Director of Public Prosecutions v Parks
[2024] VCC 408
•4 April 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-23-01436
Indictment No. N12485850
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| SCOTT ANDREW PARKS |
---
JUDGE: | HER HONOUR JUDGE CANNON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 28 February 2024 | |
DATE OF SENTENCE: | 4 April 2024 | |
CASE MAY BE CITED AS: | DPP v Parks | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 408 | |
REASONS FOR SENTENCE
---
Subject:CRIMINAL LAW
Catchwords: Sentence – Pleas of guilty – Failure to surrender firearm related item (1) – Traffick drug of dependence (commercial quantity) (2) – Traffick drug of dependence (1) – Knowling deal with proceeds of crime (1) – Related summary offences – Possess cartridge ammunition (1) – Breach condition of parole (1) - Long history of alcohol abuse, illicit substance abuse and mental health issues - Significant cash found at premises – Indicative of trafficking drugs for profit – Drug trafficking enterprise exceeding self-medication needs – Addiction not accepted as underlying explanation for offending – Significant drug trafficking business but offending confined to one day and sentenced on that basis – Relevant criminal history – Harsh childhood undertaking considerable responsibilities for younger sibling – Exhibited behavioural issues from young age – History of difficulties in managing violence and aggression – Referred to Forensicare in 2009 in relation to managing anger in the context of drug use – Schema and drug therapy - Suffered life-threatening injuries as result of unprovoked stabbing in 2015 - Difficult transition to parole in 2021 – Cancellation of parole – Currently serving balance of 2016 sentence - Presumption of cumulation upon current sentence of term of imprisonment unless exceptional circumstances exist – No exceptional circumstances exist - Expert opinion – Suffering from PTSD, ADHD and depression
Legislation Cited: Drugs, Poisons and Controlled Substances Act 1981 (Vic), Crimes Act 1958 (Vic) and Sentencing Act 1991 (Vic)
Cases Cited:Gregory (a pseudonym) v The Queen {2017] VSCA 151; DPP(Cth) and Maxwell [2013] VSCA 50
Sentence: Convicted and sentenced to Total Effective Sentence of 8 years and 6 months’ imprisonment with a non-parole period of 5 years’ imprisonment to be served cumulatively with the sentence currently being undertaken – Sentenced as serious drug offender in relation to Charges 2 and 3 on the Indictment – Pre-sentence detention of 1 day declared as having already been served as p[art of the sentence imposed – s.6AAA Sentencing Act 1991 (Vic) declaration – Ancillary orders Forfeiture and Disposal
---
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms N. Burnette | Solicitor for Public Prosecutions |
| For the Accused | Ms G. Connelly | Ellinghaus & Lindner |
HER HONOUR:
1Scott Andrew Parks, you have pleaded guilty to the following charges on the Indictment.
2Failing to surrender firearm related item on service of Firearm Prohibition Order which has a maximum penalty of five years' imprisonment.
3Two charges of trafficking in a commercial quantity of a drug of dependence – that offence has a maximum penalty of 25 years' imprisonment.
4Trafficking in a drug of dependence which has a maximum penalty of 15 years' imprisonment.
5Possessing a drug of dependence which in your case has a maximum penalty of 12 months' imprisonment.
6Knowingly dealing with proceeds of crime which has a maximum penalty of 15 years' imprisonment.
7You have also pleaded guilty to the Summary Offences uplifted to this Court of possessing cartridge ammunition which has a maximum penalty of 40 penalty units and one charge of breaching a condition of parole which has a maximum penalty of 30 penalty units or three months' imprisonment.
8In sentencing you I must have regard to the maximum penalties as these reflect the seriousness with which Parliament regards each of the offences.
9Your offending was opened by the prosecution as follows.
10At the time of the offending, you were living with co-offender Paige Heyman at a house in Erne Mews, Weir Views. You were on a Disability Pension, and I was told you were not working at the time of the offending. Whilst you are the father of two adult children who lived independently, Ms Heyman has two daughters who were nine and seven at the time and they lived with you and Ms Heyman. Ms Heyman was the recipient of WorkCover benefits and was not working at the time of the offending.
11You and Ms Heyman commenced a romantic relationship in May 2021 and moved to the Weir Views property in early June 2022.
12On Wednesday 16 November 2022 at about 9.30 am, police attended your house to serve a Firearm Prohibition Order on you.
13When police arrived, you were on the south side of the premises speaking on a mobile phone. You then went to the front door where you spoke to police.
14A copy of the Firearm Prohibition Order was served on you, and you were provided with a full explanation about its conditions. You were then given the opportunity to disclose if there were any firearms or firearm related items at the premises. You said that there were none. However, a search of the premises which commenced thereafter resulted in police finding 9x9 millimetre rounds of ammunition wrapped inside a blue and white tea towel. Your failure to tell the police about this gives rise to Charge 1 on the indictment whilst the presence of the cartridge ammunition gives rise to the Summary Offence of possess cartridge ammunition.
15You were then arrested and given a caution and told of your rights.
16Police then commenced a search of a Honda Civic motor vehicle which was parked in the driveway, and which was used by Ms Heyman. During that search a zip lock bag containing a quantity of white crystal substance was found in a black satchel bag on the back seat. Ms Heyman admitted possession of the item and she was arrested and issued with her caution and rights.
17Police then searched the inside of your premises, and the following items were found.
Master bedroom
(a) Clear zip lock bag containing a white powder substance – ensuite vanity.
(b) A photo album containing Australian currency in the sum of $18,695, on the bottom shelf of the walk-in robe; and
(c) $720 Australian on the top shelf of the walk-in robe.
Kitchen area
(d) A shoe box containing the sums of $80,790, $5,400 of which was found in a photo album on the kitchen bench.
(e) Two cardboard boxes containing $16,520 on the hallway floor next to the kitchen; and
(f) $1,110 found in your pants pocket.
Garage
(g) Two zip lock bags containing a crystal substance in a box beneath a bench.
(h) $1,370 on a bench.
(i) $430 on a bench; and
(j) $3,140 on a shelf.
18At this stage investigators suspended the search and successfully applied for Search Warrants pursuant to s465 of the Crimes Act 1958 and s81 of the Drugs, Poisons and Controlled SubstancesAct 1981.
19Subsequently, you and your co-offender were taken to the Melton police station pending warrants being issued.
20At about 4.00 pm, Search Warrants were issued, and you and your co-offender were taken back to your house for the purposes of completing the search.
21During the search the following additional items were found.
Garage
(a) Five litre jerry can of viscous liquid believed to be 1-4 Butanediol on the bench;
(b) One 150 mil bottle with remnants of substance believed to be
1-4 Butanediol on the bench.(c) $550 cash on the shelf.
(d) Clear zip lock bag containing white crystal substance on the shelf.
(e) Box containing 24 x 500 mil bottles of viscous liquid believed to contain
1-4 Butanediol.(f) One 500 mil bottle of viscous liquid believed to be 1-4 Butanediol inside a black bag.
(g) One small plastic bottle labelled 'Stanley' of viscous liquid believed to
1-4 Butanediol on the bench.(h) A Samsung Galaxy mobile phone belonging to you which was found on the shelf; and
(i) Toyota Corolla - and $2,095 was found in the centre console of this car.
22In Ms Heyman's Honda Civic, one 150 mil bottle containing a liquid believed to be 1-4 Butanediol inside a black bag and one small bottle containing a liquid believed to be 1-4 Butanediol was also found inside a black bag.
23In the garden bed of your home, police identified two locations which had been dug into the garden bed and reinforced using timber. Both of these locations had a makeshift timber cover, over which tan bark was placed in a bid to conceal its existence. Only one of the two locations was concealing anything at the time of the search, being a plastic tub. This contained:
(i)0.5 grams of dried green vegetable matter;
(ii)two clear zip lock bags containing a white crystal substance.
(iii)a clear zip lock bag containing a brown crystal which was analysed to be MDMA.
(iv)One 500 mil bottle containing a liquid believed to be 1-4 Butanediol; and
(v)21 x 150 mil bottles of a liquid believed to be 1-4 Butanediol.
Mulch in driveway
24Police observed a pile of tan bark in the driveway. Upon closer inspection they found two plastic shopping bags concealed within the pile of mulch. Inside the plastic bags were the following:
(i)$149,770 cash.
(ii)11 clear zip lock bags containing white crystal substance.
(iii)one clear zip lock bag containing white crystal substance.
(iv)three clear zip lock bags containing blue pills; and
(v)one clear zip lock bag containing powder.
Recycling bin – outside the rear door of the garage of the property
25In the recycling bin the police found the following:
(i)15 x 500 mil bottles of a liquid believed to be 1-4 Butanediol; and
(ii)one 500 mil container with remnants of substance believed to be
1-4 Butanediol.
26Police also seized a number of electronic devices from the property, namely one Apple iPad and four Samsung brand mobile phones. Only one of these phones belonged to Ms Heyman with the other devices including the iPad being yours.
27In all, police seized a total A$275,190 cash, $217,187.50 of which is alleged to be the proceeds of crime derived from involvement in the trafficking of multiple drugs of dependence. This gives rise to Charge 6 on the indictment. The remaining sum of $58,002.50 does not form part of the proceeds of crime charge.
28After the search you and your co-accused were taken back to the police station.
29During a Record of Interview, you told police that you were the recipient of a Disability Support Pension, receiving a payment of $1,200 per fortnight. You said that the property where you were living was a rental for which you and
Ms Heyman paid $400 per week with both your names on the rental agreement.30You said that you had forgotten to tell investigators of the existence of the ammunition seized and said that you had found this years ago.
31In relation to the 1-4 Butanediol, you admitted that the various plastic bottles and five litre jerry can located in the garage contained this substance, which you referred to as 'juice'. You admitted to using this, but you denied trafficking it. You said to investigators that you had purchased the 1-4 Butanediol cheaply, which was the reason you were in possession of such a quantity.
32You told police that you knew of the existence of the plastic tub and contents buried in the back garden bed saying that you had just put it away for 'a rainy day'.
33In relation to the crystal substances found throughout the premises, you admitted that this was methamphetamine, saying that you smoked it daily. You denied trafficking the substance but could not provide a response in relation to the quantity and the manner in which it was concealed throughout the address.
34In respect of the pills which were hidden in the mulch, you admitted purchasing the items earlier in the year and said you had tried them.
35You denied that the money found at your premises was the proceeds of trafficking drugs of dependence, although you could not provide an explanation in relation to the source of this money.
36You said that you were using the Toyota Corolla whilst your car was being repaired and that the five‑litre jerry can in the boot should contain fuel that you needed for your lawn mower.
37In relation to the money seized from the car, you said you had withdrawn the cash from your Commonwealth Bank account in recent days.
38You said to the police that you accepted responsibility in respect of what was happening at the premises, although denying that you were engaging in anything to do with trafficking, however, you said that you were responsible for items found and that your partner Paige had nothing to do with it. You said that, therefore, she should be allowed to go home.
39Subsequent investigation revealed the following in relation to one of your mobile phones:
(a) multiple conversations between you and associates regarding the trafficking of a drug of dependence.
(b) an image of a 150 mil Aloe Vera bottle on digital scales. This bottle is similar to the appearance of those seized which contained 1-4 Butanediol.
(c) a payslip from Smart Body Australia Pty Ltd in your name dated 14 April 2022. I pause here to observe that although I was told you were not working at the time and were receiving a Disability Pension it appears that this is some evidence of work by you as at the time of this payslip.
(d) a video recording of you in possession of a quantity of a white crystal substance; and
multiple video recordings and images depicting both you and your co-accused using illicit drugs.
40Investigators found the following on your iPad:
(a) internet search history relating to ecstasy and web history obtained indicated a website titled ' which related to information about drugs of dependence; and
(b) examination of another of your mobile phones revealed text conversations between you and associates regarding the trafficking of a drug of dependence.
41By way of context, the prosecution told me that the house that you rented was based on an application which contained multiple false documents and information. You had indicated that you and your partner earned a total of $169,992.16. There is no charge in relation to this aspect and I do not sentence you on the basis of that particular information, which was led by way of context only.
Drug Analysis
42The total quantity of 1-4 Butanediol found at your premises was 28.9 litres. A commercial quantity of the substance is two litres. This conduct by you in relation to the 1‑4 Butanediol gives rise to Charge 2 on the indictment.
43The total methamphetamine seized was 309.1 grams. A commercial quantity is 250 grams mixed. The average purity of the substance found in your possession was found to be 82 per cent, making the total pure amount to be about
253.5 grams. This gives rise to Charge 3 on the indictment.44The total quantity of MDMA found was 537 grams and the purity of this was between 13 and 32 per cent. This gives rise to Charge 4 on the indictment.
45One gram of cocaine and 0.5 grams of cannabis was also found – it was accepted by the prosecution that these drugs were for your personal use, hence attracting the lower maximum term to which I have previously referred. This gives rise to Charge 5 on the indictment.
46Forensic analysis was conducted in relation to a number of the items seized from the property and your DNA was found on some of the cash located as well as the zip lock bag of MDMA and a 500ml bottle of viscous liquid.
47At the time of this offending, for which I now sentence you, you were on parole having been released from custody on 5 January 2021. Therefore, you have also committed the Summary Offence of breaching a condition of parole.
48Mr Parks, your offending is most serious and deserving of a punishment which is just in all the relevant circumstances. Your conduct must be strongly denounced.
49It is somewhat breathtaking that you decided to engage in such serious offending whilst on parole in relation to similar offending for which you received a substantial gaol term from His Honour Judge Murphy in 2016. Despite being given the opportunity to continue rehabilitation efforts that you had commenced prior to this sentence and being given the benefit of a longer than usual parole period by His Honour, you embarked on this criminal enterprise where you were the principal offender.
50The quantity of 1-4 Butanediol that was found at your premises was 14 and a half times the threshold for commercial quantity. Although the quantity constituted a large commercial quantity, I do not sentence you on that basis and nor could I. The prosecution accepts that they could not prove that you had the necessary state of mind in relation to the more serious offence which was withdrawn at the committal stage, and it appears that some of the substance in any event was in your possession for your own use rather than to sell. Notwithstanding this, I regard your offending in this respect as a serious example of trafficking in a commercial quantity of 1-4 Butanediol. In taking this view, I have also had regard to the Court of Appeal decision of DPP (Cth) v Maxwell [2013] 228 Australian Criminal Reports 218.
51In relation to 1-4 Butanediol, the level of financial reward is not as great as that from other drugs which is a relevant consideration when assessing the seriousness of this offending. However, I have also borne in mind Gregory (a pseudonym) v The Queen [2017] VSCA 151 where the Court of Appeal indicated that sentencing practices for offending such as yours had thus far been inadequate.
52You trafficked methamphetamine in a quantity which was 59 grams over the commercial quantity threshold, and the product had a high level of purity such that the commercial quantity threshold was exceeded by 3.5 grams.
53It is evident from the significant sums of cash found by police that a primary motivation for your offending was to make a profit, which is clearly what you did. Whilst I accept you have an ongoing battle with drug addiction, the sums of money which were found indicate that your ability to make money from this drug trafficking enterprise far exceeded your self-medication needs. I accept the prosecution sentencing submission that when one considers the quantity of drugs involved in your trafficking, including the trafficking simpliciter of MDMA combined with the amount of cash at the premises and the way in which the drugs and cash were found, everything pointed to a significant drug trafficking business being conducted by you. In making such findings I am aware that you have been charged with one day of offending and I have factored that in however, it is not said that your offending was confined to one day. Having said all of this, I do not speculate as to the extent or the period over which this occurred. It is simply a matter that I have factored in and lest it be said that your offending was confined to that one day, though I do not sentence you on the basis of a longer period of offending, which I cannot speculate about.
54The fact that you engaged in such conduct after being found guilty of most similar conduct in 2016 does give me grave cause for concern in relation to your prospects of rehabilitation and is also relevant to me assessing any remorse or insight that you are said to have. It is also relevant to the weight which needs to attach to specific deterrence.
55As I am sure you are aware, drugs are a real scourge on our community, and you were prepared to engage in this evil industry for the purposes of profit with no apparent regard for how your trafficking had the real potential to ruin other people's lives.
56You have a criminal history which commenced in 2008 with a fairly minor matter; however, on 16 January 2009 at the Sunshine Magistrates' Court you were convicted of possessing cannabis, cultivating a narcotic plant being cannabis, trafficking cannabis, using cannabis, and dealing with property suspected to be proceeds of crime. You were placed on a 12-month community-based order and required to undergo assessment for mental health and drug treatment in addition to other conditions.
57On 30 April 2010 at the Sunshine Magistrates' Court you were convicted of traffick methamphetamine, prohibited person possess a firearm, deal with property suspected to be proceeds of crime, and possess cannabis. The learned Magistrate on that occasion directed that you continue to attend upon and receive treatment as directed by Mr Murray Ferguson or his nominee as part of any plan for treatment formulated by Community Forensic Mental Health Services. This was a matter referred to in the course of the plea hearing before me. You were sentenced to an aggregate term of eight months' imprisonment which was wholly suspended for 18 months. On that day you were also dealt with for failing to comply with the community-based order previously imposed and that community-based order was confirmed.
58On 2 February 2011 in the Sunshine Magistrates' Court, you were convicted of two charges of dealing with property suspected to be proceeds of crime, burglary, theft, possession of a drug of dependence, possession of ammunition without a licence, possessing a prohibited weapon without exemption or approval. You were sentenced to an aggregate term of 11 months' imprisonment to be served by way of an intensive corrections order and you were also fined $1,200. That same day you were dealt with for breaching the suspended sentence to which I have previously referred, however, exceptional circumstances were shown by a combination of matters referred to in a report of Dr Monteath and Mr Ferguson as well as the final CISP report referable to your bail at that time. Again, your counsel referred to this aspect of your criminal history in the course of the plea hearing before me, telling me that you complied with that order, and you kept working with the Forensicare Problem Behaviour Program.
59On 19 August 2016 in this Court, a jury found you guilty of trafficking in a commercial quantity of a drug of dependence – that drug of dependence was methamphetamine. You were also found guilty of trafficking cannabis and of possessing a precursor chemical, phosphorous acid. You pleaded guilty to possessing cocaine and possessing 1-4 Butanediol, as well as the Summary Offence of possessing cartridge ammunition without a licence or permit. You were sentenced to a total effective sentence of seven years and six months' imprisonment with a non-parole period of four years and six months in relation to all of the offences save for the summary matter where you were fined $800.
60In relation to that offending, His Honour's sentencing remarks record that a total of 218.6 grams of methamphetamine in 13 separate packages were found at your home, with the methamphetamine consisting of 195 grams pure.
61On 17 February 2017 you were convicted in relation to possessing ecstasy, possessing methamphetamine, dealing with property suspected to be proceeds of crime, committing an indictable offence whilst on bail and using methamphetamine. I understand that this offending was somewhat aged by the time it came to court. You were sentenced to an aggregate term of three months' imprisonment in relation to all but the last-mentioned offence. The term was to be served concurrently with the sentence you were undergoing. On that day your fine for possessing cartridge ammunition on 19 August 2016 was varied such that six days' imprisonment was imposed to be served concurrently with the sentence that you were then undergoing.
62From time to time, you have also been dealt with for fairly minor dishonesty matters.
63Your criminal history, in particular your prior matters for drug related offending, especially the prior matter for trafficking a commercial quantity of methamphetamine are highly relevant in my assessment of your prospects of rehabilitation, especially where you were on parole for such offending at the time that you committed the offences for which I now sentence you.
64In sentencing you I take into account your background.
65You are now 50 years old.
66You grew up in St Albans and you are the older of two children. I am told that your sister was born the year after you. Your father was absent during your childhood whilst your mother was absent as she needed to work. From the age of 12 years, you were subjected to a stepfather who was a most negative influence in your life. I was told that when you were eight years old your mother had a serious car accident and that you were her primary carer during her recovery.
67You instructed your counsel that you had a harsh and joyless childhood where you assumed considerable responsibility for yourself and your sister from a young age.
68Sadly, your mother died of ovarian cancer in 2013 after suffering from the condition for 10 years.
69I was told that your sister is currently battling breast cancer.
70You attended State primary schools and high schools in your area. You completed Year 11. It appears that you exhibited behavioural issues at school, but it is unclear as to whether you were actually diagnosed with ADHD at that time. You told your Counsel that your mother refused recommendations that you receive medication to address your symptoms in this regard. It was only when you came into contact with the criminal justice system that you started to receive any treatment for ADHD.
71I was told that you continuously worked until your early thirties.
72You commenced a carpentry apprenticeship after leaving school, however, you were unable to complete this as your master moved interstate. You completed about two years in an electrical apprenticeship across a four-year period. However, your brother-in-law, who employed you, broke up with your sister, which brought an end to your apprenticeship with him. You were then picked up by another business but lost your work in the context of your early offending.
73You also worked in unskilled jobs including as a machine operator and labouring positions.
74I was told that in 2009 your drug use spiralled out of control. Before then, you had been a functioning drug addict for many years, but this changed when you were 34, which is rather late in life for a person to commence criminal offending.
75You were placed on a Disability Support Pension in the context of your work with Forensicare at that time.
76In relation to your engagement with Forensicare, I was taken to a copy of a document from Forensicare dated 9 July 2012 entitled 'Problem Behaviour Program'. That document reveals that you were referred to Forensicare on
29 January 2009 with clinicians listed as Jennifer McGrail '(but previously Murray Ferguson)'. Amongst other things, the review indicated that you had significant problems with managing anger (passive aggressive style), that often led to aggressive confrontations. You had some behavioural difficulties at school but denied ever being suspended or expelled. It indicated that as at that time you had a long history of alcohol use and illicit substance use and had used numerous drugs including cannabis, ecstasy, speed and ice. As at that time you continued to use speed on a daily basis and ice when it was 'good' and available. You said that at that time that drug use was not a problem for you, and you just used the substances to feel better. You did not appear to appreciate how continued drug use was likely to impact on your future. You expressed a desire to stop using drugs but were fearful as to how you would manage your emotions without them.77In an extract from a review by Dr Ferguson on 6 February 2012 in the same document, it was noted that you had shown some significant improvement in your ability to manage anger in such situations. You recognised that your behaviours were problematic but found it difficult to see how you could change despite agreeing that you had made some changes in the time that you had been working with Forensicare. You had reported recently that you had been taking your medication irregularly and had not taken antidepressants for months. You complained that the medication made you feel emotionless. You had also been irregular with your Dexamphetamine use but denied ever abusing your medication. Dr Ferguson said that you had begun doing some schema therapy to identify thoughts and beliefs associated with your depression, anger and low self-esteem and you had responded well. It is evident that your challenges were in relation to managing difficult situations and your attitudes towards violence and aggression. It was noted that you had been quite sporadic in your attendance over the past two to three months and therefore not much progress had been made with schema therapy.
78It was also noted that you had not taken Dr Ferguson's leaving very well and you stated that you had felt abandoned or 'swinging in the wind'. You refused the offer of continued treatment as you did not wish to go through everything from the outset with a new clinician. You had relapsed into heavy ice use and spent your time at home, although you remained committed to completing your community work.
79There is a further notation of an update which reads that you eventually decided to see another clinician and you had attended four appointments and missed four. You had expressed ambivalence about continuing with treatment and you were said to 'continue to be non-compliant with medication and reported amphetamine use'. You were told that you would not be prescribed medication whilst you continued to use amphetamines.
80After non-attendance at a scheduled appointment on 24 May 2012, Ms McGrail tried to contact you by phone but was unable to. Subsequently you were sent a letter advising you that you would be discharged from treatment if you did not call to arrange another appointment. You did not do this and so you were advised by a further letter that you had been discharged.
81The notation goes on to say, 'previously prescribed Zoloft 150 milligram daily, Dexamphetamine 25 milligram – non-compliant with these'.
82Continuing on in relation to your background, you and a previous partner, Natalie, had two children – a daughter, when you were 19 years old and a son when you were 21. You and Natalie married when you were 22 but you separated in 2019. Your adult children were living with you.
83I was told that your children are both law abiding and successful.
84You have four grandchildren.
85When you were 19 you bought a house in Melton, however, you were unable to repay the mortgage when you lost your job which eventually led you to lose the house.
86I was told that you remain in a long-term relationship with your co-offender.
87In terms of your health, I was told that you experienced emotional disturbance through primary school. I was told that you were diagnosed with ADHD, although there is some, as I say some confusion about this it would seem after starting primary school but as I have said you were not medicated for this on any view of things. Your son and grandson also have ADHD.
88On any view of things, your primary school reports described you as being disruptive and recommended intervention, however as I have indicated your mother disagreed.
89It was not until 2009 that you were first treated for ADHD including medication in the context of court proceedings which led to the imposition of the suspended sentence to which I have previously referred. The treatment was provided through Community Forensic Mental Health Services. The document to which I have previously referred relates to this. Your counsel submitted that you made some significant progress, however, you did not respond well to your treating psychiatrist leaving. Your counsel submitted that you were candid with your treaters in relation to your drug use which led to you ceasing to have medication. She submitted that whilst the switch from medication to drugs was easy for you, the switch from drugs back to medication was hard. It seems to me that from the notations in the Forensicare document, your compliance with prescribed medication as at that time had been problematic over the time you were seeing those associated with treating you at that stage, notwithstanding that you apparently made some progress in relation to other issues you were having.
90On 22 September 2015, you were stabbed by a friend of yours who suffered mental health difficulties in an apparently unprovoked attack. You were taken by helicopter to the Alfred Hospital with life threatening injuries and you were discharged on 29 September 2015 after surgical repair. I was told that this incident led to the development or indeed exacerbation of PTSD and this is what is stated in the written submissions of your counsel. However, your counsel submitted that there were indicia that you were already suffering symptoms of PTSD before this time due to difficulties you experienced in your upbringing.
91Whilst in custody in relation to your 2016 conviction you were medicated for ADHD and PTSD. Your counsel relied on a report from your disability support officer attached to Beechworth Prison who said that you experienced severe disabling social anxiety which limited your movement, and ability to access programs and activities or communicate with others. Your counsel told me that you experienced such social anxiety when in the community which essentially confined you to your home. I make it clear that I am cognisant of the fact that the offending which led to the sentence in 2016 occurred in 2014.
92You were released on parole on 5 January 2021.
93Before being granted parole, you were moved to Beechworth which accommodated leave being taken in the community. You had one experience of leave in January 2020. However, COVID then struck, and all further leave entitlements were cancelled. You were then transferred to the Judy Lazarus Centre which was meant to be a 10-week transition to parole. However, there was no real transition, as you could not go out due to COVID. Therefore, because of the pandemic restrictions you did not have the staged release that was anticipated.
94I was told that there were some interruptions to your medication whilst you were on parole. Initially, you could not obtain a referral to a psychiatrist in time to maintain your medication and you never established a regular psychiatrist. In a report prepared by Mr Luke Armstrong, psychologist, dated 15 February 2024 to which I have been referred, Mr Armstrong claims that until December 2021 you remained abstinent from illicit stimulant use. You reported however that upon being granted parole you were 'directed not to use medication associated with ADHD, or you would face imprisonment. Mr Parks claims he made every attempt to comply with his parole conditions, however struggled without his prescribed stimulant medications'. (Page 4). I queried this aspect with your counsel as it was apparent that you were prescribed medication by your general practitioner to address symptoms of ADHD. I was told that although this was the case, the medication which you preferred was not something that you could access without a psychiatrist – therefore, you did have medication prescribed to address such symptoms, however, it appears that you preferred a stimulant medication, which you had an old supply of that was not currently prescribed, and this was the context in which you were told by your parole officer you would be breached if you tried to take this. I take into account the delay in relation to being able to access a psychiatrist which was most unfortunate. I was told that you did take the medication which you were prescribed but that you struggled without the stimulant medication and eventually, you relapsed into illicit drug use.
95You have expressed the hope for a smoother transition into the community when you are next released, with appropriate measures being put in place for psychiatric treatment and care occurring whilst you are still in custody. I express the strong wish that this occurs as well. You have said that you are committed to receiving appropriate treatment for your various issues, which I have taken into account, but also bearing in mind your history in maintaining treatment in the past, and also bearing in mind that in my view, your motivation for the offending for which I now sentence you, was not solely for funding your drug addiction.
96I was told, via email, after the plea hearing, that, in December last year, Forensicare obtained an exemption for you to be treated for ADHD with a stimulant medication, Lisdexamfetamine or Vyvanse to appropriately medically manage your ADHD. I have also received a document from GIO Healthcare dated 25 March 2024 setting out your current medication regime and also indicating that you would be released when you are due for release with a week's supply of medication and there is to be discharge follow-up via a psychiatric team, which was currently being arranged. I take those matters into account.
97It is not submitted that there is any impairment of mental function however, which would serve to reduce your moral culpability in relation to the offending before me. I find that your moral culpability is high.
98I allow for a significant discount in the sentence you would otherwise receive due to the fact that you entered pleas of guilty at the earliest reasonable opportunity. I understand that the matter was listed for a contested committal hearing and that the matter settled on the morning of that hearing although there were exchanges of emails before this and you were facing an even more serious charge which was withdrawn at that time. In all these circumstances, you saved the witnesses the time and trouble of giving evidence at committal and trial and you saved the community the time and expense of contested proceedings. Further, at the time you entered your pleas of guilty, there was still a backlog in trials in this Court such that your preparedness to plead guilty has contributed to a reduction in such a backlog and this entitles you to a palpable allowance in your favour.
99It was submitted that your pleas were indicative of remorse, however, I must say I do have some difficulty with this submission in all the circumstances. I do not see your offending as being a creature of a hand to mouth drug habit – I am satisfied beyond reasonable doubt that your offending was partly and primarily motivated by financial greed and the wish to make a profit, which is evident from the large sums of money found at your house. You had engaged in such offending before, and you had been dealt with by the courts for it and you were on parole at the time that you committed these offences. Whilst I am sure that you are sorry that you were caught and you are now in gaol once more, I am unable to find that you have much in the way of heartfelt remorse for your actions or appropriate insight in relation to the seriousness of your offending. I do accept that your preparedness to plead guilty at an early stage facilitated the course of justice and is of considerable utilitarian value, as I have previously accepted and made allowance for.
100Whilst I accept that your addiction is longstanding and is something of an explanation for your offending, as I have said, I am satisfied that a good deal of motivation related to your wish to make money. In those circumstances I do not accept that your addiction is the underlying explanation for your offending as submitted by your counsel.
101Whilst large sums of money were found at your premises, I do accept however that there were no signs of a lavish lifestyle being led by you.
102You have an established diagnosis of PTSD, ADHD, and depression. Having spent a lengthy period in prison previously and no doubt, being aware as to what would occur if you reoffended, it beggars belief that you would engage in the offending now before me, knowing how difficult an experience gaol would apparently be for you. However, I make some allowance for these impairments of mental functions insofar as your time in gaol will be harder because of them, but also bearing in mind that your mental health conditions are being appropriately medically managed. I accept that your symptoms, insofar as you experience them, have made and will make time in gaol harder for the reasons set out in the report of Mr Armstrong and I also accept that there is a risk that your symptoms will exacerbate whilst in gaol, again noting that you are being medicated for these. Your symptoms, so far as they are not managed by medication will impact on your ability to engage in prison life and access programs. I have also factored in that your medication regime in relation to ADHD has not been optimal until December of last year.
103As your offending occurred whilst you were on parole, there is a presumption of cumulation as between the sentences that I impose, and the sentence imposed by His Honour Judge Murphy. You do not contend that there are any exceptional circumstances which would justify a departure from this presumption. I accept that the principle of totality applies in your case such that a disproportionate sentence is not warranted.
104I was told that having been released on parole on 5 January 2021, your parole was cancelled on 17 November 2022, and you were returned to custody on that date. You were remanded in relation to the matters before me on 18 November 2022. You have been serving the sentence imposed by His Honour Judge Murphy since this time such that as at the plea hearing date you had served a further 460 days or approximately 15 and a half months. As of today, the day of sentencing you, you have served a total of 2,152 days, not including today, of this sentence, which means that you have 582 days remaining. I understand that in that calculation emergency management days have been allowed for. As I have said, there is a presumption that the sentence that I impose must be served cumulatively with the period of imprisonment that you have been required to serve due to cancellation of your parole, unless exceptional circumstances are shown, and you accept that there are no exceptional circumstances in your case. In this regard I refer to s16(3B) of the Sentencing Act 1991 and I make it clear that I have applied the principle of totality in your case despite this presumption and other sentencing requirements, to which I shall refer.
105As submitted by your counsel, pursuant to s15 of the Sentencing Act 1991, the order of sentences means that the sentence imposed by His Honour Judge Murphy will be suspended whilst you serve the non-parole period ordered in respect of the matters before me. The balance of his sentence will then be served, I have borne these matters in mind when sentencing you and I am mindful that you have been in custody since 17 November 2022.
106Further, you fall to be sentenced as a serious drug offender in relation to Charges 2 and 3 on the Indictment due to the fact that you have previously been convicted of trafficking in a commercial quantity of a drug of dependence. As I accept that the principle of totality applies to your case, I accept that some part of the sentences imposed in relation to these counts ought be served concurrently with other sentences imposed in relation to the matters before me.
107Also, I have a discretion in relation to orders for cumulation or concurrency as between Charges 1, 4, 5, 6 and the Summary Offence of breaching parole. In this regard there is no presumption of cumulation. As I have said, the principle of totality will apply, although I do note that each of these charges constitutes separate offending by you, such that total concurrency is not axiomatic. I must also be careful not to engage in double punishment in any respect.
108I accept that in the past you have attempted to rehabilitate in terms of your drug addiction and to address your mental health issues. Unfortunately, you have been unable to successfully combat these. Having said this, as I have previously observed, your drug addiction was not the sole motivating force in relation to the offending for which I now sentence you.
109You have undertaken 14 hours of individualised counselling with Caraniche Drug and Alcohol Services between 1 February and 23 June 2023. You are described in the report as being highly motivated, well engaged, open and forthcoming. You also have the benefit of a NDIS support package which enables you to access counselling services whilst in prison. The package will be reviewed on your eventual release to reflect your needs in the community. I have viewed documentation in relation to these matters and have taken them into account.
110I have also taken into account the character references in support of you from your children and a Donna Heyman, who I assume is related to your partner. I cannot share Ms Heyman's view that you are a person of good character as such. However, I take into account the positive matters in those references including the referee's observation as to your optimal need to avoid reoffending. Your children say that when you are properly medicated you behave well, and that they still support you, despite your serious offending.
111In sentencing you, I have also taken into account the other material tendered on your behalf, including the report of Ms Raponi-Saunders dated 13 March 2021 and the general contents of the report of Mr Armstrong to which I have previously referred.
112I accept that, from time to time over the years, you have made some solid attempts to address your mental health and drug issues, as I have said, and that you have expressed the wish to do so again. I have also factored in that you have NDIS support as well as other supports in the community and in the past, you have had a solid work history. However, in all of the relevant circumstances I find that your prospects of rehabilitation are rather bleak I am afraid, and I must place fairly strong weight on specific deterrence. Strong weight must attach to general deterrence in a bid to deter others from offending as you have.
113It was submitted by the learned prosecutor at the plea hearing that the more serious of the offending was Charge 2 in view of the quantity of the
1-4 Butanediol, however, your counsel submitted that factoring in Maxwells case, I might regard the seriousness of each of the offences as being fairly even. In sentencing you I have also borne in mind the Court of Appeal utterances in Gregory, as I have said concerning current sentencing practice at that time being inadequate and that there was a need to increase sentences. I have had regard to current sentencing practice in sentencing you bearing in mind that this is but one sentencing consideration and it is not a controlling one.114As I have said, I have also been mindful of the need not to engage in double punishment in respect of your offending given that you offended whilst on parole.
115You are convicted of each of the offences including the Summary Offences. I make the three forfeiture orders sought by the prosecution, which are not opposed by you. You are sentenced as follows:
(a) Charge 1, six months' imprisonment.
(b) Charge 2, 7 years' imprisonment, which will be the base sentence.
(c) Charge 3, 6 years' imprisonment.
(d) Charge 4, three years' imprisonment.
(e) Charge 5, three months' imprisonment.
(f) Charge 6, four years' imprisonment.
(g) Summary Charge, possess cartridge ammunition, you are fined $1,000; and
(h) Breach condition of parole, summary offence, you are sentenced to two months' imprisonment.
116In relation to Charges 2 and 3 on the Indictment you are to be sentenced as a serious drug offender which will be noted on the records.
117I direct that 12 months from the sentence on Charge 3 and 6 months from the sentence on Charge 6 be served be served cumulatively with each other and with the base sentence, but that otherwise the sentences of imprisonment that I have imposed be served concurrently with one another. This produces a total effective sentence of 8 and a half years' imprisonment, and the non-parole period will be 5 years. Pursuant to s16(3B) Sentencing Act 1991, this sentence is to be served cumulatively with the sentence you are undergoing.
118The pre-sentence detention to be declared in this matter is one day.
119If not for your pleas of guilty, I would have sentenced you to a total effective sentence of 12 years' imprisonment with a non-parole period of nine and a half years.
120Is there anything arising?
121MS CONNELLY: At one point in the recitation of your sentencing remarks you said that 252 days had been served on the judgment of his sentence, which I take to be a mis-speak and instead - - -
122HER HONOUR: Sorry? No, I've meant 2,052.
123MS CONNELLY: 2,152.
124HER HONOUR: Sorry, what was it? You've served a total of 2,152 days.
125MS CONNELLY: Yes. Yes.
126HER HONOUR: Yes. No, I had that written down. I must have mis-spoken then.
127MS CONNELLY: Yes, may it please Your Honour.
128HER HONOUR: Is there anything else?
129MS BURNETTE: No, thank you, Your Honour.
130HER HONOUR: All right, now Ms Connelly, did you wish to have a word with your client over the airways.
131MS CONNELLY: Briefly if I may, thank you.
132HER HONOUR: All right, we do have a matter I think at 11, so yes, if you just have a quick word and then let Ms D'Souza know when you are finished.
133MS CONNELLY: Yes, thank you.
134HER HONOUR: Very well, thank you.
- - -
0
2
0