Director of Public Prosecutions v Page

[2019] VCC 1468

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-19-00909

DIRECTOR OF PUBLIC PROSECUTIONS

v

SCOTT PAGE

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JUDGE:	HIS HONOUR JUDGE CARMODY
WHERE HELD:	Melbourne
DATE OF HEARING:	4 September 2019
DATE OF SENTENCE:	6 September 2019
CASE MAY BE CITED AS:	DPP v Page
MEDIUM NEUTRAL CITATION:	[2019] VCC 1468

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr L. Harrison	Office of Public Prosecutions
For the Accused	Mr C. Nikakis

HIS HONOUR: 

1Scott Page, on 4 September 2019 at the County Court in Melbourne you pleaded guilty to the following charges on indictment No.K10391985:

Charge 1, trafficking in a drug of dependence in not less than a commercial quantity.  The drug in that case was methylamphetamine.  This charge has a maximum penalty of 25 years' imprisonment. 

Charge 2, trafficking in a drug of dependence.  The drug was buprenorphine.  This charge has a maximum penalty of 15 years' imprisonment.

2You consented to a related summary charge being heard at the time of your plea. Pursuant to s.145 of the Criminal Procedure Act a Summary Charge No.5 was transferred to this court.  You pleaded guilty to committing the above indictable offences whilst you were on bail for other unrelated offending.  The summary charge has a maximum sentence of three months' imprisonment.

CIRCUMSTANCES OF YOUR OFFENDING

3The circumstances of your offending are as follows:  The prosecutor tendered an amended summary of prosecution opening that was Exhibit A on the plea.  At the time of your offending for Charges 1 and 2 on the indictment you were on two separate undertakings of bail.  I refer to the summary. 

4On 14 May 2018 you were bailed from the Frankston police station in relation to unrelated drug trafficking and possession charges to appear at the Frankston Magistrates' Court on 31 August 2018.  That grant of bail was extended on various occasions, including 9 January 2019, when it was extended by Magistrate Alsop for you to attend at the Frankston Magistrates' Court on Monday 10 June 2019.

5Two days later, on 11 January 2019, you were also placed on bail from the Frankston police station in relation to further unrelated drug possession charges to appear at the Frankston Magistrates' Court on 27 May 2019.  Both grants of bail were active and in existence on the day of your offending, which was Tuesday, 12 February 2019.

6I turn to your charges before this court.  At approximately 11.57 pm on Tuesday 12 February 2019, police were conducting routine duties in the Caulfield area.  Upon reaching the intersection of Testar Grove and Balaclava Road they observed a silver Holden Commodore station wagon which was stopped at Testar Grove, waiting to enter Balaclava Road.  Within the Commodore was yourself in the front passenger seat, Rowan Schrentz, who was driving the vehicle, and Thomas Johnson who was seated in the back seat behind you.

7Upon being seen by police, Schrentz has reversed the vehicle down Balaclava Road and pulled into a driveway at 104 Balaclava Road in Caulfield North.  The police turned their vehicle into Testar Drive and followed the Commodore before stopping across the driveway at 104 Balaclava Road and blocking the car in.  The police then saw the occupants of the Commodore moving about within their seats in the vehicle and they formed the opinion that you, the people in the car, were acting suspiciously and possibly trying to conceal items.  The police members have then approached the Commodore and each of the occupants of the car have provided their names.

8Police believed all three persons were drug-affected and owing to their previous behaviour determined they would search both the occupants of the car and the car itself.  You, along with other occupants of the Commodore, were searched by the police.  During the search of you the police noted there was a large bulge at the front of your shorts.  Upon being asked about the bulge you stated that it was a certain part of your anatomy.  Police then pulled your shorts down and a large plastic bag could be seen under your underwear and your shorts.  Police asked you what it was and you responded, 'shards'.  You were then placed under arrest.

9During the search of you the following items were found: (a) $210 in notes, Australian dollars; (b) two ziploc bags containing methylamphetamine, total weight of the methylamphetamine was 278 grams with a purity of 87 per cent.  This is 1.1 times the commercial quantity of a mixed drug or 4.8 times the commercial quantity of a pure drug of methylamphetamine.

10Police also found within two bags in the back passenger seat of the driver's side of the car two scales, a small blowtorch, a police branded torch, and a large number of deal bags.  During the search of Schrentz police found 0.3 grams of methylamphetamine and $750 in cash.  During the search of Johnson no illegal items were found.  Both of them were arrested and taken to the Moorabbin police station.  You were also taken to the Moorabbin police station where you were interviewed.

11During the process and whilst you were in custody you were required to remove all of your clothing and you were further searched.  During that search a white object fell from between your buttocks.  The police seized this item and found it to contain buprenorphine in the form of 105 and a half orange tabs and weighing 5 grams.  That is the basis for Charge 2.  That amount is two and a half times the trafficable quantity for buprenorphine.

12On 13 February 2019 you were interviewed by police and you exercised your right to make a “no comment” record of interview.  You have been in custody since your arrest.  The total pre-sentence, not including this day, is 205 days.

YOUR PERSONAL CIRCUMSTANCES

13I turn to your personal circumstances.  I have been told very little of your personal circumstances.  You are now 41 years old.  You were one of six children in your family.  You were supported by your mother and a sister in court on the day of your plea.  Your sister visits you in gaol and attends with your 11-year-old son so that you can maintain your relationship with him.  You have separated from the mother of your son.  The previous court appearances for family violence matters were at the time of the relationship breakdown.  You maintain a co-operative working relationship with your former partner to bring up your son.

14You left school at age 14.  In your own words, you worked in construction for a short time and then you led the life of a 'ratbag'.  I am quoting what your counsel had said to the court.  It is clear from your admitted criminal history that you have been a long-term heroin addict and a drug user generally.  You counsel tendered your Children's Court criminal record spanning the period of April 1994 to June 1995. It was Exhibit 1.  Predominantly, your Children's Court appearances are for dishonesty charges.

15In the adult jurisdiction you have admitted 30 pages of prior court appearances from November of 1995 to February 2018.  Your first adult appearance included charges of possession and use of amphetamines.  By July 1997 you were charged with possession and use of heroin and amphetamines.  Your offending over the 24 years from 1995 to 2019 has mainly been dishonesty offences, no doubt to fund your drug addiction.  In the 2011 and 2012 period there were family violence intervention matters that marked the end of your relationship with your former partner, the mother of your 11-year-old son.

16Relevantly, you have prior conviction for trafficking in a drug of dependence in June of 2016.  The total effective sentence at that time was a nine-month sentence for a combination of trafficking drug offences, and dishonesty and driving offences and a breach of suspended sentence.  You served that as a straight sentence of nine months' imprisonment.

17Whilst in custody your treatment for drug addictions is on the basis of a daily dose of 20 ml of methadone in respect of your opioid addiction.  You currently have a job as a baker in Port Phillip Prison.  This prison work occupies your time and mind whilst you are in custody.  Your adult life has been dominated by your drug addiction and the resulting criminal activity to fund your addiction.  You have had one break where you commenced an apprenticeship with your older brother as a builder.  You broke down and returned to drugs and crime as a result and that brings us to this day.

SENTENCING CONSIDERATIONS

18The basic purpose for which a court may impose a sentence are just punishment, deterrence, both specific and general, rehabilitation and denunciation of your actions and the protection of the community.  In sentencing you I must have regard to a range of factors such as the seriousness of your offending, your culpability for it, and your personal circumstances.  I am also required to balance the interests of the community in denouncing your criminal conduct with the interests of the community in seeking to ensure as far as possible that you as an offender are rehabilitated and reintegrated into society.

19I am also required to take into account current sentencing practices in fixing your sentence.  That inquiry is directed particularly, but not exhaustively, to the kinds of sentences imposed in comparable cases and the statistics for those sentences.  I have considered the statistics and current sentencing practices, mindful that each case must be considered in the light of its own particular circumstances, and many of the cases would be distinguishable from your case, as indeed they are from one another. Of course, current sentencing practices is but one of the considerations I am required to take into account when determining a just sentence for your offending. 

20The learned prosecutor helpfully handed me three cases decided in the Court of Appeal for charges of trafficking in a commercial quantity of a drug of dependence.  The cases were:

·Brian Gregory (A Pseudonym) v The Queen [2017] VSCA 151;

·Mark Fernando v The Queen [2017] VSCA 208; and

·DPP v Paul Condo [2019] VSCA 181.

21In Condo's case at paragraph 20 the Court of Appeal stated as follows:

For the avoidance of doubt, however, we should make it clear that there is no tension between what this Court has said in Gregory and Fernando about the need for an uplift in current sentencing practices as they concern trafficking in CQs of drugs of addiction, and the need for individualised sentencing as expressed in Dalgliesh and earlier decisions such as Elias v The Queen.[14] Section 5 of the Sentencing Act 1991 requires a sentencing judge to have regard to current sentencing practices along with other factors as part of any sentencing exercise. This reflects the need for predictability and consistency in sentencing.  While the uplifted sentencing practice is not a 'controlling factor', it cannot be ignored. It remains a relevant factor in every sentencing exercise of this kind.

22I have noted the matters set out in Gregory and Fernando's case concerning the uplifted current sentencing practices.  In your case the factual basis for your offending is significantly different from the circumstances of the offending in each of the cases of Gregory, Fernando and Condo.  In your case the relevant circumstances of your offending as indicators of the seriousness are as follows. 

(1) The mixed quantity and measure of the methylamphetamine in a commercial      quantity charge is 1.1 times its commercial quantity;

(2)   The purity quantity measure of methylamphetamine is 4.8 times the commercial quantity;

(3)   The quantity of buprenorphine is 2.5 times the trafficable quantity for that drug;

(4)  The offending involves two separate drugs of dependence;

(5)  The offending occurs on one single day;

(6)  There is no evidence of sales, contacts or text messages, et cetera, that are usually involved in cases of trafficking commercial quantities;

(7)  There is no evidence of wealth or money.  You had $210 in your possession when you were searched. I understand it from submissions by your counsel, a search by the police at your Department of Housing premises in South Frankston did not produce any evidence of wealth or money;

(8)  You were on bail at the time of this offending.

23The most relevant factor in determining the seriousness of your offending is the quantity of the two separate drugs you have pleaded to for trafficking. Trafficking in not less than a commercial quantity of a drug of dependence is a Category 2 offence for the purpose of s.5(2H) of the Sentencing Act. As such, the court must make an order under Division 2 of Part 3 other than a sentence of imprisonment in addition to making a community corrections order in accordance with s.44 unless the court is satisfied that one of the subsections of s.5(2H) is in existence.

24It was not submitted on your behalf that there are substantial and compelling circumstances in your case which could be established.  Your counsel conceded that the appropriate sentence was a term of imprisonment with a non-parole period to be fixed. 

25You have pleaded guilty to these charges.  Your plea of guilty was indicated at an early stage.  Your plea does have the utilitarian value of allowing for the orderly and effective administration of justice.  There is a certainty of outcome and the resolution of the substantive issues raised by your offending.  Your plea also allows for the preservation of the court and police resources to deal with other matters.  Your plea vindicates the public confidence in the legal process set up to protect the community.

26Your plea also is a clear acknowledgment by you that you accept responsibility for your criminal behaviour on this occasion.  Your plea also recognises you are willing to facilitate the course of justice in the community and I accept that your plea of guilty to these charges indicates and demonstrates some remorse on your behalf.  Your plea of guilty was indicated before the certificate of analyst was prepared and that is a further indicator of the level of your acceptance of your criminality.

27You have family support from your mother and sister.  You have the responsibility of your 11-year-old son.  Your prospects of rehabilitation are best assessed as guarded.  You have had a long-term addiction to drugs, particularly heroin.  Unless you can control your drug addiction a reasonable conclusion is that you will reoffend in order to finance that addiction.

28Trafficking in methamphetamine in a commercial quantity is a very serious offence.  The maximum sentence of 25 years fixed by Parliament is a clear indicator of the seriousness of this offending.  Your offending is in the lower range for this offence as it occurs on one single day and has none of the usual markers of ongoing trading, sales, and money attached to this type of offending.  In a quantity-based sentencing regime the amount of drug (ice as it is known) is 1.1 times the commercial quantity on the mixed measure assessment or 4.8 times the commercial quantity on the pure measure of the drug, ice. 

29You would certainly have known how much of the total substance you had in your possession but you would not necessarily have known the purity of the drug in your possession.  There is no evidence you knew of the purity of the drug in your possession.  I am sentencing you on the basis of the 1.1 times commercial quantity of the mixed methylamphetamine for Charge 1.

30The principles of general and specific deterrence, protection of the community and just punishment dictate that the only appropriate sentence is a term of imprisonment for each of the charges before the court.  I will cumulate some of the sentences to reflect the additional offending but not to the extent of arriving at a crushing sentence so as to offend against the sentencing principle of totality. 

31More particularly, I have cumulated some of the sentence for the offence of offending whilst on bail.  I have disregarded your bail status in the fixing of the sentence for the drug charges, even though I have noted that matter is a factor in the seriousness of the offending for the drug charges. I have done so to avoid double punishment.

32On Charge 1, trafficking in a commercial quantity of methylamphetamine, you are convicted and sentenced to four years and six months' imprisonment.  That is the base sentence. 

33On Charge 2 of trafficking buprenorphine you are convicted and sentenced to two years' imprisonment.  Nine months of that sentence will be served cumulatively upon the base sentence. 

34On the summary charge of committing an offence whilst on bail, which is Charge 5, you are convicted and sentenced to two months' imprisonment.  One month of that sentence will be served cumulatively upon the sentences in Charges 1 and 2.

35That is a total effective sentence of five years and four months' imprisonment. Your non-parole period is fixed at three years and six months. But for your plea of guilty I would have sentenced you – this is pursuant to s.6AAA of the Sentencing Act I am making this pronouncement – you would have received a sentence of eight years with five years and nine months' imprisonment.  I declare that you have served 205 days of pre-sentence detention and I have signed the forfeiture order and the disposal order that was sought.

36COUNSEL:  As Your Honour pleases.

37HIS HONOUR:  Is there anything further?  Thank you.  I will sign these orders and I will hand them down.  Mr Prosecutor, I just note that in the disposal order you are seeking two ziploc bags and 292 grams of crystal meth.

38MR HARRISON:  Yes, Your Honour.

39HIS HONOUR:  That should be?

40MR HARRISON:  287, Your Honour, yes.

41HIS HONOUR:  Seventy-eight.

42MR HARRISON:  Sorry, 278, I apologise.

43HIS HONOUR:  I will amend that accordingly.

44MR HARRISON:  Thank you, Your Honour.

45HIS HONOUR:  Thank you.  Remove the prisoner.  Thank you for your assistance.

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