Director of Public Prosecutions v Proctor
[2024] VCC 1732
•30 October 2024
n
| IN THE COUNTY COURT OF VICTORIA CRIMINAL JURISDICTION | Revised Suitable for Publication | |
CR-24-00331
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| NICHOLAS ARTHUR PROCTOR |
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JUDGE: | HIS HONOUR JUDGE CAHILL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 5 June 2024; 14 October 2024 | |
DATE OF SENTENCE: | 30 October 2024 | |
CASE MAY BE CITED AS: | DPP v Proctor | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1732 | |
REASONS FOR SENTENCE
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Catchwords: Guilty plea - Import marketable quantity of a border controlled drug
Legislation Cited: Sentencing Act 1991 (Vic), section 17.
Cases Cited:R v Nguyen; R v Pham (2010) 205 A Crim R 106; Worboyes [2021] VSCA 169.
Sentence:Total effective sentence of six years imprisonment. Non-parole period of three years and eight months.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms S Akin | Commonwealth Director of Public Prosecutions |
| For the Offender | Mr A Patton | Slades and Parsons |
HIS HONOUR:
1 Nicholas Arthur Proctor, you have pleaded guilty to:
(a) one charge of importing a marketable quantity of an unlawfully imported border-controlled drug, namely heroin, contrary to subsection 307.2 (1) of the Criminal Code 1995 (Cth).
2 You have also pleaded guilty to:
(a) one charge of possess a controlled drug, namely heroin, contrary to subsection 308.1(1) of the Criminal Code; and
(b) one charge of possessing a false document, contrary to subsection 83A(5) of the Crimes Act 1958 (Vic).
Circumstances of offending [1]
[1] The circumstances of your offending are summarised in the summary of prosecution opening (exhibit A). It contains agreed facts.
3 On 19 August 2023, police arrested you at Crown Casino, Southbank, for an unrelated matter.
4 You were in possession of 0.8 g of heroin and a Proof of Age card in a name which was not yours.
5 You admitted the heroin was yours and the ID card was a fake.
6 Police took your mobile phone from you. You provided your pass code voluntarily.
7 On your phone, they found a series of messages, detailing arrangements you had made with the Australian agent of an overseas supplier to import heroin.
8 You used an intermediary to pay $54,500 to the agent’s intermediary in Australia. A five dollar note was used as a token for exchange to conceal their respective identities.
9 The money was paid on 8 August 2023.
10 On 15 August 2023, the agent notified you that a parcel of 350 grams heroin (gross weight) had left Thailand. He sent you a screenshot of the carrier’s notice the package was on its way.
11 You agreed to pay the agent $12,500 for his cut.
12 On 18 August 2023, the agent sent you the name, address and telephone number of the consignee for the parcel.
13 On 28 August 2023, the parcel arrived by plane at Perth International Airport. Using the information on your phone, authorities intercepted it. Approximately 340 g of powder was concealed inside two vacuum flasks. The total pure weight of the heroin contained within the powder was 247.1 g.
Chronology of proceedings
14 After the discovery of the heroin you were charged with its importation.
15 You had been remanded in custody on 19 August 2023.
16 You pleaded guilty to the charges on the indictment at the earliest opportunity.
Objective seriousness
17 As the maximum penalty of 25 years imprisonment demonstrates, importation of a marketable quantity of a border controlled drug is a serious offence.
18 Your criminality is to be assessed by consideration of your involvement in the importation. [2]
[2]R v Nguyen; R v Pham (2010) 205 A Crim R 106, at [72].
19 And, although the weight of the drug imported is not the principal factor, the size of the importation is relevant and has increased significance because you knew the quantity of heroin which was being imported.
20 You participated in the importation of 247.1 g of pure heroin.
21 It is 123 times the marketable quantity [3] of heroin and approximately 0.16 times the commercial quantity. [4]
[3] A marketable quantity of heroin is 2 g.
[4] A commercial quantity of heroin is 2 g.
22 According to police intelligence, in 2023, the wholesale value of a 350 g block of heroin (gross weight) was approximately $125,000. However, that figure may be inflated compared to regular prices. [5]
[5] Notice of additional evidence, Heath Wright.
23 You had a significant financial stake in the heroin which you imported. It is not clear what the supplier’s price was. However, your communications with the supplier’s Australian agent show you had paid $54,500 to secure the import and agreed to pay the agent a further $12,500 for his cut.
24 To reduce your risk of detection, you used someone else to pay the $54,500. When it was paid, the overseas supplier sent the heroin to Australia.
25 You have a history of drug addiction and at the time of your offending you were a daily heroin user. I accept some of the heroin was for personal use. However, given the significant quantity and value of a block of heroin, I am satisfied you arranged the importation for profit. [6]
[6] I do not accept your report to the psychologist, Ms Ferrari, that you purchased the block of heroin wholly for your personal use (see exhibit 2, [68] – [69].
26 Considering your critical role in the importation and the sizable quantity of heroin, which you imported, your crime is a serious example of the offence.
Criminal record
27 You have admitted a lengthy criminal record of summary drug, dishonesty and driving offences, in Western Australia, Queensland and Victoria, commencing in 2004.
28 You have been fined, and placed on community-based and conditional suspended imprisonment orders.
29 The index crime is a marked escalation in offending.
Personal circumstances [7]
[7] Your personal circumstances as set out in the psychological report of Carla Ferrari (Exhibit 2).
30 You were born in April 1986. You were 37 years old when you offended. You are now 38.
31 You grew up in Perth, Western Australia. Your mother left your father when you were nine years old. She took you, with your sister, to New Zealand where you lived for two years until your father brought your sister and you back to Australia. In order to be with the two of you, your mother returned to Australia and remained with your father until they separated and divorced when you were 18 years old.
32 In Perth, you went into local schools. After you completed year 10, you got work as a TV camera operator.
33 In your early 20s, you obtained rigging tickets and got work as a gas rigger for about five years, with your father, on various offshore drilling sites.
34 You had started using illicit drugs after you left school. During your 20s, your drug use intensified.
35 In 2016, you suffered serious injuries when a friend, who was drug affected, stabbed you. You suffered profound psychological trauma. You started to hear voices and were having flashbacks and nightmares.
36 You were an inpatient at a mental health facility for 6 to 7 weeks. After you were discharged, you re-lapsed into heroin use.
37 Your father died in 2020. You had been close. After his death, you struggled with his loss and resorted to heroin again to cope. You then moved from Perth to Melbourne “for a fresh start”.
38 You continued to abuse heroin.
39 You described yourself as “out of it on drugs” when you offended.
40 In prison, a psychiatrist has prescribed mirtazapine (antidepressant), olanzapine (antipsychotic) and prazosin (for sleep). You have completed an AOD course [8] and, with the help of an English teacher, you have started to write a memoir. You have also completed your “white card” qualification.
[8] Certificate of participation (exhibit 5).
41 Your mother has worked in juvenile justice for 25 years. She travelled from Perth to support you at court.
42 In a letter to the court, she described your father as “a functioning alcoholic”, who was violent. He nevertheless tried hard to be a good parent to your sister and you. She wrote you were a sweet and funny boy. She described how you wasted a substantial part of your inheritance on gambling and drugs. Since your incarceration she has travelled twice to visit you in prison. And you call her at least weekly. She wrote you are “genuinely sorry for what you have done”. She believes you realise the seriousness of your offending and you will make a concerted effort to rehabilitate yourself in prison. Understandably, she wishes you were not so far away from her.
43 Your sister also wrote a letter to the court. [9] She described you as kind, sensitive and popular when you were growing up. During your adolescence, when mutual friends were experimenting with methamphetamine, you joined in and became addicted. You cleaned yourself up for a time when you went to Queensland. However, when your father died, as she wrote, “the stress … took its toll on [you]”, you returned Perth where you “got sucked back into the vortex” of drug use than “disappeared into the Melbourne drug scene”. In her words, you are not a criminal by choice, you are an addict.
[9] Letter of Katie Procter (Exhibit 3).
44 She has kept contact with you while you have been in custody. She believes your imprisonment at Fulham has given you time to clean up and reflect on your life. You have expressed regret and remorse for your crime. She is looking forward to you getting a second chance to rebuild your life. She plans to move to Melbourne, towards the end of your non-parole period, so she can help you with your release from prison.
Consideration [10]
[10] I have carefully considered the written and oral submissions of prosecution and defence to determine the sentence I will impose (see Crown submissions on sentence (exhibit B); Crown comparative sentencing schedule (exhibit C) and defence outline of plea submissions (Exhibit 1)).
45 The sentencing principles in federal drug importation cases are well established. [11]
[11]R v Nguyen; R v Pham (2010) 205 A Crim R 106, [72].
46 Firstly, the offender's role and involvement in the enterprise, the sophistication of the enterprise and the quantity of drugs involved are relevant to the assessment of the seriousness of the offending.
47 Secondly, because of the difficulty in detecting the offending and the great harm stemming from the distribution of illicit drugs in the community, general deterrence is to be given chief weight.
48 Thirdly, for involvement at any level, an offender should expect a significant sentence.
49 And fourthly, as a matter of common sense, it should be inferred, unless there is evidence to the contrary, a person who imports drugs is doing so for profit.
50 Because narcotics importation is a federal offence, I must determine your sentence in accordance with Part 1B of the Commonwealth Crimes Act.
51 Under s16A of the Act, I am required to impose a sentence that is of a severity that is appropriate in all of the circumstances of your offence.
52 I am also required to have regard to the non-exhaustive list of matters set out in sub-s16(2A) of the Crimes Act as far as they are relevant and known to the court. Section 17 directs a court shall not impose a sentence of imprisonment for a federal offence unless it is satisfied no other sentence is appropriate.
53 Overall, I am satisfied only the imposition of a prison term, with a non-parole period fixed, is the appropriate sentence for your drug importation crime.
54 Comparable importation cases, [12] identified a broad sentencing range of around five years to seven years imprisonment. I have used them as a yardstick to measure your sentence.
[12] to which the prosecution referred (exhibit C). I have used the comparative authorities to identify relevant sentencing principles, and as a yardstick against which to measure the appropriate sentence in your case.
55 There are significant mitigating factors in your favour which I take into account to moderate the head sentence and non-parole period I will impose.
56 Firstly, you are entitled to a demonstrable sentencing benefit for your guilty plea, made at the earliest opportunity, for its utilitarian value and your willingness to facilitate the course of justice, as well as, your acceptance of responsibility for your actions.
57 Considering you were arrested and remanded in custody when the courts were still experiencing covid related backlogs, your guilty plea attracts additional Worboyes considerations. [13]
[13] [2021] VSCA 169.
58 Secondly, I accept you are remorseful. I accept your expressions of shame and regret to your mother and sister and the psychologist who assessed you are genuine.
59 Thirdly, you voluntarily gave police the pass code to your phone when you knew, but they did not know, it contained the proof of your involvement in a narcotics importation. You are entitled to an extra sentencing benefit for your cooperation with police.
60 Fourthly, I accept your time in custody and your realistic expectation of a lengthy prison sentence have had a salutary effect upon you.
61 Your mother and sister have remained staunch. Their continuing support is a protective factor for your rehabilitation. Hopefully, with a period of enforced remission, you will beat your drug addiction which, I accept, was a contributing factor to your offending. You can change and make a better life for yourself. I have some optimism you will. However, remember the change must come from within you.
62 Your offending on 19 August 2023, namely the possession of a small quantity of heroin, which I accept was for personal use, and a fake ID card, represents very low-end offending. For each of those offences I will impose a very modest prison term. And because they add little to the criminality of your drug importation offence, I will order the two sentences be served concurrently with the sentence I impose for the importation.
63 Mr Proctor, by the sentence I impose, I must denounce your conduct, punish you, and deter you and others from committing crimes of the same or similar kind.
64 I must also look to your rehabilitation.
65 Considering the circumstances of your offending, your personal circumstances and antecedents, and endeavouring to produce a sentence which reflects and promotes the purposes of sentencing in a manner appropriate to you, on the Federal charge of importing a marketable quantity of an unlawfully imported border-controlled drug, you are sentenced to six years imprisonment which is to commence today.
66 On the Federal charge of possess a controlled drug, you are sentenced to seven days imprisonment. This sentence is also to commence today.
67 On the state charge of possess a false document, you are sentenced to seven days imprisonment. By operation of the Sentencing Act, this sentence also commences today. [14]
[14]Sentencing Act 1991 (Vic), section 17.
68 Your total effective sentence is six years imprisonment.
69 To mitigate your punishment in favour of your rehabilitation through conditional freedom, I direct you serve three years and eight months of your sentence before you are eligible for parole.
70
I declare you have already served 438 days of your sentence by way of
pre-sentence detention.
71 I also declare, but your guilty plea, I would have sentenced you to eight years imprisonment and fixed a minimum non-parole period of five years and six months.
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