisonment.

35On the offence of being a prohibited person in possession of a firearm, you are convicted and sentenced to one month imprisonment.

36On the charge of possession of the proceeds of crime, you are convicted and sentenced to three months imprisonment.

37On the charge of possession of ammunition, you are convicted and fined the sum of $250.

38On the charge of possession of a prohibited weapon, you are convicted and sentenced to 14 days imprisonment.

39The sentence imposed on Charge 1, trafficking in a commercial quantity of a drug of dependence, is the base sentence. 

40I order that one month of the sentence on possession of a drug of dependence and two months of the sentence on possession of the proceeds of crime be served cumulatively on one another, and cumulatively on the base sentence.

41This makes for a total effective term of imprisonment of three years and nine months.

42I direct that you serve two years and three months before becoming eligible for release on parole.

43I declare that you have served 236 days by way of pre-sentence detention,
not including today.

44But for your plea of guilty, I would have imposed a total effective term of imprisonment of five years and fixed a non-parole period of three years and six months.

45I have made the ancillary orders sought by the prosecution.

46No further orders required?

47MS FALLAR:  No, Your Honour. 

48HIS HONOUR:  Thank you.

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