Director of Public Prosecutions v Plummer
[2022] VCC 1359
•17 August 2022
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 22-00501
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MICHAEL PLUMMER |
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JUDGE: | HER HONOUR JUDGE TODD |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 11 August 2022 |
DATE OF SENTENCE: | 17 August 2022 |
CASE MAY BE CITED AS: | DPP v Plummer |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1359 |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
CatchwordsPlea of guilty – one charge trafficking in a drug of dependence in a commercial quantity – one charge Trafficking in a drug of dependence – four charges possessing a drug of dependence; one charge possessing false documents – one charge of possessing identification information.
Legislation Cited Crimes Act 1958; Sentencing Act 1991; Drugs Poisons and Controlled Substances Act 1981; Control of Weapons Act 1990
Cases Cited R v Renzella [1997] 2 VR 88; Gregory v The Queen [2017] VSCA 151; Fernando v The Queen [2017] VSCA 208; Worboyes v The Queen - [2021] VSCA 169
Sentence Total effective sentence of 415 days imprisonment with a Community Corrections Order of six months.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms A. Liantzakis | Office of Public Prosecutions |
For the Accused | Ms A. Liang | Giorgianni & Liang Lawyers |
HER HONOUR:
Introduction
Plea of Guilty and Maximum Penalty
1Michael Plummer, you have pleaded guilty to: one charge of trafficking in a drug of dependence in a commercial quantity[1] (Methylamphetamine); one charge of Trafficking in a drug of dependence[2] (1,4-Butanediol); four charges of possessing a drug of dependence[3] (heroin, diazepam, cannabis and cocaine respectively); one charge of possessing false documents; and one charge of possessing identification information.
[1] s.71AA(1) Drugs Poisons and Controlled Substances Act 1981 (‘DPCSA’).
[2] s.71AC DPCSA.
[3] s.73 DPCSA.
2The maximum penalty for trafficking in a commercial quantity of a drug of dependence is 25 years’; the maximum penalty for trafficking ‘simpliciter’ is
15 years’; the maximum penalty for each charge of possessing a drug of dependence that is applicable in your case is one year, except for the charge related to cannabis, where it is five penalty units. The maximum penalty for the charge of possessing false documents[4] is 10 years’, and for the charge of possessing identification information[5] is three years’.[4] s.83A(2) Crimes Act 1958.
[5] s.192C Crimes Act 1958.
3You have also agreed to have three summary charges dealt with in this Court and you entered pleas of guilty to:
(a)dealing with property suspected of being the proceeds of crime,[6] that being $6505.05, the maximum penalty for which is two years’[7];
(b)two charges of possessing a prohibited weapon, with a maximum penalty of two years’ or 240 penalty units, and these charges related to:
(I) three swords; and
(II) two capsicum pepper sprays.
[6] s.195 Crimes Act 1958.
[7] s.5AA Control of Weapons Act 1990.
4I note that Charges 7 and 8 on the indictment, the document charges, are both rolled up counts encompassing several items.
Circumstances of the Offending
5The Prosecution Opening, dated 21 July 2022, sets out the circumstances of your offending. It was tendered on the Plea and became Exhibit A. It is attached to and forms part of these reasons. I will summarise just some of the facts giving rise to your offending here.
6In early 2021 police were investigating you on suspicion of drug trafficking. On 26 March 2021 they obtained a warrant to search your house in Tullamarine, but it was not until 8 April 2021 that police intercepted you driving your car on a street in Tullamarine. You were arrested on outstanding matters, police searched you and then your car.
7On you they found: two diazepam tablets (Charge 4); two mobile phones; $505 in cash (part of summary charge 9); and an access card to a room at the ‘Summer Inn Holiday Apartments’.
8Police found a backpack in your car and in it were:
(a)a ‘zip lock’ bag with 7.3 grams of methylamphetamine at 86% purity. This is part of Charge 1;
(b)two containers with 80 grams and 37.3 grams of 1,4-Butanediol (part of Charge 2);
(c)a ‘zip lock’ bag with 0.2 grams of heroin, at 76% purity, and this is part of Charge 3.
9They also found two further mobile phones and a range of items associated with trafficking: a heat-sealing machine and bags to use it with; a cash counting machine; and a CCTV system.
10Police took you to Broadmeadows police station and commenced an interview. While that was happening, they also obtained a search warrant for the ‘Summer Inn Holiday Apartments’ room in Essendon North. That warrant was executed later that evening and police found:
(a)a bottle containing 4.9 grams of Diazepam, Charge 4 continued;
(b)two jars containing 82.7 grams and 32.5 grams of cannabis respectively, Charge 5 continued; and
(c)a ‘zip lock’ lock bag containing 0.3 grams of cocaine at 74% purity,
Charge 6.
11Police also found a large range of identification documents: drivers licenses, Visa cards; Medicare cards; and documents with personal banking details on them. These items make up part of Charge 7 and Charge 8, the rolled-up charges. The details of these documents are included in the prosecution opening and I have had regard to them.
12They also found two capsicum pepper sprays and three swords. The pepper sprays relate to Charge 15 and the swords relate to the other Summary
Charge 10.13Other items associated with trafficking that were found were scales and heat-sealing machines with bags.
14You were still in custody during that search and requested medical attention just before midnight. You were taken to Box Hill Hospital by ambulance and returned to recommence your interview at 4:18am.
15In that interview you answered questions and made a range of admissions and denials. These matters are set out fully in the prosecution opening.
16Police found records at the Summer Inn Apartment: you checked in on
5 April 2021 and had a reservation there until 9 April 2021; you checked in under a false name; you paid in cash.17Your DNA was located on a number of, ‘zip lock’, bags containing drugs hidden at your house. Your fingerprint was found on a jar containing cannabis at the summer Inn holiday Apartment.
18Police found a range of USB devices when they searched the apartments, containing a range of, ‘how to’, materials directed at creating false identity documents. They have titles like, ‘PVC ID construction guide fake ID’, and ‘PVC ID printing YouTube’ and templates for drivers’ licenses.
Drug Analysis Results
19The drugs found were later analysed by the Forensic Services Department at Victoria police.
20The quantities are as follows:
(a)The combined total quantity of mixed methamphetamine found in your car and house was 68.5 grams, approximately 58.2 grams pure, between 84 and 86 percent. That is approximately 1.1 times over the pure commercial quantity applicable to methylamphetamine. It is under the mixed commercial quantity;
(b)The total quantity of 1,4-Butanediol seized was 149.3 grams. This is 2.9 times the trafficable quantity applicable to 1,4-Butanediol.
21In total you also possessed the following drugs:
(a) cannabis: 123.3 grams, 6.2 grams of which was mixed;
(b) cocaine 0.3 grams at 74 per cent purity;
(c) diazepam 5.1 grams;
(d) and heroin at 0.2 grams at 76 per cent purity.
Nature and Gravity of the Offending
22Turning now to the nature and gravity of your offending. The offence of trafficking in a commercial quantity carries a maximum penalty of 25 years' imprisonment. In your case the commercial quantity threshold was exceeded by 8.2 grams, a total of 68.5 grams of mixed methylamphetamine with a purity of 58.2 grams. The offending occurred on a single day.
23I have had regard to the quantity of drugs involved in each charge. The greater the quantity, all else being equal, the more serious the offending. The greater the quantity, the greater the potential harm spread in our community. The subject of Charge 1 is 1.1 times the pure commercial quantity and under the mixed commercial quantity. The subject of Charge 2, trafficking, is 2.9 times the trafficable quantity.
24You are charged with trafficking on the basis of having possession for sale a commercial quantity of methylamphetamine and a trafficable quantity of
1,4-Butanediol, referable, as I said, to a single date.25There is no evidence about whether or where you fit into any broader drug trafficking network. The prosecutor submitted that the circumstances suggest a higher level than that of a courier. I do not make any conclusions about a role you may or may not have taken in a broader scheme. Your culpability must be assessed by reference to the quantum of the drugs and the context here, being in your simultaneous possession the accoutrements of trafficking: equipment such as sealing bags; and the cash.
26At the hearing the prosecutor conceded that by reference to the circumstances and the quantity of the drug found, Charge 1 can be seen as sitting at the lower end of trafficking in the commercial quantity.
27While I accept there was surplus cash found in your possession, I find that your trafficking was substantially motivated by your need to support your own addiction and to provide for your basic needs, your employment was interrupted by COVID restrictions, rather than motivated by greed or a desire to profit purely per se.
28For perspective, a large commercial quantity of methamphetamine is 500 grams pure or 750 grams mixed. Your quantity is obviously only just over the line of the commercial threshold and nowhere near approaching the large commercial threshold.
29I find, by reference to the quantum, which places it on the scale of the lower versions of objective gravity and your reasons for trafficking, your overall culpability is the low, in the range of similar kinds of offending.
30Your possession of the equipment was for the creation of false ID documents for use, as I understand it, as another kind of currency in the drug trafficking business. I take into account that there was quite a lot of this material that suggested the potential at least for a brisk trade in false documents, and I note the rolled-up nature Charges 7 and 8.
Personal Circumstances
31Turning now to your personal circumstances. You were born in August 1991; you are now 31, and you were 29 when you were committing these offences.
32You were born in Melbourne and raised in Strathmore. Your mother is in her late 60s and works in customs broking and freight forwarding. Your parents separated when you were five. Your father, it seems, had problems with alcohol and substance misuse. He died in 2002 at about 40 years old. Your memories of him revolve around his trying to get into the house while intoxicated. You have two elder sisters, 35 and 33 years old.
33Your mother, you report, did her best as a single parent. You describe your family as, ‘tight, but a little broken’. Your sisters took on some caring roles with you. You socialised and played sport until you reached your early teens.
34You have been able to maintain a close relationship with your mother, which comes and goes, it would seem, according to your substance use. You are close at the moment due to your sobriety in custody.
35You did adequately at school and completed your Year 12 VCAL. You struggled in the later years, receiving detention and truanting.
36After school you commenced, but did not conclude, an electrical apprenticeship. You did two years but abandoned it after your drug use increased.
37After your release on a sentence for armed robbery you managed to get an apprenticeship with a refrigeration company and did 18 months of this work until your relapse on and off into substance abuse.
38You started using cannabis at 15, ecstasy at 16, and eventually moved on to smoking methamphetamine, which you thought made you feel more confident and motivated. You started smoking almost daily from the very beginning, sometimes 2 grams a day. Your GHB use started in parallel and you reached a habit of up to 50 mL of that drug a day.
39You have suffered seizures as a result of your drug use, which have incurred visits to hospital, including on the evening of your arrest when you were taken to hospital for treatment before your interview resumed. You have also been treated for what appear to be drug induced psychoses in the Acute Assessment Unit at Melbourne Assessment Prison.
40You have undergone a 28-day inpatient program at the Malvern Private Hospital clinic in the past, which you described as being quite helpful, though it is clear your rehabilitation will be an ongoing project for you.
41Your adult relationships have been, according to you, drug fuelled and of relatively short duration and not particularly healthy.
42Your father passed away when you were only 11 and your grief at this event appears to have translated into uneven behaviour at school. I note your mother attended the plea hearing remotely and on release you are allowed to go and live with her.
Prior Criminal History
43Turning now to your prior criminal history, your prior criminal history discloses sentences for armed robbery, trespassing and assault, as well as drug trafficking in ecstasy in 2015. You got a Community Corrections Order of
12 months’ duration for that. You attribute your offending to your substance use and the social consequences of that.44I have read the sentencing remarks of His Honour Judge Wischusen, dated
19 October 2015. He concluded, among other things, that your prospects for rehabilitation were at that time, 'guarded'.45Your counsel submitted that you were not paroled after the 2015 sentence due to an inability to complete the required programs during your period of parole eligibility.
Impact on Victims
46Generally, I consider the impact of victims of offending, while drug trafficking has no particular or direct victims per se, the authorities on the subject, require me to consider the general social harm caused by drug trafficking.
Matters in Mitigation
Plea of Guilty
47Turning now to matters in mitigation. You pleaded guilty early in the history of your case and no witnesses were cross-examined, and this is important. You stand to receive credit for the objective utilitarian benefit through the saving of time and expense of running a trial. In addition to the normal discount for a plea of guilty you stand to benefit from the additional Worboyes principal, where people who plead guilty have their pleas additionally recognised with a discount that recognises the difficulty that the COVID-19 measures have caused the administration of justice.
Psychological Report
48A psychological report written by Warren Simmons, and dated 24 July 2022, was tendered in your plea and I have had regard to all of its contents. It sets out some general history of both you and your attempts at treatment for your drug addiction. No particular legal submission was advanced on the basis of that material, but I have had regard to it as a context for you, and your offending.
49There is in the background a suspicion that you suffer from a possible acquired brain injury and you are awaiting neuropsychological assessment, but no significance was placed on this at your plea.
Remorse and Insight
50Turning now to the question of remorse and insight, by your plea you accept responsibility for your offending, and helpfully your comments to Mr Simmons, the psychologist, suggest you do not try to minimise or deflect responsibility or any blame for what you did. This is, I accept, an aspect of remorse inhering in your plea, and suggests some capacity for your rehabilitation.
Prospects for Rehabilitation
51Turning now then to prospects of rehabilitation, you have undertaken drug treatment and counselling in the past and expressed to Mr Simmons that you found these things useful. You finished Year 12, have successfully applied for, and commenced apprenticeships in trades. You know how, at least, to find and commence roles that are purposeful and profitable for you. Your ability to rehabilitate will depend on how seriously you commit yourself long-term to becoming abstinent from substance use. So far, it would seem, that the first decade of your adult life has been substantially determined by this problem. If you can break the hold on you of the addiction, you can probably live well and profitably. It is probably as simple and as difficult as that.
52You have, unlike many who come before this Court, an affectionate and loving family. I read the references from your mother and sisters. They still speak of you with great warmth and optimism for your future.
53You have attempted rehabilitation in the past and you will need to do this seriously again in the future. You are now 31, and while I hold some reservation about your capacity not to offend again in future, I think it is possible for you to recover.
‘Renzella’ Time
54On 7 August 2019, the last occasion you were before a sentencing Court, you were sentenced to a term of imprisonment of four months but had been remanded for 209 days, so the balance of approximately two months was served by you but not declared under this sentence, and I take that time into account according to the principles in the case of Renzella.[8]
[8]R v Renzella [1997] 2 VR 88.
Current Sentencing Practices
55Turning now to current sentencing practices, I have reviewed current sentencing practices in this court and in the Court of Appeal for the offences, in particular of trafficking in a commercial quantity, methamphetamine, and trafficking simpliciter. I have also reviewed the case of Gregory v The Queen[9] (dealing with upper end examples of commercial trafficking) and R v Fernando.[10]
[9] [2017] VSCA 151.
[10]Fernando v The Queen [2017] VSCA 208.
COVID-19 Pandemic Circumstances
56Turning now specifically to other COVID-19 pandemic circumstances of your plea, you appeared at your plea via video-link and you were dressed in full PPE, I understand because the gaol you were held in was having a COVID outbreak and consequent lockdowns.
57You have had limited personal visits during your time in custody and been subjected to both quarantine and frequent lockdowns, something in the order of 76 days since your detention started. You have had no contact visits from your family, but you have had some regular phone calls. The additionally burdensome conditions in custody will be calculated in your favour in this sentence.
Sentencing Principles
58I must apply the proper sentencing principles to your case.
59Drug trafficking, particularly at a commercial level, carries a very high maximum penalty. This is because the practice devastates people’s lives, both the users and their families.
60There is a role for general and for specific deterrence in your case. You need to understand that as you repeat this kind of offending the numbers on your sentence will go steadily up. There is also a role for just punishment and for denunciation.
61I have also had regard to the principle of totality in fixing this sentence. I will attempt to make the overall sentence the appropriate one for the whole of your offending and will do so by adjusting the orders for cumulation where necessary.
Consideration
62I note that s 5(2H) applies to Charge 1. None of the exceptions were argued. Imprisonment on this charge is the only sentence warranted. It was also submitted that I could impose a community corrections order on another charge and sentence you just to pure imprisonment on Charge 1.
63I had regard to your counsel’s submission that sentencing involving time served was available. I have thought about that submission but cannot agree that a straight sentence in the order of time served, being 496 days, is sufficient in the circumstances of your case, nor am I convinced that a ‘straight’ term is in the community’s interests or, indeed, your own, given the work that must be undertaken towards your rehabilitation. I am precluded, of course, from considering executive action or inaction in relation to your parole, and only add that it is my hope that, if you are found suitable for parole, you serve part of your sentence in the community with the prospect of further imprisonment helping to govern your decisions.
Disposition
64Turning now to the disposition. On Charge 1, trafficking in a commercial quantity, you are convicted and sentenced to two years and four months’ imprisonment.
65On Charge 2, trafficking in a drug of dependence, you are convicted and sentenced to 14 months’ imprisonment.
66On Charge 3, possession of a drug dependence, heroin, you are convicted and sentenced to sentenced to seven days’ imprisonment.
67On Charge 4, possession of a drug of dependence, diazepam, you are convicted and sentenced to seven days’ imprisonment
68On Charge 5, possession of the drug dependence, cannabis small quantity, you are convicted and fined a sum of $100.
69On Charge 6, possession of a drug dependence, cocaine, you convicted and sentenced to seven days’ imprisonment.
70On Charge 7, a rolled-up charge of possessing a false document, you are convicted and sentenced to six months’ imprisonment.
71On Charge 8, a rolled-up charge of possession of identification information, you are convicted and sentenced to three months’ imprisonment.
72On the related summary offence, Charge 9, of possessing property suspected of being proceeds of crime, you convicted and sentenced to three months’ imprisonment.
73On the related summary offence, Charge 10, as amended, possessing a prohibited weapon, swords, you are convicted and sentenced to one months’ imprisonment.
74On the related summary offence, Charge 15, possessing a prohibited weapon, capsicum spray, you are convicted and sentenced to one months’ imprisonment.
Cumulation
75Turning now to my orders for cumulation, the sentence on Charge 1 is the base sentence. I direct that five months of the sentence on Charge 2, two months of the sentence on Charge 7, and one month of the sentence on the related summary charge of dealing with property suspected of being the proceeds of crime, are to be served cumulatively upon each other and upon the sentence on Charge one, making a total effective sentence of three years' imprisonment.
76I order that you, Mr Plummer, are to serve a non-parole period of 23 months before becoming eligible for parole. I declare that 496 days of pre-sentence detention shall be deducted from the sentence that I have imposed pursuant to s 18 of the Sentencing Act, and this will be entered into the records of the court.
Section 6AAA
77Pursuant to s 6AAA of the Sentencing Act, I declare that had you not pleaded guilty but been found guilty after a trial, I would have imposed a sentence of four years and six months' imprisonment with a non-parole period of three years.
Ancillary Orders
78I make the orders for forfeiture of the cash and disposal of the other items on the schedule of the draft order.
79Ms Liantzakis, have I missed any formal orders?
80MS LIANTZAKIS: No, Your Honour, that covers everything, thank you.
81HER HONOUR: All right. I would just like to give particular thanks to counsel in this case for their assistance.
82COUNSEL: Thank you, Your Honour.
83HER HONOUR: Thank you.
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