Director of Public Prosecutions v Proud
[2022] VCC 520
•13 April 2022
| IN THE COUNTY COURT OF VICTORIA AT LATROBE VALLEY CRIMINAL JURISDICTION | Revised Not Restricted Suitable for Publication |
CR 22-00333
M12173218
| THE DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BRADLEY PROUD |
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JUDGE: | HIS HONOUR JUDGE DOYLE |
WHERE HELD: | Latrobe Valley |
DATE OF HEARING: | 12 April 2022 |
DATE OF SENTENCE: | 13 April 2022 |
CASE MAY BE CITED AS: | DPP v Proud |
MEDIUM NEUTRAL CITATION: | [2021] VCC 520 |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: guilty plea – prior convictions for trafficking - trafficking in a commercial quantity of methylamphetamine – knowingly deal with proceeds of crime – assault emergency worker on duty – resist emergency worker on duty
Legislation Cited: Crimes Act 1958 s 31(1)(b), s 194(2), Drugs, Poisons and Controlled Substances Act 1981 s 71AA
Cases Cited:Haddara v The Queen [2016] VSCA 168; Fernando v The Queen [2017] VSCA 208; Vincentv The Queen [2021] VSCA 99; Roxburgh v The Queen [2021] VSCA 181; Bugmy v The Queen [2013] HCA 37
Sentence:Convicted and sentenced to five years and two months imprisonment with a minimum of three years and four months. S 6AAA – eight years and four months with a non-parole period of five years and 10 months.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms J. Walter | Solicitor for the Office of Public Prosecutions |
For the Accused | Mr G. Chisholm | Stephen Peterson Lawyers Pty Ltd |
HIS HONOUR:
1
Bradley Proud, you have pleaded guilty on Indictment M12173218 to
one charge of trafficking in a commercial quantity of methylamphetamine - maximum penalty 25 years' imprisonment; one charge of knowingly deal with proceeds of crime - maximum penalty 15 years' imprisonment; one charge of assault emergency worker on duty - five years' imprisonment: and
resist emergency worker on duty - five years' imprisonment. You also pleaded guilty to the following summary offences: unlicensed driving - maximum
six months; use unregistered vehicle - maximum penalty 50 penalty units; fraudulent use number plates - 10 penalty units or two months' imprisonment.
2Charge 1 is a Category 2 offence and therefore s5(2H) of the Sentencing Act applies. I must sentence you to a period of imprisonment unless the circumstances fall within the statutory exceptions. It is conceded that a sentence of imprisonment is inevitable for this offending.
3
You were born in January 1996. At the time of the offending, you were
aged 25. You are now aged 26.
Offending
4The facts of your offending are set out in the prosecution summary which was tendered on the plea. I will briefly summarise the circumstances.
5At approximately 11.50 pm on Saturday; 16 October 2021, you were riding south on Coalville Road, Moe, on an unregistered Suzuki motorcycle bearing false registration plates. You have never held a Victorian motorcycle licence. This was the basis of Summary Charges 7, 8 and 9 of unlicensed driving, use unregistered motor vehicle and fraudulently use numberplate.
6At 11.55 pm First Constable Collings and Constable Obradov observed you on the motorcycle about 200 metres ahead of them on Coalville Road, Moe South.
7
You disappeared out of view for a short time as they came to a rise in the road at the intersection with Cemetery Road. Police continued on until they saw your motorcycle lying on the grass on the left-hand side of the intersection with
Wirrana Drive. They saw you running away down Wirrana Drive.
8First Constable Collings turned left into Wirrana Drive and pulled up next to you, yelling at you to stop. You turned and ran back in the direction of the motorcycle.
First Constable Collings pursued you on foot.9He soon caught up with you and took hold of you. You threw your motorcycle helmet at him and tried to push him off, but he tackled you to the ground. You resisted arrest, attempting to get free from his hold. Constable Obradov came in to assist in securing you. You continued to resist arrest, refusing to place your hands behind your back. That is the basis of Charge 4, resist emergency worker on duty.
10You managed to get up to your feet whilst First Constable Collings was behind you. You became aggressive and you swung your fist over your shoulder, punching him to the nose, causing bleeding, redness and swelling. This is the basis of Charge 3, assault emergency worker on duty.
11First Constable Collings stepped back from you and drew his Taser. You then complied with police directions. Another police unit arrived, and you were arrested and handcuffed.
12You were searched and the following items were located on you and in your backpack:
·391.42 grams of methylamphetamine packaged for sale into 29 separate zip lock bags of varying weights. This is the basis of Charge 1, trafficking in a drug of dependence, commercial quantity;
·$53,365.00 in cash. This is the basis of Charge 2, knowingly deal with proceeds of crime;
·a zip lock bag containing a broken pill believed to be ecstasy;
·another zip lock bag containing 2.5 blue and green pills believed to be Viagra;
·a glass vial containing approximately 20 millilitres of clear liquid believed to be GHB;
·drug paraphernalia including four glass pipes, a plastic plunger and empty zip lock bags and a metal scoop;
·An Apple iPhone and a spare SIM card.
Interview and search warrant
13You were interviewed at Moe Police Station on 17 October 2021. You answered, 'No comment', to all questions. You were then charged and remanded in custody. You have been in prison since.
Offence gravity
14The offence of trafficking in a commercial quantity of a drug of dependence is an extremely serious charge, as reflected by the maximum penalty of 25 years.
15
A commercial quantity of methylamphetamine is 250 grams mixed. You were arrested with 391.42 grams of methylamphetamine mixed, approximately
1.57 times the commercial quantity of the drug. The sentencing regime for
drug trafficking is quantity based. The amount of methylamphetamine in your possession was substantial, although well below the large commercial quantity threshold of 750 grams mixed.
16You were charged based on possession for sale of that amount on the day of your arrest. The methylamphetamine was packaged for imminent distribution. The context of the offending, demonstrated by the other items located in your possession, including the cash and the way the drugs were packaged, is that at the time you were engaged in the business of selling drugs. Mr Chisholm took no issue with this characterisation the offending.
17The prosecution case is that the money located, a substantial amount, was derived from drug trafficking activity. Mr Chisolm accepted this as accurate.
18In the case of Haddara v The Queen [2016] VSCA 168 the Court of Appeal said:
It seems to us that it has become a matter of common knowledge that trafficking in ice is not only prevalent but that its prevalence has increased. Prevalence of the offence of trafficking in methylamphetamine is thus a proper matter for the sentencing court to take into account when assessing the weight to be given to general deterrence.[1]
[1] Haddara v The Queen 2016 VSCA 168 at [69]
19Drug trafficking at the level indicated by the facts of this case does enormous damage in the community, often ruining lives, frequently young lives.
20The prevalence of such offending and the damage it does both to individuals and the community generally dictate that general deterrence is the
primary sentencing consideration. This is well established in the authorities.21
The offending against the police, no doubt motivated by the trouble you were in because of the drugs and money in your backpack, is serious and merits a
term of imprisonment. You have prior convictions for assault. The courts must send a message that police performing their duties for the community should not be subjected to the sort of resistance and violence you used on this occasion.
Comparative cases
22
I have had regard to the comparative cases referred to on the plea of
Roxburgh v TheQueen [2021] VSCA 181 and Vincentv The Queen [2021] VSCA 99.
23Roxburgh
involved an amount of 76 grams of pure methylamphetamine
(50 grams being the commercial threshold). The offender in that case pleaded guilty at an early stage and had priors for trafficking. He was sentenced to
four years and six months' imprisonment for the trafficking in a
commercial quantity charge, a sentence described as moderate by the Court of Appeal.[2]
[2] Roxburgh v The Queen 2021 VSCA 181 [26].
24
In Vincent the amount of methylamphetamine was 417 grams mixed or
1.67 times the commercial quantity threshold. The sentence imposed for trafficking a commercial quantity was six years and six months. The Court of Appeal held this to be within range.
25
As a comparative case, I have also considered the sentence imposed by the Court of Appeal in Fernando v The Queen [2017] VSCA 208, which involved an amount 8 grams over the relevant commercial quantity threshold, which at that time was 100 grams pure. The Court of Appeal reduced the sentence on the trafficking commercial quantity charge to four years and nine months.
Redlich JA categorised the offending in that case as being at the lower end of the spectrum, but the offender in that case ran a trial. Based on objective gravity, this is a more serious case than Fernando and you have more prior convictions for trafficking. You, however, pleaded guilty.
26I am satisfied these cases are similar enough to serve as appropriate comparative cases, although, of course, there are many varying features between those cases and the circumstances of your case. These cases are indicative of current sentencing practices which I have considered in formulating the sentence in this case. Current sentencing practices are a guide but not a controlling factor in deciding the sentence.
Prior convictions
27
You have a substantial and discouraging criminal history dating back to 2017 in the adult courts for a range offences including drug offences, proceeds of crimes offences, various assaults, stalking, criminal damage, handling stolen goods, family violence offending and driving offences. You have four prior convictions for trafficking drugs. You have received sentences of imprisonment on five occasions, including in March 2020, a sentence which included a period on parole, which I am told was not granted. You were released in the
early part of 2021. In 2019 there was an attempt to address your rehabilitation through a CCO coupled with 270 days' imprisonment, most of which you had served as pre-sentence detention, but you did not take advantage of that opportunity and you breached that order. So far, no orders the courts have made have resulted in a cessation or even a reduction of your criminal conduct.
28This offending is an escalation in the seriousness of your offending.
29You are not to be punished again for your prior offences, but they are relevant to the assessment of your moral culpability, your prospects of rehabilitation and the weight that I must give to specific deterrence and community protection in sentencing for this offending.
Personal history
30I turn to your personal history. Your personal history and circumstances are set out in detail in the written submissions filed by your counsel, Mr Chisholm. The prosecution took no issue with the history, and I sentence you based on that personal history.
31Your mother left your father when you were very young. Your father was apparently around again when you were about five years old, but he was physically abusive to your mother in front of you and he would take you along with him when he would purchase drugs. You grew up in a household where there was constant drug use and physical and mental abuse.
32Your mother was often ill from diabetes and its complications, including thyroid problems, loss of mobility and issues with her vision. You and your sister were required to assist with many of the day to day living tasks from a young age, such as cooking, cleaning, and making sure your mother took her medication, including her insulin.
33Your mother also suffered from mental health issues, such as depression, anxiety, bipolar disorder and post-traumatic stress disorder, which reduced her capacity to care for you and your sister.
34You were on the receiving end of physical and emotional abuse from her. On many occasions over the years, you found your mother in circumstances where she was non-responsive and regularly you had to call paramedics for help.
35Your mother used marijuana in front of you and your sister. She would coach you to deny her drug use if asked about it by the school or by DHHS. You instructed Mr Chisholm your mother sold drugs to get by and would get you to transport marijuana for her, using you bicycle, starting at a young age. Your involvement in her drug trafficking activities continued and escalated as you got older.
36Your mother had a stroke when you around eight years old. You found after this her memory was diminished. You say that you missed a lot of school during this period. At school you regularly got in fights, which had a negative impact on your academic progress and your social development. When you were at school you struggled to concentrate.
37The Department of Health and Human Services became involved with your family after a notification from your school because of the observation of some bruising on you, but the extent of their involvement is not clear.
38
Your own drug use started with marijuana at 16 years of age. At times you smoked at home with your mother. You left school in Year 11 because of the lack of attendance, drug use, and your mother’s health. Later you
twice attempted without success to complete Year 11.
39You say you used Ice for the first time at the age of 17. When you were 19 your mother’s health declined further. She moved in with a friend for a while and then during this period she died. She had gone into a coma and as next of kin you made the end-of-life decision to turn off her life support. Her death had a significant impact on you.
40After your mother died your methylamphetamine use increased. You felt at home in the drug using world. You say that whenever your personal circumstances became difficult through homelessness or unemployment or a general lack of purpose, you would revert to selling drugs.
41Based on your personal history, Mr Chisholm submitted that the principles in the case of Bugmy v The Queen [2013] HCA 37 are relevant and moderate to a degree, the weight to be given to general deterrence, as well as serving to reduce your moral culpability to an extent. Mr Batten, the prosecutor, accepted those principles have some applicability.
42Accepting as I do, the history set out by Mr Chisholm, it is, in my opinion, appropriate to moderate general deterrence to a degree. We are all a product of our formative experiences and yours involved the normalisation of drug use and drug trafficking and an unsatisfactory environment for positive personal development. In the circumstances, it is not surprising that you firstly turned to drug use and that your immersion in drug culture has also included repeated offences of trafficking. Your background serves to explain to an extent your prior convictions. However, as alluded to by Mr Chisholm on the plea, the other side of the Bugmy principles is a corresponding elevation of community protection in importance in the formulation of the sentence. This is so because the damage done by your upbringing is likely to provide an impediment to rehabilitation.
43As I have said, you have a significant criminal history and a history for selling drugs. This would ordinarily be a reason to assess your moral culpability as high; however, in light of your very difficult personal history, I have moderated that assessment and also the weight to be accorded to general deterrence. That said, there is no suggestion you do not understand the seriousness and the wrongfulness of your repeated trafficking activities, and it is plain you were motivated by profit. General deterrence remains of high importance and your moral culpability remains significant. Specific deterrence as well remains important. It is not suggested that you do not have the capacity to understand that continued offending of the type involved in this case will be met with substantial sentences of imprisonment.
Plea of guilty
44You pleaded guilty at the second committal mention. I accept this as a plea at the earliest opportunity. I accept your plea shows an acceptance and responsibility for the wrongfulness of your actions and a willingness to facilitate the course of justice and some level of remorse for your offending.
45
I give you credit for the utilitarian value of your plea. You avoided a contested committal and a jury trial. The utilitarian value of your plea is heightened in the current environment where the court faces a significant backlog of trials due to the suspension of jury trials during the pandemic. This increased utilitarian value of a guilty plea was recognised by the Court of Appeal in the decision of
Worboyes v The Queen[2021] VSCA 169. You must receive a significant sentencing discount for your guilty plea.
Current circumstances
46
Turning to your current circumstances, I have received a letter in support from your partner at the time you were remanded, Ms Stephanie Ellis. Ms Ellis says she has known you for five years. You met through mutual friends. She got on well with you from beginning and a relationship developed. She confirms what I have been told on the plea, that after you were remanded in custody she gave birth to a boy, Aydin, who is your son. He is now approximately
four months old. Ms Ellis refers to your difficult upbringing and your, ‘recurring struggles with drug addiction’. She says the birth of your son has given you, ‘something to live for’, and motivation to be a better person. She says that you do not want your son to grow up like you did. She believes in your potential and your desire to be a good parent.
47I am told that even though on your last sentence you were not granted parole, you nonetheless want the support that parole supervision can provide.
48After being remanded in custody you spent five days in police cells before arriving at Port Phillip Prison, where you stayed for four weeks. There you had a job in the kitchens.
49Since then, you have been at Fulham Prison, where you have a job in maintenance.
50Your visits with Ms Ellis, the mother of your child, have been limited, apparently because of intervention orders.
51
At Fulham Prison you have sought counselling. You also see the
psychiatric nurse regularly. In those sessions you have been working through issues arising from your upbringing.
52With the counsellor you are undertaking Cognitive Behavioural Therapy, which you understand can take several years. You hope it will put you in a good position to succeed on parole if it is granted.
53You say that it was confronting to find out that you had become a father after being remanded. Mr Chisholm, in his submission, echoed Ms Ellis’ sentiments and submitted that you, ‘hate yourself’, for putting your child in the sort of situation you grew up with and you do not want this for your child.
Prospects of rehabilitation
54
Balancing your substantial prior convictions and the gravity of the offending against this change in your circumstances, I take, in the end, a guarded view of your prospects of rehabilitation. However, you are still a young man at just
26 years old and some optimism for your rehabilitation is realistic. You seem intelligent enough and you have a level of insight into your criminal behaviour and the problems you must deal with to lead a productive life and achieve your ambition of providing a role model for your son. This would be a significant achievement for you.
Conditions in custody
55I take into account the ongoing impact of the COVID-19 pandemic on correctional services and that you have spent the entirety of your remand period in this matter in the restricted conditions brought on by the crisis. This has included the suspension of personal visits, reduced time out of cells, reduced availability of the delivery of property and reduced courses and work.
56The current conditions in custody make imprisonment more onerous for you, and this has been the case during your remand period.
57I am also satisfied that this sentence I impose will weigh heavily on you in circumstances where your son was born after you were remanded in custody, and you will not be a part of his life while you are in custody.
Totality – concurrency and cumulation
58
The totality principle requires that the overall sentence I impose must be just and proportionate to the totality of your offending. To give effect to this principle I will impose significant concurrency between the individual sentences. The proceeds of crime offence relates to your involvement in drug trafficking, and neither party took issue with this, and I have had regard to the presence of such a significant amount of money in forming the view that the context of the trafficking was part of an ongoing business. I must avoid double punishment.
I propose to order full concurrency in respect of that charge.
59The assault offence against Officer Collings was far from insignificant, and this conduct towards a police officer doing his duty on behalf of the community must be met with a measure of cumulation.
60
The purposes of sentencing in this case, as I have outlined, include
general deterrence, specific deterrence, which is important given your
prior convictions, denunciation, just punishment and community protection, which was accepted on the plea as a relevant sentencing consideration in your circumstances. I must, though, have regard to your rehabilitation and your ultimate reintegration into the community. The non-parole period is the
minimum term justice requires an offender to serve before becoming eligible for release on parole. In fixing the non-parole period I have had regard to the mitigating features that I have outlined in this sentence, including your current circumstances and motivation to rehabilitate, and become a positive father to your son. That said, the non-parole period cannot be fixed at a level which erodes the sentencing consideration of general deterrence.
61Taking all these matters into account and balancing the seriousness of your offences against the mitigating factors, I sentence you as follows:
·In relation to Charge 1, trafficking in a commercial quantity of methylamphetamine I sentence you to a period of imprisonment of
four years and 10 months;·In relation to Charge 2, knowingly dealing with the proceeds of crime, I sentence you to period of imprisonment of two years;
·In relation to Charge 3, assault emergency worker on duty, I sentence you a period of imprisonment of six months;
·In relation to Charge 4, resist emergency worker on duty, two months;
·In relation to the Summary offences of unlicensed driving, one month;
·In relation to using an unregistered motor vehicle, I form the view that there is no point to fining you in circumstances where you will be imprisoned for a number of years, so I convict and discharge you in respect of that;
·In relation to using that fraudulent number plate, 14 days'
imprisonment.
I order that four months of the sentence on Charge 3 be made cumulative with the base sentence of Charge 1. That makes a total effective sentence of
five years and two months.62I fix the non-parole period in this case at three years and four months' imprisonment.
63Pursuant to s 6AAA of the Sentencing Act, I indicate that but for your pleas of the guilty I would have imposed a sentence of eight years and four months with a non-parole period of five years and 10 months.
64Pursuant to s 18 of the Sentencing Act I declare 177 days as
pre-sentence detention to be deducted administratively from the sentence that I have imposed.65I will just check, 177 is correct, is it, or is it 178?
66MS WALTER: I have 178, Your Honour.
67HIS HONOUR: All right, of course, a day has gone by, 178 days.
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