Director of Public Prosecutions v Paul

[2021] VCC 342

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-20-00940

DIRECTOR OF PUBLIC PROSECUTIONS

v

TIMOTHY PAUL

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JUDGE:	HIS HONOUR JUDGE C J RYAN
WHERE HELD:	Melbourne
DATE OF HEARING:	23 March 2021
DATE OF SENTENCE:	29 March 2021
CASE MAY BE CITED AS:	DPP v Paul
MEDIUM NEUTRAL CITATION:	[2021] VCC 342

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW

Catchwords:              trafficking in a drug of dependence - possessing a drug of dependence - No prior convictions – subsequent convictions – totality - general and specific deterrence – plea of guilty

Legislation Cited:      Sentencing Act 1991

Sentence:                  Five months’ imprisonment - convicted and fined $500

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr D. Porceddu	Office of Public Prosecutions
For the Accused	Mr J. Miller	James Dowsley and Associates

HIS HONOUR:

1Timothy Paul, on 18 March 2021 you were arraigned on Indictment J12647020.1 and pleaded guilty to:

·        trafficking in a drug of dependence, namely methyl­amphetamine, on 9 October 2018 (Charge 1); and

·        possessing a drug of dependence, namely 3,4‑methylene­dioxy­amphetamine on the same day (Charge 2).

2In addition, you pleaded guilty to three related summary offences, being:

·        Charge 8, a rolled-up charge of possessing a prohibited weapon on 9 October 2018, being a taser, a laser, and an extendable baton;

·        Charge 11, on 9 October, you did possess a controlled weapon, namely a machete; and

·        Charge 14, on 9 October 2018, using a motor vehicle on a highway when that motor vehicle was not registered pursuant to the provisions of the Road Safety Act 1986.

3The maximum penalty for trafficking in a drug of dependence is 15 years’ imprisonment.  In the circumstances of Charge 2, being possess a drug of dependence, the maximum penalty is one year’s imprisonment.  In respect to the related summary offences, the maximum penalty for Charge 8 is two years’ imprisonment or 240 penalty units.  The maximum penalty for Charge 11 is one year’s imprisonment or 120 penalty units, while the maximum penalty for Charge 14 is 25 penalty units.

4No prior convictions were alleged against you.

5Tendered as Exhibit A and read aloud in court was the summary of prosecution opening for plea.  In short, at about 2.20 am on 9 October 2018, a Mazda sedan driven by you was intercepted by police in High Street Glen Iris.  The vehicle was unregistered (related summary offence Charge 14).  Police searched your motor vehicle and found:

·        a notebook containing entries related to trafficking in a drug of dependence; and

·        a black backpack that contained a plastic container containing:

(i)three plastic bags, that contained a total of 43.6 grams of methyl­amphetamine at 80 per cent purity ;

(ii)one plastic bag containing 27.7 grams of methyl­amphetamine at 79 per cent purity; and

(iii)a plastic bag that contained 1.6 grams of methyl­amphetamine at 79 per cent purity.

6The combined total weight of impure methyl­amphetamine was 72.9 grams.  A trafficable quantity of a substance containing methyl­amphetamine is 3 grams. Accordingly, you had 24 times the traffickable quantity of methylamphetamine in your possession for sale. The amount of the pure drug in your possession was just over 58 grams. A commercial quantity of the pure drug is 50 grams.

7You were arrested, and a warrant was obtained to search the premises at which you lived in Scotsburn Way in Endeavour Hills.  A search of those premises revealed the following items:

·        3,4‑methylene­dioxy­amphetamine in the form of 12 tablets of unknown weight (Charge 2);

·        a taser, a laser, and an extendable baton (related summary offence 8); and

·        a machete (summary Charge 11).

8You were interviewed under caution shortly after 2pm on 9 October 2018, and your interview contains a mixture of denials and “no comment” answers to questions asked of you.

9Tendered as Exhibit B was your Corrections Victoria sentence/remand report commencing on 30 November 2018 and concluding on 4 March 2021.  Tendered as Exhibit C was your Victoria Police criminal record and tendered as Exhibit D was a chronology of your offending committed after the offences for which you fall to be sentenced.

10After being arrested on 9 October 2018 you were released on bail the following day.  For reasons which are unclear, on 27 November 2018 you were remanded in custody and not released until 27 March 2019.  However, on 5 April 2019 you committed the offences of drive whilst disqualified, use an unregistered motor vehicle, and fail to display registration plates.

11On 4 July 2019 you committed the offences of drive whilst disqualified, use unregistered motor vehicle, possess methyl­amphetamine, and fail to stop a motor vehicle on request.  On 9 August 2019 you were remanded in custody and bailed the following day.

12On 29 October 2019 you committed the offences of possess methyl­amphetamine, possess a controlled weapon without excuse, and commit an indictable offence whilst on bail. You were remanded in custody and released on bail the following day.  On 11 November 2019 you committed the offence of failing to answer bail, and on 14 November 2019 committed that offence again.  On 19 December 2019 you committed the offence of traffick methyl­amphetamine, traffick GHB, possess prohibited weapon without exemption, deal in property suspected of being the proceeds of crime, and commit an offence whilst on bail, and you were remanded in custody.

13On 19 February 2020 you came before the Magistrates’ Court sitting at Dandenong, and for the offences outlined above and you were sentenced to a 12‑month Community Correction Order with conditions.

14By further offending you breached the Community Correction Order and came before the Magistrates’ Court at Dandenong on 1 February 2021, and the Community Correction Order was cancelled, and you were sentenced to 3 months’ imprisonment with pre-sentence detention of 90 days declared.

15The offending that constituted the contravention of the Community Correction Order consisted of offending on 11 April 2020, being theft of a motor vehicle, possess methyl­amphetamine, possess GHB, possess MDMA, deal in property suspected of being the proceeds of crime, commit an indictable offence whilst on bail, three charges of possess cartridge ammunition without a licence or permit, possess a controlled weapon without excuse, fail to comply with a direction to assist, and possess two or more firearms, being in a trafficable quantity.  You were remanded in custody.

16The matters to which I have just referred also came before the Magistrates’ Court on 1 February 2021.  You were sentenced to two years’ imprisonment with a non-parole period of 18 months, with 296 days declared as pre-sentence detention.

17You appealed the decisions of the Magistrates’ Court at Dandenong, and this appeal came before his Honour Judge Johns on 19 March 2021, and he sentenced you to 22 months’ imprisonment with a minimum term of 13 months’ imprisonment, and 342 days pre-sentence detention was declared.  In addition, you were sentenced to pay fines.  Accordingly, after committing the offences the subject of the indictment and relating summary charges, you continued to offend in the same way from 5 April 2019 until 11 April 2020.

18The effect of your subsequent offending is that it impacts on an assessment of your prospects for rehabilitation, which I regard as bleak.

19Tendered by Mr Miller of counsel, who appeared on your behalf, was an outline of plea submissions which was marked as Exhibit 1.  In addition, Mr Miller tendered the report of Carla Ferrari, psychologist, dated 8 January 2021, as Exhibit 2.

20In Exhibit 1, Mr Miller set out a chronology of the prosecution in this matter.  Initially your charges were listed in the summary stream in the Magistrates’ Court, and on 20 January 2020 a voir dire on the legality of the search of the Mazda sedan and your home was conducted.  The learned magistrate found that the items seized by the searches were admissible in the prosecution case, and the matter was to proceed thereafter in the Magistrates’ Court.  However, when the drugs found in your possession were analysed, the matter was uplifted into the indictable stream, and the proceedings moved forward by you accepting the hand‑up brief. However, you are entitled to benefit of your plea as it has utilitarian value.

21On 12 and 17 February 2021, you once again made application to exclude evidence concerning the property seized during the searches conducted on your car and home.  On 4 March 2020, I ruled that the evidence was admissible.  Thereafter the matter resolved, and your plea came before me on 23 March 2021.  Accordingly, there has been some delay in bringing these charges to a conclusion.  However, at each stage of the prosecution, as is your right, you contested the admissibility of the property seized pursuant to search.  Whatever the reason for the delay, it cannot be said that you used that time wisely and that you embarked upon a process of rehabilitation.

22During the plea, Mr Miller informed me that you are thirty-one years of age and the younger of two children.  Your father was often absent from the home, because he worked more than one job in to maintain your family.  Your parents separated when you were ten or eleven years of age, with you residing with your mother but having weekend contact with your father throughout your adolescence.  Both your parents re-partnered, and you found yourself in conflict with your mother’s new partner.  You instructed Ms Ferrari that you were not the subject of violence or trauma whilst growing up, and you described your childhood as normal.

23You were not interested in the academic aspect of school, and over years became the class disruptor.  You left school in Year 11 and commenced a bricklaying apprenticeship but left after nine months because of conflict with your employer.  Thereafter, when aged 18 you secured a job in pest control and worked for the same company from about 2007 to 2018, with a couple of brief exceptions when you worked for businesses that did similar work.  At one stage you operated your own business, but this lasted for a period of three months only because a close friend of yours overdosed on drugs, and this tragedy affected you badly and you  ceased to work.  You have not worked since that time.

24You have a six-year-old son, Romeo, from a relationship with a young woman named Vanessa.  During the period 2013 to 2018 you had a five‑year relationship with a young woman named Sheena.  You had attended school together, and during the relationship a child was conceived, but that pregnancy was terminated.  It was agreed between you and your partner that neither of you were ready to bring up a child at that time, given your mutual substance abuse. You were adversely affected by the breakdown of this relationship.

25As to your alcohol and substance abuse, you started drinking alcohol at about thirteen years of age, and by seventeen or eighteen years of age you were drinking daily.  You used cannabis between the ages of sixteen and twenty-one, and commenced to abuse ecstasy when aged seventeen years, and continued to do so until you were nineteen years of age.  You commenced to abuse methyl­amphetamine when you were eighteen years of age, and consistently abused that drug until you were twenty-one.  You were abstinent from methyl­amphetamine for a period of approximately 12 months, but thereafter resumed regular use of that drug.  You also abused prescription medications such as Clonazepam, Endone, and OxyContin.  At the time of your subsequent offending you were a daily user of the drug GHB.

26You were diagnosed by Ms Ferrari with persistent depressive disorder, major depressive disorder, stimulant use disorder, and sedative, anxiolytic, hypnotic disorder.  Mr Miller, on your behalf, positively eschewed any reliance upon the principles enunciated in The Queen v Verdins (2007) 16 VR 269.

27In respect to the instant offending, you have only two days by way of pre-sentence detention.

28Mr Miller on your behalf relied upon your plea of guilty, that at the time you committed the instant offences you had no prior criminal history, the delay in finalising this matter, and the importance of the application of the principles of totality and parity in this matter.

29As to the issue of parity, your co‑accused, Ms Campbell, in respect to the offences of trafficking methyl­amphetamine, trafficking GHB, possessing MDMA, negligently dealing in the proceeds of crime, knowingly dealing in the proceeds of crime, possessing a drug of dependence unnamed, and possessing methyl­amphetamine, on 25 January 2021 was released on a 12‑month community correction order with conditions that she undertake unpaid community work and be subject to drug treatment.  I was informed that this was a consolidated plea of more than one instance of offending, and neither Mr Porceddu, who appeared on behalf of the Crown, nor Mr Miller were able to inform me which of the offences that I have outlined relate to the offending for which you fall to be sentenced arising out of the searches conducted by police on 9 October 2018.  Accordingly, I have no basis for applying the principle of parity in respect of you and your co‑offender, as I simply do not know what charges were laid against Ms Campbell arising out of the searches conducted on 9 October 2018.

30As to the principle of totality, I must take into account the sentence which you are undergoing, and the offences to which that sentence relates as well as when those offences were committed.

31In discussion with counsel, Mr Miller conceded that the only appropriate sentence in all the circumstances was one of immediate imprisonment. Mr Miller also raised the issue of setting a new global non-parole period in respect of you.  However, I informed him that it was not my intention to impose a sentence which involved the fixing of a head sentence and non-parole period. I informed both counsel that a short sharp term of imprisonment, cumulative upon the sentence imposed by his Honour Judge Johns, was the appropriate sentence in all the circumstances.  Neither the prosecutor, Mr Porceddu, nor Mr Miller dissented from this course of action.

32You are an appropriate vehicle for the application of general and specific deterrence.  Your conduct must be justly punished and publicly denounced.  Doing the best I can, taking into account the circumstances of your offending and their effects, your personal circumstances and antecedents, endeavouring to produce sentences which reflect and promote the purposes of sentencing in a manner appropriate to you and your offending, I sentence you as follows:

33On Charge 1, trafficking methyl­amphetamine, five months’ imprisonment.

34On Charge 4, possess 3,4‑methylene­dioxy­amphetamine, you are convicted and fined $250.

35In respect to the related summary offences, you are sentenced as follows:

36On Charge 8, possess prohibited weapon, one month’s imprisonment,

37On Charge 11, possess a controlled weapon, one month’s imprisonment, and

38On Charge 14, drive an unregistered motor vehicle, you are convicted and fined $250.

39I order that the sentence of imprisonment imposed on the related summary offence Charge 8 be served cumulatively upon the sentence of imprisonment imposed upon Charge 1 on the indictment. This results in a total effective sentence of six months’ imprisonment.  I order that that this sentence be served cumulatively upon the sentence that you are currently undergoing.

40I declare that you have spent two days by way of pre-sentence detention.

41Pursuant to s6AAA of the Sentencing Act 1991, I declare that but for your plea of guilty I would have sentenced you to 12 months’ imprisonment with a minimum term of six months’ imprisonment.

42Is there anything arising out of that sentence?

43PROSECUTION:  Your Honour, may I just confirm whether the $250 on Charge 4 and on Summary Charge 4 if that's aggregate or if it's for per each - - -

44HIS HONOUR:  No, they are separate sentences.

45PROSECUTION:  Thank you, Your Honour.

46HIS HONOUR:  Now there was an application for disposal order and an application for forfeiture made by the Crown and I have signed those orders and hand them down.

47The net effect of my sentence, Mr Paul, is this.  The sentence that you are currently undergoing, imposed by His Honour Judge Johns, will effectively be suspended and you will serve six months' imprisonment.  Once that six months' imprisonment has been served His Honour Judge Johns' sentence will reactive and you will be eligible for parole in some days after that and whether you are granted parole or not will be a matter for the adult parole board.  Is there anything arising?

48DEFENCE:  Nothing further, thank you, Your Honour.

49PROSECUTION:  No, Your Honour.

50HIS HONOUR:  All right.  If you break the connection with the prisoner please.  Sine die.

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