Director of Public Prosecutions v Potts (a pseudonym)
[2024] VCC 1742
•31 October 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| RICHARD POTTS (A PSEUDONYM) |
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JUDGE: | HIS HONOUR JUDGE D. SEXTON | |
WHERE HELD: | Melbourne | |
DATE OF DETERMINATION HEARING: | 8 October 2024 | |
DATE OF SENTENCE: | 31 October 2024 | |
CASE MAY BE CITED AS: | DPP v Potts (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1742 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Sentence; Trafficking Commercial Quantity Drug of Dependence; Possess Drug of Dependence; Knowingly Deal with Proceeds of Crime; Drug and Alcohol Treatment Court; Rehabilitation
Legislation Cited: Sentencing Act 1991 (Vic); Drugs, Poisons and Controlled Substances Act 1981.
Cases Cited:
Sentence: Drug and Alcohol Treatment Order, custodial part of 39 months
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms J. Worrell | Office of Public Prosecutions |
| For the Accused | Mr S. Tovey | Milides Lawyers |
HIS HONOUR:
Introduction
1Richard Potts,[1] on 8 October 2024, at a Determination Hearing in the Drug and Alcohol Treatment Court, you pleaded guilty before me to one charge of trafficking in a commercial quantity of methamphetamine, which carries a maximum penalty of 25 years' imprisonment, one charge of possession of 1,4-Butanediol which carries a maximum penalty of five years' imprisonment, and one charge of knowingly dealing with the proceeds of crime, which carries a maximum penalty of 15 years' imprisonment. By way of completeness, the trafficking charge is a Category 2 offence under the Sentencing Act, meaning that pursuant to s5(2H) of that Act, the Court must impose a custodial sentence, which includes a Drug and Alcohol Treatment Order, unless one of the circumstances set out in that section exist.
[1]A pseudonym.
2At your Determination Hearing, you also admitted your criminal record.
Circumstances of offending
3The circumstances of your offending were set out in the Summary of Prosecution Opening on Plea dated 21 May 2024, Exhibit 1 at your Determination Hearing.[2]
[2]Exhibit 1
4By way of brief summary, at the time of your offending you were unemployed and in a romantic relationship with Ms Louise Minh.[3] On 28 November 2021 both you and Ms Yates moved into an apartment in North Melbourne. Victoria Police believe that the lease to this apartment was fraudulently obtained by Michael Borg.[4] Mr Borg, an associate of yours, was the target of a police investigation. CCTV footage of the apartment complex between 28 and 30 November 2021 depicted you and Ms Minh essentially moving into the apartment.
[3]A pseudonym.
[4]A pseudonym.
5On 30 November 2021, Victoria Police executed a Search Warrant at the apartment. Both you and Ms Minh were in the property and were detained by investigators. Several bags of a white crystal substance were in plain sight in the lounge room, together with multiple mobile phones and a quantity of cash, $3,920, which is the subject of the proceeds of crime charge.
6
A search of the premises revealed substances which are relevant to the trafficking and possession charges. A plastic bottle containing a clear liquid which was ultimately identified as being 1,4-Butanediol was located on the kitchen bench, this being relevant to Charge 2 on the indictment, possession of a drug of dependence. Ziplock bags containing methamphetamine were located in the pantry cupboard, and on a shelf on the cube unit in the lounge room, these being relevant to
Charge 1 on the indictment, trafficking in a commercial quantity of methamphetamines.
7You were arrested and taken to the Melbourne West Police Complex for interview, where you essentially made a 'no comment' interview.
8Subsequent interrogation by police of your mobile phone located at the property indicated your involvement in drug trafficking for a period dating back to November 2021, in connection with a man police believed was Mr Borg. Details of the analysis of your phone were set out at paragraphs 19 to 34 of the Summary of Prosecution Opening, where concerning references to considerable quantities of methamphetamine and cash were highlighted.
9The total weight of substances containing methamphetamine was identified by Victoria Police as 147.5 grams. The pure methamphetamine within these was identified as 120.3 grams, this figure exceeding the 50 gram threshold for a commercial quantity for pure methamphetamine as defined by Schedule 11 of the Drugs, Poisons and Controlled Substances Act 1981.
10Having been arrested on 30 November 2021, you spent 79 days in custody before being granted bail on 16 February 2022. You have remained on bail since this date. The procedural chronology relevant to this matter was set out at the end of the Summary of Prosecution Opening.
Nature and seriousness of your offending and your level of culpability for it
11Whilst any offending of this type must be seen as inherently serious, as fairly conceded by the prosecution in this case, your offending sits towards the lower end of objective gravity for this type of offending. As indicated by the charges on the indictment, your offending is limited to a single day, 30 November 2021. As is often stated in sentencing decisions for this type of offending, this is essentially a quantity-based regime – all other things being equal, the greater the amount of drugs trafficked, the more the serious the offending. In your case, whilst the methamphetamine trafficked exceeded the pure commercial quantity threshold, it was less than the mixed commercial quantity threshold. Whilst the messages revealed from the phone analysis refer to concerning levels of trafficking and interactions with others, and references to substantial sums of money, as accepted by the prosecution you cannot be sentenced on the basis of those messages.
12Rather, they provide the context of your offending, reflect your role in the offending, and reflect the degree of organization involved in it. As conceded by your counsel, this was certainly higher than street level offending. The prosecution essentially described you as a middleman in the trafficking operation, receiving drugs from Mr Borg and/or others and then arranging for the sale of those drugs. You were described by your counsel as not being at the apex of the hierarchy in this case, and that you were plainly subservient to others including Mr Borg.
13In all the circumstances, I agree that this does not represent a high-level example of commercial quantity trafficking in the circumstances as I have described them. You had only been at the property where you were arrested for a matter of days. You were clearly not the organiser or primary offender in this enterprise. You were easily identified at the property, and the drugs were clearly visible and able to be identified quickly. The amount of cash located, whilst concerning, was comparatively low, and no other indicia of sophistication were identified by the prosecution. In all the circumstances I agree with your counsel that the level of sophistication involved in your offending was reasonably moderate.
14Your level of culpability for the offending must be seen as significant. Your counsel did not submit that your moral culpability for the offending was reduced in any way due to any mental impairment. Whilst I accept that you were no doubt in the grips of drug dependency and that this contributed to your offending, this does not reduce your culpability for the offending. Your fairly extensive criminal history does, in my view, enhance your moral culpability. You have prior convictions for drug related offending.
15In particular, on 27 May 2021 you received a sentence of imprisonment of 32 days, which had been served by that time, combined with an 18-month Community Correction Order which incorporated unpaid community work and various therapeutic conditions, in relation to an offence of trafficking methamphetamine, which I was informed involved some 80 grams of methamphetamine. Your offending in November 2021 accordingly was committed whilst you were subject to a Community Correction Order for trafficking methamphetamine. Whilst of course you should not be sentenced twice for this prior offending, that you would become involved in serious trafficking related offending whilst subject to a Court Order for trafficking related offending enhances your level of culpability for the current offending.
Personal circumstances
16Your personal circumstances were set out in the report of consultant psychologist Mr Luke Armstrong dated 23 July 2024,[5] the two assessment reports from the Drug and Alcohol Treatment Court,[6] and your counsel's written[7] and oral submissions.
[5]Exhibit B
[6]Exhibit 3 & 4
[7]Exhibit A
17You are now 43 years of age. Your problems with regards to the criminal justice system appear to be confined to the last seven years, having regard to your criminal record.
18You were fortunate to enjoy a relatively stable upbringing with supportive parents in the northern suburbs of Melbourne, experiencing no intrafamily domestic problems or substance abuse, and experiencing no social or academic problems in your education years, ultimately completing Year 12.
19There was no illicit drug use before the age of 18, and following the completion by you of VCE you obtained a sales traineeship with a building and hardware supply company where you remained employed for some four years before commencing full-time work with a plumbing supply company where you remained for some four years, during which time you were promoted to Store Manager.
20
You started experimenting with methamphetamines from the age of about 22. Within a year your use increased to almost daily use, and according to
Mr Armstrong by your mid-twenties you described yourself as a functioning addict – becoming biologically and psychologically dependent on methamphetamine in the context of maintaining your employment. You commenced a plumbing apprenticeship at age 25, however, only completed two of the required four years of trade school, as your drug dependency took hold, impacting upon your motivation to work. As your tolerance to the drug increased, you required more methamphetamine on a daily basis, and you reported that if you did not have drugs you struggled to get out of bed.
21You have described yourself at age 30 as in full addiction, compounded by the fact that your then wife also developed a methamphetamine dependency. Your father suddenly died in 2013, with your wife leaving you two weeks prior to this episode, with you attributing the relationship breakdown to drug use. Following your father's death you lost all interest in employment and the drugs became your primary focus.
22Unusually, your criminal history commences only in 2017 when you were aged 36. Whilst much of your criminal history appears to relate to dishonesty offending, you have essentially described your criminal history as being drug related, with your drug use spiralling beyond your financial means generated from part-time work. As indicated by your counsel, your criminal history is punctuated by periods of relative stability, for instance between 2018/19 and 2021, corresponding with attempts at treatments followed by relapses into significant addiction and eventually further offending.
23You reported to Mr Armstrong attending a DayHab residential placement for a period of one month some time in 2020, before relapsing shortly thereafter, and you have indicated that throughout 2021 you were heavily using again, this being the context to your current offending which you have described as being related to your heavy ice dependency at the time. Indeed, according to the Drug and Alcohol Treatment Court clinical adviser, Ms Krishna Jones, in her assessment report dated 25 September 2024, at the time of your offending you would have satisfied diagnostic criteria for a diagnosis of substance use disorder which was severe in nature.
24Whilst as I have indicated your offending was committed during the operative period of a Community Correction Order, you have indicated that you nonetheless completed your Community Correction Order requirements and that this Order has now expired.
25On 16 February 2022, you were bailed to a residential AOD rehabilitative facility known as Habitat. You remained there for some 10 weeks. You reported to psychologist Mr Armstrong that this placement provided you with structure and removed you from the cycle of drug addiction and years of drug related offending. Mr Armstrong appears to have had access to records from your stay at Habitat, indicating that you cooperated with the program and began to experience significant insights relating to your experience of addiction. Whilst you have experienced instances of lapse or relapse subsequent to your stay at Habitat, according to Drug and Alcohol Treatment Court clinical adviser Ms Jones you appear to have reached a place of reflection and insight, primarily through your participation in therapeutic interventions at Habitat.
26On discharge from Habitat you commenced a part-time labouring job in the area of plumbing. You have reported enjoying the work as a plumber, with this work easing the financial pressure and providing structure and routine. You readily appreciate that should you be placed on a Drug and Alcohol Treatment Order; you will be unable to work in the early stages of that Order.
27You have reported an ongoing positive relationship with your mother and younger sister, and you have spoken to assessors of enjoying your involvement in your young nephew's soccer team where you attend training on Tuesdays and Thursdays, together with matches on the weekend. Having previously resided with your mother, sister and nephew in Epping you have more recently been residing at an apartment in Melbourne through the assistance of a friend, having regard to Drug Court catchment area requirements. Whilst this accommodation appears ongoing, it is not ideal given that you are residing on a couch in the living room.
28A Drug and Alcohol Treatment Court case manager has conducted an extensive assessment with regards to suitability of accommodation. In that regard, contact has occurred between the case manager and your mother, with regards to the availability of accommodation for you at her home in Epping. The suitability of that accommodation became more complex at your Determination Hearing, due to information provided with regards to pending charges relating to your sister. These are of course at this stage only allegations, and you do not face any criminal charges arising out of these allegations. Moreover, in the most recent case manager assessment report dated 18 October 2024, the author maintains that the accommodation in Epping remains the most protective or recovery supportive, in the circumstances.
29I have been informed and accept that there are no current criminal matters outstanding against you, and I note in that regard that on 22 October 2024 at the Broadmeadows Magistrates' Court, you received a two year undertaking to be of good behaviour, with conviction, for the remaining outstanding driving related offences referred to at your Determination Hearing. No orders were made against your driver's licence, which I note was reinstated by that Court on 15 August 2024.
Matters relevant to the Drug and Alcohol Treatment Court Determination Hearing
30I turn now to matters relevant to the making of a Drug and Alcohol Treatment Order. The purposes of a Drug and Alcohol Treatment Order are to facilitate your rehabilitation, to take account of your drug or alcohol dependency, to reduce the level of criminal activity associated with drug or alcohol dependency, and to reduce your health risks associated with drug or alcohol dependency. Importantly, if I am considering making such an Order, I must regard your rehabilitation and the protection of the community from you, achieved through your rehabilitation, as having greater importance than other sentencing purposes such as denunciation and general deterrence.
31The criteria for the making of a Drug and Alcohol Treatment Order are set out in s18Z of the Sentencing Act. Of relevance to this case, I am satisfied on the balance of probabilities that you are dependent on drugs or alcohol, and that your dependency contributed to the commission of the offending now before me. Whilst your offending is now somewhat dated, an analysis of your personal circumstances reveals that you remain dependent on methamphetamines in particular, and as evidenced by your lapses since your time at Habitat, you remain vulnerable to that dependency. Whist there was clearly a financial motive involved in your serious drug related offending, given your longstanding addiction to methamphetamines, and your use at the time, I am satisfied that your dependency contributed to the offending for which you now fall to be sentenced.
32In order to impose a Drug and Alcohol Treatment Order in your case, I must be satisfied that it would otherwise be appropriate to impose a sentence of imprisonment of no more than four years. I have concluded in the particular circumstances of your case that I would otherwise impose a sentence of imprisonment of no more than four years. I have come to that conclusion based upon my earlier comments having regard to the nature and gravity of your offending and your level of culpability for it. I have also had regard to s18X(2) of the Sentencing Act, which places your rehabilitation, and the protection of the community achieved through your rehabilitation, at the forefront of the sentencing exercise. This is significant in particular having regard to the nature of your offending, where the sentencing purposes of denunciation and general deterrence would otherwise loom very large in the sentencing exercise.
33
I have also had regard to your rehabilitative efforts whilst on bail, which have included a placement at the residential facility for some 10 weeks. Whilst you have subsequently remained vulnerable to the impacts of your addiction, I accept that you have largely removed yourself from your negative peers, noting that
Mr Borg is currently subject to an extended sentence of imprisonment. You have maintained the support of your clearly prosocial mother, and have appropriate accommodation available to you in that regard. You have attended Narcotics Anonymous, and as evidenced by the reference from one of the members, become a valued member of this community. Whilst your plea of guilty was entered at quite an advanced stage in proceedings, on 12 February 2024, a contested trial has nevertheless been avoided, warranting a sentencing discount for utilitarian reasons.
34You gave evidence before me at your Determination Hearing on 8 October 2024. I found you to be an honest and conscientious witness, and I am satisfied that you have real insight and therefore remorse into the nature of your offending. You were very candid when indicating that you struggle with cravings every day. You impressed me as being appropriately motivated with regards to your ongoing recovery, indicating that you are motivated to do what is right for you ultimately, rather than others. Having regard to all of the material, and in particular your evidence before me, I am satisfied that your prospects for rehabilitation are at least reasonable, provided you take advantage of the rehabilitative structure which will be the centrepiece of the sentence I am soon to impose.
35You have been found suitable for a Drug and Alcohol Treatment Order by the assessors from the Drug and Alcohol Treatment Court. Having carefully considered the criteria for the making of a Drug and Alcohol Treatment Order set out in s18Z of the Sentencing Act, and having considered the various reports together with both written and oral submissions from counsel, I am satisfied that it is appropriate in all the circumstances to make a Drug and Alcohol Treatment Order in your case. Mr Potts, would you please stand?
Sentence to be imposed
36In relation to all charges, you are convicted and placed upon a Drug and Alcohol Treatment Order. This Order commences today.
37A Drug and Alcohol Treatment Order has two parts: the treatment and supervision part and the custodial part. The treatment and supervision part itself has two parts which are as follows.
38The core conditions, which are that:
(a) you must not commit whether in or outside of Victoria, another offence punishable on conviction by imprisonment during the time the Order is in force;
(b) you must attend Drug Court when required by the Court to do so;
(c) you must report to the Melbourne Drug Court house within two clear working days after the Order is imposed;
(d) you must report to and accept visits from members of the Drug Court;
(e) you must undergo treatment for alcohol and drug dependency as specified in the Order or by the Drug Court;
(f) you must give notice of any change of address, at least two clear working days before the change, to a specified Drug Court officer;
(g) you are not to leave Victoria without the permission of the Drug Court; and
(h) you are to obey all lawful instructions and directions from the Drug Court team.
39The core conditions will operate for 39 months, or until further Order.
40The program conditions, which are that:
(a) you comply with the Individual Treatment Plan dated 31 October 2024
(b) you must submit to drug and alcohol testing as directed;
(c) you must submit to detoxification or other treatments specified in the Order as directed;
(d) you must attend vocational, educational and employment programs as directed;
(e) you must submit to medical, psychiatric and psychological treatment as directed;
(f) you must reside at your nominated address;
(g) you must comply with a curfew that you remain at your address between the hours of 9 pm and 6 am.
(h) you are not to use a drug of dependence without lawful authorisation;
(i) you are to abstain from alcohol;
(j) you are to engage with a family violence support worker
(k) you are to do or not do anything else that the Drug Court considers necessary or appropriate concerning your drug and alcohol dependency; and the personal factors that the Drug Court considers contributed to your criminal behaviour.
41These program conditions will operate for two years or until further Order.
42The custodial part of the Drug and Alcohol Treatment Order is the term of imprisonment that I would have imposed had I not placed you on a Drug and Alcohol Treatment Order, and it is a term of imprisonment of three years and three months. That is made up as follows:
· on Charge 1 on the indictment, trafficking in a drug of dependence in a commercial quantity, three years' imprisonment
· on Charge 2 on the indictment, possession of a drug of dependence, six months' imprisonment.
· On Charge 3 on the indictment, knowingly dealing with proceeds of crime, four months' imprisonment.
· I order that two months on Charge 2, and one month on Charge 3 be cumulative on Charge 1. For clarity, this sentence of imprisonment is not to be served by you unless and until the court orders.
43I declare that you have served 78 days of presentence detention.
44Pursuant to s6AAA of the Sentencing Act, had you pleaded not guilty but been found guilty at trial, I would have sentenced you to a total effective sentence of four years and six months' imprisonment, with a non-parole period of three years and four months' imprisonment.
45Finally I will make the forfeiture orders sought by the prosecution. Is that one or two orders? Or more than two?
46MS WORRELL: There's two. There's one forfeiture, one disposal. Thank you, Your Honour.
47HIS HONOUR: Yes. I'll make both of those orders, thanks. Firstly, Ms Worrell, any issues or ambiguities with regards to that sentence?
48MS WORRELL: No Your Honour, thank you.
49HIS HONOUR: Mr Tovey, the condition relating to seeing the family violence worker was recommended by the case manager assessment report, hence its addition in the order. Any issues or ambiguities with regards to the sentence I've just imposed?
50MR TOVEY: No, Your Honour.
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