Director of Public Prosecutions v Paultre
[2023] VCC 780
•11 May 2023
| IN THE COUNTY COURT OF VICTORIA | Revised Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
CR-22-01194
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| HADRIEN PAULTRE |
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JUDGE: | HIS HONOUR JUDGE GUCCIARDO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 28 March 2023 | |
DATE OF SENTENCE: | 11 May 2023 | |
CASE MAY BE CITED AS: | DPP v Paultre | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 780 | |
REASONS FOR SENTENCE
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Subject: Criminal Law. Sentence upon plea of guilty.
Catchwords: Trafficking in a drug of dependence in a commercial quantity – Trafficking
in a drug of dependence - Possession of a drug of dependence – Knowingly
deal with proceeds of crime - Early plea of guilty – Covid-19 delay - Lack of
prior criminal history - Good prospects of rehabilitation – Prospects of
deportation.
Legislation Cited: Drug, Poisons and Controlled Substances Act 1981.
Cases Cited: Worboyes v The Queen [2021] VSCA 169; The Queen v Doran [2005]
VSCA 271; Gregory v The Queen [2017] VSCA 151; DPP v Fatho [2019]
VSCA 311; Sharbell v The Queen [2018] VSCA 324; DPP v Condo [2019]
VSCA181; And [2007] VSCA 49; Karafilowski [2007] VSCA 156; Do
[2008] VSCA 199; Barwick [2015] VSCA 1000; Vincent [2021] VSCA 99;
Roxburgh [2021] VSCA 181; Barbaro [2021] VSCA 277; De Luca [2023]
VSCA 44; Sengul v The King [2023] VSCA 63.
Sentence: Total Effective Sentence of 6 years and 4 months imprisonment with a
non-parole period of 4 years.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr A. Grant | Ms S. Jankovic |
| For the Accused | Mr R. Nathwani | Mr A. Shirrefs |
HIS HONOUR:
1Hadrien Paultre, you pleaded guilty to one charge of trafficking in a drug of dependence in a commercial quantity, to one charge of trafficking in a drug of dependence, two charges of possession of a drug of dependence and one charge of knowingly deal with proceeds of crime. The first charge concerned trafficking on 7 January 2022 and related to trafficking LSD not less than a commercial quantity. The circumstances of your offending were described in the prosecution opening, a document which was tendered to the court and I will summarise then briefly.
2
You are 37 years old and at the time of the offending you resided in Templestowe. You are a French citizen who has resided in Australia since 2008 on a permanent partner visa. In August 2021, police commenced Operation Conniption investigating drug trafficking by you in Fairfield Park, Victoria and on
7 January 2021, police executed search warrants pursuant to the Drug, Poisons and Controlled Substances Act 1981 at a number of addresses associated with you, including your address in Templestowe, another address in Fairfield and another in Abbotsford.
3You shared the address in Templestowe with your partner and your housemate. The premises at Fairfield was occupied by a former partner of yours. The premises in Abbotsford is a Kennards storage facility. You have the storage cage 3605 rented by your former partner.
4At your Templestowe address, police located two Ziploc bags containing white powder in the communal area and two Ziploc bags containing mushrooms from your bedroom. At the Fairfield address, police located packets of green vegetable matter, Ziploc bags containing white powder, a large Ziploc bag containing green pills believed to be ecstasy or MDMA, Ziploc bags containing tabs believed to be LSD, vials of clear liquid believed to be LSD, a pencil case containing $135,505, a ketamine testing kit. All of the seized items in the Fairfield residence were located in a toolbox in the hall cupboard. It is alleged that all the money located in the toolbox, $121,955 are the proceeds of crime.
5At the Abbotsford storage facility police located a Ziploc bag containing green pills, one containing mushrooms, two bags containing white powder, a set of scales, another bag containing empty capsules and another containing mobile phone SIM cards, two bags containing pills and tablets, a vacuum sealed bag containing brown granules.
6All the seized drugs at the three locations were analysed and found to be as follows:
·LSD, 99,671 milligrams; 385 milligrams pure quantity which in fact amounts to a large commercial quantity;
·MDMA, 234 and a half milligrams; less than a hundred grams pure quantity that relates to Charge 2;
·ketamine, 265.9 milligrams; less than a hundred grams pure quantity in relation to Charge 2;
·cocaine, 11.2 grams; Charge 3;
·methylamphetamine, 17 and a half grams; Charge 3;
·dimethyltryptamine, 175.7 grams; Charge 3;
·amphetamine, 1.6 grams; Charge 4;
·methorphan, less than two grams; Charge 4; and
·psilocybin, 35.1 grams; Charge 4.
7
You were interviewed by police on 7 January 2022 and made the following admissions; you used drugs on weekends, you normally kept drugs and money at the storage unit but wanted to close it so you moved them to Fairfield to the Fairfield house, when selling drugs you met people at the park, your buyers came to you by word of mouth, you were usually at the park on Friday afternoon and had between 10-30 regular customers, you only sold psychedelics, including
magic mushrooms and LSD, ecstasy, MDMA and Ketamine, you ordered drugs online. You were now concentrating on your gardening business. You said the drugs at the Fairfield house were your former partner's.
8
You told police you sold 10 pills of LSD for $300, $100 per micro vile of LSD,
$50-$100 for 10 grams of ketamine and $150 for a Ziploc bag of magic mushrooms. The cash found in the toolbox at the Fairfield address is yours and you said that not all of the money seized came from drugs but about 90 per cent was. You had been working in your gardening business for a year and a half and you started the business using money from selling drugs for the past three or four years. You had spent about $90,000 setting up the gardening business and sometimes you prepared drugs for sale while at Fairfield when your former partner was out.
9Trafficking a drug of dependence, particularly not less than a commercial quantity, rightly causes concern and consternation in the community. Its prevalence and destructive use impacts on lives and families in our community and the community justifiably expects that the court make clear that such serious criminal conduct is totally unacceptable and to provide suitable measures of discouragement and deterrence to others who might be minded to act with similar criminal intent.
10In arriving at an appropriate and proportionate disposition I take, firstly, note of the maximum penalties applicable to the charges. Trafficking in a drug of dependence in not less than a commercial quantity attracts a maximum penalty of 25 years imprisonment. By this level of punishment as a maximum, the legislators have made clear how such offending is considered grave.
11
Trafficking simpliciter carries 15 years while possession of a drug of dependence where the offence is not committed for trafficking purposes carries one year or
30 penalty units or five years and/or 400 penalty units in any other case and knowingly dealing in proceeds of crime carries a maximum penalty of 15 years imprisonment.
12The sentencing regime for trafficking offences is quantity based with the maximum penalties fixed by reference to specified quantitative thresholds like commercial quantity. The applicable quantities for each drug of dependence is specified separately. Quantity, therefore, is a highly relevant consideration. Other important indicators of the offence's gravity are the role, the duration and the motivation for the offender's involvement. I shall come to each of these matters in a moment.
13As to the quantity, which is, of course, only one of many factors to be taken into account, you were in possession of 99,671 milligrams of LD, 385 pure milligrams. The commercial quantity is defined as 50 milligrams. You were therefore in possession of more than seven times the commercial quantity of the drug and in fact, more than two times a large commercial quantity which is 150 milligrams.
14Your plea was in relation to not less than a commercial quantity and it is to that measure which my considerations focus in this sentence. Charges 2-4 are rolled up charges in each instance, with Charge 2 being a trafficking charge in relation to trafficable quantities of MDMA and ketamine and 3 and 4 being possession charges in relation to various substances as analysed and tabulated in the statement of Kathleen Poyle, an analyst with the Forensic Services Department dated 3 May 2022 and referred to in the prosecution opening for the plea.
15Your offending involved nine illicit drugs. The role which you had in this trafficking business was described by you in some detail during your interview with police of 7 January 2022. I summarised your answers in that interview and the relevant parts, particularly also that you had started the gardening business a year and a half before, having saved the profits in drug sales for some two years before that. You said you were going to stop selling drugs that week, the week of the interview. You employed two full-time and two part-time persons, apart from yourself, in that gardening business and you'd put $90,000 into the business to start it, although not all of it was from drug profits.
16The gardening business, you said, had been going on and off for not long and your intention was to stop selling drugs when it was going all right. You found it hard to get out but had limited it to one afternoon per week because of your work. This is the background context which the court can take into account in an evaluation of the appropriate and proportionate response to your criminality while sentencing you for the specifics of the indictment charge which is particularised on the day of your arrest.
17Similarly, as I have indicated, this background is the foundation for the rolled-up charges which follow and explain the context of the proceeds of crime with which you are charged as Charge 5. In my view, although it is incumbent to consider the important principle of totality, separate acts of trafficking and possession of different drugs involve separate criminality, attracting discrete charges and therefore penalties.
18It is also clear that your conduct was essentially determined by common context and practice and so a significant level of concurrency will be ordered upon the most serious of the offences that come under Charge 1. Notwithstanding that consideration, I repeat, it is necessary to take into account that each offence adds materially to the totality of your criminal offending.
19In my view, this was very serious offending involving a large quantity of LSD and numerous other drugs. A business pursued for financial reward with apparent indifference to the law and to the harm and misery which drugs of dependence cause to those who are dependent on them and to the impact of them upon the wider community. You clearly regarded the rewards available to you demonstrated by your experience as justifying taking the risk of severe punishment, a risk you were willing to take.
20I take your plea into account. This matter resolved at an early stage after plea negotiations and proceeded by way of a straight hand-up brief and no committal occurred. Your plea has a valuable utilitarian benefit, having avoided a criminal trial and its attendant delay and costs. You pleaded guilty during the course of the pandemic with the expectation of a sentence involving imprisonment and the consequence added burden of such reclusion during that pandemic.
21Additionally, your remand, which was your first time in custody, has been made more burdensome by it having been undertaken during the COVID-19 period with the impact the pandemic has had upon movements, imposed restrictions, periods of isolations, quarantine, confinement, unavailability of some programs and visits, work and vocational opportunities and the anxiety over the possibility of infection whilst confined in a custodial setting.
22Further, the plea requires palpable production of sentence under the Worboyes principles in recognition that such an admission and responsibility facilitates the course of criminal justice in a period which has, consequent upon the pandemic, resulted in delays and backlogs in the delivery of outcomes. I take each of these matters into account.
23Your plea, I accept, is accompanied by remorse. Additionally, your answers in the police interview, although tentative at times, produce a candid description of your involvement, providing information which probably would not have been available otherwise to investigators, another factor which is also productive of a reduction (see The Queen v Doran [2005] VSCA 271) and evidence of relevance to your prospects and confirmatory of remorse.
24In my view, your prospects of rehabilitation are good when one considers your plea, your lack of prior criminal history and your conduct since your arrest. I will return to other submissions made on your behalf in a moment.
25I take your personal circumstances into account. You are a French national, having been born in Paris. You are 37 years of age. Your father is an antique dealer, your mother was a PR journalist in the jewellery industry. You are their only son. With one half-sister to your father's previous relationship, your parents separated when you were 10 and their relationship was volatile and at times violent against your mother who raised you thereafter but you would see your father regularly. You remained in contact with both parents and sister during your remand when available, which has been about once a month.
26You completed secondary school in Paris. Your school experience was marked by bullying and isolation. You obtained a degree in geography and sociology from the Sorbonne and in 2007 you travelled to Australia with a view to further education. In 2012 you competed a Diploma in Horticulture and Land Management from Swinburne University and affectively relocated permanently.
27In 2021 you purchased a landscaping business with a friend, having worked in the field before that. You have had one significant relationship with the woman who resides at the Fairfield address. She has remained supporting since your incarceration but the relationship had ended before that time.
28You have had an issue with drug abuse from a relatively young age. It began with drinking alcohol in your teens and it increased with the increasing drug use which progressed to ketamine use which, by 2019, was daily use, a habit which required substantial finances to be available. You also used cocaine in 2020 as a social disinhibitor.
29A detailed and comprehensive report was received from Patrick Newton, a clinical and forensic psychologist, dated 10 March 2023. He outlined your personal history and the terms as set out by me above. When speaking to him, you reflected that your substance use had negatively affected your ability to make and sustain relationships. You reported a lengthy history of social anxiety which you attributed to conflict between your parents which has inhibited you establishing secure peer relationships.
30You sought refuge in some illicit drug use, experimenting with psychedelic substances from a young age to withdraw into a reverie, ketamine for emotional distress and cocaine to aid connection with others. These drugs had, in the longer term, served to entrench your problems.
31You lived in New Zealand for some two years from about 2015 and your ketamine use became frequent, progressing to daily use by 2019. In 2020 you used cocaine to overcome your social anxiety. Pandemic restrictions and lockdown exacerbated this use. Restrictions from work opportunities meant your activity centre in connection with other drug users and imbued in a drug meilleur. Prior to your arrest and remand, you had not participated in any drug related treatment. In prison you have undertaken some drug related education and are keen to undertake further counselling and education.
32At the time of Mr Newton's report, you were said to be on a waiting list for such programs and shortly before this sentence, the court received the certificate of completion in relation to a 24-hour drug treatment program dated 14 April, as run by Caraniche.
33You told Mr Newton your offending had commenced to support your drug habit and had grown from there. The activity expanded, you said, because you had, 'Good quality stuff.' It was submitted in written submissions that you were selling drugs to fund your own addiction. Your answers to Mr Newton and the circumstances of your trafficking clearly are significant 'expansion' of that first proposition. You expressed regret at your involvement. While on remand, you have been employed in staff dining, which you have enjoyed.
34Mr Newton made an assessment of your mental state. You are experiencing ongoing symptoms of anxiety, most prominent in social interactions, exacerbated by your current detention. This predicament has raised the level of anxiety in excess of average with a relatively mild sleep disturbance. These symptoms meet criteria for adjustment disorder with anxiety but not manifesting as an anxiety related disorder. You did not report significant experiences of depression or depressive mood disturbance, either currently or in the past.
35Your intellectual function is in the high end of average range. Your dysfunctional introversion and maladaptive social anxiety suggest traits of an avoidance personality. Your use of drugs was intense and compulsive and clearly very detrimental to your adjustment. You have now been placed into a period of enforced remission. Before this, your use was sufficient to meet criteria for substance use disorder which was severe. Your current situation has allowed insight to what Mr Newton describes as, 'The foundation of a degree of remorse.'
36While your intent is made clear as to future education and treatment, Mr Newton points to your insight into harm minimisation and relapse prevention remaining limited and requiring further input. He concludes his report with his opinion that many of the features of your mental health reflect a strong avoidant personality but he is reluctant to diagnose a personality disorder.
37
The symptoms helped you to rationalise your involvement in the drug use of others and to minimise the moral component of facilitating other people's addictions.
Mr Newton writes that your anxiety will, in a reasonable perspective, increase your anxiety to some extent. Your likely concerns over deportation will also be a precipitant for raised anxiety and make imprisonment more difficult compared to someone without this condition.
38A urine SA report dated 22 February 2022 was tendered to the court and recorded negative results for all substances. I accept that the substance use disorder was foundational for your offending and your continuing mental state played some role in your offending behaviour. This was more by way of providing some explanation for it, though, not a complete one and not, in my view, mitigatory. Other forces were clearly at play here in propelling you towards this conduct, such as the most obvious rewards to be obtained and your non-challan about the impact of the drugs on those you considered friends and customers.
39You were arrested in January 2022 and remanded in custody till 1 April. The plea proceeded in March 2023. The offer to plea came some months prior to the prosecution acceptance of it. Although a degree of uncertainty in your future is always felt keenly, the delay has been so slight that it does not represent a matter which has exceptional weight or even significant weight, as if some measure of unfairness has been visited upon you and the resolution of these matters.
40I disagree with defence submissions that such fairness consideration should play a dominant role in this determination. I do accept as going to your prospects that your remand activities, your employment, as well as courses undertaken, are to your credit and enhance such prospects. It was submitted that you would find prison more onerous, given you are a French national and away from family and friends. In my view, your nationality is not a fact which will cause added burden. You have now resided in this country for 16 years. Your English is quite good. You do have a community around you which can provide some support.
41True it is that you have contact with family via online platforms but clearly, these are limited and will restrict what would be more regular contact otherwise. It is likely that your visa status will be reviewed and your deportation seems likely. This, if it occurs, will of course prevent you from living in this country as you had wished. Your prospects of deportation upon which, beyond what I have said, I cannot speculate as it is an executive function and the loss of permanent settlement here are matters I do take into account as relevant to an appropriate sentence. The prospect of deportation will weigh upon you, as will the prospective loss of settling here. These will render your reclusion more burdensome to some degree.
42Defence relied on the avoidant personality disorder and your substance use disorder, as well as your adjustment disorder with anxiety as mental illnesses as defined in the Mental Health Act as involving, as Mr Newton described it, a degree of impairment of thought, emotional and behaviour. The first two of these were present at the time of the offending.
43Based on this, it was argued at the plea that, because of this partial link, while the Verdins principles were not enlivened requiring some modest discount to your sentence - in effect, this vowing written submissions for the defence at paragraphs 35-40 - but that these disorders provided the relevant context and personal background to the circumstances of this offending which should lead to a moderation of the sentence.
44I accept that some slight measure of reduction because of these features is appropriate by the application of principles in limbs 5 and 6 of Verdins to your situation; that is, those limbs which relate to an increase in hardship because of your mental condition and to a serious risk that reclusion could have a significant adverse effect on your mental health.
45
General deterrence is of great importance in sentencing for drug trafficking offences. This is so as to send a clear message to like-minded persons that, if apprehended, they will face stern punishment. This is particularly so given the potential and actual harm of the substances involved. The sentencing regime has been impacted upon by the decision of the Court of Appeal in
Gregory v The Queen[2017] VSCA 151 as noted in DPP v Fatho [2019] VSCA 311. When dealing with cases in the upper category of commercial quantity cases see Sharbell v The Queen [2018] VSCA 324 and DPP v Condo [2019] VSCA 181.
46I do have regard to current sentencing practices as one of the factors in the instinctive synthesis involved in the sentencing exercise. While emphasising that this is not a controlling factor, it remains relevant. In my view, specific deterrence can be moderated substantially in your case given your likely future circumstances but, nevertheless, the other important functions of sentencing principles must continue to have primary importance where a trafficking offence of this calibre comes before the court.
47Denunciation and punishment remain paramount, as does community protection. I do not lose sight of rehabilitation in the relevant mix of factors and, as I have stated, the sentence seeks to impart to aid your reclamation given you have good prospects to rehabilitate.
48I have reviewed the certificates of course completion which were tendered. They showed you completed many kinds of educational courses during 2022 and 2023, from first aid to horticulture, to traffic management, work safety, food practices, kitchen operations, community reintegration, adaptive courses to the prison environment, self-reflection, alcohol and drug and relationship stress and anger. I also take into account the references from Niesje Hayes, a friend who mentions visiting you at the remand centre and strong support network of family and friends and highlights your shame and remorse.
49Gabriel Lanly also wrote of your remorse and provided a positive overview of your character and the out of character nature of your offending. Similarly, Naomi Eggleton whom you employed in your gardening business, Remy Breuillard a friend and travel companion, Benjamin Lew each speak of your intelligent and generous warmth, your desire to reform and your generosity. Your mother Isabelle wrote of your optimistic and trustworthy nature. She also emphasised the out of character nature of the offending. Your half-sister Sophie wrote of your shame of your conduct, general and cultivated nature. I take all of these into account.
50I should indicate that I am proceeding as to Charges 3 and 4 on the basis that I am satisfied beyond reasonable doubt that the possession of the drugs detailed in these charges were for trafficking purposes, attracting the higher penalty. I have carefully reviewed the cases to which both prosecution and defence referred me. The unique features of the circumstances of your offending means these cases of limited assistance, except as a guide as to application of principles in each case.
51
These appear in the written submissions; And [2007] VSCA 49,
Karafilowski[2007] VSCA 156, Do [2008] VSCA 199, Barwick [2015] VSCA 1000, Vincent [2021] VSCA 99, Roxburgh [2021] VSCA 181, Barbaro [2021] VSCA 277, De Luca [2023] VSCA 44, Sengul v The King [2023] VSCA 63, and
Gregory v The Queen[2017] VSCA 151 and the Victorian Sentencing Manual summaries of the Judicial College of Victoria.
52On Charge 1 of trafficking in a drug of dependence in not less than a commercial quantity, you are convicted and sentenced to five years' imprisonment.
53On Charge 2 of trafficking a drug of dependence, you are convicted and sentenced to three years' imprisonment.
54On Charge 3 and 4 of possession of a drug of dependence, you are convicted and sentenced to one year imprisonment on each.
55And on Charge 5 of knowingly deal with proceeds of crime, you are convicted and sentenced to three years' imprisonment.
56
I order that six months on Charge 2, six months on Charge 5, two months on Charge 3 and two months on Charge 4 be cumulative on the sentence on
Charge 1 and on each other. A total sentence of six years and four months. I will order a non-parole period of four years.
57I will declare that you have served 490 days by way of pre-sentence detention and I will have that number noted in the records of the court. But for your plea, I would have sentenced you to seven and a half years in prison.
58I will sign the forfeiture and disposal orders in relation to these matters.
59I should state that 490 days is excluding today.
60Mr Grant, are there any other matters?
61MR GRANT: No, thank you, Your Honour. No.
62HIS HONOUR: Yes, thank you. Mr Nathwani, you might already have a conference lined up but if you wish to speak to your client, I'll just stand down and you may speak to him.
63MR NATHWANI: Thank you, Your Honour.
64HIS HONOUR: Yes, thank you.
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