Director of Public Prosecutions v Reilly
[2021] VCC 751
•9 June 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
CR-21-00031
Indictment No. L11383328
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ALEXANDER REILLY |
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JUDGE: | HIS HONOUR JUDGE HANNEBERY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 26 May 2021 | |
DATE OF SENTENCE: | 9 June 2021 | |
CASE MAY BE CITED AS: | DPP v Reilly | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 751 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Trafficking in a drug of dependence - prohibited person possess a firearm
Legislation Cited: Sentencing Act 1991 (Vic)
Cases Cited:Acciarito v The Queen [2019] VSCA 264; R v Verdins & Ors (2007) 16 VR 269; DPP vNguyen [2017] VCC 1893; Bosa v R [2018] VSCA 97
Sentence: Two years and six months' imprisonment, minimum of one year and nine months' imprisonment before eligible for parole.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms M. Zammit | Solicitor for the Director of Public Prosecutions |
| For the Accused | Ms P. Marcou | Markotich Lawyers |
HIS HONOUR:
Introduction
1Alexander Reilly, on Indictment L11383328 you have pleaded guilty to four charges being:
(a) Charges 1 and 4: trafficking in a drug of dependence pursuant to s 71AC(1) of the Drugs, Poisons and Controlled Substances Act 1981, the maximum penalty of which is 15 years' imprisonment;
(b) Charge 2: possession of a drug of dependence pursuant to s 73(1) of the Drugs, Poisons and Controlled Substances Act 1981, the maximum penalty of which is one year imprisonment if not for any purposes related to trafficking; and
(c) Charge 3: prohibited person possess a firearm pursuant to s 5(1) of the Firearms Act 1996, the maximum penalty of which is 10 years' imprisonment.
2Pursuant to ss 145 and 242 of the Criminal Procedure Act 2009, you also consented to me hearing and pleaded guilty to three related summary charges being:
(a) Summary Charge 10: Deal with property suspected to be proceeds of crime pursuant to s 195 of the Crimes Act 1958, the maximum penalty of which is two years' imprisonment;
(b) Summary Charge 25: Possess cartridge ammunition pursuant to s 124(1) of the Firearms Act 1996, the maximum penalty of which is 40 penalty units; and
(c) Summary Charge 28: Possess prohibited weapon pursuant to s 5AA of the Control of Weapons Act 1990, the maximum penalty of which is two years' imprisonment.
Summary of offending
3The circumstances of this offending were outlined in the Summary of Prosecution Opening[1] which was not the subject of any challenge. For present purposes however, I will provide a somewhat abbreviated version of that summary of the offences for which you are to be sentenced.
[1]Exhibit P1.
4In April 2020, the police began an investigation into alleged drug trafficking undertaken by you. As part of this investigation you sold methylamphetamine to undercover operatives on three separate occasions in May 2020.
5In June 2020, you exchanged a series of messages via an encrypted messaging application with these undercover operatives and arranged to sell them 28 grams of methylamphetamine for $8500. You told the undercover operatives that you were staying at the Oaks Melbourne in Lonsdale Street and you arranged to meet the operatives near that location.
6At approximately 3 pm that day you left Oaks Melbourne and attended the meeting place where you were arrested. At the time of the arrest you were found in possession of 27.5 grams of methylamphetamine and $1,045.60 in cash, as well as an access card to Oaks Melbourne.
7A search warrant was subsequently executed on Oaks Melbourne at the apartment you were residing. The result of the search finds you in possession of a total of 44.8 grams of methylamphetamine, 843.8 grams of 1,4-Butanediol, various prescription drugs, one black knuckle duster, over $12,000 in cash, a .22 rimfire homemade action revolver, and 32 x .22 calibre revolver ammunition.
8You were conveyed to the Melbourne West Police Station for the purpose of conducting a record of interview. During the record of interview you:
(a) stated that you were living in Abbotsford;
(b) confirmed your mobile phone number;
(c) believed that you had been arrested because of what someone else told police;
(d) stated that the $1045.60 located on you at the time of your arrest was Centrelink money; and
(e) stated you did not hold a firearm licence.
9You made no further comment and were subsequently remanded into custody.
Nature of the Charges and Seriousness of Offending
10
The offence of trafficking in a drug of dependence is inherently serious. Charge 1, trafficking of methylamphetamine, represents a serious example of the offence. The offence covers a period of 35 days from 5 May to 9 June 2020. It encompasses direct sales to the undercover operatives on three occasions, an offer to sell
28 grams of methylamphetamine for $8500, and your possession with the intention of future sale of 44.8 grams of methylamphetamine.
11At the time of the offending, and for a substantial time preceding that offending, you were someone whose own drug use was endemic. The trafficking encompassed by Charge 1 did, however, exceed the levels that might be reasonably explained purely as support for your own habit. Whilst I accept that that did form part of the motivation for the offending, it cannot be said to be the sole explanation for your conduct.
12Your offending is clearly more serious than what might be called street level trafficking.
13You told the undercover operatives that you usually do not, 'Require any notice to supply methylamphetamine, however would like a day or so notice at the moment due to supply issues'.
14Charge 4, trafficking in Butanediol (GHB) is comprised solely of your possession for the purposes of sale of 843.8 grams of the substance on 9 June 2020. Whilst the volume of substance the subject of this charge is by weight substantially greater than that dealt with under Charge 1, I am conscious that the relative commercial quantities of the two drugs greatly differ. The commercial quantity designated for methylamphetamine is 250 grams of mixed substance, whilst for 1, 4-Butanediol it is 2 kilograms of mixed substance. Having regard for the absence of either sales or offers for sale in relation to this charge, and the different treatment given to this substance in the legislation, I regard Charge 4 is a somewhat lesser example of trafficking than Charge 1.
15Charge 3, being a prohibited person in possession of a firearm, is constituted by your possession of a home-made action revolver in the living room of the Lonsdale Street apartment. The fact of the weapon being effectively inoperable is a relevant matter to take into account. The inherent danger posed by the weapon was much reduced by virtue of its problems discharging. There is no evidence that the weapon had been used to commit any criminal activity. There is no evidence that the weapon was used in furtherance of your drug trafficking. I do not regard the presence of that weapon as being an aggravating feature of either trafficking charge.
16However, it is clear that this weapon was manufactured with the intention that it be operational. It was not a toy gun. Neither was there any evidence that you were unaware of its inability to function. The fact of it being located coincident with the location of ammunition for a .22 weapon would suggest the opposite.
17The charge is more serious for the fact you possessed that weapon at the same time as you were trafficking drugs. As was noted in Acciarito,[2] the possession of a weapon whilst in the course of committing other criminal activity, but without the actual or threatened use of the weapon, means that the offence falls towards the higher end of the spectrum. That you possessed that weapon, although there was no evidence of its use or threat to use, was more serious because you possessed it while carrying out the drug trafficking the subject of Charges 1 and 4.
[2]Acciarito v The Queen [2019] VSCA 264 (‘Acciarito’).
18Charge 2 is in effect a rolled-up charge dealing with the possession of a variety of prescription drugs located at the apartment for which you did not have a prescription, plus a minute amount of cannabis.
19Summary Charge 10, the uplifted summary charge of dealing with property suspected to be proceeds of crime, relates to property including more than $12,000 in cash. Whilst that is a substantial amount of money, and the suspicion attaching to its derivation is unavoidable given the location of its possession, the offence itself does not involve proof that the property was in fact proceeds of crime. Neither does the offence impute any subjective knowledge or recklessness as to the status of that money. Both of these matters limit the culpability attached to that offence.
20Summary Charge 25 relates to the possession of the .22 cartridge ammunition. Summary Charge 28 relates to the possession of a prohibited weapon, namely knuckle dusters.
21Whilst in my view terms of imprisonment are appropriate for Charges 1, 3, 4, and Summary Charge 10, Charge 2 and Summary Charge 25, namely possess cartridge ammunition, and Summary Charge 28, possession of the knuckle duster, can be dealt with by way of fine.
Personal circumstances
22Alexander Reilly, you are 29 years old and were born in Wellington, New Zealand. You are the middle child of all three brothers born to Craig and Jane Reilly. Your family moved to Melbourne when you were four and moved back to New Zealand when you were nine. Your parents have resided there permanently since 2001.
23Your mother reports in her reference tendered on the plea that you come from a 'Loving and caring extended family'.[3] It is evident from both the reference material and from having your family present via video throughout the plea that you still enjoy their support.
[3]Exhibit D4.
24Whilst your family environment was a loving one, there have been challenges for you. Your mother was diagnosed with breast cancer when you were nine and went through an extended period of treatment. She has also been diagnosed with Parkinson’s disease and I accept that these events have been distressing for you.
25You had the good fortune of having what your mother describes as a 'privileged background'. You attended both private and public secondary schools in Auckland. Your education was impacted by a diagnosis of dyslexia. Despite this difficulty, you achieved a Year 13 level of education in New Zealand.
26You relocated to Melbourne when you were 19 years of age with your then girlfriend. This relationship ended shortly after arriving in Melbourne. You remained in Melbourne for approximately four years before returning to New Zealand for one year when aged 23. You returned to Melbourne again and have resided in Australia since.
27By way of employment you have held full-time positions in hospitality and sales roles since leaving school. You have studied hospitality management. You have worked in a Medibank call centre.
28The psychological report from Mr Mathew Staios[4] tendered on the plea notes that you have a history of depression and anxiety dating back to the time you were 18. These issues have been treated with antidepressants previously, but your compliance has been poor. You reported to Mr Staios that you sought out psychological assistance two years ago and engaged in 10 sessions at that time.
[4]Exhibit D3.
29You told Mr Staios that you were a regular cannabis user between the ages of 15 and 26, with your usage being approximately 1 gram per day. You commenced using methamphetamine at age 22 and by age 26 you were using 3 grams weekly and considered yourself addicted. You also stated that you were a daily user of GHB and a periodic user of benzodiazepines. Your substance abuse issues were clearly acute and had not been treated by way of any counselling prior to your current period of incarceration.
30Your substance abuse resulted in you being placed in a mental health unit whilst in custody at Ravenhall prison for a period of five weeks because of a drug induced psychosis. Since that psychosis has been stabilised by treatment, including a number of different medications, you have now been in the mainstream population of the prison for some eight months with what Mr Staios describes as 'a significant stabilisation in his overall mental state with no symptoms of psychosis noted'.
31He describes you as falling within the low average to average range of intellectual functioning. Mr Staios describes the relationship between your psychological functioning and the current offending to have 'arisen in the context of early childhood instability and a familial disposition towards depression, leading to substance abuse as a means of coping and escapism'. He says that you have a history of chronic and poorly managed symptoms of depression, against a background of significant substance use.
32He opines that, 'Had he been under the regular care of mental health providers in the community to manage his needs prior to his offending, it is possible that he may have refrained from offending'. He notes that the mental health treatment you have received since being in custody has seen your mental state significantly stabilise.
33The observations made in the psychological material place the matters contained in your prior criminal history in some context. You had no dealings whatsoever with the criminal justice system until 2016, when you were aged 23. The last five years, however, reveal that you have appeared before the courts on nine separate occasions. The contribution that your mental health and substance abuse issues have made to this record is self-evident. I note that as far back as November 2017 the court record notes an intention that you return to New Zealand to your family to pursue counselling for drug abuse. A similar intention has been expressed in the course of this plea, and it is to be hoped that upon release on this occasion you fulfil that intention and accept the ongoing support offered to you by your family.
34You have previously been placed on a Community Corrections Order with conditions including mental health assessment and treatment, and treatment for drug abuse or dependency.
35You served a period of imprisonment plus a 12 month Community Corrections Order in 2019 for offences including the possession of methylamphetamine. On that occasion the court noted one of your custody management issues to be withdrawal from drug addiction.
36At the time you committed the offences on the current indictment you were subject to that Community Corrections Order, which had already been varied on one occasion. Apart from breaching that order with further offending, the contravention of Community Corrections Order report dated 28 August 2020 reveals that you had other compliance issues.[5] These seem to have been sourced in your inability to refrain from drug use during the period of that order. This is consistent with the other material presented on your plea and highlights that your prospects of rehabilitation rest very largely on your ability to engage successfully with drug rehabilitation services over a substantial period of time.
[5]Exhibit P2.
37You now have 14 prior convictions for possessing a drug of dependence, with such drugs including methamphetamines, GHB and alprazolam. In addition, you have convictions for possessing controlled and prohibited weapons and possessing property suspected of being the proceeds of crime.
Application of Verdins[6] Principles
[6]R vVerdins & Ors (2007) 16 VR 269 (‘Verdins’).
38It has been submitted on your behalf that the available material means that all six limbs of Verdins are applicable in mitigation of sentence. As a matter in mitigation, it is for the defence to establish this on the balance of probabilities. The evidentiary basis for the submission was said to be the findings in the report of Mr Staios that you were suffering from depression. No other material separate to that report was relied upon.
39I have considered the report of Mr Staios. Mr Staios is a suitably qualified expert who has undertaken his task with skill and professionalism. I have no difficulty in accepting his professional opinions for the purpose of this sentence. However, upon analysis, I do not consider that the report provides support for the proposition that any of the limbs of Verdins are enlivened in this case, save for some limited weight to be placed on the fact that your depression may make imprisonment to some extent more burdensome than for someone not suffering with that illness.
40Mr Staios concludes that your mental health issues, and the lack of appropriate treatment that you have had for them, has been a substantial factor leading you into the substance abuse problems from which you clearly have suffered. He does not contend that there is a direct causal connection between his diagnosis of depression and the commission of the offences before the court.
41Nothing in the psychological material suggests that your mental health diagnoses mean that the moral culpability attaching to your drug trafficking and possession of a firearm ought to be moderated. The conduct comprising those charges was planned and deliberate. The trafficking was for financial gain. Your actions were designed to disburse dangerous drugs into the broader community. You committed those actions, very well aware of the damage these very substances had done in your own life. Your culpability for that conduct is very high.
42In the circumstances of this case it has not been suggested that a sentence other than an immediate period of imprisonment was appropriate. There is then not basis to consider whether your depression diagnosis would have a bearing on the type of sentence imposed.
43I do not regard anything in the psychological material as justifying any moderation in general deterrence, nor of making specific deterrence a less prominent feature in the circumstances. There is nothing in the material to suggest that your diagnosis renders you an inappropriate vehicle for deterrence.
44Based on the available material, it is also difficult to determine the basis upon which your diagnosis would make imprisonment more burdensome for you than for someone without such a condition. I have taken into account that you have endured a significant period of time in custody in a mental health unit. The causes of this, however, seem to be more directly related to your withdrawal from substances rather than as a direct result of the diagnosis of depression. However, having regard to your broader history of mental health issues I am prepared on balance to place some limited weight on your depression as somewhat increasing the burden of imprisonment.
45
It cannot be said, based on the material, that imprisonment presents a serious risk of significant adverse impact on your mental health. The available material suggests that it has been your non-compliance with treatments outside of custody that have contributed to your substance abuse issues. Based on the report of
Mr Staios, your mental health has in fact stabilised whilst in custody.
46As such, in my view five of the six considerations in Verdins are not applicable in mitigation of sentence in this case, and the fifth limb, namely the increased burden of imprisonment, has some limited weight.
47The matters revealed in the psychological report and other material are matters of relevance to sentencing in that they provide insight into the issues that have led you to drug abuse and escalating offending over a relatively condensed period since 2016. These are matters to be taken into account as part of your general background that I must consider.
Plea of Guilty
48You have pleaded guilty to the offences comprising the indictment and the uplifted summary offences at a time I consider to be early in the proceedings. I am instructed that you made an offer to plead guilty on 23 December 2020 and that this was accepted by the prosecution on 4 January 2021. By your plea you have saved the time and resources that would otherwise have been expended on contested proceedings. Your plea of guilty has significant utilitarian value, especially at a time when pandemic restrictions on court listings have resulted in a substantial backlog of cases, you are entitled to a significant discount on sentence as a result of your plea.
49I also accept that your plea, in combination with the direct expressions of contrition that you have made to Mr Staios, shows that you have a substantial level of remorse for your offending.
Prospects of Rehabilitation
50It is apparent from the psychological report and your criminal record, that there are significant challenges you face to successfully rehabilitate. Much will depend upon your ability to successfully address your substance abuse and addiction issues, and the mental health issues that have fuelled them. Having regard for the frequency with which you have come to court in recent years, and your inability to take advantage of those rehabilitation opportunities provided by the court, some caution must be expressed about your prospects of rehabilitation at this time.
51That said, you have pleaded guilty. You have expressed remorse and demonstrated some insight in your dealings with Mr Staios. You have responded well in custody to treatment of a nature that you have not had before. There is material before the court, being Exhibit D5, the letter from Ms Lamitta Lakkis with certificates of course completion, and Exhibit D6, the email from Antoinette De Carolis, that confirms that you have engaged in educational and rehabilitative activities whilst in custody.
52You have a supportive family who want you to return to New Zealand in order that they may assist in your recovery. There is a reasonable expectation that with the support of your family you will have access to appropriate services to foster your rehabilitation. Your criminal record covers a relatively short period. Prior to that, you had shown the capacity to retain employment, form a relationship, and engage successfully in society. You are by no means a youthful offender but at 29 years old you are still a young man.
53On balance, I regard your prospects of rehabilitation to be reasonable.
Impact of COVID-19 Pandemic
54You have already served a substantial period during which the prison environment has been subject to restrictions implemented because of the pandemic. Restrictions of this type will likely persist for some time into the future. I accept that being imprisoned at a time of pandemic might reasonably make you concerned for your own health, and that this, in combination with the pandemic restrictions currently in place, means that imprisonment is more burdensome now than it would be but for these matters.
Current Sentencing Practices
55I have had some regard for current sentencing practices. Counsel for the prosecution, Ms Zammit, referred me to the cases of Acciarito, DPP vNguyen[7] and Bosa v R.[8] She also referred me to some sentencing statistics for the offence of prohibited person possessing firearm as it related to the higher courts.
[7][2017] VCC 1893 (‘Nguyen’).
[8][2018] VSCA 97.
56Ms Marcou provided me with sentencing statistics relating to that offence as they related to matters heard in the Magistrates Court.
57Some care must be taken in the use of sentencing statistics. Whilst they are of some general use in providing a general guide as to how the offence has been dealt with by various courts in recent times, they do not reveal the particular circumstances pertaining to any individual case.
58Similarly, whilst the cases of Acciarito and Nguyen do share some similarities with the current case, there are also substantial dissimilarities. I intend to regard all this material as providing some general guideposts, but neither the statistics nor the cases provide a rigid blueprint simply to be adopted in this case.
Submissions on Sentence
59Your Counsel, Ms Marcou, submitted on your behalf that a period of imprisonment was appropriate, but that it ought that be of a length that enabled you to be released immediately having taken into account the pre-sentence detention already served. She submitted that such a disposition would enable your return to New Zealand to continue to pursue your rehabilitation with the support of your family. She submitted that the sentence should not create any impediment to your immediate return, and as such did she not contend that a Community Corrections Order as suggested by Mr Staios be implemented in addition to a period of imprisonment.
60Ms Zammit, on behalf of the prosecution, contended that only a total effective sentence that involved a head sentence and a non-parole period was open and appropriate in all the circumstances of the case.
Sentencing Principles
61I must impose a sentence that will deter others from similarly offending. Your criminal record means that there is also some need for specific deterrence. I must express denunciation for your conduct, protect the community, and impose a just punishment in all the circumstances.
62I must impose sentences that reflect the gravity and broader circumstances relevant to each individual charge. I must also structure the sentence in a way that means that the total effective sentence properly reflects the totality of matters before the court.
Sentence
63On Charge 1, trafficking in a drug of dependence, namely methylamphetamine, you are convicted and sentenced to two years' imprisonment.
64On Charge 2, possess a drug of dependence, you are convicted and fined $500.
65On Charge 3, prohibited person possess firearm, you are convicted and sentenced to 15 months' imprisonment.
66On Charge 4, trafficking in a drug of dependence, namely 1, 4-Butanediol, you are convicted and sentenced to nine months' imprisonment.
67On Summary Charge 10, deal with property suspected of being proceeds of crime, you are convicted and sentenced to two months' imprisonment.
68On Summary Charge 25, possess cartridge ammunition without a licence or permit, you are convicted and fined $250.
69On Summary Charge 28, possess prohibited weapon without exemption or approval, you are convicted and fined $250.
70I order that three months of the sentence imposed on Charge 3, and three months of the sentence imposed on Charge 4, be served cumulatively on each other and on the sentence imposed on Charge 1. The sentence of imprisonment on Summary Charge 10 is to be served concurrently.
71This makes for a total effective sentence of two years and six months' imprisonment. I order that you serve a minimum of one year and nine months' imprisonment before you become eligible for parole.
72I declare that 364 days of pre-sentence detention to be reckoned as already served.
73I declare pursuant to s 6AAA of the Sentencing Act 1991 that but for your plea of guilty I would have imposed a total effective sentence of three years and three months' imprisonment with a non-parole period of two years and six months.
74The prosecution made application for Disposal and Forfeiture Orders in relation to the firearm, various drugs and suspected stolen property, or suspected property of the proceeds of crime. There was no opposition raised by defence in relation these Applications and I make the Orders in the terms sought.
75Are there any further matters?
76MS ZAMMIT: No, Your Honour.
77MS MARCOU: No, Your Honour.
78HIS HONOUR: Thank you very much. Thank you both for your assistance. I will now adjourn the court.
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