Director of Public Prosecutions v Pye

[2014] VCC 1595

IN THE COUNTY COURT OF VICTORIA Revised
(Not) Restricted
Suitable for Publication

AT LATROBE VALLEY
CRIMINAL JURISDICTION

CR 13-00455/6

DIRECTOR OF PUBLIC PROSECUTIONS

v

JOSHUA DAVID PYE

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Latrobe Valley
DATE OF HEARING:
DATE OF SENTENCE:	23 September 2014
CASE MAY BE CITED AS:	DPP v Pye
MEDIUM NEUTRAL CITATION:	[2014] VCC 1595

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director	Mr D. O'Doherty
For the Accused	Mr P. Allen

HIS HONOUR: 

1Joshua David Pye, you have pleaded guilty to three charges of trafficking a drug of dependence, two of those being cannabis, and one charge of trafficking in not less than a commercial quantity, that being methylamphetamine.

2You have pleaded guilty to a settled indictment and must get the benefit of that.  Insofar as remorse is concerned, it is difficult to assess in your situation, I will give you the benefit of the doubt in regard to that.  I will be giving you the benefit of the doubt in regard to a number of matters.

3You certainly get the utilitarian benefit of that plea of guilty, as it has advanced the course of justice and saved the need for a trial.  Of some importance is, in the overall situation, that you made full admissions to police when interviewed and it seems to me that it would have been very difficult, indeed, for the Crown to actually prove beyond reasonable doubt, a commercial quantity without your admissions.  Those matters all go in you favour

4You have only one relevant prior finding of guilt, which was for the possession of cannabis, and, indeed, that would tend to support your version of events that you were heavily addicted to it.  As I said, you are 30 years of age.

5Firstly, pursuant to 464ZF of the Crimes Act, I make an order for a saliva sample for DNA purposes.  That order being made, I must advise you that if you refuse to provide a sample to police, they can use reasonable to take it from you.

6There has been now a delay of some two years in relation to this matter, and obviously I have to take that delay into account.  It was a matter which I clearly understand, because the nature of it, took a fair degree of resolving, but nevertheless, it is now two years down the track and a number of things have occurred since then.

7Insofar as the offending is concerned, because of the lengthy nature of the Crown opening, I do not propose to summarise it.  I will simply annex the Crown opening to these, my sentencing remarks.

8What it involves is a number of TIs and other forms of surveillance, whereby you were discovered trafficking drugs.  On 29 March, you were arrested.  You told police that on that day, you picked two pounds of pot in two sealed bags in a black plastic bag from an address in Hampton Park, from a female you knew as "Nor".  Each sealed bag had cost you $3,400.

9You had been selling marijuana for at least 12 months, and you were going to sell it in big quantities, "bigger the better."  You would profit around $300 per pound.  You told them that you would do this, that is buying and selling in a one to two week period, you might drop out for three weeks and then could come back to it.  You said it was roughly an average two pounds per week and a fortnight period for that 12 months.  Customers would contact you via phone.  That gives rise to trafficking in cannabis simpliciter.

10Insofar as methylamphetamine was concerned, you told police that you had been selling it, nothing over seven grams at a time, once to twice a fortnight, for maybe three months.  You sold it for $900 a quarter, you said for the price that it cost you.  You said you didn't use speed, you said you smoked pot every day, you said that you were doing favours for people.  The process was the same.  You would come to Melbourne to the same place to collect and whatever you got, you would then sell.

11After you were being interviewed, police then executed a warrant at your premises where they found 357.5 grams of mixture containing methylamphetamine.  You were then taken to the Sale police station where the interview commenced again.  You said that the amphetamine, which was roughly ten ounces, was in an unsealed Glad bag.  You said that you got it earlier in Hampton, and that was a couple of weeks ago.  You said that you had not paid for it at that time, but you had gone back there tonight and paid $18,000 cash, but still owed another $6,000.  You got speed off that source about four or five times over the last eight months in about the same quantity and the amount you had paid was the same.  You said that you then packaged it up for what people wanted and then got it distributed.  You sold an ounce for "two grand".  It was the same price, $24,000, each time.  You said that your partner would sometimes deliver it, that gives rise to the commercial quantity amphetamine trafficking.

12You were then, a couple of days later, released on bail.  On 22 June, you were arrested again.  On that occasion, the police found information which supported the view that you had been trafficking in each of those substances again.  I do not need to go through the details for each of those.  That is clear that that is where the two charges of trafficking on that day come into being.  In other words, you have been charged with very serious offending and within a month or so of being released, you were doing it again.

13This offending can only be regarded as very serious and calls for the application of general and specific deterrence, as well as denunciation and appropriate punishment.  The fact of the matter is that a custodial sentence of significant duration is the only option available and the arguments that were put to me were that you have now done slightly in excess of 18 months on remand, and that that would be sufficient.  The Crown submission was that, in all the circumstances, that was not sufficient.

14I first heard the plea on 9 July, and adjourned until yesterday so that further information could be obtained.  It had become apparent to me, during the plea, that certainly one and possibly two of the references that had been tendered on your behalf made little sense when viewed in the overall offending.  I do not know what is going on in the background Mr Pye, I really do not.  But I am very concerned as to the milieu in which you mix.  I am now told that your partner, Ms Dillon, who I gave a CCO to at the time back in July, has apparently been charged with possess and use either cannabis or amphetamine or both.  Back then I sentenced each of your co-accused to community corrections orders simpliciter.  They, of course, did not face any commercial quantity charges and parity has little part to play in this sentencing process.

15A very helpful outline of submissions was given to me by your counsel.  I have also received a report from a clinical psychologist, Mr Gault, and I have taken that into account.  Essentially what was put, is that after you were arrested the second time, you remained in custody for 18 and a half months.  It is clear from the material before me, that you used that time in prison wisely.  You appear to have kept your head down.  You have worked and have, essentially, detoxed from the use of cannabis.  You assert that you very rarely have used amphetamine, but at least with cannabis, that is the case.

16You have now been on bail for ten months.  During that period of time you have had or been under the care of a Dr Birrakare.  He has tested you for illicit substances on a number of occasions during that period of time.  Amphetamine does not stay in the body very long, but cannabis certainly does, and I can accept now having had the chance to view those urine screens over an extended period of time, that on the balance of probabilities, you have not been using.

17Your current circumstances are that you were bailed to live in an address in Maffra.  It is quite clear, on the material before me, that you spend a lot of time with your partner.  She has two children that you regard as your own, and I am told from the Bar table that she is currently pregnant.  What happens on the breach of her CCO remains to be seen.

18I was told, and there was no argument from the other end of the Bar table, that there had been a number of incidents over the last period of time, causing one to have concern.  The psychologist report indicates that he thinks that one of the risk factors with you is having a spouse or partner who uses.  That is clearly the case with you.  You were also found in a car with very little excuse in Southbank, half past nine at night, claiming you did not know who the driver was and it was a driver who had significant drug priors.  You were present at your partner's house when police raided it, recently and found the drugs and you apparently ran.  I do not treat that as consciousness of guilt but it is of concern.  With more recent times, you were found in Warragul at half past twelve in the morning, with $2,500 cash in a motor vehicle.  You have given a couple of explanations of that, the last one apparently being that you were going to go to prostitutes with the money, which I am now told was from the sale of tyre rims that had been authorised or whatever it might be.

19Those matters do give me real concern, Mr Pye, as to the validity of what I have been told, and the genuineness of what I have been told.  You are now 30, so your childhood is of little significance in what has taken place here.  What is encouraging, is that you have got to the age of 30, with virtually no prior convictions and that is comforting in terms of the prospects of rehabilitation.

20You have used your time in custody and on bail well and according to the reference that I have, you have an excellent work history.  Again, the reference that was tendered on the first occasion, in the case that your employer was shocked to learn of your activities outside of work.  How far outside of work your activities were, after what I heard yesterday, I am not too sure.  But in any event, you have worked since you left school and that also gives me encouragement.  I accept that over the last period of time, you have been working on a six to seven day a week basis and that is of real significance.

21The position is that I have had you assessed, from back in July, for a community corrections order.  Yours is a very difficult sentencing situation.  I accept the Crown's submission that 18 months is insufficient punishment.  It then becomes the problem as to what I do next.  I have given the matter anxious consideration and what I am going to offer is the 549 days that has been served, impose that as an aggregate sentence, together with, if you agree, a three year community corrections order, with conviction, with 500 work hours.

22Now, that of course would not occur unless you agree.  In the overall circumstances here, I make it clear that I would not even be considering such a disposition if you had not even done the 18 months.  I have indicated during the course of the plea, if this had started from scratch, with you having no time served and me not having the very difficult situation that most judges really dislike of sending someone back who has done a significant period of time, you would be getting more on the bottom than the 18 months, I can assure you of that.

23If you agree to be on that community corrections order, and in your situation, I see no point in having treatments or anything else, it would just be supervision and the 500 hours.  I tell you this, I have real concerns about what I have been told in this matter.  Real concerns.  I have real concerns about the milieu in which you mix.  However, you are 30, you have no priors, you have not offended since and you have done 18 month.  But I tell you this, if you enter this community corrections order and you breach it by any offending of this nature, of course I will listen to arguments and matters that are put to me by counsel on that occasion, but that breach will have destroyed any confidence that I have in what I have been told and your capacity to rehabilitate.

24Accordingly, I tell you now, if you come back before me for drugs, breaching this community corrections order, I will give you five with a three.  That is what is going to happen.  Now I am telling you that so that if you cannot make this or I have been lied to, I will give you some extra gaol now.  It will not be that long, but I will give you a bit more right now.  Now you make up your mind, do you want to do the CCO and risk the five of the three.  All right.

25Do you want to talk to him?

26MR ALLEN:  Yes, may I approach?

27HIS HONOUR:  Yes.  You have not been here, I appreciate that.

28MR ALLEN:  Yes, I am just deciding.

29HIS HONOUR:  Yes, yes, yes.

30MR ALLEN:  I understand.  Your Honour, my client instructs that he would like to accept the CCO.

31HIS HONOUR:  All right.

32The prospects of your rehabilitation, Mr Pye, are entirely up to yourself.  You have got to 30 without offending.  If you can keep yourself clear of the drug scenario, there is no reason you should offend again.  This offending occurred, as I say, some two years ago.  Again, I make it very clear to you, that if you were to be charged or convicted of trafficking in ice in this area, with the way things stand at the present time, I think you have got a rough idea of what the sentence would be for the breaching charge, let alone what I would give you.

33All right, it is destroying a lot of people, that drug, and if you do not like it and you are not using it yourself, you have got no reason to traffic it.

34All right, you can sign the CCO.

35All right, on the four charges, sentence to be imprisonment for 549 days.  I direct that 549 days be reckoned as having been served under this sentence and all the charges, there will then be the community corrections order in the terms that I have announced.  I will sign a 464 in chambers.

36MR O'DOHERTY:  Thank you, Your Honour.

37MR ALLEN:  As Your Honour pleases.

38HIS HONOUR:  All right, what I will also be doing in this, given how this matter unfolded, I will be requesting that the transcript of yesterday's plea be provided as well.  We have already go the first day's, and that my sentencing remarks will incorporate everything that has been said this morning.

39MR O'DOHERTY:  Thank you.

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