Director of Public Prosecutions v Nelson
[2014] VCC 1110
•19 May 2014
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-14-00342
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| SIMON WILLIAM NELSON |
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JUDGE: | Gucciardo | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 19 May 2014 | |
CASE MAY BE CITED AS: | DPP v. Nelson | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 1110 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms K. Richter | |
| For the Prisoner | Ms M. Altman |
HIS HONOUR:
1 Simon William Nelson, you pleaded guilty to one charge of trafficking a drug of dependence in not less than a commercial quantity at diverse locations in Victoria between the 3rd day of April 2013 and the 31st of July 2013. The drug was methylamphetamine. You also pleaded guilty to a related summary offence of dealing with property suspected of being proceeds of crime, namely some $17,950 on 31 July 2013.
2 The maximum penalty for this latter offence is two years' imprisonment or 240 penalty units. Trafficking in methylamphetamine in not less than a commercial quantity carries a maximum penalty of 25 years' imprisonment.
3 The prosecution tendered a summary of its case as Exhibit A and it will be retained in the court file. For purposes of this sentence I will abbreviate its contents as to the circumstances of the offending.
4 You were one of four persons targeted by a police operation which focused on drug trafficking activities and involved an investigation which used telephone intercepts, surveillance and covert operatives. Investigation revealed your role in such activities. You were heard speaking over the phone to various persons and during these conversations you were heard to source large quantities of methylamphetamine from three suppliers, traffic this drug to a network of customers, assisted another person to recover a debt from another and utilise three separate mobile phone services registered in fictitious names.
5 In early April a covert operative engaged you and another co-accused wherein he ordered a sample of methylamphetamine with a view to order more, subject to quality. These conversations were intercepted and recorded. Your co‑accused, Dimitropoulos, spoke to you and arranged to meet to collect this sample. The operative was supplied the sample on 4 April. It was .5 grams, the exchange took place in the Fitzroy Gardens. When the drug was analysed it was found to be of 80 per cent purity.
6 Between 21 July and 31 July 2013 intercepted calls demonstrate you engaged with another co-accused, Waheed, and another supplier, over an order for half a kilogram of methylamphetamine. Initially the amount was not available. Funds were then supplied and meetings took place. You negotiated a price reduction with the supplier from 130 to 125 thousand dollars. On 31 July you agreed to meet the supplier to collect and pay for the drug. You then arranged to meet with Waheed at 6 pm. At 6.18 pm police intercepted you a short distance from Waheed's home. You were in possession of three snaplock bags containing 430.7 grams of which 345 were methylamphetamine with an 80 per cent purity. Police also located the cash subject to the summary charged. You were interviewed and made "no comment" to the questions they asked.
7 In support of what is known as a Giretti-like trafficking count the prosecution relies on a number of conversations in which you can be heard to make arrangements for supply or movements of various of amounts of methylamphetamine. Not all of these transactions were completed. These are summarised at p.4 of the Crown's summary. Briefly stated, your involvement was seen on a number of occasions, once involved 196 grams which were supplied. Another deal involved 112 grams from you, half of which was returned.
8 On another occasion,the covert operative sought 28 grams and inquiries were made from you, but there was no evidence you supplied it. In June you tried to obtain methylamphetamine for another at a level of personal use and you received 28 grams from Waheed at his home and further amounts were attempted to be sourced by you from a supplier in the western suburbs. In late June you tried to source the drug from Waheed and you met for this purpose. On 1 July you tried to source an unknown quantity for Yuan Kam.
9 On 4 July Waheed advised you that he had $30,000 and you then obtained an unknown quantity and supplied Waheed and again supplied him an unknown quantity the next day from a western suburbs' supplier. Some of these conversations involve the co-accused Taumoefolau.
10 Dimitropoulos has pleaded to a number of charges of trafficking but has not been dealt with. Taumoefolau also has pleaded guilty to a number of trafficking charges. Co-accused, Simpis, is listed to be put upon his trial on 4 June 2015 and Waheed is listed to be put upon his trial in May 2015.
11 There is a part of the Crown summary which relates to a conversation held in a public place and captured by CCTV footage . It was held to discuss the recovery of a drug debt involving Waheed, Dimitropoulos, Yuan and Simpis worth some $38,000 , being a debt for cocaine. It was said that this somehow was relevant in order to explain the workings of your association. I do not intend to rely on that particular aspect. It was objected to and I think it is too vague and remote from the charge that you have pleaded to in relation to this Indictment.
12 Drug trafficking is a trafficking in human misery with an enormous cost of suffering, damage to physical and mental health, the destruction of families and often young lives, the motive for much crime committed in our community. It is a tawdry and evil blight that lies at the heart of most of our social ills. While you were not mostly the person selling drugs directly to the public, nor the manufacturer, you are a mid-level supplier. Your responsibility is substantial.
13 On those occasions that transactions fell through, it was your intention to proceed or procure a sale. Trafficking is not less serious in respect of unsupplied drugs than in respect of those which are actually supplied to ultimate consumers or other traffickers. The potential harm of an unsold or unsupplied drug of dependence must be viewed as seriously as the actual harm caused by the sale and distribution of the drug. The seriousness of trafficking is unaffected by the fact that the drug does not reach the public.
14 You fall to be sentenced as a serious drug offender under the Sentencing Act. On 7 May 2008 you were sentenced, in relation to two charges of trafficking and other offences, to six months' imprisonment which was wholly suspended for two years and this means I will sentence you as a serious drug offender for this charge of trafficking in a quantity not less than a commercial quantity and I will have entered in the records of the court this particular fact.
15 You knowingly engaged in trafficking for some profit, whether yours or that of others , with benefits flowing to you over a period of months. This was supportive of your addiction, but you well knew of the amounts and values of the ongoing business you were part of. You undertook the risk and made yourself a link between distributors and suppliers and despite the visible toll on others around you which closed your eyes to the insidious effects of the drugs for your own purposes. You have a relevant prior and in my view general deterrence must play a central role in the sentence that I will impose.
16 Because of your personal circumstances which I will deal with in a moment, in my view specific deterrence is also an element I must address in the sentence. I take into account your plea of guilty and acknowledge that it must attract a discount upon your sentence. This is so because the plea has saved the community the cost of the criminal trial with its associated efforts and commitments. It is an acknowledgment of your responsibility for your criminal behaviour, despite the fact that ,on the material against you, it would appear to have been fairly inevitable.
17 I accept it was entered at the earliest available opportunity and that as far as can be assessed is accompanied by adequate regret and remorse. Although this aspect is often difficult to fully and adequately assess in terms of its genuineness. From the available material I am prepared to accept you are deeply remorseful and ashamed for the impact of your offending.
18 I take your personal circumstances into account. You are 30 years old. You have an older sister. Your parents remain very supportive of you. Your father is an architect and your mother has been , in the past , a professional woman in TV production and recently retired after 20 years in the tendering and marketing role for a national architectural company. Your sister has a Bachelor of Arts from Monash University.
19 Your early life was marked by depression. Although you did not come from a household where there was abuse or violence or mental health issues, your schooling and mind-set was deeply affected by an illness, Pethes disease, of the hip joint which entailed wearing a pelvic metal brace fitted with a horizontal pole fixed between your legs. Your daily requirements from prep onwards were a considerable burden on your parents and, of course, upon you , both physically and emotionally. There can be little doubt that this painful and physical constraint from a young age shaped your psychological outlook and development, as well as your confidence and self-esteem. It is significant that your parents, in their letter of support of this year, refer to this insight as having occurred to them only of late, whereas in reality this probably had a profound effect on you long ago.
20 In a report by psychologist, Simon Candlish, dated 24 March 2014, this background is clearly and helpfully described. You were unable to participate in sport, were probably picked on by others for your condition and so you had a very difficult primary and secondary schooling. Although the brace was removed in primary school, you continued to experience pain and restrictions which accompanied a considerably depressed mood through your secondary school. You reported to Candlish an emotional and avoidant detachment by your parents which did not foster intimate communication and was seen as dwelling on negatives and this, aided by an attention deficit disorder, probably coalesced to create in you , a nonchalance to school where you felt alienated, frustrated and uninterested. You began to connect to other unmotivated students and you naturally linked yourself to other young people who were disengaged and out of place.
21 Despite your parents' efforts and changes of schools, ultimately by year 11 they were advised by a psychologist to withdraw you from school. You were suffering depression and glandular fever in the year 2000. You were at times suicidal and at risk of self-harm. You did not complete your VCE.
22 Post-school you reported to Candlish you felt different from society. In this alienated state you entered the graffiti subculture from age 16 to your mid‑20s. However, you also maintained a job working at a video store from ages 18 to 22. You were unemployed for a couple of years after this and this was the time that your life began to derail. By age 23 you smoked marijuana every second day, a habit you had begun at school. As your graffiti days continued you used harder drugs and this habit became a daily need from age 26, at least for a couple of years. You had developed obsessive compulsive behaviour and the intimate relationships which you did have , seemed to you to be unimportant, self-destructive and lacking in true emotional depth and intimacy.
23 The drugs probably played a functional role in your withdrawal and avoidant personal style. Despite a very supportive family and close friends your dysfunctional inner life has meant you have been on and off antidepression medication and have self-medicated to substitute with methylamphetamines.
24 This drug involvement leads into two important aspects which are relevant in your background. In 2008 you were dealt with by the Magistrates' Court for trafficking and possession of a drug of dependence. You had sold heroin to friends. Your prison sentence was wholly suspended for two years. You had previously completed a community based order imposed for graffiti-related criminal damage. Despite the sanction of the court and the threat of imprisonment, you managed to reach 2010 without breaching the suspension, but had begun methylamphetamine use and other substances because you had discovered body building and gym work. Again, paradoxically, the activity gave you a more confident and positive outlook than ever before, while at the same time plunging you deeper into the drug world.
25 Mr Candlish diagnosed a severe substance use disorder in early remission. It is during this later period in which you committed the current offences. Your involvement is clearly related to your increased use which was considerable in the years 2012 and 13, but also to your desire to continue to take illicit drugs for purposes of your body building and this required participation in trafficking. The normalisation of this behaviour in your own mind, which was required to maintain your physical and mental state, meant you started selling to friends and to participate in the way the prosecution has outlined to the court. You were not employed and your participation not only supplied you with the needed drugs but gave you a sense of a powerful and purposeful activity. You were blind to the effects of the drugs in your life and that of others and in fact you had significantly declined by 2013, as observed by your father, who gave evidence at the plea, and your friends.
26 I accept that you were not involved in manufacturing and packaging the drug and that your main role was as a conduit for the movement of drugs and money. You did not deal directly with the covert operative and there is no evidence of enrichment beyond the benefit you derived as a user. However, clearly whilst some transactions during this period deal with small personal amounts, you were part of larger and more significant transactions. You played a role in the hierarchy of movement by your knowledge of people, the communications which involved you and the physical movement in which you participated. In my view this places the offence in the lower middle range of the trafficking spectrum.
27 This has been your first time in custody and I accept that the impact that one would expect incarceration to have, both negative and positive, has been visited upon you. Initially I was told you were apprehensive and scared, nervous and anxious, regretful of the impact on you and your family. I accept the evidence that you have progressed substantially and you are now more communicative and alert, focused on your future and displaying a growing sense of self-confidence and maturity.
28 Your road forward must encompass the realisation that you have more prison time to serve but I accept that you have positive factors which would tend to support the conclusion that you may be on the path to reformation. You have a loving and supportive family and a network of supporting friends. Your body building and training background has given you prospects for future employment and advancement through personal training. You appear to have begun on the road to insight and understanding of the effects of drugs. You express a strong desire to avoid further offending and a willingness to engage in psychological intervention to address social anxiety and low mood, to maintain positive relationships and continue the process of improvement.
29 I received a large number of written references which I take into account to strengthen the view that there are some positive aspects which are supported by a family and social network. I accept that you are remorseful and that your prospects for rehabilitation, although not a simple path, are probably reasonably good.
30 I accept there is no effective continuum of conduct, as it was upon your plea, as between the relevant prior offence and this offence, but I consider that both your addiction and entrenched chronic depressive outlook do not reduce your moral culpability but provide the clues to understanding your involvement which, to a certain extent, has a mitigatory effect in that it can be contrasted to other motives like greed.
31 You have made efforts while in custody to begin your rehabilitation. You are a billet and have organised personal training schedules for fellow prisoners. I received some certificates of the courses you have undertaken whilst in custody. I take those into account as they are all indicators that you may be able to be reclaimed which, in the long term, is in the community's benefit.
32 The court must denounce drug trafficking and, in my view, particularly where you present as a serious drug defender as defined. I consider that immediate imprisonment is the only adequate punishment in your case, but I consider all the aspects that have been placed before me in this matter in mitigation to reach a sentence which, in my view, properly reflects the criminality involved and all other relevant aspects.
33 I have considered the very many cases decided recently as well as the snapshot by the Sentencing Council in considering current sentencing practice.
34 On the count of trafficking you are convicted and sentenced to four years and nine months. I order that you are not eligible for parole before serving a period of three years. But for your plea, I would have sentenced you to a period of five and a half years with a nonparole period of three and a half years.
35 On the summary offence you are convicted and sentenced to three months' imprisonment concurrent with the other sentence.
36 I declare and have noted in the court's record that you have served 292 days by way of pre-sentence detention. I have signed orders for disposal and forfeiture, as well as orders for a biological sample to be taken. That biological sample will mean that you will be asked to undergo a forensic procedure for the taking of a scraping from the mouth and/or a blood sample according to the Crimes Act until a sample of sufficient standard is obtained for the placement on the DNA database. I should inform you that if at the time the request is made of you you do not consent to the taking of a mouth scraping under the supervision of an authorised member of the police force, then the sample to be taken will be blood sample and police may use reasonable force to enable that forensic procedure to be conducted.
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