Director of Public Prosecutions v Pennaneach
[2021] VCC 806
•15 June 2021
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 21-00036
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JORDAN PENNANEACH |
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JUDGE: | HIS HONOUR JUDGE LACAVA |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 10 June 2021 |
DATE OF SENTENCE: | 15 June 2021 |
CASE MAY BE CITED AS: | DPP v Pennaneach |
MEDIUM NEUTRAL CITATION: | [2021] VCC 806 |
REASONS FOR SENTENCE
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Subject : Trafficking in a drug of dependence MDMA, in a quantity that was not less than a large commercial quantity, trafficking in a drug of dependence - cocaine, possessing a drug of dependence - cannabis, dealing with $35,360 being proceeds of crime.
Sentence: 7 years imprisonment with a non parole perios of 4 and ½ years.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms B. Goding | Office of Public Prosecutions |
For the Accused | Mr C. Terry |
HIS HONOUR:
1Jordan Pennaneach, you have pleaded guilty to four charges involving the trafficking of drugs.
2Charge 1 is a charge of trafficking in a drug of dependence MDMA, in a quantity that was not less than a large commercial quantity. The maximum penalty for this offence is imprisonment for life and a fine of 5000 penalty units.
3Charge 2 is a charge of trafficking in a drug of dependence, cocaine. The maximum penalty for this offence is imprisonment for 15 years.
4Charge 3 is a charge of possessing a drug of dependence, cannabis. In the circumstances alleged by the prosecution, at the time you possessed this drug, you did so for a trafficking purpose. The maximum penalty is for this offence is imprisonment for five years.
5Charge 4 derives from engaging in the conduct constituted by the first three charges. It is a charge of dealing with $35,360 being proceeds of crime whilst being negligent as to whether that sum of money was proceeds of crime.
6As can be seen from the maximum penalties for these offences, especially the maximum penalty in Charge 1, you face the court on very serious charges.
7There are other legislative provisions that a sentencing court must have regard to when sentencing an offender for the offence in Charge 1. They also emphasise the seriousness of the offence in Charge 1.
8The offence of trafficking in a large commercial quantity of a drug of dependence is a standard sentence offence for the purposes of the Sentencing Act 1991 ('the Act'). The standard sentence prescribed for the offence in Charge 1 is imprisonment for 16 years.
9When sentencing for a standard sentence offence the court must consider the standard sentence as a guidepost, representing the sentence for an offence in the middle of the range of seriousness, and in doing so must only have regard to objective factors related to the actual offending, and not to subjective factors related only to the offender. The standard sentence is but one factor to be considered among a number of factors in any particular case. It must not be considered in a way that results in a two-stage sentencing approach, and nor must it remove the approach to sentencing known as instinctive synthesis.
10In Brown v R [2019] VSCA 286, the Court of Appeal considered the effect of the standard sentencing provisions albeit in another factual context. The court concluded that the standard sentence prescribed for any particular offence is a legislative guidepost to the sentencer, as is the maximum penalty prescribed. The standard sentence does not affect instinctive synthesis, and does not permit a two-stage sentencing approach. The prescription of a standard sentence does not require the court to identify the objective seriousness of the case for the purpose of comparing the present case to the standard sentence. Also, it does not otherwise affect the matters a court may, or must, consider when sentencing. Where applicable, however, the provisions of the Act related to sentencing for a standard sentence offence do require a sentencing court to explain how the sentence imposed relates to the standard sentence.
11Another factor which a sentencing court must have regard to when sentencing an offender, are current sentencing practices for the offence concerned. When sentencing an offender for an offence that is a standard sentencing offence, a court must only have regard to current sentencing practices of other courts where those sentences also relate to the same standard sentencing offence. On the plea in this case I was provided by both the prosecution and defence counsel with a summary of a number of such cases where other courts have sentenced offenders for the standard sentencing offence of trafficking in a drug of dependence in a quantity that was not less than a large commercial quantity. I will have more to say about some of these cases later.
12Further, pursuant to s11A of the Act, the court must fix a non-parole period of at least 60 per cent of the total effective sentence if that total effective sentence is less than 20 years imprisonment, unless the court considers that it is in the interest of justice not to do so. In all of the circumstances of this case I am not satisfied it is in the interest of justice not to do so.
13Also, upon a conviction on Charge 1 you fall to be declared, 'a serious drug offender'. When you are sentenced, I will be making a declaration pursuant to s89DI of the Act that you are a serious drug offender.
14As you can see from the legislative framework set by the parliament, drug trafficking offences are regarded very seriously. When sentencing an offender for offences such as these a sentencing court must ensure the sentence imposed properly reflects application of the sentencing principles of deterrence (both general and specific), denunciation and protection of the public. In passing sentence I must also have regard to your prospects for rehabilitation. The sentence imposed must be fair, having regard to all of the circumstances, including factors relating to you personally.
15The circumstances of your offending are summarised in an outline prepared by the prosecution dated 27 May 2021, Exhibit A. The relevant parts of that document were read in open court by the prosecutor Ms Goding. There was no suggestion by your counsel, Mr Terry, that the prosecution summary was inaccurate or misleading in any way. In those circumstances is not necessary that I here set out in full all the detail of your offending, and I do so only in an abbreviated way.
16All of your offending occurred on 6 May of 2020.
17On that day investigating police executed a search warrant at your apartment. They there found 1,675.1g of the drug known as MDMA. The threshold for a large commercial quantity of this drug is 1 kg (in a mixture) or 750g pure. When analysed the drug was found to be 685.85 g pure, which is less than the pure drug threshold, however it matters not here because the legislation provides for a threshold of the drug mixed with other substances. Nevertheless this is a factor that must be taken into account. Charge 1.
18Investigators also found 362 g of cocaine (approximately 221 to 285 gram pure cocaine). The threshold for the offence of trafficking of cocaine is only 3 grams. You were found in possession of a quantity of cocaine well in excess of the trafficable quantity threshold. Charge 2
19You were also found in possession of 530.1 grams of cannabis. Although you yourself have used cannabis, it is accepted for the purposes of sentencing that you possessed this drug also for the purposes of sale. Charge 3.
20You were also found to possess $35,360 cash, $30,000 of this money was to be paid by you to a principal offender. The remainder was your money which was found in a wallet and a small locked money box. This was your limited profit from the proceeds of trafficking. Charge 4
21Your offending was detected by police covert operatives who had been monitoring the activities of another person who was directly carrying out trafficking transactions. Your role was akin to that of a shopkeeper. You kept the drugs for sale in your apartment, and after receiving instructions from others you would supply the drugs after receipt of payment. You would then account to others for the drugs and money you had received. For this you were paid a modest sum. From the quantity of MDMA and cocaine and cannabis found in your possession there could be no doubt you were engaged in drug trafficking.
22In submissions in writing filed on behalf of the prosecution by Ms Goding, it is conceded that the quantity of the drug of dependence MDMA which is the subject of Charge 1 is at the lower end for offending of this kind, although not at the lowest point. I agree that is the case.
23The prosecution submits that the quantity of cocaine, the subject of Charge 2 makes it a more serious example of the offence of trafficking simpliciter. Mr Terry concedes this to be so.
24The prosecution accepts that your role was not that of the principal in this trafficking business. It accepts that your apartment was in essence a shopfront for the sale of drugs provided to you by another person and that your role was limited to that of a shopkeeper in a well-organised trafficking operation. You were entrusted with significant quantities of the drugs involved in Charges 1 and 2, and with receiving significant amounts of money effectively on trust for another person or persons..
25This is not a case where your offending spanned a long period of time. It is trafficking on one day. Your offending was motivated to make enough money to make ends meet. That is to pay your rent, and to feed yourself. The prosecution accepts that you were so motivated because you had fallen on difficult financial circumstances when not able to work in the hospitality industry as a waiter because of the lockdown in Victoria occasioned by the onset of the Covid-19 pandemic. The prosecution concedes that your role was but a limited one and that your financial gain from each transaction was modest in the circumstances. None of that excuses your offending but it does help to explain why you offended in the way that you did, and it invites a finding that yours was a lesser role far removed from being a principal.
26Mr Terry submitted, and I accept, that in considering Charge 1, the quantity of MDMA found in your possession for sale falls towards the lower end of quantities usually seen where other offenders have been faced with a similar charge. This case does not have the features of an offender living the high life on the proceeds of drug trafficking. Nor does it have the features of use of violence or weapons.
27In my judgement, in all of the circumstances here conceded, especially your limited role in the trafficking, your offending in Charge 1 falls well below mid-range for the offence of trafficking in a drug of dependence MDMA, in a quantity that was not less than a large commercial quantity. As such, the sentence I will impose on Charge 1 will fall well below the standard sentence of 16 years.
28Your offending in Charge 2, having regard to the quantity of the drug cocaine found in your possession, is about mid-range. As I have said, your role was akin to the shopkeeper. Each of the offences occurred together on the one day consequent upon your keeping of the shop. Because of this there must be substantial concurrency in the sentences I impose although there will be some accumulation of the sentence imposed on Charge 2 with the sentence imposed on Charge 1.
29Because of the seriousness of your offending overall I must impose a sentence being a term of immediate imprisonment and I must fix a non-parole period. That I must impose such a sentence was appropriately conceded by your counsel, Mr Terry.
30You have pleaded guilty to the charges, and that is very much to your credit. By pleading guilty you have saved the time and costs of a trial. That is especially important in the present environment where this court is faced with a considerable backlog in criminal trials because of the Covid-19 pandemic. By pleading guilty you have not contributed to that backlog.
31By pleading guilty to each of the charges, you have accepted responsibility for your offending and you have advanced the administration of justice. For that you are entitled to, and will receive, a reduction in sentence and this will be reflected in the overall sentence that I will soon impose. Your pleas of guilty also signify your remorse for this offending which I have taken into account.
32You were charged on 6 May of 2020 and you were arrested and remanded in custody where you have remained. There were a number of committal mentions occasioned by delay in analysing the drugs. The Magistrates' Court was told on 12 January 2021 that the matter had resolved, and that you would plead guilty. You were committed to this court by way of a straight hand-up brief. The charges proceeded by way of plea in this court on 10 June last. I treat you as having pleaded guilty to the charges at the earliest available opportunity.
33I turn to deal with some matters personal and relevant to you. Mr Terry filed with the court a helpful written outline of his submissions which I marked as Exhibit 1 on the plea.
34You were born on the 13 November 1994 in France. You are a French national. You were aged 25 at the time of offending and you are now 26 years of age. You have no prior convictions and this offending aside you have led an unblemished life. You are still relatively young and your prospects of rehabilitation are an important factor to take into account in arriving at an appropriate sentence. From everything I have read about you, I think your prospects for rehabilitation are good. I doubt you will offend again in this way.
35You grew up on the west coast of France. Your parents were hard working people. Your father however was an abusive alcoholic. Your parents separated when you were aged about 10 years. Psychologist Mathew Staios prepared a psychological assessment of you which I admitted into evidence as Exhibit 2. You told him that you were an average student at school with no behavioural or learning problems.
36You left school at age 16 and obtained work in a local supermarket eventually gaining entry to a tertiary traineeship through that work. Your study involved work and study in the hospitality industry.
37At aged 19 you began to travel and working at seasonal resorts in France and Corsica and the Caribbean. You told Mr Staios that you held stable jobs in these locations working in high-end restaurants as a waiter.
38You came to Australia in 2016 on a working holiday. You obtained work at a St Kilda restaurant where you worked for five months. You also did some fruit picking. You decided you wanted to study in Australia and so you returned briefly to France and saved enough money to return to this country to pay for a student visa and commence studies in leadership and management. You returned to Australia and commenced such a course completing the first year.
39Whilst studying you were able to work on a student visa on a casual basis completing up to 20 hours a week. Things were working out well for you in this regard until the onset of the Covid-19 pandemic. You lost your work in hospitality and because you were not an Australian citizen you did not qualify for any form of government assistance. You had no means of supporting yourself and you were financially desperate. That is what led you to accept cash for holding the drugs on behalf of principal offenders. For this you received $6000. Mr Terry submitted, and I accept, this was a trifling sum when compared to the risk involved. Your account of the events which brought about your offending is completely accepted by Mr Staios as the reason that brought about your offending.
40You have been in custody since your arrest on 6 May 2020. You have served 403 days pre-sentence detention which included 21 days in prison quarantine at the Melbourne Remand Centre. When arrested you gave a full and frank account of your involvement in a record of interview.
41You have found yourself in custody in a Covid environment and as a foreigner in a country far away from your homeland. Not only have you had to endure the harsher conditions in prison because of Covid 19 but because you have few friends and no family here in Australia you have had, and will doubtless not have, any visitors whilst serving your sentence. These factors will make your sentence more burdensome and I have taken this into account in arriving at an appropriate sentence. You will almost certainly be deported from this country upon your release from prison.
42As I said earlier, on the plea I was provided with summaries of 20 other cases where offenders have been sentenced for the offence of trafficking in a drug of dependence in not less than a large commercial quantity where the offence was a standard sentencing offence. On the plea there was much discussion about cases numbered 18 and 19 on the list of cases. In arriving at my sentence I have had regard to the sentences imposed in all of the cases summarised which are helpful. Mr Terry submitted that here I should impose a sentence less than the sentences imposed on offenders Kane (eight years) and Guan (six years and six months) for the standard sentencing offences generally. I have had full regard to those submissions. As I said in argument, whilst it is accepted your role in the offending was a much lesser one to that of your principals, it was nonetheless an important role which must be fully taken into account in the sentencing of you. In passing sentence I have endeavoured to do so.
43On Charge 1 you are convicted and sentenced to a term of imprisonment of six (6) years.
44On Charge 2 you are convicted and sentenced to a term of imprisonment of three (3) years.
45On Charge 2 you are convicted and sentenced to a term of imprisonment of six months.
46I direct that one (1) year of the sentence imposed on Charge 2 cumulate upon the sentence imposed on Charge 1 making a total effective sentence of seven (7) years imprisonment.
47I direct that you serve a minimum term of four and a half years before being eligible for release on parole.
48I declare that you have served 403 days pre-sentence detention of the sentences passed this day and I direct that 403 days be reckoned as having been already served, be entered into the records of the court and be deducted administratively.
49Having been convicted on Charge 1 of a serious drug offence, I declare that you are a serious drug offender for the purposes of s89DI(1) of the Act and I direct that my having so declared be entered into the records of the court.
50For the purposes of s6AAA of the Act, had you not pleaded guilty to these charges I would have sentenced you to a term of imprisonment of 10 years' with a non-parole period of seven years.
51Are there any questions arising out of that Mr Terry?
52MR TERRY: No, Your Honour, all clear.
53HIS HONOUR: Ms Goding? Do you have any questions?
54MS GODING: No, Your Honour.
55HIS HONOUR: All right. I have been asked to sign a forfeiture order. I assume that is not opposed Mr Terry? It is for the forfeiture of the drugs. Sorry, the forfeiture of $35,360.00 cash.
56MR TERRY: Yes. No, not opposed, Your Honour.
57HIS HONOUR: Thank you. I have signed that order.
58MR TERRY: If Your Honour pleases.
59MS GODING: If the court pleases.
60HIS HONOUR: Very well. I will have my tipstaff terminate the transmission.
61MS GODING: Your Honour, there is an interpreter on the link. If Mr Pennaneach requires the actual sentence to be interpreted, the numbers to him, I am not sure, Mr Terry might assist with that.
62HIS HONOUR: Would you like the link to continue for a short time, Mr Terry to speak to your client?
63MR TERRY: I would, Your Honour, that would be fantastic, if I could have the interpreter as well.
64HIS HONOUR: Yes, very well. Look I will leave the court, and I have another matter coming up at 10 o'clock, so I will have Mr Boswell leave the link open for a short time to enable you to speak to Mr Pennaneach.
65MR TERRY: Yes, we will be very quick, Your Honour.
66HIS HONOUR: Thank you both.
67MS GODING: Thank Your Honour.
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