Director of Public Prosecutions v Perks

[2018] VCC 1464

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR -17-02406

DIRECTOR OF PUBLIC PROSECUTIONS

v

CAM GEOFFREY PERKS

---

JUDGE:	HIS HONOUR JUDGE MULLALY
WHERE HELD:	Melbourne
DATE OF HEARING:	10 September 2018
DATE OF SENTENCE:	10 September 2018
CASE MAY BE CITED AS:	DPP v Perks
MEDIUM NEUTRAL CITATION:	[2018] VCC 1464

REASONS FOR SENTENCE
---

Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr. M. Wilson	Office of Public Prosecutions
For the Accused	Mr. J. Anderson	Balmer and Associates

Pages 1 - 1

 

 

HIS HONOUR:

1On 21 September 2016, the police raided an apartment at 57 Smith Street in Collingwood.  You, Cam Perks, were renting that apartment with another man, Ryan Oversby.  Your girlfriend was also staying at the apartment. 

2When the police entered the apartment, you were seen to grab a sawn-off shotgun and throw it through the open front window.  It landed on an awning above the footpath.  I will say more of this conduct shortly, but it immediately reveals a disturbing feature of your criminality. 

3During a police search of the apartment what was found was a significant amount of drugs and drugs paraphernalia.  Unusually, there was the wherewithal to manufacture cannabis oil into what is called cannabis butter or butane honey oil. 

4Within the kitchen, there were several cooking pots and containers which had cannabis oil in them.  The total amount of tetrahydrocannabinol found at the apartment was 4.8 kilograms of liquid.  The pure tetrahydrocannabinol component was not ascertained, however the analyst determined that it was less than one kilogram.  Thus, the prosecution accepts that the possession for sale of the tetrahydrocannabinol was below the relevant threshold for a commercial quantity.

5As mentioned there was significant amounts of drugs in the apartment.  The police found a total of 3.5 kilograms of cannabis and 50 grams of MDMA.  These amounts together with what was found on your telephone, are the basis of the serious charges of drug trafficking. 

6The police examined the text messages on your mobile phone.  The text messages indicated that you were often busy selling cannabis with many customers phoning and texting. 

7That said, what was revealed was that there were times when you could not supply cannabis as you yourself were waiting on re-supplies from your dealers.  There were times you complained to your dealer that you had nothing to supply your customers and had lost many customers.  You complained to a friend that you only had done a few sales in the last three days and you were sick of losing 1k per day, which I take to mean a thousand dollars.

8What was seen from the phone that was interrogated by the police was that you were purchasing varying amounts of cannabis from several dealers, for example, on 13 April 2016, you told a dealer you would take five pounds.  A couple of days later you requested a pound.  This was not unique as there were a number of times that you requested pounds or half-pounds from a dealer in order to sell to those you supplied.  Clearly, you were busy, but that said, an analysis of your text messages indicates there were periods where there were no cannabis transactions. 

9The examples given in the prosecution summary were that there were periods from 26 April to 20 May, from 6 July to 10 July, from 10 July to 21 July, and from 6 September to 17 September.  However, there were a number of phones that were seized from the premises and in one text, you asked one dealer to call you on your other phone. 

10In respect of the sales, they too were set out in a Table attached to the prosecution opening.  Mostly the sales were for quarter ounces or less, with you receiving between $30 and $80 from the purchasers.

11There were some larger sales that were made up to $860 for a quarter pound, but by and large there were sales to street level users.  In the prosecution's submission, it was said that you were busily engaged in relatively continuous cannabis trafficking during the six month time frame. 

12The basis for that submission was the volume of trafficking, your plea of guilty to the between dates trafficking and the fact that not all deals were done via text message and you were in possession of multiple phones.  I am satisfied beyond reasonable doubt of the prosecution contention as to your level of involvement in trafficking cannabis.

13As for the trafficking in MDMA or ecstasy, what was revealed was a shorter period from 21 May 2016 to 21 September 2016.  In that period you were routinely involved in sourcing ecstasy and selling a smaller number of pills to users.  The ecstasy transactions were contained within the text messages that were summarised or set out as Table B which was annexed to the prosecution opening.  Those transactions and the amount of the 50 grams that was found in your apartment, makes this serious trafficking in ecstasy.  The Table does reveal that your sales were for relatively small amounts of money.  That said, the police found $14,555 in cash.  It was the proceeds of crime.

14Your co-accused, Mr Oversby, was also charged with possession of that money, but plainly it was yours from your drug trafficking business.  He was storing it for you. 

15In respect of the tetrahydrocannabinol, there was no evidence of any actual sales of cannabis but it was said that you were producing cannabis oil at the request of one of your dealers. 

16You have pleaded guilty to the following;

17Trafficking in cannabis from 20 March 2016 to 21 September 2016; trafficking in ecstasy or MDMA from 21 May 2016 to 21 September 2016; trafficking in a drug of dependence being tetrahydrocannabinol on or about 21 September 2016 and being a non-prohibited person in possession of a registered general handgun being the sawn-off shotgun and the dealing with property suspected of being the proceeds of crime; first, the sawn-off shotgun itself which was stolen, and second, the $14,555 cash.  Finally, you were charged and have pleaded guilty to possession of explosives being the fireworks. 

18The trafficking in cannabis and the MDMA are serious offending.  So much was conceded by your counsel.  You were, I said, busily engaged in regular transactions, seeking drugs from your suppliers and passing them onto street level users for your own profit.  These sums of money spoken about including the cash that was located at the apartment were relatively substantial. 

19As noted, the possession of the sawn-off shotgun is concerning.  There was, and I accept, evidence that you felt under significant physical threat from a supplier, however the resort to a stolen sawn-off shotgun reveals how you had become embedded in the illegal organised drug trade.

20Following your arrest on 21 September 2016, you were remanded in custody until granted bail on 11 October 2016.  Thereafter there were on the one time that you failed to appear, but ultimately your bail was revoked.  You were re-arrested on 5 July 2018, being remanded in custody where you remain to this date.  The total amount of time that you have spent on remand is 88 days.

21You pleaded guilty to the charges that I have outlined above, but it is not said that this matter resolved at the earliest opportunity.  It seems you were willing to plead guilty to the trafficking in MDMA from an early time.  Your sentence will be less than it otherwise would have been, had you pleaded not guilty and been found guilty of these offences. 

22As to your personal circumstances, you are now 25.  You were 23 during the period of your offending.  You were raised by your mother.  Your father had left prior to you being born.  Your mother re-partnered and had other children.  Indeed, you have 9 siblings and step-siblings.  Your step-father was physically abusive, both to you and your mother. 

23You went to school in the Echuca area completing Year 11.  After school, you qualified as a chef.  You had been working in the hospitality industry for about six years until your arrest.  While on bail, you had some employment in the restaurant industry.  Your work history at a young age is to your credit. 

24Of real note is that you have no prior criminal history.  That is a matter I have factored into the equation in your favour.  As explained earlier, you were in a relationship with a young woman who was at the apartment when the police attended.  In her record of interview, she spoke about your abusive upbringing and at the time leading up to your arrest, of your deteriorating mental health and escalating drug use.  She said you were suicidal and she had seen you attempt suicide twice before.

25As to drug dependency, your girlfriend at the time described your dependence on cocaine and she felt compelled to hide your supply of cocaine from you to protect you from abusing that drug.  From early on, that is, from your mid-teens, you had used cannabis. 

26One important matter put forward or given emphasis by your counsel was your youth.  Given your age at the time and your age now, while you are not as young as some that come before this court, but your age, taken with your lack of prior convictions, means that it remains necessary to give emphasis to your rehabilitation.

27But that said, the seriousness of the offending means that the emphasis on rehabilitation must be moderated to some extent.  There is an important role for general deterrence in relation to trafficking offences and possession of firearms. 

28The other sentencing considerations that remain important is denunciation of your crime.  Drug trafficking is a scourge, as the community has to deal with all the problems and consequences of drug addiction. 

29What was put by your counsel in his comprehensive written and oral submissions, was that a community corrections order ought be imposed, and that there was no need for any further period of incarceration.  Your counsel emphasised the important Court of Appeal decision of Boulton and in particular, paragraphs 183 to 190 which deal with the issue of young offenders. He also pointed to s.5(4C) of the Sentencing Act which reads:

30"The court must not impose a sentence that involves the confinement of an offender unless it considers the purpose or purposes which sentence is to be imposed cannot be achieved by a community correction order with one or more of the conditions referred to in ss.48F, 48G, 48H, 48I and 48J."

31The conditions referred to are as follows; a non-association condition, a resident restriction and exclusion condition as to place, an area exclusion condition, a curfew condition and an alcohol exclusion condition.  None of these conditions appear relevant in your circumstances. 

32However, the general thrust of the Court of Appeal decision in Boulton is that a community correction order may be the only way to simultaneously punish and rehabilitate.  Such sentences do operate as a general deterrent and express denunciation by reason of the punitive aspect of a community correction order. 

33As was said, Parliament changed the sentencing landscape with the introduction of the community correction order regime.  It must be considered as an appropriate sentence even for serious crime that to that point, would have attracted gaol terms. 

34I had you assessed for your suitability for a community correction order.  You were found suitable.  You were seen as contrite and ready to do whatever was necessary to seek help and address your offending behaviour.  It is recommended that you undergo treatment for your drug addiction, mental health and other programs that will assist in preventing re-offending.  It also considered that you were suitable for community work and be the subject of supervision.

35At the time of your plea, that is, on 1 August 2018, you had served 47 days of pre-sentence detention.  As I have noted, that figure is now 88 days.  Your counsel submitted that no further gaol was required.

36The prosecution submitted a combined community correction order and gaol was within range but made no submissions as to whether the pre-sentence detention was sufficient in terms of the gaol component. 

37To a very limited degree, I must take into account the sentences imposed on the others arrested at the time of the police raid.  However, the very different offences and the different level of involvement in the joint offences involving cannabis oil and the possession of cash and the different personal circumstances including the even younger age of the co-accused, means that the principles of parity would allow for very different sentences to be imposed on you, as opposed to the adjourned undertakings imposed on the co-accused.

38At first blush, I consider that a community correction order was not going to be available because I now only have 12 months of imprisonment available in a combined sentence. 

39However, after long and anxious consideration of all aspects of the crimes and you and your prospects for reform, I have come to the view that a combined gaol and community correction order is a just and appropriate sentence and would be in the community, as well as your own interest.

40However, the time served thus far, in my view, is not a just and appropriate term to be combined with a community correction order.  There must be further imprisonment so as general deterrence and denunciation are properly expressed.

41Doing the best I can, I impose an aggregate sentence for all charges on the indictment and the summary offences that were brought forward, save for one. 

42That sentence is a term of imprisonment for 9 months together with a two-year community correction order.  In respect of the firearms offence, you are convicted and discharged.  Had you pleaded not guilty to these offences and been found guilty of them, I would have imposed a sentence of 3 years and 2 months with a minimum term of 2 years. 

43You have served 88 days on remand.  That figure having been reckoned, I declared it as part of the sentence that I have just imposed.  

44I will ensure this declaration is entered into the records of the court so that the prison authorities are clear that you have already served 88 days of the sentence I have just imposed. 

45The community correction order itself will have a number of program conditions which I will explain to you in full detail shortly, but they will involve unpaid community work, that is 200 hours of that.  They will involve treatment and assessment for drug addiction, mental health and you are to do other programs as directed to ensure or assist in preventing re-offending and you will be under the supervision of the community corrections officers for the duration of the community corrections order.

46Are there any other consequential orders, Mr Wilson.

47

MR WILSON:  Your Honour, we seek the ancillary orders that have been

e-filed, and I understand they are not opposed.

48HIS HONOUR:  Yes.  The orders that have been sought is that you, having been found guilty of the firearms charge, that the firearm be forfeited.  That will be signed.  The proceeds of crime, the cash, will be forfeited.  It has a total on it of $1590 Mr Wilson. 

49MR WILSON:  Yes.

50HIS HONOUR:  Is there something that - it is $15,900.

51MR WILSON:  Your Honour, I think the correct figure should be $14,155.

52HIS HONOUR:  Five hundred and fifty five.

53MR WILSON:  Sorry, 500, yes, because there was an extra amount of cash which was included in the summary.

54HIS HONOUR:  Yes.

55MR WILSON:  Which wasn't the subject of that charge.

56HIS HONOUR:  Do you want to fix that up.

57MR WILSON:  Yes, I'm happy to do that now.

58HIS HONOUR:  Thank you.  In respect of the disposal order, I have signed that.  That sets out a long schedule of all the matters relating to the drug trafficking, computers, phones and so on. 

59There is an application for a forensic sample Mr Perks.  That means a scraping from your mouth, so that your DNA can be extracted, and put onto a data base.  The application has been made by the prosecution.  I have considered that I consider that the application should be granted due to the seriousness of the offending and the granting of the order is in the public interest. 

60What you have to understand is that when the authorities come to take the scraping from your mouth, if you do not cooperate, they are authorised to use reasonable force to get the sample.  Just cooperate with it.  I have just signed the one with the custody aspect to it, so I will just hand that back, that can be fixed.  You might need to file that at a later point, Mr - - -

61MR WILSON:  Yes, we'll refile it with the amended amount. 

62HIS HONOUR:  I'm happy to sign it if you hand write it.

63MR WILSON:  If Your Honour 's happy with that, I'll do that now.

64HIS HONOUR:  Do it now, then. 

65MR WILSON:  There - --

66HIS HONOUR:  Are you happy with that Mr Anderson.

67MR ANDERSON:  Yes, Your Honour.

68HIS HONOUR:  Thank you.

69MR WILSON:  There were just two matters I want to raise.

70HIS HONOUR:  Yes.

71MR WILSON:  Your Honour mentioned initially in relation to the cannabis oil possession for the purpose of sale.  Later on, though, you referred to manufacture. 

72HIS HONOUR:  All right.

73MR WILSON:  I just point out that.  It was put on the basis that it was manufacture, traffic and manufacture.

74HIS HONOUR:  Yes, that should have been made clearer.  It doesn't alter the approach that I've taken to it and albeit it in the aggregate it's hard to disaggregate.  It's not loomed large in the sentencing factor.

75MR WILSON:  Indeed, indeed, I didn't think that was the case, but I thought I should point it out.

76HIS HONOUR:  Yes.  Do you understand that Mr Anderson.

77MR ANDERSON:  I always understood Your Honour was more concerned about the trafficking of the cannabis and the MDMA. 

78HIS HONOUR:  Yes, but in saying that it was possession for sale, that's not how the Crown put it.  It was for manufacture and I should have said that, but I don't think it makes a lot of difference, if any.

79MR WILSON:   No.

80HIS HONOUR:  Thank you.  The other thing I've - need correcting?

81MR WILSON: The other thing.  I heard the unpaid community work was 100 hours.

82HIS HONOUR:  Two hundred.

83MR WILSON:  Two hundred, 200, yes.  Sorry, one further matter, Your Honour mentioned he was convicted and discharged on the firearms charge. 

84HIS HONOUR:  Yes.  Can I do that?

85MR WILSON:  I take it it's a fireworks - - -

86HIS HONOUR:  Fireworks.

87MR WILSON:  The explosives charges.

88HIS HONOUR:  Yes, explosives, yes.

89MR WILSON:  Thank you, Your Honour.

90

HIS HONOUR:  Thank you.  Two things Mr Anderson and Mr Perks. 

Firstly, I did not announce - I announce now that the treatment component for drugs, mental health and any other programs can be considered as part of the unpaid work and deducted from the 200 hours.  The Office of Corrections will manage all that. 

91The other thing is, we need to know what Office of Corrections you will report to, once released Mr Perks.

92MR ANDERSON:  It'd be Carlton, Your Honour.

93HIS HONOUR:  Carlton, thank you. 

94Mr Perks, the community corrections order is two years, no soft part of the penalty, it's an onerous part.  So the conditions that apply to everyone that's on a community corrections order are you must not commit another offence during the time the order is in place. 

95So from the time you are released, for two years, you cannot commit any further offence, because you will breach the order and come back before me and the high likelihood is that you will be returned back to prison. 

96You have got to cooperate with the Office of Corrections, firstly by complying with obligations under the Sentencing regulations.  That will involve them taking identifying photographs of you for the purposes of knowing who you are and the like.  Just cooperate with that.

97You must report to and receive visits from the Office of Corrections.  You must let the Community Corrections officers know within two clear working days if you change your address or your job.  You cannot leave Victoria without getting permission to do so from them, and you must obey all lawful instructions from them.  You must commence the community corrections order within two clear working days of your release going to the Carlton Community Correctional Centre, 444 Swanston Street in Carlton. 

98So they are the mandatory conditions that apply to everyone.  The program conditions that apply particularly to you is you are to do 200 hours of unpaid community work over two years, or you are to do treatment and assessment for drug abuse and dependency. 

99You must undergo a mental health assessment and treatment.  It may include psychological and psychiatric treatment as directed by the Office of Corrections and you must participate in programs and courses that address factors relating to your offending as directed by the regional manager. 

100All the hours of treatment and rehabilitation satisfactorily undertaken are to be counted as hours of unpaid community work.  Sign that if you would.  That will bring this matter as far as this court's concerned, to an end.   Thank you, I will sign that.  Just get a copy - Mr Anderson, do you want Mr Perks to have a copy before he leaves the court?

101MR ANDERSON:  I don't think it will make an enormous difference, Your Honour.  I can indicate also that I'll have a jabber with him probably tomorrow afternoon to explain the effect of Your Honour's orders.

102HIS HONOUR:  Thank you, that's very kind of you and a brilliant use of the current modern technology that you will have a jabber with him.  I will get used to that. 

103Mr Anderson's saying he'll get you on the video screen so he can talk to you about it all.  So he doesn't think you need to take this document with you.  It's always a bit difficult if you're taking documents that you didn't come with for the searches and all that sort of thing, so are you happy with it just to go to Mr Anderson, and him explain it all to you?

104ACCUSED:  Yes.

105HIS HONOUR:  Yes, thank you.  All right, that being the case, thank you Mr Anderson and Mr Wilson again, for your assistance.  Mr Perks can be taken downstairs.  We'll end the link Mr Anderson, thank you.

106MR ANDERSON:  Thank you Your Honour.

107HIS HONOUR:  Mr Wilson.  I'll stand down. 

- - -