Director of Public Prosecutions v Phillips
[2023] VCC 264
•17 February 2023
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-21-01735
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| RHYS PHILLIPS |
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JUDGE: | HER HONOUR JUDGE WILMOTH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | PLEA: 30 November, 7 December 2021 | |
DATE OF SENTENCE: | 17 February 2023 | |
CASE MAY BE CITED AS: | DPP v Phillips | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 264 | |
REASONS FOR SENTENCE
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Subject:Criminal law - sentence
Catchwords: Plea of guilty to one charge of trafficking in a commercial quantity of a drug of dependence – s.5(2H) mandatory imprisonment - two summary charges – unsophisticated involvement – not for direct financial gain but to feed ten year habit – minor criminal history – from law abiding family- qualified tradesman - good work history – after 7 months’ imprisonment (PSD) sentence deferred for CISP participation – excellent compliance – drug treatment completed – abstinent from drug use.
Legislation Cited: Sentencing Act 1991
Cases Cited:
Sentence: 7 months imprisonment (time served)
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Dr J Harkess (on 30 November) Mr J Saunders (on 6 December 2021 & 7 February 2022) | OPP |
| For the Accused | Ms A Burnnard | SLKQ Lawyers |
HER HONOUR:
1 Rhys James Phillips, you have pleaded guilty to one charge of trafficking methylamphetamine in a commercial quantity and two summary charges, possessing a prohibited weapon – an extendable baton and dealing in property suspected of being the proceeds of crime - $630.
2 The trafficking offence occurred between 24 February and 6 May 2021. One of the transactions, which occurred on 29 April 2021 involved a co-accused, Ms Coby Jackson, although she was not charged with that particular offence.
3 Buyers who were later confirmed to be covert police operatives had been introduced to you by Ms Jackson, who arranged for them to buy methylamphetamine from you. Two sales took place, the first on 24 February.
4 Ms Jackson arranged for one of these buyers to meet you in a restaurant car park. At that meeting, you handed over two ziplock bags containing methylamphetamine, and the police paid you $1,700.
5 The covert operative asked if you could supply multiple ounces, and you responded that you could with a couple of hours’ notice. You said you always had an ounce in your possession. You said the meetings should be arranged through Ms Jackson, but you gave the buyer your mobile phone number.
6 The drug, when analysed, was found to weigh seven grams and was of 89 per cent purity. The second sale was on 29 April, the date to which I referred earlier.
7 The covert operative met you and Ms Jackson in Batman Street, West Melbourne by arrangement through Ms Jackson. The buyer discussed with you the purchase of three ounces of methylamphetamine, and Ms Jackson confirmed it would cost $11,550.
8 You told the buyer that you needed to take the money first, and this was placed on the rear seat of Ms Jackson’s car. You then placed it in your pocket. You told the buyer it would take you 20 minutes to obtain the drug, and you left the area on foot.
9 You returned with a box containing the three bags of methylamphetamine and handed it to the operative. The drugs were found to weigh 84.1 grams with an average purity of 83 per cent. The total weight of drugs trafficked to the covert operatives was 91 grams.
10 On 6 May, a search warrant was executed at your home, and you were arrested. Police found several ziplock bags containing a white crystal substance. The total was found to weigh 12.2 grams and had an average purity or 87 per cent.
11 Also found at your home was an extendable baton, which you said you found in the rubbish, and $630 cash. At the police station, you made some admissions and explained that you were an addict.
12 You were remanded in custody and by the date I saw you in December 2021 you had remained there. You pleaded guilty at the first committal mention, resulting in quick progression of the case. For that, you are entitled to a discount on your sentence, particularly, at this time, when, owing to the pandemic, the court is still facing an enormous backlog of trials.
13 I also take into account that your time in custody was, at the time, made burdensome by the restrictions in place, with two periods of quarantine and in the absence of visits. Nevertheless, you were able to complete some courses and work as a billet, organising games for the prisoners at weekends.
14 You are a single man, now aged 34. You grew up as one of three children of parents who separated when you were very young, and you lived with your mother but visited your father interstate for school holidays. Later, your father moved to Victoria, and at the age of 25, you began living with him in an attempt to cease drug use.
15 At school, you had some difficulties with basic skills and had tutoring. You finished year 10 and then completed an apprenticeship as a carpenter. And since then, you have achieved a good work history.
16 Over the years, you’ve tried many different illicit drugs, as well as alcohol, from an early age. In your 20s, you became addicted to methamphetamine. After counselling, you managed to stay clean for a year. The use of drugs affected your health in terms of poor sleep and symptoms of psychosis, and also led to gambling.
17 In early 2021, a number of negative factors accumulated, including your grandmother’s death, arguments with your ex-partner, the loss of money online and inconsistent work due to the pandemic. You were made redundant a few weeks before the offending.
18 The gravity of your offending is characterised by the charge consisting of only two transactions with minimal enrichment. You received no money from the first transaction, which you performed as a favour for Ms Jackson, and the $500 from the second transaction supported your own addiction.
19 You tried to cease your involvement between the two transactions, as you were attempting to get clean, which you, indeed, did achieve in custody. Your involvement was simplistic and unsophisticated in that you drove your brother’s car and used your own phone.
20 The other significant aspect of the offending is that you are liable for trafficking in a commercial quantity because of the purity of the drugs rather than the quantity. The combined drugs amounted to 115 grams, less than half of a commercial quantity, but the purity was 86 grams, which brings the offending above the 50-gram threshold for a commercial quantity.
21 You have no prior convictions apart from two driving offences, and, therefore, this was your first time in custody. This is so despite a 10-year addiction to methamphetamine. That in itself is an indication of your motivation for your offending: the satisfaction of your habit rather than greed.
22 Both your parents have written frank and informative letters to the court explaining the course of your addiction and suggesting possible negative influences in the past. They describe your struggles as a young person and later in trying to overcome your addiction. It is apparent that they are supportive and understanding and observed your improvement in prison.
23 Your brother, Jared, has written an equally frank letter with some qualification about your confidence and being able to stay away from drugs, but with the expectation that this will be possible with the right treatment and support.
24 Part of that support group is your friend, Brendon Andrighetto, whose reference indicates his regard for you, particularly concerning your honesty about your addiction, which he believes you will be able to overcome.
25 Two other close friends also provided references, one of whom, Carmen Stephens, was your neighbour. Despite her house being searched by the police as a result of your offending, she still supports you and expressed her gratitude for your help to her over two years. She described you as a true friend and gentleman.
26 The provisions of s5(2)(h) of the Sentencing Act apply to the charge, requiring a sentence of imprisonment in the absence of mental impairment or substantial and compelling circumstances. Ms Burnnard’s submission at the time, was, because you had been in prison for some seven months, this would suffice, subject to completion of the CISP Program
27 On 7 December 2021, the matter was adjourned for you to be assessed as to your suitability to CISP. You were found to be suitable, and on 7 February 2022, you were released on bail. You have spent the past 12 months complying with all the CISP conditions, and you have not committed any other offences. There was one pending driving offence, which resulted in a fine imposed in December 2022.
28 The final report from CISP, dated 15 February 2023, states that you attended all scheduled appointments and engaged well. You have continued to live in stable accommodation and regularly engage with your family. You work full time in construction in work which requires you to move to different locations frequently, relying on public transport or a scooter, sometimes having to travel up to one and a half hours each way.
29 Your treatment needs for alcohol and drug use and for mental health were dealt with during the year. Your last reported use of illicit substances was over 19 months ago, and it is reported that you found the treatment of drug use of great benefit. You saw a psychologist regularly until there was no further need to do so.
30 The report writer recommended that your CISP engagement be successfully concluded. A separate report confirmed that you have the ability to maintain abstinence from drugs while in the community for the past 12 months. The writer, Ms Mladenovic, congratulated you on your positive progress.
31 There are a number of matters that require consideration before sentencing you. The charge of trafficking in a commercial quantity is a serious charge and, of course, warrants imprisonment. Indeed, it is mandatory; however, the seriousness is reduced considerably by the circumstances of this case, as I have already outlined.
32 Just to summarise, your involvement was simplistic and unsophisticated, and you were not enriched by it. You became involved out of need due to your habit rather than any opportunity for direct financial gain. The combined drugs that you trafficked were less half of a commercial quantity, but the purity brought the offending slightly above the threshold for a commercial quantity.
33 Those circumstances, combined with the mitigating factors I have referred to, led to the course I adopted in December 2021 when I adjourned the hearing to see if you were suitable for CISP. It was my intention that if you were suitable, and if you successfully completed CISP, I would sentence you to the time you had already served.
34 The prosecution opposed this course on the ground that general deterrence is the primary consideration, and that time served in this case was insufficient, given that the maximum sentence is 25 years imprisonment.
35 While it is correct, as the prosecutor submitted, that your situation is not unique, trafficking in the commercial quantity very often occurs in more concerning circumstances than yours, such as greed as motivation, a larger quantity of drug and/or higher purity, longer duration of offending, the presence of an organised operation with sophisticated methods and an offender with relevant prior criminal history.
36 In such circumstances, the prospects for the offender’s rehabilitation are often guarded at best. I accept that you have taken substantial steps towards your rehabilitation, and further imprisonment would pay insufficient regard to this and would punish you unduly.
37 Specific deterrence has little or no further role to play. You have been working full time since your release from prison, and in that way, you have made a positive contribution to the community. That would be undermined if you were to be further imprisoned.
38 As for general deterrence, the prison time you have already served, combined with the successful efforts made in compliance with the CISP conditions satisfy that requirement. The focus of the higher courts on the primacy of general deterrence can be interpreted through the lens of more serious trafficking offences, a category to which your offending does not belong.
39 The co-accused, Ms Jackson, whose offending was far more serious, nonetheless had very weighty mitigating factors and was sentenced to 20 months imprisonment with a non-parole period of nine months.
40 I sentence you as follows. Would you stand now, please.
41 For the charge on the indictment, 278 days imprisonment, for summary charge 4, one month, and for summary charge 5, 14 days. Both those sentences are to be served concurrently with the sentence for the indictable offence.
42 Pursuant to s6AAA, if you had pleaded not guilty, I would have sentenced you to two years imprisonment with a non-parole period of 15 months.
43 I declare the pre-sentence detention of 278 days to be reckoned as already served, and I shall note it on the court record.
44 There are orders sought by the prosecution for forfeiture and disposal. I’ll make those orders unless there’s any objection from you.
45 MS BURNNARD: No, Your Honour.
46 HER HONOUR: Thank you.
47 MS BURNNARD: We’ve sorted that out.
48 HER HONOUR: All right. Thank you. Can I just confirm that the 278 days is correct.
49 MS BURNNARD: Yes, Your Honour. By my count, it is.
50 HER HONOUR: Mr Saunders.
51 MR SAUNDERS: Does Your Honour have copies of the disposal and forfeiture orders?
52 HER HONOUR: Yes, I do. Yes, they’ve been signed.
53 MR SAUNDERS: Has those. Thank you.
54 HER HONOUR: Yes. Anything else?
55 MR SAUNDERS: No, Your Honour.
56 MS BURNNARD: No, Your Honour.
57 HER HONOUR: Thank you. Mr Phillips, you can come out of the dock now. Counsel, thank you for your assistance in this matter, which has taken some time to finalise.
58 MS BURNNARD: And may I thank Your Honour for accommodating me today. I’m very grateful for that.
59 HER HONOUR: Not at all. Thank you.
60 MS BURNNARD: May it please the court.
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