Director of Public Prosecutions v Niap

[2016] VCC 551

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR -14-01882

DIRECTOR OF PUBLIC PROSECUTIONS

v

MARVIN NIAP

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JUDGE:	HER HONOUR JUDGE DAVIS
WHERE HELD:	Melbourne
DATE OF HEARING:	20 January 2016 & 20 April 2016
DATE OF SENTENCE:	4 May 2016
CASE MAY BE CITED AS:	DPP v Niap
MEDIUM NEUTRAL CITATION:	[2016] VCC 551

REASONS FOR SENTENCE
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Subject: Criminal – plea – sentence.
Catchwords: four charges of trafficking a controlled drug contrary to s.302.4(1) of the Criminal Code (Cth).
Sentence: three year community corrections order with conditions.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr J. Dickie	Cth DPP
For the Accused	Mr M. Hume	Jay & Co Barristers & Solicitors

HER HONOUR: 

1Marvin Niap, you have pleaded guilty to four counts of trafficking a controlled drug, contrary to s.302.4(1) of the Criminal Code (Cth). The maximum penalty for this offence is ten years' imprisonment.

2The circumstances of your offending are set out in the summary of prosecution opening, which was tendered on the plea, and I sentence you on the basis of the facts set out in that summary.

3You trafficked in the controlled drugs, MDMA and cannabis during two periods.  The first period was for a month between 6 April and 3 May 2013.  The second period was between 14 January and 12 June 2014. 

4A search warrant was executed at your mother's property on 12 June 2014, where you were living.  Prior to commencing the search, you were in the bedroom and police asked if you had anything in your room that you should not have, such as drugs.  You were cautioned and then told police that there were drugs and money in your room.  The drugs comprised 283.6 grams of cannabis in various snap-lock bags, 5.4 grams of MDMA in tablet form in various containers, drug paraphernalia, and a total of $17,650 in cash. 

5An iPhone was also seized from your desk.  It was activated in the name of
a person who has never met you, but who knows your sister.  Data from the iPhone which was extracted, contained 3,712 sent messages relating to drug trafficking, being the sale of drugs, or attempted sale, including others to on-sell and arranging payment for drugs.  About 1,000 sent and received messages concerning the trafficking of cannabis and MDMA occurred during the first period of trafficking, and about 6,600 messages occurred during the second period of trafficking. 

6The texts showed that over the two periods you trafficked cannabis almost daily and MDMA regularly.  You had multiple customers and at times had other people working for you selling and delivering the drugs on your behalf.  In some texts you described yourself as the "CEO" of the business. 

7Charge 1 concerns trafficking in MDMA during the first period via a number of text messages sent and received on 6 April, 28 April and 3 May 2013. 

8Charge 2 concerns almost daily trafficking in cannabis during the same period, as evidenced by various sent and received text messages.

9Charge 3 concerns trafficking in MDMA via text messages, which indicated repeated sales of MDMA during the second period. 

10Charge 4 concerns trafficking in cannabis during the second period, as evidenced by text messages regularly sent to a number of customers. 

11You were arrested on 12 June 2014, but were not interviewed because you looked tired and told police that you had been playing video games all night.  You were charged and granted bail the next day.  You were committed for trial on 22 October 2014, on charges which included a charge of attempting to import MDMA.  Plea negotiations began on 20 September 2015.  On 6 October 2015, you were arraigned and pleaded guilty to the current charges and the trial date of 12 October 2015 was vacated. 

12You were born in Malaysia and came to Australia with your family when you were five years old.  You have an older sister.  You had a normal childhood.  Your parents divorced when you were 13.  You did not get on with your mother's boyfriend who moved in with you.  The situation worsened when your sister left to go to university.  She is a doctor living in Queensland and was present in court at the plea hearing, along with your father.  After being charged, your relationship with your mother broke down and you now live with your father and his new partner.

13You started university in 2011 at Monash University.  You were playing sport and taking ecstasy casually.  You failed all of your subjects that year.  In 2012 and 2013, you were still using drugs casually, attending university and attending raves.  Your grades were not very good.  According to your counsel, your offending began in 2013, after being asked to hold onto some drugs for another person, in exchange for obtaining some for your personal use.  This was the first period of offending. 

14You then moved into trafficking on your own in the first half of 2014.  You were socialising well.  After being arrested, you began to realise the seriousness of your actions and started to study harder.  You did very well at university at the end of 2014.  You then went part-time.  You stopped partying and taking ecstasy, but have used some cannabis occasionally.  You have struggled with panic attacks since your arrest.  Since June 2014, you have been studying
part-time, doing some voluntary work and giving some financial advice on
a voluntary basis.

15A psychological report of Dr Dion Gee, dated 16 April 2016, was tendered on the plea.  In that report, Dr Gee noted that during your time at university, you had been volunteering with two organisations.  You told Dr Gee that since being charged, and in the expectation of having a conviction recorded, you developed panic attacks and were prescribed medication for anxiety and depression by your doctor, but have not taken the medication.

16You saw a psychologist a few times.  You told Dr Gee that you first started taking ecstasy after your sister went interstate to study.  You were using it casually, then started to use marijuana on the advice of friends in order to combat your depressive symptoms.  You did not give details as to why you offended.  You told him you knew that your conduct was wrong and that you knew it harmed people, mentioning the disappointment you caused your mother. 

17You are very preoccupied with the potential longer term impact of receiving
a conviction.  He felt that you demonstrated symptoms suggestive of major depression and anxiety and of panic disorder, which arose in the context of your substance abuse, just before your conduct was discovered, and which was worsened by your arrest on the current charges.  He also felt that you suffer from substance use disorder, which is currently in remission, and from
a dependent personality disorder. 

18He noted that you struggle to appreciate your risk profile and potential for future aberrant behaviour.  He noted that the risk of offending would increase if you relapsed into substance abuse.  This risk would be dependent on and moderated by monitoring your mental state and your future compliance with prescribed psychotropic medication; your motivation for intervention; the clinical services you accept; your ability to self-monitor and regulate cognitive, behavioural and emotional states; your desire to remain offence-free during times of adversity; where you live; and your ability to reformulate an identity, along with meaningful future goals and aspirations following sentencing.  He noted that you are quite impressionable. 

19Finally Dr Gee recommended that you receive psychiatric treatment and medication for your depression; that you participate in a drug program to help you avoid relapsing into substance abuse; and psychological counselling to address your deficits in self-regulation and personality pathology. 

20Dr Gee concluded that your presenting psychopathology was not causally linked to your offending, but that a sentence involving conviction would cause an exacerbation of your depression. 

21Your counsel conceded the seriousness of your offending, particularly given its business-like qualities and the fact that you made a profit.  However, he emphasised a number of matters in mitigation.  You were only 19 during the first period of offending and 20 at the time of the second period of offending, which was relatively unsophisticated, to the point where at times you had nothing to sell because you had not been paid.  Your naivety was demonstrated by your reaction at the time of the police raid on your home.  You disclosed that you had some marijuana and had some cash from trafficking, and you later provided police with your online account details. 

22You have no prior convictions.  Your plea of guilty came after the withdrawal of a more serious charge.  Your offending began when you were impressionable, and given that you suffer from depression and anxiety, imprisonment would be more burdensome for you than for another person not suffering from this condition. 

23You are now 22 and there has been a significant delay, during which your mental state has declined.  You have not engaged with mental health treatment, as you needed to.  You are immature, but you understand the impact of your offending, and how it has affected your friends and family.

24Your counsel submitted that the appropriate disposition is a community corrections order.  The prosecution submitted that you were the principle of the business you ran over the two periods of offending and were motivated by profit, although it was conceded that at times you were out of stock or lacked money to buy drugs.  It was conceded that, in addition to the remorse evidence by your plea of guilty, you have also expressed remorse for your offending and you have facilitated the course of justice. 

25The prosecution agreed that you are a young offender, immature, and for this reason the prospects of rehabilitation are very important, and that you have no prior convictions, were doing well at university and have prospects in the future. 

26It was also conceded that your depression may be an additional burden you face if gaoled.  However, it was submitted that in spite of your submissiveness, you were assertive when running your business, you stopped offending after the first period of 27 days, but then resumed offending and did so for 149 days and only stopped when detected, so this was not a simple error. 

27It was conceded that a community corrections order would be open if your offending had been limited to the first two charges, but in relation to Charges 3 and 4, which concern the later period of offending, it was submitted that immediate imprisonment was the only available option.  It was submitted that larger quantities of cannabis were sold in the second period and you were expanding your business. 

28It was conceded that the court could take into account that you consented to the forfeiture order.  It was submitted that general and specific deterrence and just punishment are relevant sentencing factors. 

29I note that the precise amount and value of the drugs sold over the two periods is not known, but that there were multiple transactions each day, increasing substantially during the second period.  I also note that you were found in possession of 283.6 grams of cannabis and 5.4 grams of MDMA.

30On 20 April 2016, you were assessed by Karl Johansson of Corrections Victoria as suitable for a community corrections order.  The conditions which were recommended were: community work; drug treatment and rehabilitation; mental health treatment and rehabilitation; and supervision. 

31I accept the matters put in mitigation on your behalf.  Trafficking in controlled drugs has serious social consequences in Australia and drug traffickers should know they risk a substantial sentence if apprehended.  It is necessary to give weight to the sentencing principles of general and specific deterrence and just punishment.  You are the principle of a small operation and while it is not possible to specify the quantities of drugs trafficked, I consider, on the evidence, that it was a relatively small scale operation. 

32Your plea of guilty was not made early, but I take into account that it followed the withdrawal of an importation charge and I consider that it evidences your acceptance of responsibility and provides some evidence of remorse.  You also expressed remorse to Dr Gee. 

33You are a well-educated young offender with no prior convictions and I consider that your prospects of rehabilitation, with treatment for your drug and mental health issues, are positive. 

34I accept that there are two discrete periods of offending and that this makes the offending and Charge 3 and 4 more serious.  However, I consider that all the offending occurred while you were immature, naïve, and somewhat grandiose, and in the context of a drug habit you had developed while a university student.

35In all the circumstances, I am not satisfied that imprisonment is the only appropriate sentence in this case.  Rather, I consider that the only appropriate sentence, having regard to all the relevant sentencing principles set out above, is the imposition, in respect of all of the offending taken together, of a three year community corrections order with the conditions recommended in the report.  The length of the order is reflective of the seriousness of your offending and the necessity for you to undertake the necessary drug assessment and treatment, mental health treatment and recovery, to reduce the risk of re-offending, supervision to ensure your compliance with treatment and other conditions, and 200 hours of community work.

36You need to fully understand the extent to which you are being given an opportunity to avoid imprisonment,  that is conditional upon your complying with all of the terms of this community corrections order. 

37In addition to the conditions I have specifically imposed, you must also abide by the terms that apply to all community corrections orders.  These are: that you must not commit any other offences during the period of the order being in force, that is three years from today, any offence for which you could be imprisoned, even if a court would not choose to impose imprisonment.  You must report to and receive visits from a Community Corrections officer.  You must report to the Community Corrections Centre at Ringwood within two clear working days from today, which will be 6 May 2016. 

38Also you must not leave Victoria without first getting permission from
a Community Corrections officer, and you must inform the Community Corrections office of any change of address, where you live or work, within
48 hours of that occurring.  Finally you must obey all lawful instructions from and directions of Community Corrections officers. 

39Would you stand Mr Niap.

40Do you understand the conditions that I have imposed and the general terms that apply?

41OFFENDER:  Yes, Your Honour.

42HER HONOUR:  Before you consent to the making of such an order, you must understand that the contravention of any condition attached to the community corrections order, except for a contravention of a direction by the Secretary, is itself and offence punishable by three months' imprisonment.  Contravention of a community corrections order also carries with it the prospect that you will be brought back before me and re-sentenced for the original offences.  Do you consent in these circumstances to the imposition of such an order?

43OFFENDER:  Yes, Your Honour. 

44HER HONOUR:  And I just want to make it clear that the terms of the order include the requirement that you attend for treatment for drug assessment and rehabilitation, but also for mental health treatment and rehabilitation.  These are very important conditions of the order and you need to comply with all the conditions.  All right?  Excellent.  I am just going to print the order for you to sign.  Thank you.

45Are there any matters that need to be corrected?

46MR DICKIE:  No, not with the sentence, Your Honour. 

47HER HONOUR:  No.

48MR DICKIE:  I have a copy, or draft copies of the order for - under the Proceeds of Crime Act ‑ ‑ ‑

49HER HONOUR:  The forfeiture?

50MR DICKIE:  ‑ ‑ ‑ if I could hand those up.

51HER HONOUR:  Thank you. 

52MR DICKIE:  I may simply hand up one copy, Your Honour,
and ‑ ‑ ‑

53MR HUME:  Your Honour, just the attendance should be changed to Mr Hume for the respondent, but otherwise the orders are appropriate.     

54HER HONOUR:  Hume, all right, thank you.  Can you just have a look at the order please and then I'll ask Mr Niap to sign it, thank you. 

55MR DICKIE:  Thank you.

56MR HUME:  They are fine, Your Honour.    

57HER HONOUR:  Do you want to take it to Mr Niap for him to sign it.

58MR HUME:  Yes, Your Honour.  I just have the one copy here. 

59HER HONOUR:  Do you want to approach him.  You can explain it to him if you wish to. 

60MR HUME:  Yes.

61HER HONOUR:  Thank you.  We can adjourn, thank you.     

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