Director of Public Prosecutions v Nieto
[2022] VCC 1701
| IN THE COUNTY COURT OF VICTORIA AT BENDIGO CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Court Reference: CR-22-00652
Indictment No: L12666815
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| STEVEN NIETO |
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JUDGE: | HIS HONOUR JUDGE DOYLE | |
WHERE HELD: | Bendigo | |
DATE OF PLEA: | 28 September 2022 | |
DATE OF SENTENCE: | 5 October 2022 | |
CASE MAY BE CITED AS: | DPP v Nieto | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1701 | |
REASONS FOR SENTENCE
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Subject:SENTENCE – CRIMINAL LAW
Catchwords: Guilty plea - Dangerous or negligent driving while pursued by police - Trafficking in a commercial quantity of methylamphetamine – Possession of a drug of dependence – Knowingly deal in proceeds of crime – Substantial and relevant criminal history
Legislation Cited: Crimes Act 1958; Drugs, Poisons and Controlled Substances Act 1981; Sentencing Act 1991
Cases Cited:Worboyes v The Queen [2021] VSCA 169; Fernandov The Queen [2017] VSCA 208; Hadarra v The Queen [2016] VSCA 168; Gregory (A pseudonym) v The Queen [2017] VSCA 151
Sentence: 5 years and 6 months with a minimum of 3 years and 6 months. Section 6AAA: 8 years and 2 months with a minimum of 5 years and 9 months
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Dr J Harkess | Solicitor for the Office of Public Prosecutions |
| For the Accused | Mr G Cooper | Victoria Legal Aid |
HIS HONOUR:
1Steven Nieto, you have pleaded guilty on Indictment L12666815 to two charges of dangerous or negligent driving while pursued by police, maximum penalty three years' imprisonment; a charge of trafficking in a commercial quantity of methylamphetamine, 25 years imprisonment; a charge of possession of a drug of dependence, five years' imprisonment; and a charge of knowingly deal in the proceeds of crime, 15 years' imprisonment.
2You also pleaded guilty to various related summary offences: possession of prohibited weapons, a rolled‑up charge, two year's imprisonment; failing to stop vehicle on police request, six months' imprisonment; fraudulently altering registration plates, which was a rolled‑up charge, two months' imprisonment; unlicensed driving, another rolled‑up charged, six months' imprisonment; using an unregistered motor vehicle, which was rolled‑up but it is 25 penalty units; and failing to provide information to assist accessing data under warrant, two years' imprisonment.
3In addition, Charge 3 of trafficking in a commercial quality is a Category 2 offence, which means that s 5(2H) of the Sentencing Act applies. I have to sentence you to a period of imprisonment unless the circumstances fall within one of the statutory exceptions. It is conceded in this case, as it had to be, that a sentence of imprisonment is inevitable for this offending, and you do not fall within any of the statutory exceptions.
4You were born in October 1987, and you were 33 years old at the time of the offending. You were living with your parents and one of your brothers in Huntly and you were unemployed.
5The circumstances of your offending were set out in the prosecution opening which was tendered and marked as Exhibit A on the plea. I will summarise those circumstances.
Circumstances of offending
6On 29 September 2021 at about 8:30am, police observed a black Volkswagen hatchback, registration WSF215, travelling north on Station Street. They followed the vehicle until it turned into a private driveway at the end of Tobin Crescent, Epsom. Police then activated their police lights and siren. The Volkswagen vehicle reversed out of the driveway, manoeuvred around police, and accelerated back towards Station Street.
7As the vehicle drove past the police car the Informant identified you as the driver. This is the basis of Summary Charge 8, failing to stop a vehicle on police request. The VicRoads database revealed the vehicle was registered to a person living in Wantirna, and you were unlicensed, which are the foundations of Charges 9 and 10 relating to the alteration of registration plates and unlicensed driving. Following that incident police had your address and that of your parents’ where you were living, under surveillance.
8
At 4:30pm on 29 September police observed a lime green Holden Commodore sedan with no registration plates and a grey Ford XR8 sedan bearing registration plates 1UH7YX. Both vehicles were at the back of the property. On
30 September police again observed the lime green Commodore with no registration plates and the black Volkswagen hatchback with registration plates WYD075. On 2 October at about 6:30pm police noticed a grey Ford XR8, with registration plates 1UH7YX, and the lime green sedan again, and the black Volkswagen with the same registration plates as two days before.
9
Also, on 2 October at 10:50am police were travelling north on the
Midland Highway towards the intersection of Howard Street when they saw the lime green Holden Commodore sedan with the registration plates WJD068, which were false, travelling in front of them. You were driving the car which you later admitted in your record of interview. Police activated their lights and sirens. You drove across to the southbound lane of the Midland Highway and accelerated away, travelling at a speed of more than 150 kilometres per hour, before the vehicle quickly disappeared out of view. That is the basis of
Charge 1. That vehicle had been unregistered since 2019 and the plates were registered to a different sedan. You remained unlicensed. The use of the unregistered vehicle is part of rolled‑up Summary Charge 21 and the unlicensed driving falls within rolled‑up Summary Charge 10.
10On 14 October 2021 police again observed the lime green Holden Commodore sedan and the black Volkswagen hatchback in the rear yard of your premises with differing registration plates certainly in relation to the Holden Commodore. On 24 October on further surveillance police again observed the lime green Commodore with different plates again, the Volkswagen hatchback with no plates and the grey Ford XR8, and this time a blue Ford XR6 which had no registration plates.
11At 8:25pm you were seen driving the lime green Holden Commodore again north on the Midland Highway through the intersection of Howard Street, Epsom. Police took a position behind the vehicle and saw you overtake a vehicle and a trailer before accelerating towards the Huntly township. The police vehicle activated the MMR speed measuring device, as well as the police lights. You then accelerated away from police at an extremely high speed. The device recorded you as travelling at 192 kilometres an hour in an 80‑kilometre zone. Due to the excessive speed the police did not pursue the vehicle. That is the basis of Charge 2.
12The database confirmed that the registration plate on that occasion, which was 1UJ2QF, was registered to a different Holden sedan owned by EDM Motors Pty Ltd in Ringwood. It was apparently for sale online. This is part of the fraudulently altered registration plates. Again, you were unlicensed. The plate itself was registered to an individual living in the Epsom area. The vehicle was unregistered.
13Police attended your address in Huntly on 3 November 2021 and executed a search warrant.
14They located in the shed of the premises: a plastic tub containing a zip lock bag of crystal-like substance; a PVC pipe with magnets attached to the bottom containing six vials in which there were steroids under a workbench; a number of zip lock bags containing a crystal‑like substance.
15In your bedroom police located: a blue tablet and a brown powder substance; $3,885 in cash; an extendable baton on your bed; and three high‑powered laser pointers in your bedroom and in an outdoor area.
16In addition: three mobile phones and a laptop; another extendable baton and $45 cash in the green Holden Commodore sedan; and then under the glove box was another PVC pipe containing two zip lock bags of crystal-like substance and a zip lock bag containing another crystal-like substance in a sunglasses holder.
17The money found forms the basis of Charge 5, knowingly deal in the proceeds of crime, while the weapons seized are the basis of rolled‑up Summary Charge 6, possession of prohibited weapon. Police then asked you to supply the passcodes to your electronic devices. You refused to comply with that request. That is the basis of the charge of failing to provide information to assist in accessing data under the warrant.
18In addition, the Informant located several machined fake black numberplates in the shed, which is part of Summary Charge 20, fraudulently alter registration plates. The drugs seized by police were tested with the following results: methylamphetamine – 173 grams mixed and 144 grams pure; MDMA – 2 grams and testosterone – 28.3 grams.
19You were interviewed by police and you said you owned the Commodore sedan and you admitted driving the vehicle. You made full and frank admissions in relation to the balance of the charges, answering all the various questions you were asked. You were remanded in custody, and you have been in custody since then.
Criminal history
20You have a substantial and relevant criminal history. Over the years you have committed many dishonesty offences (including car theft, burglary, proceeds of crime offences and others); drug offences (including two prior convictions for trafficking); and multiple driving offences; as well as other various offences, including handling stolen goods, criminal damage and others. You have, in my opinion, been dealt with relatively leniency by the courts over the years. You have been placed on community correction orders on multiple occasions. You breached the more recent community correction orders from 2019 and 2020 which were imposed for a wide array of different offences.
21Some of the correction orders you have received have had conditions relating to addressing your drug problems, but nothing the courts have done over the last decade has stopped you offending. You have also had two relatively short prison sentences; the most recent being a period of 58 days which was credited as time served in April 2020. You are not to be punished again for your prior offences, but they are clearly relevant to the assessment of your moral culpability, your prospects of rehabilitation, the weight I must give to specific deterrence and community protection in sentencing for this offending.
Gravity
22
The offence of trafficking in a commercial quantity of a drug of dependence is very serious as reflected by the maximum penalty of 25 years. A commercial quantity of methylamphetamine is 50 grams pure. You were arrested with
144 grams pure, which is around or exactly 2.88 times the commercial quantity of the drug. The sentencing regime for drug trafficking is quantity based. The amount of methylamphetamine in your possession was a substantial quantity of pure methylamphetamine. Although you may have been a street-level dealer, that quantity of the drug would have netted substantial profits when you sold it.
23The case against you is one of possession for sale relating to the day on which you were found with the methylamphetamine. Whilst it is true there is no evidence of a lavish lifestyle, from all the circumstances, including the presence of scales and deal bags, it is obvious you were well set up to distribute the methylamphetamine to users of that drug in the community.
24In the case of Haddara v The Queen [2016] VSCA 168 the Court of Appeal said:
It seems to us that it has become a matter of common knowledge that trafficking in ice is not only prevalent but that its prevalence has increased. Prevalence of the offence of trafficking in methylamphetamine is thus a proper matter for the sentencing court to take into account when assessing the weight to be given to general deterrence.[1]
[1]At paragraph 69
25The prevalence of drug trafficking, and the damage it does to both individuals and the community, dictate that general deterrence is the primary sentencing consideration. This is well-established in the authorities. Denunciation as well must be a significant sentencing principle in a case such as this. I accept you are a drug user yourself, but this offending is well beyond what was required to simply feed your own addiction. You had no qualms about spreading the misery caused by methylamphetamine to other users. Your moral culpability is significant particularly considering you have two prior convictions for drug trafficking.
26The prosecution case is that the money the subject of the proceeds of crime charge was derived from drug trafficking activity and you knew its origins. I accept this. The quantum of that offence may be relatively low, but in circumstances where you knew it was derived from trafficking (no doubt your own trafficking) it is clearly an offence requiring a period of imprisonment. It seems to me though there is overlapping criminality between this offence and the trafficking offence. The money and its origins provide context to the trafficking as a piece of evidence indicating you were operating as a drug dealer and ready to distribute the amount located.
27The offence of failing to provide your passcode is a response to the reality that data relating to criminal activity is now routinely stored on computers and mobile phones and it is simple to hide such information by refusing to provide the code to the device. Hence, the sentence must be significant enough to operate as a meaningful disincentive to such conduct. Your conduct in refusing to provide the passcode also undermines to an extent the cooperation you demonstrated in the interview.
28The driving offences are serious, although the offence itself has a relatively low maximum penalty of three years. On the second occasion you were driving at 190 kilometres per hour in an 80‑kilometre zone in a residential area. In the first incident it was 150 kilometres per hour. The speeds at which you drove in both incidents were ridiculous and inherently liable to create danger to other road users. As the prosecutor Dr Harkess submitted on the plea, any mistake at those speeds can lead to a catastrophic outcome. You drove in that way and at those speeds quite deliberately to escape police. What choice did they have but to abandon the pursuit given the danger you were prepared to create for other road users. Such behaviour must be renounced and deterred through the sentence I impose.
29Looked at overall your offending involved multiple criminal acts, including a range of related summary offences. By the time you were arrested and put into custody you were clearly out of control, paying no regard to the law or the safety of others in your community.
Personal circumstances
30You are now 34 years old. You have lived in the Bendigo region for much of your life. You were born in Kyneton and raised by supportive parents. Your upbringing is said to have been unremarkable. You have two brothers. You are the oldest child. Your mother and father are both still working. They have never been in trouble with the police and the execution of the search warrant at their house, and the publicity that followed, has been difficult for them. You will need to repair your relationship with your parents. Your siblings are both employed, and you are said to have a good relationship with both of your brothers.
31Your education was that you went to Goornong Primary School and then to White Hills Secondary College until Year 9. I was told you left because of truancy and cannabis abuse at that stage. You then started a carpentry apprenticeship at the age of 16 or 17; however, this was terminated at the age of 19 after you damaged a motel room on a work trip after you had been drinking. You worked intermittently as a brickie’s labourer until the age of 26. You have not had a job since then.
32Your counsel, Mr Cooper, outlined in his submissions that you have used cannabis since you were 11 or 12 years old, and you were a binge drinker from the age of 13. You started using amphetamine and ecstasy from the age of 16, with heavy methamphetamine use commencing at the age of 19. This escalated throughout your twenties up until this offending. I am told you have only been abstinent when in custody.
33You had a serious motorbike accident at the age of 19 over which you were charged with driving offences. You fractured your femur and your jaw, and you were on crutches for 18 months, followed by a further 12 months of recovery. You say you were housebound and commenced using methylamphetamines, developing a daily habit. Methylamphetamine has clearly been your most significant drug problem. I am told you have not attempted residential rehabilitation and you have had limited engagement with drug counselling while subject to previous community correction orders. On one occasion you completed CISP bail involving some attempt to address your drug problems over a period of four months. It is plain though from your criminal history that drug rehabilitation has been a component with some of the corrections orders you have received.
34You have three children aged thirteen, eleven and nine. They live with their mother with whom you were in a relationship for seven years. You continue to have contact with her and your children whilst you have been in custody, and you indicate you have a positive relationship with your children and their mother.
35In prison you have applied for courses, and I received one certificate which I have had regard to, but due to COVID, and because you have been a remand prisoner, your access to courses has been limited. You worked as a billet at the Melbourne Remand Centre and before that you worked in manufacturing at the Barwon Prison. Once sentenced you hope to be reclassified to a prison much closer to your family.
36You pleaded guilty at the earliest opportunity after you had made substantial and important admissions which were significant evidence in the prosecution case against you. I take into account your cooperation in the interview as a matter in mitigation. I accept your admissions and your plea show acceptance and responsibility for the wrongfulness of your actions and willingness to facilitate the course of justice, and remorse for your offending. I give you credit for the utilitarian value of your plea, which is heightened in the current environment where the court faces a backlog of trials because of the pandemic. This increased utilitarian value of a guilty plea was recognised in the case of Worboyes[2] and I apply those principles. You must receive a significant sentencing discount for your guilty plea.
[2] [2021] VSCA 169
37
Balancing your substantial prior convictions and the gravity of your offending, I can only take a guarded view of your prospects of rehabilitation. However,
Mr Cooper submitted that the fact that you have a young family, a demonstrated work history, although some time ago, no underlying mental health conditions and that you made full admissions, are reasons to have some optimism about your prospects of rehabilitation. Mr Cooper though conceded, given your history and the seriousness and the number of offences before me, a guarded view of your prospects is justified.
38Dr Harkess argued that the orders imposed by the courts have not been working. You are not young anymore. You have been treated fairly leniently by the courts, but you have continued to offend. The protective factors referred to by your counsel have not stopped you offending over the last decade. You have not had a substantial sentence until now. So, in my view, it may be that the longer sentence I must impose for this offending involving a period of parole will provide a sufficiently salutary lesson to you to stop you using drugs and abandon your criminality.
39In relation to trafficking in a commercial quantity, some comparative cases were discussed on the plea, including a sentence I imposed earlier this year in the matter of Proud[3] in which I referred to Court of Appeal cases for trafficking in commercial quantities of Vincent[4] and Roxburgh[5]. Mr Cooper also referred to the decision of Fernando[6] and the comments of Justice of Appeal Redlich that the uplift in sentencing for commercial quantity drug trafficking resulting from the decision of Gregory (A Pseudonym)[7] had less effect for offences in the lower category. Justice Redlich said this in Fernando[8]:
'Accordingly, sentences imposed for trafficking in a commercial quantity of a drug of dependence in the upper category will be most affected by the uplift, whereas there will be greater flexibility in the range for the middle and lower categories of seriousness.'[9]
[3] [2022] VCC 520
[4] [2021] VSCA 99
[5] [2021] VSCA 181
[6] [2017] VSCA 2008
[7] [2017] VSCA 151
[8] [2017] VSCA 208
[9]At paragraph 62
40I accept the submission that this case falls into the lower end of the spectrum, but well above the bottom of that lower end. Current sentencing practices are, of course, one matter that I must have regard to in deciding the sentencing in this case, but they are not a controlling factor in sentencing.
41I take into account the impact of the pandemic during your time in custody and that you have spent the entirety of your time in restricted conditions. This has included the suspension or limitation of visits, reduced time out of the cells, reduced courses and reduced availability of property delivered or sent in. All of these matters were the subject of Mr Cooper's submissions and I take all of those matters into account in mitigation in deciding the sentence in this case.
42I am also satisfied that those conditions will make it more onerous for you for at least some time in the future and that this - your longest sentence - will weigh heavily on you in circumstances where you have three young children.
43The totality principle requires that the overall sentence I impose must be just and proportionate to the total criminality of your offending. To give effect to this principle I will need to impose significant concurrency between the individual sentences, mindful though of where the charge represents quite separate criminal conduct. In relation to the proceeds of crime offence, in my view that does overlap with the way that I have assessed your drug trafficking offence and, therefore, in order to avoid double punishment, I have made the sentence for that offence wholly concurrent.
44The purposes of sentencing in this case include general deterrence, to which I have already referred, specific deterrence, that is, the need to deter you from further offending which is important given your prior convictions. I must denounce the offences in this case on behalf of the community. Just punishment is also relevant, as is community protection, in particular given the dangerous nature of the driving in this case and your preparedness to distribute dangerous substances into the community.
45However, I must have regard to your rehabilitation and ultimate reintegration into the community. This will be the longest sentence imposed on you by a considerable margin and the first time a parole period has been fixed. I will fix a non-parole period consistent with the objective gravity of the offending, but which allows for a reasonably significant period of supervision on parole if the Parole Board allows release at the expiration of your minimum sentence.
46Taking all these matters into account, and balancing the seriousness of your offending against the mitigating factors that I have outlined, I sentence you as follows:
| Charges | Sentence | Cumulation | |
| 1 | Dangerous or negligent driving (motor vehicle registration number WJD086) while pursued by police | 9 months | 5 months |
| 2 | Dangerous or negligent driving (motor vehicle registration number 1UJ2QF) while pursued by police | 14 months | 7 months |
| 3 | Trafficking in a drug of dependence (methylamphetamine) in a commercial quantity | 4 years (Base) | |
| 4 | Possession of a drug of dependence (3,4-methylenedioxy-n-methylamphetamine (MDMA) and testosterone) | 4 months | |
| 5 | Knowingly dealing with proceeds of crime ($3,930.00) | 9 months | |
| Summary Charges | |||
| 6 | Possession of prohibited weapons | 3 months | 1 month |
| 8 | Fail to stop on police direction | 1 month | 1 month |
| 9 | Altering registration plates | 14 days | |
| 10 | Unlicenced driving | 3 months | 1 month |
| 21 | Using unregistered motor vehicle | $200 | |
| 27 | Failing to provide information to assist accessing data under warrant | 8 months | 3 months |
| TES: 5 years and 6 months S 6AAA: 8 years and 2 months with a minimum non-parole period of 5 years and 9 months | |||
47On Charge 1 you are disqualified, and your licence is cancelled for 15 months.
48On Charge 2, given the objective gravity of the offence, you are disqualified and your licence is cancelled for a period of 3 years. Those periods are concurrent, so the total period of disqualification is 3 years.
49Pursuant to s 18 of the Sentencing Act, I declare that 336 days be reckoned as the period of imprisonment you have already served.
50I make the disposal orders sought which are not opposed, subject to the outstanding matter relating to the motor vehicle which I will deal with later in the circuit. I will now adjourn.
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