Director of Public Prosecutions v Mitchell
[2016] VCC 843
•3 June 2016
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-16-00365
| DIRECTOR OF PUBLIC PROSECUTIONS |
| V |
| TOBY GEOFFREY MITCHELL |
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JUDGE: | His Honour Judge Hicks | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 3 June 2016 | |
CASE MAY BE CITED AS: | DPP v Mitchell | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 843 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr D. Brown | Office of Public Prosecutions |
| For the Offender | Mr P. Morrissey SC | D.T. Magazis and Associates Pty Ltd |
HIS HONOUR:
1 Toby Geoffrey Mitchell, you have pleaded guilty to two charges of possess a drug of dependence and two summary charges being possess a prohibited weapon and commit an indictable offence while on bail. The maximum penalty for possess a drug of dependence in the circumstances before me is five years' imprisonment. For the summary charge of possess a prohibited weapon, two years' imprisonment; and for commit an indictable offence whilst on bail, three months' imprisonment.
2 You have admitted your prior convictions.
3 The circumstances surrounding these offences are fully set out in the Crown opening, being Exhibit 1, and tendered before me and I shall not repeat them here. Suffice to say, that on 24 September 2015 you were under surveillance by the Australian Federal Police. Police were investigating the importation of the drug MDMA into Australia. During Police surveillance you were observed driving a white Range Rover Evoque.
4 At approximately 10.10 p.m. on 24 September 2015 you were arrested by members of the Australian Federal Police and placed in custody. On the following day, being 25 September 2015, at approximately 6.20 a.m. police accompanied you to your premises at Harbour Esplanade on the Docklands and executed a search warrant. Car keys matching the white Range Rover that you had been driving were located and digital scales were also found in a kitchen drawer in your apartment.
5 After a search of your apartment police attended the car park space marked for your unit at the Harbour Esplanade Docklands building. Using the car keys police found in your apartment, the white Range Rover was opened and in the passenger foot well area a black plastic bag containing a number of snap lock plastic bags containing white crystalline substances were found. Forensic analysis of the contents of the snap lock bags revealed that some of the bags contained methylamphetamine and others contained cocaine.
6 The white substance in the bags containing methamphetamine weighed 331.8 grams in total with a purity of 78.2 per cent, namely, 259.4 grams pure, being, Charge 1. The white substance in the bags containing cocaine weighed 168.2 grams with a purity of 75.8 per cent, 127.4 grams pure, being Charge 2. A baton found by police in the driver’s side door pocket of the Range Rover is the subject matter of the summary charge, possess a prohibited weapon. You subsequently provided a “no comment” record of interview to police.
7 An examination of the black plastic bag located revealed a latent fingerprint that matched your fingerprint. Forensic analysis of the powder located on the digital scales found in your apartment revealed that it contained traces of cocaine.
8 I state to you that I have taken the following matters into account in your favour in mitigation of sentence.
9 (1) Your pleas of guilty and the early stage you entered such pleas. In my opinion, you are entitled to a significant discount by way of mitigation of sentence due to your pleas of guilty, including their utilitarian impact.
10 (2) Remorse. Considering your pleas of guilty and the courses you have undertaken whilst in prison, I am prepared to find that you have at least shown some remorse for your actions.
11 (3) Your personal circumstances. Your personal circumstances are largely set out in a report of Mr Ian H McKinnon, forensic and consultant psychologist, dated 23 May 2016, and I shall not repeat them here. Suffice to say, you are a 40-year-old man who was born on 26 November 1974. You grew up in the South Melbourne area and you were educated to Year 9. Upon leaving school you commenced working as a labourer and became a fitness fanatic and took to kickboxing. You commenced training from your late teens in body building and kickboxing and became a champion kickboxer. I was informed you won all of your fights, until a broken bone in your hand stopped your career.
12 Subsequently, you took to personal training in fitness and boxing and opened up a gymnasium in Brunswick. It was whilst leaving Doherty’s Gymnasium in Brunswick on 28 November 2011 that you were a victim of an attempt upon your life when you were shot some six times in the back and hip. You were admitted to the Royal Melbourne Hospital in a critical condition and underwent surgery for serious wounds in order to save your life. You spent some weeks in a coma in intensive care. Your injuries are fully set out in the numerous medical reports tendered before me and I shall not repeat those here.
13 Suffice to say, you suffered serious injuries including fractures, pneumothorax, lung contusions, damage to renal artery and kidney lacerations, ruptures to right diaphragm, lacerated right lobe of the liver together with many other injuries. I was informed that you had undergone some 21 operations, and subsequently you had nine more. As a result of your injuries you lost a kidney, also a portion of your liver and you lost your gall bladder. I accept that you have ongoing medical issues and these are described in the numerous medical reports. You are currently undergoing stem cell treatment, platelet rich plasma therapy and hormone replacement therapy, to name just a few of the ongoing treatments that you require.
14 Some two years later, in March 2013, you were again shot. You received a bullet in your arm and you were admitted to the Royal Melbourne Hospital where the bullet was removed. As a result of the injuries sustained in both shootings you have not been able to continue your personal training work. You opened a tattoo business in Clarendon Street, South Melbourne, but due to your lack of capacity for work there has been a significant downturn in your business and its income. I note the letter of your accountant. You have no children and currently you have no partner but you do have family support. For the purposes of this sentencing exercise, I accept that you have suffered horrific injuries in the past and that there is ongoing medical treatment required to alleviate your condition and pain.
15 (4) Custody issues. At the time of this plea you had spent some 246 days in custody in lockdown. This has been due to the need to protect you from others inside gaol, due to you being a victim of two previous shootings and also due to the prison riots. It is likely that you will be held in lockdown for the foreseeable future. I state that I have taken these facts into account in mitigation of sentence
16 (5) Renzella Principles. On 10 January 2015 you were arrested on charges of extortion and assault. On 12 March 2015 you were refused bail by Justice King of the Supreme Court. On 25 July 2015 at the Melbourne Magistrates' Court the extortion charges were withdrawn. On that date you were granted bail in respect of the one charge remaining, being of intentionally cause injury. On 12 August 2015 at the Melbourne Magistrates' Court you were convicted and fined $1000 in respect of the intentionally cause injury charge.
17 Accordingly, as you were fined only, the time that you had spent in custody, some 192 days awaiting sentence, was not claimed as at 12 August 2015.
18 Since 12 August 2015 some complexity has arisen.
19 That complexity has occurred due to the following circumstances; back on 24 October 2010 you committed the offence of affray. Due to a number of matters, including your injuries from both shootings, you were not sentenced on that matter until some four years later on 5 March 2014 by His Honour Judge Smallwood of this Court.
20 You were convicted and sentenced to four months' imprisonment on that date wholly suspended for a period of 12 months. You breached that sentence on 10 January 2015 in respect of the intentionally cause injury charge for which you were fined $1000. On 18 November 2015 breach proceedings were heard by His Honour Judge Smallwood and His Honour made no further order in respect of the charge. In doing so His Honour stated he took into account that exceptional circumstances were shown due to your unclaimed time spent in custody awaiting the previous matter that I've described and His Honour made no further order in respect of the breach.
21 Due to the circumstances of your breach you were required to show exceptional circumstances otherwise the sentence of four months' imprisonment would have to be wholly restored by the sentencing Judge. I asked counsel how I should approach this matter in the circumstances. Counsel jointly submitted that the most His Honour could have taken into account was a period of four months, but also it would be an error to say that there is a specific number of days of the 192 days now open to be claimed. Accordingly, I state I have taken your unclaimed period in custody into account in a general way by way of mitigation of sentence pursuant to the principles in Renzella’s case.
22 (6i) Verdins’ principles. The Crown accept that on the evidence principles 5 and 6 have been established and apply. With respect to principle 5 in Verdins, I am satisfied that life for you in gaol is more onerous than it would be for a person of normal health. With respect to principle 6 in Verdins, I am satisfied that imprisonment for you will have a significant adverse affect on your mental health.
23 Principle 1 is far more problematic. Mr Morrissey SC on your behalf submitted Principle 1 applies. The Crown dispute this. Mr Morrissey SC conceded that there are difficulties in discharging his onus in this matter. Ordinarily Verdins has no application in respect of a mental condition postulated to have existed at the time of the offending unless the condition relied upon can be seen to be causally linked to the offending. Mr Morrissey SC conceded there was a paucity of evidence as to a causal link between your Post-traumatic stress disorder and the offence in question.
24 In my opinion the evidence before me does not support a causal link. The highest Mr Morrissey SC put his case was on the basis that due to your Post‑traumatic stress disorder your judgement was severely clouded. Mr Morrissey SC agreed, however, there was no specific evidence of a causal link of the offence in question. It was sensibly conceded by Mr Morrissey SC that the evidence does not disclose how or why you chose to possess the bag in question that you knew contained narcotics and therefore the expert was unable to opine about a link between your Post-traumatic stress disorder and the particular decision to possess the drug.
25 Though your Post-traumatic stress disorder was severe in nature, and was said to impact your decision making and reasoning power, I can find no causative link to the offences in question. Whilst I accept you had Post‑traumatic stress disorder at the relevant time and that it was severe and that it impacted upon your reasoning in a general way, the evidence does not disclose a specific casual link, nor does Mr McKinnon, the clinical psychologist, in his report or evidence to say otherwise. I note Mr McKinnon opined that you knew right from wrong in possessing the narcotic drugs. In all the circumstances I am not satisfied on the balance of probabilities that principle 1 of Verdins’ case has been established. I state to you, however, that I have taken into account principles 5 and 6 of Verdins' case by way of mitigation of sentence.
26 (7) Prospects of rehabilitation. You have a reasonably lengthy criminal history. You committed the offences before me whilst on bail. Your history contains one substantive prison sentence for attempting to import a prohibited substance, namely, MDMA on 28 February 2002 at the County Court at Melbourne on that date. You received a total sentence of four years and six months' imprisonment for that offence with a non-parole period of two years and six months to serve before being eligible for parole.
27 I accept by your pleas of guilty you have shown some remorse for your actions. You have family support and though your business has deteriorated you are able to carry on your business upon your release. Though you have breached court orders in the past you have complied with an intensive correction order in the past, which in my opinion is a most difficult order for a prisoner to comply with. You have also undergone several courses whilst being held in custody. Overall, I am prepared to accept that your prospects of rehabilitation can be described as at least being reasonable.
28 Against these matters in mitigation, however, you committed serious crimes. Principles of denunciation, general deterrence, specific deterrence all have their part to play in this sentencing exercise. You committed these offences whilst on bail, which would ordinarily be an aggravating feature. On the 7 September 2015 at Melbourne Magistrates' Court you were released on bail in respect of an assault charge involving a cyclist. You committed the offences before me on 25 September 2015.
29 I raised with counsel as to whether committing these offences whilst on bail in the circumstances before me was an aggravating feature, considering the fact that you have been separately charged for that very offence, namely, committing an indictable offence - possession of the drugs - whilst on bail. In my opinion this is a most unusual situation. Mr Brown, who appeared for the Crown, indicated that committing an indictable offence whilst on bail has been a recently introduced offence. Questions of double punishment clearly arise. Both counsel submitted that it could still be looked upon as an aggravating feature for the purposes of this sentencing exercise, but the weight to be given to such aspect should be slight or low considering you have been separately charged for this offence.
30 Accepting that counsels' joint submission are correct, I state the weight that I have given such matter in the circumstances before me is slight. Of course, that is not to say that the provisions of s.16 (3C) of the Sentencing Act 1991 would not apply. They do.
31 Significantly in this case it is important to note that the Crown case against you has been put on a very limited basis. Even though the quantity of methamphetamine you possessed was of a commercial quantity, you have not been charged by the authorities with possess methamphetamine in a commercial quantity.
32 The Crown have accepted your pleas of guilty on the basis that you knew you possessed both drugs of dependence but you were not aware of the quantity with respect to each drug. Accordingly, in the circumstances I asked the Crown prosecutor Mr Brown if I should treat both charges equally even though the subject matter of Charge 1, methamphetamine, was of a greater quantity than Charge 2, cocaine. The Crown responded I should treat both charges equally in terms of their seriousness. The Crown also stated I could impose an aggregate sentence in respect of both indictable offences.
33 Considering the provisions of s.9 of the Sentencing Act 1991, I am of the view that an aggregate sentence is appropriate. In respect of the two summary matters, possess a prohibited weapon and committing an indictable offence whilst on bail, the Crown accepted that a fine would be appropriate in all the circumstances with respect to each summary charge. During the plea hearing, Mr Morrissey SC on your behalf submitted that a term of imprisonment coupled with a community corrections order was an appropriate sentence.
34 The Crown submitted otherwise, saying that a head sentence of greater than two years was required. Considering counsels' submissions, and in the circumstances before me, I was of the opinion that it was at least appropriate to have you assessed for a community correction order. Such assessment dated 27 May 2016 states that you are suitable. I have given careful consideration to many of the competing circumstances in this case and the limited way in which the Crown has put its case. In all the circumstances, you will be convicted and sentenced as follows;
35 On Charges 1 and 2, you will be sentenced to an aggregate term of 20 months' imprisonment. Upon your release you will be placed on a community correction order for a period of two years with all core conditions to apply, as well as drug and alcohol assessment and rehabilitation, mental health assessment and treatment and offending behaviour programs, and supervision to also apply. With respect to the summary charge of possessing a prohibited weapon you will be convicted and fined $400. In respect of the summary charge of committing an indictable offence whilst on bail you will be convicted and fined $3000. I declare pursuant to provisions of s.18 of the Sentencing Act 1991 that you have served already 253 days by way of pre-sentence detention.
36 I order pursuant to the provisions of s.464ZF of the Crimes Act 1958 that you provide a forensic sample, and I note this was consented to, and advise you that reasonable force may be used against you if you do not provide such sample. I also make the relevant disposal order. In respect of the s6AAA of the Sentencing Act 1991, I state the sentence you would have received, but for your pleas of guilty, would have been a sentence of three years' imprisonment with two years to serve before being eligible for parole. Mr Mitchell, do you consent to the community corrections order being made?
37 OFFENDER: Yes, Your Honour.
38 HIS HONOUR: I will temporarily leave the Bench while those orders are signed, et cetera.
(Short adjournment.)
39 HIS HONOUR: Did your client sign those documents, Mr Magazis?
40 MR MAGAZIS: He has, Your Honour.
41 HIS HONOUR: Thank you. Any matters arising out of the sentence, counsel?
42 MR MAGAZIS: No, Your Honour.
43 MS RICHTER: No, Your Honour.
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