Director of Public Prosecutions v Pout
[2022] VCC 631
•11 May 2022
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-21-00832
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| CRAIG POUT |
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JUDGE: | HIS HONOUR JUDGE HANNEBERY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 9 May 2022 | |
DATE OF SENTENCE: | 11 May 2022 | |
CASE MAY BE CITED AS: | DPP v Pout | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 631 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Trafficking in a drug of dependence – plea of guilty – COVID-19
Legislation Cited: Drugs, Poisons and Controlled Substances Act 1981 (Vic); Sentencing Act 1991 (Vic)
Sentence: Two years and six months' imprisonment and I order that you serve a minimum period of one year and nine months' imprisonment before becoming eligible for parole
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms C. Paganis | Solicitor for the Director of Public Prosecutions |
| For the Accused | Mr I. Polak | Greg Thomas Barrister & Solicitor |
HIS HONOUR:
Introduction
1Craig Pout, you have pleaded guilty to one charge of trafficking in drug of dependence, namely methylamphetamine.[1]
[1]Contrary to s 71AC(1) of the Drugs, Poisons and Controlled Substances Act 1981.
2The maximum penalty for this offence is 15 years' imprisonment.
Summary of Offending
3A prosecution opening was tendered[2] and can be summarised as follows:
[2]Prosecution Exhibit 1.
4At approximately 4.30 am on 6 December 2019, two police members observed a Black BMW sedan parked outside of Lysterfield Primary School. You were asleep in the driver's seat. The officers looked through the window and saw small zip lock bags on the passenger side seat, numerous syringes, and a glass pipe in the air vent of the centre dashboard. The officers knocked on the window.
5You woke up five minutes later. You were erratic. You refused to acknowledge the presence of the officers. Eventually, one officer opened the driver's side door and spoke to you. The officer observed cash, small weigh scales and more small zip lock bags in the driver's side door.
6You provided your name to one of the officers who conducted a police database search, which revealed an outstanding whereabouts file in relation to the theft of a motor vehicle. You stepped out of the car and were arrested. You were searched and $9221.70 was found in your front right cargo shorts pocket. You said you won this money at the pokies a few days earlier.
7Police officers conducted a search of the vehicle which revealed a black satchel bag on the passenger seat comprising a clear large zip lock bag which contained a large quantity of a white crystalised substance. A glass pipe, a set of weigh scales, a blue Samsung phone and a green Samsung phone were also located.
8The white substance was methylamphetamine. It weighed 217.4 grams with an approximate purity of 81 per cent, being 176 grams of pure substance (Charge 1 – trafficking in a drug of dependence).
Nature and gravity of offence
9The offence of trafficking in a drug of dependence is inherently serious. So much is evident from its maximum penalty of 15 years' imprisonment.
10In this case, the offence is put on the basis that you possessed the mixed substance containing methylamphetamine for the purpose of sale. You are not to be sentenced at this time for the matters that are the subject of summary charges, including charges relating to the cash located on you and other items connected with the use and trafficking of drugs. These matters do, however, provide the context from which the purpose of your possession of the drugs can inferred.
11The total of 217.4 grams of substance containing methylamphetamine located in your car was substantially over the trafficable quantity of 3 grams. It is 86.8 per cent of the designated commercial quantity of 250 grams.
12The substance was about 81 per cent pure, meaning there was 176 grams of pure substance in your possession. You are not to be sentenced for trafficking in a commercial quantity, as it cannot be concluded beyond reasonable doubt that you were aware of the purity and intended to traffic in a commercial quantity. I can, however, consider the high purity of the substance in assessing the gravity of the offence, as it provides some guidance as to the relative risk to the community posed by the substance the subject of the charge.
13Overall, this is a serious example of the offence of trafficking simpliciter, which tends towards the higher end of the range.
Personal circumstances
14You are now 45 years old and were 42 years old at the time of the offending. Your counsel, Mr Polak, tendered a 2013 psychological report[3] on the plea, which provided some biographical details.
[3]Defence Exhibit 4.
15You were born in Loxton in South Australia. You moved with your family to Croydon in Victoria, where you remained until the age of 15 when your parents separated. You have two step-sisters and a half-brother from your mother's earlier relationship. You moved back to Adelaide after the separation to be with your mother. Shortly after this, you commenced the use of illicit drugs. You left home and led a transient existence in Adelaide until the age of 18.
16You have a long-standing history of a problematic use of illicit drugs. You commenced smoking cannabis at age 15, and by age 17 you had a daily habit of up to 1 gram per day. Mr Healy reported in 2013 that you commenced the intravenous use of amphetamine in mid-adolescence and were using daily by the age of 17.
You were diagnosed with juvenile type I diabetes at the age of 25. This condition has been compounded by your use of illicit substances and you spent time in hospital in Queensland in 2009 in a coma as a result of this condition.
17Your 41 page criminal history is indicative of this history of drug abuse. You have many relevant prior convictions. As far back as March 1996 in South Australia you were convicted for the possession of cannabis. You had further drug related matters in January 2000 in Queensland and others in August 2001, October 2003 and April 2009.
18
Your relevant Victorian drug priors commence on 25 July 2005 at the Melbourne Magistrates' Court, followed by further relevant matters on 3 March 2014,
25 August 2014, 30 September 2015, 1 March 2016, 9 March 2016,
9 November 2016, 10 April 2008, 30 August 2018, 25 October 2018, and most significantly, a trafficking matter on 29 May 2019 and another on 29 August 2019. You were imprisoned for both 2019 trafficking offences.
19
Since your arrest on this matter, you have served a total of 885 days in custody.[4] Only 592 of those days, however, are matters to be directly counted as pre-sentence detention for the purpose of this sentence. The remaining 293 days all relate to other offending for which you have already been sentenced, including offending which occurred after an initially promising period between April and
July 2021 when you were bailed subject to the conditions of CISP.[5] You breached those bail conditions with that further offending.
[4]Defence Exhibit 5.
[5]Defence Exhibit 6.
20It is appropriate to have some regard for the time you spent in custody since your arrest that is not necessarily to be counted directly as pre-sentence detention. I will moderate what might otherwise have been the sentence imposed for this charge to reflect some consideration for totality.
21I will also have regard for the fact that you have served this period of pre-sentence detention in conditions made more onerous by virtue of the pandemic. The additional deprivations caused by pandemic restrictions in the prison environment have eased somewhat since the height of the lockdowns, but it is still the case that imprisonment is more burdensome now than would otherwise be the case. This situation is likely to persist for the foreseeable future.
22It is to your credit that since you have been in custody you have undertaken all courses reasonably available to you. It is a mark of the progress you have made that you have become a peer support worker as part of the Atlas program you have undertaken in prison.[6]
[6]Defence Exhibit 2.
23I also note that you have provided evidence of clean urine tests conducted during your period on remand.
24Ms Kerri Saunderson provided a reference on your behalf and gave unchallenged evidence during your plea hearing.[7] She said that she has known you for five years and that notwithstanding your prior history, she has found you to be a respectful and kind person. She has previously provided you with stable accommodation and stands ready to do so again upon your release from custody.
[7]Defence Exhibit 3.
25Whilst your extensive prior criminal history makes it difficult to be excessively optimistic about your future, your efforts whilst in custody indicate that your situation is by no means hopeless. I consider your prospects of rehabilitation to be guarded at best but would improve if you can finally address your drug problems.
Plea of Guilty
26You offered to plead guilty to trafficking simpliciter prior to the committal hearing of this matter. That offer was rejected at the time, and the matter proceeded until further negotiations settled the matter the day before the trial was due to commence.
27In this context, your plea of guilty should be considered to have been offered at an early stage in proceedings. Had the offer been accepted when first made, there was at least the opportunity for the matter to have concluded at that time as a plea in the Magistrates' Court.
28Your guilty plea saved the time and resources that would otherwise have been expended on a contested trial and could have avoided a committal in the Magistrates' Court and a number of directions hearings in the County Court. The utilitarian value of your plea is especially significant, given the extreme pressures placed on court listing as a result of the pandemic.
29The nature of the offence of trafficking in a drug of dependence is such that general deterrence is an important sentencing consideration. In this case, having regard to your prior history, I must also seek to deter you from further offending. I must express denunciation for your conduct. I must also consider the protection of the community. I must impose a sentence that represents a just punishment in all the circumstances of the case. I must also foster your prospects of rehabilitation as I have found them to be.
Sentencing Submissions
30Ms Paganis, appearing for the Director of Public Prosecutions, submitted that in all the circumstances, a period of imprisonment requiring a head sentence and a non-parole period was required.[8]
[8]Prosecution Exhibit 2.
31Mr Polak submitted on your behalf that a period of imprisonment not exceeding your pre-sentence detention was appropriate.[9]
[9]Defence Exhibit 1.
Sentence
32Craig Pout, on Charge 1, trafficking in drug of dependence, namely methylamphetamine, I sentence you to two years and six months' imprisonment.
33I order that you serve a minimum period of one year and nine months' imprisonment before becoming eligible for parole.
34Pursuant to s18(4) if the Sentencing Act 1991, I declare that you have spent 594 days in custody by way of pre-sentence detention to be reckoned as served.
35Pursuant to s6AAA of the Sentencing Act 1991, but for your plea of guilty I would have imposed a sentence of three years' and three months' imprisonment with a non-parole period of two years at six months.
36The prosecution sought disposal and forfeiture orders, which was not opposed, and I will make those orders in the terms sought.
37Are there any other orders required? Sorry, Mr Polak, I think you are on mute.
38MR POLAK: There has been a change to the forfeiture orders, I think it covers one phone, not two now.
39HIS HONOUR: All right. All right, so look, I will make - if the orders are sent to me, the forfeiture orders are sent to me in a form that the parties agree to, I will make those orders as required.
40MR POLAK: I think that might have happened already, but my friend knows better.
41HIS HONOUR: All right, well I will check those orders. I will check those orders with the parties just to confirm I have got the right one and then I will make that order as required. There is nothing further?
42MR POLAK: Your Honour, I did ask for an appeals cost certificate last Friday and the matter was adjourned till Monday.
43HIS HONOUR: I know, and I must - I am sorry, Mr Polak, I am not convinced that there was a basis for me to make that order, so I refuse that application. Thank you very much.
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