Director of Public Prosecutions v Payne and Alberni

[2017] VCC 162

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-16-02045
CR-16-01941

DIRECTOR OF PUBLIC PROSECUTIONS

v

ASHLEY RICHARD PAYNE &
TAYLAH LEIGH ALBERNI

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JUDGE:	HIS HONOUR JUDGE GRANT
WHERE HELD:	Melbourne
DATE OF HEARING:	20 February 2017
DATE OF SENTENCE:	28 February 2017
CASE MAY BE CITED AS:	DPP v Payne & Alberni
MEDIUM NEUTRAL CITATION:	[2017] VCC 162

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director	Ms C. Foot	OPP
For the Accused	Mr S. Tovey (for Payne) Mr T. Lavery (for Alberni)	Doogue O’Brien George Duffy & Simon Lawyers

HIS HONOUR:

1       Ashley Payne and Taylah Alberni, you have each pleaded guilty to one charge of trafficking in a commercial quantity of a drug of dependence and one charge of dealing with the proceeds of crime.  The maximum penalties for these offences are as follows:

·    Trafficking in a commercial quantity of drug, 25 years' imprisonment; and

·     Dealing with proceeds of crime, 15 years' imprisonment.

2       Ms Alberni, you have also pleaded guilty to two unrelated summary offences of drive whilst suspended and use unregistered motor vehicle.  The maximum penalties for these offences are:

·    Drive whilst suspended as a first offender, 30 penalty units or four months' imprisonment; and

·    Use unregistered motor vehicle, 25 penalty units.

3       I have heard a summary of the offending.  It is not my intention to repeat the whole summary.  It has been tendered as Exhibit A in these proceedings.

4       Briefly, on 12 May 2016 you both checked into a room at the Quest Serviced Apartments in Narre Warren.  You were meant to check out at 10.00am on 14 May.  You failed to do so.  A staff member used a master key to enter your room.  He saw Mr Payne asleep on the couch with drug paraphernalia littered around.  He left the room and called the police.  They duly attended and searched the apartment and Mr Payne’s car.

5       The items found in the apartment included, six zip lock bags containing methylamphetamine, four mobile phones, $2,410 cash, deal bags, ice pipes,  scales and identification papers and various cards in the names of Crystal Wood, Glenn Wood and Hayley Wood.  

6       The police opened the safe in the apartment and found a large block of methylampetamine, 50 ecstasy tablets and three zip lock bags of methylampetamine.   

7       The police also found six small deal bags of methylamphetamine in the motor vehicle.

8       The combined weight of the methylamphetamine found in the apartment and car was 493.5 grams.  It was 85 per cent pure.  This equates to 427 grams of pure methylampetamine.

9       The combined weight of the MDMA was 13.9 grams with an average purity of eight per cent.

10      Mr Payne, you are charged with trafficking in a commercial quantity of methylampetamine between 21 January 2016 and 14 May 2016.

11      When your phone was analysed after your arrest, the police found photographs dated 21 January 2016, 26 February 2016 and 13 May 2016 showing you in possession of methylamphetamine.  You admit the possession of that drug on those dates.  There were also photos dated 6 and 9 May 2016 of cash that was the same cash that was seized on 14 May 2016.

12      Although you admit by your plea that you were trafficking in methylamphetamine before the date of your arrest, the circumstances and extent of that trafficking are unclear.  I agree with your counsel’s submissions that the significant aspect of the case against you is your possession of the commercial quantity on 14 May 2016.  In relation to that possession, the prosecution lay the charge on the basis of preparing the drug for trafficking and possessing the drug for sale.

13      Ms Alberni, the case against you is that on 14 May 2016, you were in possession of a commercial quantity of methylampetamine.  Again, the case is put on the basis of preparing the drug for trafficking and possessing the drug for sale. 

14      Clearly this is serious offending.  Those who engage in the movement of drugs from one person to another, engage in a pernicious trade that causes great harm to the community.  Trafficking in a commercial quantity is a particularly grave form of offending because it involves such a large quantity of drugs.

15      You were in possession of an aggregate quantity of methylampetamine and MDMA of 507.8 grams.  A commercial quantity in these circumstances is 500 grams.  The amount of pure methylampetamine was 427 grams.  This is over four times the commercial quantity threshold for this type of drug.  The most conservative assessment of the value of the methylampetamine in your possession is $72,800.  The street value would be higher.

16      You received the drugs on consignment.  Those who provided you with the drugs obviously believed that you would be capable of paying for them.  You are not small time dealers. You were willing to traffick a commercial quantity with the expectation that you would make enough money to pay the supplier and support your own habits.  In assessing your level of culpability, I do accept that your status as heavy users of methylampetamine makes the offending less serious than if you were acting solely for profit.  Also, the circumstances of your detection show that you were not sophisticated operators.  Indeed, your behaviour could reasonably be described as inept. There is no evidence of enrichment.  Nonetheless, the quantity and value of drugs in your possession means that general deterrence - that is the need to deter others from offending in the way that you did - is a central sentencing consideration.

17      Mr Payne, you have relevant prior convictions.  On 27 August 2012 you were sentenced to a 12 month Community Corrections Order (CCO) at the Latrobe Valley Magistrates’ Court on charges that included traffic methylampetamine and deal with property suspected to be the proceeds of crime.  One of the conditions of that order required you to undergo treatment for drug abuse.  On 6 November 2013, you were dealt with at the same court for breaching the Community Corrections Order, and you were placed on a suspended sentence.  On 25 February 2014 you again appeared at the Latrobe Valley Court on charges that included traffic methylampetamine and deal with property suspected to be the proceeds of crime.  You were sentenced to an 18-month term of imprisonment with a nine-month minimum term before being eligible for release on parole.  You were also sentenced for breaching the suspended sentence.

18      Given this history, specific deterrence and protection of the community are highly relevant sentencing considerations in your case.  Your prior history is also relevant to my assessment of your prospects for rehabilitation.  I will come back to this matter a little later in these remarks.

19      Mr Payne you come from a stable, loving family.  Your mother, father and sister offer you strong support.  Indeed, I heard that prior to your appearance at court on 27 August 2012 they had assisted you to undertake a 28-day inpatient drug rehabilitation program at the Malvern Clinic, followed by outpatient involvement with Narcotics Anonymous.  Unfortunately, this did not stop you relapsing into drug use.

20      As a young man you were a talented footballer.  Injuries in your teenage years cut short a prospective career as a high level footballer.  Sensibly, you looked to secure your future by undertaking a plumbing apprenticeship.  You successfully completed that.  I was told by your counsel that in your early 20s you became involved in the nightclub scene and commenced to use ecstasy regularly.  It was not long before you moved to methylamphetamine.  As your counsel expressed it, “While originally on an occasional basis, as is too often the case, this use escalated into addiction and began to erode other areas of his life.” This erosion included becoming distant from your family, losing your job, and committing criminal offences.

21      Your behaviour since 2012 shows how difficult it is for some people to break from an ice addiction.

22      After you were released on parole in September 2014 you did well for a time.  You returned to live with your parents, you completed parole, you returned to football and you obtained employment.  You worked for BBC Construction from December 2014 to January 2016.  You met a young woman and moved in with her in mid-2015.  She became pregnant.  In December 2015, when she was five months pregnant, the relationship broke down and she returned to live with her family in New South Wales.  I was told that this was the catalyst for your resumption of drug use.

23      Mr Payne, you have a powerful addiction to methylamphetamine.  Your parents have done all they can to support you.  You have a trade that would enable you, should you choose to do so, to be a hard working member of the community.  Real efforts have been made since 2012 to support you in your struggle to defeat your addiction.  You continue to relapse and you continue to offend.  Indeed the offending has become more serious over time.  This explains why I am very guarded about your prospects for rehabilitation.

24      You are still a relatively young man. Rehabilitation would usually be a highly relevant consideration for a 26-year-old.  However, with your history and the seriousness of this offending, less weight can be attached to the operation of that principle.

25      You will be given credit for your cooperation with the police and your early plea of guilty.  Your plea indicates remorse.  The plea has also saved the community the cost and expense involved in a criminal trial.  You will be given credit for all these matters.

26      Ms Alberni you have no relevant prior convictions.  This is an important factor in your favour, particularly so given your young age, 23, and your background.

27      Life has not been easy for you.  Your parents separated when you were 14.  You were pregnant at the age of 15 and you had a termination.  Fellow students became aware of what had happened and you were bullied at school.  You left school at the end of year nine with limited literacy skills.  You have only had casual employment since leaving school.  You have not worked in the last two years.  By the time you were 17, you were using drugs regularly.  When you partnered with Mr Payne in December 2015, you were addicted to ice.

28      You were remanded on 14 May 2016.  On 12 August you became involved in the Intensive Drug Rehabilitation Program at the Dame Phyllis Frost Centre.  The program is entirely voluntary and the most intensive of its kind offered in the prison.  

29      In a report dated 6 February 2017 Ms Kahan, psychologist and coordinator of the drug and alcohol program, noted that you have complied with all program requirements and engaged well in counselling.  The report says:  “Ms Alberni has used this opportunity to effectively begin to address the link between her life experiences, her drug and alcohol abuse and her offending behaviour.”  You have provided multiple urine screens for the period that you have been in the program.  They are all negative.  You have actively looked at inpatient residential programs that you could enter upon release from prison.  One of those - a six-week residential program in Bendigo run by the Salvation Army - has assessed you as suitable for their program.

30      Ms Alberni, you will be given credit for your cooperation with the police and for your early plea of guilty.  It indicates your remorse.  Your plea has also saved the community the cost and expenses associated with a criminal trial.  You will be given credit for all these matters. 

31      Your personal circumstances are very different to Mr Payne’s and this explains the difference in the sentencing orders that I intend to make against each of you.

32      I am satisfied that even though this is serious offending, your personal circumstances are such as to make rehabilitation an important sentencing consideration.

33      The matters that I find persuasive are as follows.

34           (1) You are still a young woman and you have potential to do well.

35           (2) Notwithstanding a relatively difficult background you have no relevant prior convictions.  

36           (3) Whilst you have been in custody you have voluntarily engaged in a drug treatment program.  You have done so in a determined manner.  You have been participating in counselling and you have maintained a drug-free status.  You have sought support from agencies that could assist you to remain drug free upon your release.

37      I am satisfied you are a good prospect for rehabilitation.

38         Your counsel submitted that I should sentence you to a combined order involving imprisonment and a Community Corrections Order.  I agree that such an order would be appropriate in your case.  

39         The prosecution conceded that such an order would be within range, although the prosecutor submitted that time served was not sufficient to mark the seriousness of the offending.  I also agree with that submission.

40         Mr Payne, you are convicted on Charge 1 and sentenced to be imprisoned for five years.

41         On Charge 2, convicted and sentenced to six months' imprisonment.  

42         I order you serve a term of three years before being eligible for release on parole.  

43         I declare that you have served 290 days pre-sentence detention.

44         Had you pleaded not guilty and been found guilty after a trial, I would have sentenced you to a total effective sentence of seven years, with a five year minimum.

45         I make the forfeiture orders sought by the prosecution.

46         Ms Alberni, you are convicted on Charge 1 and sentenced to 18 months' imprisonment to be followed by an 18 month Community Corrections Order. That order to have the following conditions.  You are to be under supervision and you are to participate in assessment and treatment for drug abuse.  This order requires you to report to the Morwell Office of Corrections within 48 hours of your release from prison.

47         On Charge 2, convicted and sentenced to three months' imprisonment.

48         On the charge of drive whilst suspended, convicted and fined $700.

49         On the charge of use unregistered vehicle, convicted and fined $300.

50         I make a declaration that as far as the 18-month imprisonment term is concerned, you have served 290 days pre-sentence detention.

51          Had you pleaded not guilty and been found guilty after trial, I would have sentence you to a term of four-and-a-half years with a three year minimum.

52 Pursuant to s.464ZF of the Crimes Act, I order that you undergo a forensic procedure for the taking of a scraping from your mouth.  If you fail to co-operate in the taking of the sample, the authorities may use reasonable force to obtain it.  I make the order because of the seriousness of the offending, it is consented to and the making of the order is in the public interest.

53      Is there anything more?  Perhaps I just should check, Mr Godleman and Mr Lavery and Ms Kelly, I made the calculation of pre-sentence detention on my own, and my maths is not always that good. 

54      MR GODLEMAN:  Your Honour, we've discussed that and I think 290 days is agreed.

55      HIS HONOUR:  Is the correct figure?

56      MR GODLEMAN:  I also have the draft ancillary orders, Your Honour.

57      HIS HONOUR:  Sorry?

58      MR GODLEMAN:  The draft ancillary orders.

59      HIS HONOUR:  Yes, thank you.  Sorry, you can be seated there.  Mr Lavery, we will just print up the orders and get your client to sign them.

60      MR GODLEMAN:  Your Honour, if it's convenient for the moment?

61      HIS HONOUR:  Yes.

62      MR GODLEMAN:  Can I just please clarify.  In relation to Charges 1 and 2 for both Mr Payne and Ms Alberni, are there any orders for cumulation?

63      HIS HONOUR:  No.

64      MR GODLEMAN:  Thank you, Your Honour.

65      HIS HONOUR:  Yes, the prisoners can be removed, thank you. 

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