Director of Public Prosecutions v Pistrin

[2016] VCC 1119

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

AT LATROBE VALLEY
CRIMINAL JURISDICTION

CR 16-00523

DIRECTOR OF PUBLIC PROSECUTIONS

v

RICHARD PISTRIN

---

JUDGE:	HIS HONOUR JUDGE TINNEY
WHERE HELD:	Latrobe Valley
DATE OF HEARING:	2 August 2016
DATE OF SENTENCE:	2 August 2016
CASE MAY BE CITED AS:	DPP v Pistrin
MEDIUM NEUTRAL CITATION:	[2016] VCC 1119

REASONS FOR SENTENCE
---

Subject:  Criminal Law

Catchwords:  Possession small quantity of drugs; Excess prescription concentration of drugs; Negligently causing serious injury; Dangerous driving causing serious injury

Legislation Cited:
Cases Cited:
Sentence:

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr P. Triandos
For the Offender	Mr B. Lindner

HIS HONOUR: 

1Just remain seated, Mr Pistrin.  You are before me in relation to two matters; one on the filed over Indictment F11789463.2, being a charge of possession of a drug of dependence, the drug being a small quantity of amphetamine, and there is a related summary offence that made its way up to the County Court, as it was connected up to the other matters that brought you up into this jurisdiction, namely the allegations of negligently causing serious injury and dangerous driving causing serious injury.  Indeed, originally there was a three charge indictment embracing each of those three indictable offences, being the two driving offences and the possession of a drug of dependence. 

2The Crown chose to sever out that process and so we have two indictments before the court, one being the point two version containing that drug offence, and the other being the point one version containing the negligently causing serious injury and dangerous driving causing serious injury. 

3Of course, when you came to this court and were committed to this court, there was the transfer of related summary offences, being the summary matter that is now before me of exceeding the prescribed concentration of drugs under the provisions of s.49(1)(bb)[1] and there are other matters that came up in this direction as well, being careless driving and exceeding the speed limit, but they have obviously been subsumed by the allegations that were brought against you in the trial.

[1]Road Safety Act 1986 (Vic)

4When the matter first came before me last Monday, so not yesterday, the Monday before, you were arraigned on each of the indictments.  You pleaded not guilty to the two driving matters and guilty to the possession of drug matter.  We have since had a trial conducted in relation to the driving matters in which you were acquitted of each of those charges just shortly after lunch today, so you fall now to be sentenced by me in relation to the indictment matter of possession of a drug of dependence, the amphetamine, and also the related summary offence that has not been withdrawn.  The careless driving and the exceeding speed limit have been withdrawn, but the charge of exceeding the prescribed concentration of drugs obviously proceeds, and you have pleaded guilty to that.  So they are the two matters that I have before me, and really, it is obvious the only reason they are before me is because you were before this court in relation to those other matters.  But for those other matters, those matters would never have seen the light of day in the County Court, they would have been dealt with, no doubt speedily, in the Magistrates' Court quite some time ago now.

5There really is very little need for me to descend to the full detail of either of those matters.  The possession of drug charge follows a search being conducted upon you in the aftermath of the collision that you were involved in that took place on 10 April 2014.  You were the driver of the vehicle and it is in that collision that there were serious injuries occasioned to Sharnie Willis-Bentley, who was your front seat passenger.  A blood test was taken later that day and the search of your person took place back at the police station and you were found in possession of the small quantity of amphetamine.  There was a search conducted by Mr Handley and you were cooperative with that search and made instant admissions as to your knowledge of what the substance was, and as I say, it was a small quantity. 

6I have had the trial that has panned out before me, and obviously the allegation there related to the correct adjective to be applied to your driving, as to it being criminally negligent or dangerous in the way those terms are defined, and the jury have answered that by acquitting you in relation to each of those allegations. 

7I had previously excluded the Crown leading evidence of the blood result as a result of the fairly lukewarm comments made by Dr Wells as to the potential impact of the substance and the concentration in which it was found within your blood.  Of course, that ruling has nothing to say as to the illegality of you having that concentration.  It clearly is illegal, and hence you have pleaded guilty to the offence laid under the Road Safety Act,[2] correctly so, to bring this matter to an end. 

[2]Road Safety Act 1986 (Vic)

8But I really have to put from my mind the subject matter of the trial that has panned out in front of me.  It is not safe for me to reach any sort of conclusion at all about the drug that you had in your system that founds the summary offence, that having any impact upon your driving at all.  I have the evidence before me as to Dr Wells, which, as I say, was cast in pretty lukewarm fashion, but I have also the particular provision that you are charged under.  You are not charged with driving while you were impaired by a drug under s.49(1)(ba), you are charged under s.49(1)(bb), that is, to the fact of being in charge of a motor vehicle while more than the prescribed concentration was present, and clearly that is the position, and the prescribed concentration is, under the terms of the Act, any concentration.  Prescribed concentration means in a case of a prescribed illicit drug, any concentration of the drug present.  Well, you had it present.  But it is not for me, and nor is it appropriate for me to somehow factor in, beyond the mere fact of your driving, any of the other circumstances that were fleshed out of the trial before me and to make judgments as to it somehow having a role to play in the accident.  I cannot do that and I will not do that.

9So in the circumstances, each of these matters are before me purely as a consequence of your being before the court in relation to far more serious charges, which have now, of course, lapsed by virtue of that acquittal delivered a short time ago. 

10There is no real need for me to descend to any further detail of the factual setting.  I have been told something of your background by Mr Lindner, and no doubt in a different case he would tell me more about you, but there is not any great need in this case.

11I am dealing with maximum penalties under the Road Safety Act[3] that, given that it is a first offence, it is a maximum penalty of 12 penalty units.  Well, that is the maximum that I have, and I have a mandatory minimum period of three months in relation to cancellation and disqualification.

[3]Road Safety Act 1986 (Vic) s51E

12So they are the matters that apply in terms of both the maximum fine, there being no provision to impose anything other than a fine, or for that matter, in circumstances no doubt a community corrections order could be embraced in such a setting, but there is certainly no power to imprison in relation to the Road Safety Act[4] matter, with the mandatory minimum cancellation and disqualification being three months.

[4]Road Safety Act 1986 (Vic)

13The issue then is whether I go beyond the mandatory minimum, but it strikes me to do so is really going to reflect the fact that I would be somehow impermissibly taking into account some of the matters that were fleshed out in the trial and it is just not appropriate that I do that.

14As to the drug matter, well, it is what it is.  It is a small quantity of a drug of dependence.  There is a maximum sentence for possession of a drug of dependence of 30 units or one year's imprisonment or both, but that is in circumstances where a court is satisfied on the balance of probabilities by you that the offence was not committed for any purpose related to trafficking.  If not so satisfied, then there is a maximum penalty of 400 units, a sizeable amount of money, or five years' imprisonment or both.

15There is nothing in the material that would suggest that there is any reason for me not to be satisfied of the burden that you have to establish, and for that matter, the Crown recognise that by conceding that the maximum should be viewed as the lesser of the two, that is, Level 8 imprisonment, one year imprisonment or 30 penalty units as a maximum, and that is the way I will treat the matter in the circumstances. 

16You have pleaded guilty to each of these offences.  I have to take that into account, obviously enough, but it is plain enough that you have had some significant issues in your life.  It is disturbing that you are before the court in relation to the driving offence that you are and in circumstances where you have the past misconduct of using a vehicle essentially as a weapon and being sent to prison for that.  But again, I have to sentence you on the basis of the facts placed before me and there is nothing to suggest to me that it would be a proportionate response to impose a term of imprisonment for the drug offence.

17So I take into account all the matters that have been raised on your behalf including, of course, the fact of your guilty plea, and the stage of the plea, it is intertwined with the other allegations, so there would be very good reasons, and sensible reasons, that explain why it has taken as long as it has taken for the matter to resolve in the way that it has. 

18It would not have been sensibly open to you to plead to the drug driving offence.  There would have been real impediments to you sensibly doing that until there had been various rulings made in this case, so I do not treat it as a late plea in either of the cases before me.  So I take into account the various matters that have been raised. Prison is a disposition of law resort.  For one of these offences there is no power to imprison, one there is, but prison would not be a proportionate response in my judgment.  So, what I am going to do is I am going to proceed by way of monetary penalties.

19In relation to the summary matter of exceeding the prescribed concentration of drugs on 10 April 2014, I am going to convict and fine you the sum of $400 in relation to that summary offence.

20In relation to the matter on the indictment, that is, the possession of a drug of dependence, being the amphetamine, I am going to convict and fine you the sum of $250 in relation to that charge.

21These are fines totalling $650.  I will ask your counsel about a stay in a moment in relation to those matters.

22In addition, there are disposal orders that are sought in relation to the amphetamine. Of course, there is consent to that order, and I have signed and I now pronounce that disposal order under the provisions of s.78(1) of the Confiscation Act.[5] 

[5]Confiscation Act 1997 (Vic)

23I order that pursuant to those provisions, the forfeiture to the State of the property set out in the schedule, which is the Zip-lock bag containing the amphetamine, and I direct it be held in the manner described in this order and dealt with in the manner described by this signed order, that is, in accordance with this order that I have signed.  So I have signed that order.

24There is also an application for a s.464ZF[6] order for you to undergo a forensic procedure.  You are not opposing the making of that order.

[6]Crimes Act 1958 (Vic)

25Mr Triandos, so that is applied for purely in relation to the possession of the small quantity of amphetamine charge, is it?

26MR TRIANDOS:  That's correct.  It's an indictable offence, Your Honour.

27HIS HONOUR:  Yes, all right.  I am just not inclined to make that order in the circumstances.  You are applying for it in relation to an offence, the seriousness of which is measured by the fact that I am imposing a fine of $250, and I look at his criminal history including, for that matter, subsequent matters that have been dealt with.  There are all matter of opportunities to apply for samples, I would have thought, but I do not regard it as appropriate to order the taking of a forensic procedure for this particular offence, so I will not make the order.

28MR TRIANDOS:  As Your Honour pleases.

29HIS HONOUR:  All right.  Are there any other orders that I need to make or not?  I have dealt with all I needed to do from your perspective.  There is a fine totally $650.  What do you want to do, Mr Lindner, in terms of the stay?

30MR LINDNER:  Just a three month stay, Your Honour, if ‑ ‑ ‑

31HIS HONOUR:  I am just trying to work out how I would do that.  It is spread out as between the two matters.  Look, what I will do is I will grant a stay then of three months in relation to those fines.  It will be operative in relation to each of those orders, so yes.

32Any other matters that I need to order then in relation to this matter generally or not?

33MR TRIANDOS:  My learned friend reminds me, Your Honour, did Your Honour order the cancellation and disqualification of the driver's licence?

34HIS HONOUR:  Sorry.  Thank you for reminding of that.  In terms of s.49(1)(bb),[7] the offence of driving with more than the prescribed concentration of drugs in the system, as I have indicated, I do not see anything in this particular case, unless I was to have regard to the inappropriate material, to go beyond the mandatory minimum period, and so that is what I am going to do.  Upon convicting and fining the sum of $400 in relation to that matter, I will direct that all licences are cancelled, that he be disqualified from obtaining a licence for a period of three months, and that is effective from today's date, so it operates as, obviously, a licence disqualification order.  If he drove in the next three months in this State, he would be driving whilst disqualified.  So that is the form of that order.  So it is the mandatory minimum period. 

[7]Road Safety Act 1986 (Vic)

35Any other matters then that I need to deal with or not?

36MR TRIANDOS:  No, Your Honour.

37HIS HONOUR:  No, all right.

38MR LINDNER:  No, Your Honour.

39HIS HONOUR:  Look, that completes the matter, then.  So Mr Pistrin, he can come out of the dock now.  I have signed that order then, so that really completes the matter.  Yes, all right. 

‑ ‑ ‑