Director of Public Prosecutions v Pike

[2019] VCC 462

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-17-01554

COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS

v

CHRISTOPHER PIKE

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JUDGE:	HER HONOUR JUDGE CANNON
WHERE HELD:	Melbourne
DATE OF HEARING:	6 February 2019
DATE OF SENTENCE:	5 April 2019
CASE MAY BE CITED AS:	DPP v Pike
MEDIUM NEUTRAL CITATION:	[2019] VCC 462

REASONS FOR SENTENCE

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Subject:  CRIMINAL LAW

Catchwords:  Sentence – Plea of guilty – Attempt to possess a border controlled substance – Some planning involved but offending lacked sophistication – Criminal record mainly dishonesty and driving offences – History of drug abuse – Undergoing Community Corrections Order in respect of other offending – Report on CCO engagement generally consistent

Sentence:Convicted and sentenced to 6 months’ imprisonment commencing on 5 April 2019 but to be released immediately upon giving security by way of recognisance in the sum of $2,000 to be of good behaviour for two years from 5 April 2019

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms H. Baxter	Commonwealth DPP
For the Accused	Ms A. Hancock	Stary Norton Halphen

HER HONOUR: 

1Christopher John Pike, you have pleaded guilty to one charge of attempting to possess a border controlled substance which was reasonably suspected of being unlawfully imported.

2The maximum penalty for that offence is 2 years' imprisonment or 400 penalty units.

3Your offending was opened by the prosecutions as follows:

4On 12^th April 2016, a package posted from Germany was delivered to 26 Mount Morton Road, Belgrave South (“26 Mount Morton Road”).  The package was addressed to “Dean J Martin”.

5Mr Brett Lewis had rented 26 Mount Morton Road for 3½ years from the Anglican Church and lived there with his family.

6When Mr Lewis returned home from work on 12^th April 2016, he saw the package which had been delivered and decided to open it as they had had letters delivered before for the church.

7Inside the parcel was a German brand band aid box, inside of which was a smaller package wrapped in black plastic.  Inside this was a clear zip lock bag wrapped in sticky tape.

8Mr Lewis immediately contacted Victoria Police by telephone and drove the package to Belgrave Police Station.

9In early June 2016, a handwritten letter was placed in Mr Lewis' mail box.  The letter was signed, ‘Dean J Martin’ and said that a package had accidently been delivered to Mr Lewis' address and if it arrived to contact the author.  The letter provided a contact mobile telephone number, which was fully indicated, but ending in ‘388’.

10Mr Lewis gave this letter to Victoria Police at Belgrave Police Station.

11A few weeks later, in June 2016, a further letter was placed in the mail box at 26 Mount Morton Road.  The letter was again signed, ‘Dean J Martin’. The letter stated that a letter/parcel had been sent from overseas and that it was believed the address was mixed up.  The letter asked that if it had not already arrived, for the recipient of the letter to call a mobile number which was a different number to the first one provided, or to just leave the letter in the letterbox.

12Mr Lewis gave this second letter to Victoria Police.

13Mr Lewis also provided to the police an envelope which had contained one of the letters.

14Fingerprint

15Your fingerprint was subsequently identified on the envelope.

16Telephone Records

17The mobile number provided in the first letter was registered in your name at
’25 Mount Morton Road, Belgrave South, Vic 3160’.

18Analysis of Drugs Seized

19Analysis of the drugs actually seized revealed that the package contained 16.7g of MDMA.  The purity of the drugs seized was about 79%. The pure net weight of the drug is therefore about 13.193g.

20Interviews

21On 17^th February 2017, you took part in a record of interview with Victoria Police and made ‘No Comment’ answers to all questions as is your right and I make no adverse finding against you in that regard.

22Mr Pike, your offending is serious and deserving of a punishment which is adequate in all of the circumstances. Your conduct must be denounced, and strong weight must attach to general deterrence in a bid to deter others from behaving as you have.

23I was told by your Counsel that you had ordered the drug online, and that while you were addicted to methamphetamine at the time, you ordered the ecstasy for your own use in the context of your involvement in the party scene. I was told you bought the drug online as it was cheaper this way.

24While your offending lacked sophistication, there was some planning involved in it, and had Mr Lewis not acted in a most responsible way, you may well have gotten away with it. However, the prosecution do not allege that you deliberately chose your neighbour's address rather than your own; according to you, this was accidental. While I expressed some suspicions about this at the plea hearing, I put those to one side, and I do not sentence you on the basis that you intentionally sent the drugs to a neighbour so as to avoid detection.

25In sentencing you, I have taken into account the quantity and purity of the MDMA.

26You have a number of prior Court appearances and a subsequent conviction. However, while these pertain to your drug abuse, there are none which involve the type of conduct in which you engaged on this occasion. These other matters are largely in the nature of dishonesty and driving offences, none of which have attracted an immediate gaol term, save for the subsequent matters which were dealt with in the Magistrates Court in October last year. You were sentenced to 3 months' imprisonment plus a CCO for 18 months. After your release from gaol in late November you embarked on the CCO which involves unpaid community work of 250 hours and treatment conditions.

27At the initial plea hearing, I was told that you had been doing well with your CCO, although you had faltered a little in the week and a half leading up to the first plea hearing in that you missed a supervision appointment and a drug and alcohol appointment. You had failed to give community corrections details of your new phone number which meant that they were unable to contact you, but you also attended work instead of attending one of these appointments with them. I was told that you had since made contact in a bid to make amends.

28I have been provided with updated details in relation to your progress on the community corrections order and I will refer to that in due course.

29I take into account your background.

30You were 28 when this offence was committed and you are now 30.

31You are the youngest of 3 children. Your parents separated when you were
10 or 11 years old. Your father moved to Thailand somewhat abruptly a few years ago, taking your savings with him. As a result of this, your relationship with your father is, understandably, strained. However, you enjoy a close relationship with your mother who wrote a character reference on your behalf.

32I was told that when you were 12, you commenced using cannabis, then experimented with ecstasy and amphetamines. When you were 18 you suffered a serious back injury during a football game which left you with 2 fractures to the lower spine and you had to wear a back brace for several months. You became addicted to a prescribed pain killing drug, which you continued to source after the drug was no longer prescribed. You then slipped into illicit drug addiction, commencing with heroin then moving on to methamphetamine.

33Although, you briefly regressed to drug use when you were released from gaol last year, you soon became abstinent and have been on the methadone program to assist you with this. In this regard I have viewed and been told about numerous drug screens which have been provided in relation to your abstinence from drugs and they support that you have indeed been abstinent. I note on the other hand that you have been on the methadone program for
eight years in the past, and in the past it has evidently not been enough to assist you. However, there are new incentives for you to remain drug-free which I will come to presently.

34Your Counsel said that the real turning point for you was your incarceration last year. This helped you to realise what was really important in your life and you resolved never to put yourself or your family in the same position again; unfortunately, this did not immediately translate into action when you were released from gaol but, at the original plea hearing, I was told that you have done far better in more recent times, evidenced by two negative urine screens for January and February this year, which were tendered on your behalf.  In that regard I have been advised that you have in fact undergone further drug screens three times weekly over a number of months and they have all been clear.

35You are in a de facto relationship with your partner of 5 years, who was present in Court at the plea hearing in support of you and I see is here again today. You have a son together, who is 1 year old. Your partner also battled addiction for some time but has abstained from drug use since she became pregnant with your child, and she has been a positive influence on you in your bid to finally overcome your addiction.

36I was told that although the community corrections drug treatment was yet to commence, you were about to engage with fortnightly drug and alcohol counselling through Anglicare which is a requirement of DHHS, who are involved in supervising the care of your child due to your history of drug use. At the original plea hearing, I was also told that you would be drug tested 3 times a week as a further DHHS requirement.

37As I said I was updated today in respect of your current drug treatment through KickStart and what became of the treatment with Anglicare. I was also updated today in respect of your drug screens which have been conducted three times a week and are all clear.  It is anticipated these may reduce down the track, depending on some other matters including your progress in the family law matter concerning your son.

38I allow for a not insignificant discount in the sentence that you would otherwise receive in view of the fact that the matter proceeded by way of hand up brief and you were initially facing a far more serious charge. Although you entered a plea of not guilty to this more serious charge in the Magistrates' Court, and made no offer to plead guilty to a lesser alternative at that stage, once the trial indictment in this Court contained the statutory alternative of attempting to possess, you pleaded guilty to this lesser charge at a directions hearing, well before the trial date. In taking this course, you have saved the witnesses the time and trouble of giving evidence and you have saved the community the time and expense of running contested proceedings.

39I have also taken into account the strong character material which was tendered in support of you, including the fact that you are well regarded by your employer, who held your job open for you whilst you were in gaol. Your partner spoke of the psychological and financial struggle she has had to endure whilst you were in custody and I was told that she had to borrow from family members in order to keep the rent payment going. It was not submitted however that if you were to be incarcerated, that your partner and child would suffer exceptional hardship. However, I do take into account the importance of you retaining your job and continuing on the positive path that you have largely been on since your release from gaol.

40I have taken seriously the matters that you put in your letter to me, Mr Pike, and I hope you recall these and maintain your resolve even if things get tough for you in the future. That is what happens in life and I know you know that and I hope you remember what your resolve is and what is important to you as you did when you were in gaol. You are inspired to look after your family and be a positive role model for your child - please keep these things in mind every time you are tempted to return to drug abuse.

41In view of your offending, your criminal history, albeit somewhat limited, and your subsequent matters, but also taking into account your progress under the CCO, to which I will refer in a moment, and also through the DHHS requirements which you have undergone to increase access and ultimately obtain custody back of your child, as well as your firm family and friendship support, your employment and your salutary experience of gaol, I assess your prospects of rehabilitation as fairly good. I place less than moderate weight on specific deterrence.

42Your Counsel submitted that I ought have you assessed for a CCO. The prosecution submitted that a gaol term was the only appropriate sentence, but said that they did not submit that any portion of it had to be served immediately.

43I adjourned this matter in order to see how you went over a period of about two months and ordered a progress report from your supervising officer under the present CCO.

44I have received that progress report and have also received updated details through your counsel today. The report records that your engagement with the order had been, ‘generally consistent’ but you had been hesitant to disclose some important personal information in respect of your drug relapse and mental health issues. However, it was also noted that the order was still in its infancy and the author of the report spoke of the need to effectively supervise and support you in respect of your coping mechanisms and recovery from drug use.

45Can I just say that the community corrections order is there in order to help you if you are experiencing problems with being tempted to relapse and the like or even if you have unfortunately relapsed.  It is best to be open with Community Corrections because they can help you in that way.

46Your counsel gave me a further update today in relation to the community corrections order that you are undergoing by virtue of the Magistrates' Court proceedings and you are progressing well on that order.

47I have considered all relevant matters in your case and notwithstanding I find that you are doing well on the community corrections order,  I am afraid I agree with the prosecution that it would be appropriate to impose a gaol term in this matter but I also agree that you are entitled to have that order effectively suspended by way of a recognisance release order which will run in tandem with the CCO that you are currently undergoing.

48Would you please stand up.

49You are convicted of the offence.

50I sentence you to 6 months' imprisonment which will commence today but I direct that you be released immediately upon giving security by way of recognisance in the sum of $2000 to comply with the condition that you be of good behaviour for a period of two years from today.

51I have made these orders because of the seriousness of the offence with which you have been charged and the weight which I have given to all relevant sentencing principles.  However, because of the matters in mitigation, I have decided to release you immediately provided that you comply with the condition of this order - that is that you are to be of good behaviour for the next two years.

52If you do not comply with the condition to be of good behaviour for the next two years then you will be brought back to Court, and you may be required to pay the security sum of $2000 and to serve 6 months' imprisonment immediately, unless you can show good reason for these consequences not to occur. Do you understand that?

53OFFENDER:  Yes, Your Honour.

54HER HONOUR:  I should also tell you that the recognisance release order can be varied or discharged under S.20AA of the Commonwealth Crimes Act 1914 (the Act) upon application by you or a person who has standing pursuant to the relevant provisions of the Act.

55I indicate that if not for your plea of guilty I would have sentenced you to an immediate gaol term of 15 months which would commence today and I would have required you to serve 9 months before becoming eligible for parole.

56Could you take a seat for a moment please.

57Now, Ms Hancock, the recognisance release order is a document that needs to be signed by your client.  Would you please assist him with that?

58MS HANCOCK:  Of course, Your Honour.

59HER HONOUR:  Thank you. Very well.  All the best, Mr Pike. I hope you do go from strength to strength and I don't see you ever again.

60OFFENDER:  Thank you, Your Honour.

61HER HONOUR:  Thank you. We'll now adjourn.

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