Director of Public Prosecutions v Renard (a pseudonym)
[2022] VCC 1838
•24 October 2022
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| RAYMOND RENARD (A PSEUDONYM) |
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| JUDGE: | HIS HONOUR JUDGE HIGHAM |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 17 October 2022 |
| DATE OF SENTENCE: | 24 October 2022 |
| CASE MAY BE CITED AS: | DPP v Renard (a pseudonym) |
| MEDIUM NEUTRAL CITATION: | [2022] VCC 1838 |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – trafficking in a drug of dependence, commercial quantity – possession of a drug of dependence – knowingly deal with proceeds of crime – possess cartridge ammunition – plea of guilty – rehabilitation
Legislation Cited: Sentencing Act 1991 (Vic) ss 6AAA, 18(4), 18X(1), 18X(2)
Cases Cited: Gregory v The Queen [2017] VSCA 15
Sentence:Drug and Alcohol Treatment Order with a custodial part of 42 months
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr D. White | Office of Public Prosecutions |
| For the Accused | Mr L. Dean (17 October 2022) Ms E. Austin (24 October 2022) | Slades and Parsons Criminal Lawyers |
HIS HONOUR:
1Raymond Renard[1], you have pleaded guilty to:
· one charge of trafficking in a drug of dependence in a commercial quantity (Charge 1), for which the maximum penalty is a term of imprisonment of 25 years;
· one charge of possession of a drug of dependence (Charge 2), for which the maximum penalty is a term of imprisonment of five years;
· one charge of being a prohibited person possessing a firearm
(Charge 3), for which the maximum penalty is a term of imprisonment of 10 years; and· one charge of knowingly deal with proceeds of crime (Charge 4), for which the maximum penalty is a term of imprisonment of 15 years.
[1] A pseudonym.
2You have also pleaded guilty to a related summary charge of possessing cartridge ammunition (Summary Charge 5), for which the maximum penalty is 40 penalty units.
3Tendered as Exhibit 1 on the Determination Hearing was a Summary of Prosecution Opening, which set out the agreed facts of your offending. In brief, the circumstances of your offending are as follows.
4At approximately 4.00 pm on 26 October 2021, Victoria Police executed a search warrant at your residence at Docklands. You were at home but refused to open the door, causing police to force entry into the apartment. They were confronted by two large pit-bull dogs. You were in the hallway. A search of your person revealed a home-made, semi-automatic pistol concealed inside your underwear (Charge 3). The pistol was loaded with two rounds of ammunition. You provided verbal instructions to the officer to assist in unloading the firearm and you were then placed under arrest.
5Your partner, Ms Rebecca Smorgan[2], was also located in the apartment at the time of the search warrant. You were both escorted to the living room. You then told police there was a safe in the apartment with “about half a key” of drugs inside.
[2] A pseudonym.
6Police located the following items in their search of your apartment:
· 152 grams of methylamphetamine, analysed as 80.2% purity, located in a safe in the living room (Charge 1);
· various calibre ammunition in different locations around the apartment (Summary Charge 9), including rounds capable of discharge from the pistol located on your person;
· three zip lock bags containing a total of 15 grams of cannabis (Charge 2);
· two lines of cocaine (Charge 2);
· a zip lock bag containing 20.8 grams of mixed substance, analysed as containing less than 1% of cocaine (Charge 2);
· two zip lock bags containing a small quantity of heroin (Charge 2);
· various drug trafficking paraphernalia, including digital scales, a piece of paper with names and dollar values, a metal cash counter and seven mobile phones; and
· $6000 cash in denominations of $50 and $100 bills (Charge 4).
7You were transported to Footscray Police Station, where you participated in a Record of Interview. You made fulsome admissions to the offending, including that:
· the methylamphetamine was yours and you had intended to sell it;
· the firearm and ammunition were yours;
· the cannabis, cocaine and heroin located throughout the apartment belonged to you; and
· the cash found was “from the drugs”.
8You stated that you had declined to answer the door because you did not believe that the officers were, in fact, members of the police, and that upon hearing the knocking at the door you had taken the firearm from the bedside table and had placed it in your pants.
9Following the interview, you were remanded in custody where you have since remained.
10The matter resolved at the committal mention in February 2022 and proceeded by way of straight hand-up brief. On 2 September 2022, the matter was adjourned into the Drug and Alcohol Treatment Court (DATC) for a Determination Hearing, which was held on 17 October 2022. Yours was a plea at the earliest opportunity.
11Exhibit 3 on the Determination Hearing was a DATC Assessment Clinical Advisor Report authored by Ms Amy Lopez, dated 5 October 2022, with an addendum report dated 14 October 2022. Exhibit 4 was a DATC Case Management Assessment Report authored by Megan Kew, dated 3 October 2022. Also received was a report from Mr Geoffrey Cummins, consulting clinical and forensic Psychologist, dated 19 August 2022 (Exhibit 6KM), and your Criminal Record.
12Together these reports and records set out your personal narrative, your substance abuse and forensic history, and made comments upon your mental health. They identified your challenges and, relevantly, set out treatment pathways and recommendations.
13I turn now your personal circumstances.
14You were born in September 1993 and you are now 29 years of age. You were aged 28 at the time of this offending. You were born in Brazil and came with your family to Australia when you were five years old. Your parents provided you with a stable and loving family environment and as a child you were not exposed to any sexual or family violence, unlike so many people who come in front of me in this Court. You attended local schools, leaving in Year 10. You were an average student and you report being bullied, particularly at primary school, due to your lack of fluency in English. After school, you completed a short business administration course and were offered a traineeship from which you withdrew due to your increasing drug use.
15Your significant criminal history is an important part of the story of your life to date. I make clear, Mr Renard, that you do not fall to be sentenced again for matters in respect of which you have already been dealt with by the courts. However, your criminal record and your past on-order compliance, or non-compliance, does go to my assessment of the need for specific deterrence, your moral culpability, your prospects for rehabilitation, the need to protect the community from you, and the appropriateness of placing you upon a Drug and Alcohol Treatment Order (DATO)
16In 2013, you were placed upon a 12-month Community Corrections Order (CCO) for recklessly causing injury. In 2015, in breach of that CCO, you were dealt with for your part in the killing of an 18 year old boy, whom you grabbed and held by the shoulders whilst your then co-accused fatally stabbed him in the chest. All of you had been consuming considerable quantities of drugs during the course of that fateful night and your co-offender apparently believed that the unfortunate victim had stolen his heroin. You pleaded guilty to manslaughter, on the basis of aiding and abetting the unlawful and dangerous act of your co-offender, and you received a term of imprisonment of six years, with a Non-Parole Period of three years. I am told that you were a model prisoner and you obtained parole in July 2017.
17On parole you lived at home, completed further vocational training and gained employment as a sales executive in Information Technology. However, your mother was then diagnosed with cancer and she passed away in August 2019. The loss was clearly traumatic for you. Through the last months of her life you were, in effect, her primary carer. During this period, however, you became increasingly non-compliant with the conditions of your parole and on 19 September 2019 your parole was cancelled and you were returned to prison. You served the remainder of your sentence and were released on 4 December 2020.
18You then began online share trading and met your partner, Rebecca Smorgan, who was, at that time, also using various drugs of dependence. However, it seems that you lost your savings, you returned to drug use, this time adding heroin into the mix in addition to methamphetamine and GHB and, not being able to work, began to traffic drugs, both to support your own habit and your other financial needs. This is the context for your index offending, Mr Renard, but it does not excuse it.
19In September 2021, you were travelling in a vehicle in Footscray when the vehicle was fired upon. A bullet grazed your leg and you escaped serious injury. The quarrel was between an associate of yours, who was in the same vehicle, and others. You were an unintended victim. Whilst the quarrel was not yours, this incident does speak to the world that you were inhabiting at the time of your arrest for this offending but one month later. You told Ms Kew (Exhibit 4) that this experience informed your decision to obtain a firearm for protection, whilst you practised your trade.
20On the day of your arrest, you had learnt that you and your partner were expecting a child. Your daughter, Lila[3], whom you have not yet been able to hold, was born in June 2022. Once she knew she was pregnant, your partner
Ms Smorgan sought help from a women’s Alcohol and Other Drug (AOD) service. She is now abstinent and, consequently, Child Protection have ceased their involvement. You to date, however, have not engaged with any AOD treatment.[3] A pseudonym.
21In custody, you have provided six negative urine screens, you are receiving monthly buprenorphine, and you have completed various courses as have been available (see Exhibit 7KM). I do note, however, one concerning reportable incident in March 2022. You have the continued support of your father (Exhibit 8KM) and of your partner Ms Smorgan (Exhibit 9KM), with whom it is intended that you live. She makes clear to the Court that hers will be a drug-free home.
22You report using cannabis from the age of 14 and by the age of 19 you were using methamphetamine and GHB daily. At the time of your arrest, you reported to Ms Lopes (Exhibit 3) smoking between one and two points of methamphetamine and up to 1 gram of heroin a day, and frequent excessive alcohol use. You noted that at this time heroin was for you “the biggest issue”. Ms Lopes was of the opinion that you would have satisfied the diagnostic criteria for stimulant use disorder at the time of this offending. She was also satisfied that the treatment and supervision component of a DATO would be an appropriate intervention to address your substance use disorder, and that there were no significant concerns regarding your capacity to participate in such an Order. She also makes clear the expectation of you that you will remain on your current dosage of 128 mg of buprenorphine for a minimum of six months should you be placed on an Order.
23Ms Kew (Exhibit 4) approved you residing with Ms Smorgan. She highlighted concerns regarding your past engagement on parole, including failures to attend urine screens, and her concerns around the March incident when you were in custody. However she noted that:
“Despite the above, Mr [Renard] engaged well, and was polite and forthcoming throughout the assessment. He was able to demonstrate significant insight into his offending noting the decision-making that went into his trafficking and weapons [possession], as well as the lack of consequential thinking involved. Further, Mr [Renard] vocalised remorse for the victims, including the role he played in providing drugs to those with an active addiction and the toll this could take on them and their loved ones. He presents with motivation to be a more present father, partner, and son and redirect the trajectory of his life. This is supplemented by stable accommodation [That is with Ms Smorgan] albeit outside the catchment area, and prosocial support from family and friends.”
24Ms Kew's conclusion was that you were suitable for placement upon a DATO.
25The particular purposes of such an Order are[4]:
(a) to facilitate the rehabilitation of the participant offender by providing a judicially-supervised, therapeutically-oriented, integrated drug and alcohol treatment and supervision regime;
(b) to take account of the offender participant’s drug or alcohol dependency;
(c) to reduce the level of criminal activity associated with drug or alcohol dependency; and
(d) to reduce the offender participant’s health risks associated with drug or alcohol dependency.
[4] Sentencing Act 1991 (Vic), s 18X(1).
26Mr Dean, learned Counsel on your behalf, submitted that notwithstanding your evident challenges and the serious nature of these charges, such a disposition was an appropriate disposition in your circumstances and in the circumstances of this offending.
27Mr White, on behalf the Director, accepted that it was open to the Court to sentence you to a DATO, having regard to the applicable sentencing principles and all of the circumstances of this case.
28Mr Renard, those of us who sit in the criminal courts day after day are aware of one simple truth: that drugs are tearing out the heart of our community. Our community has lost, and continues to lose, a generation, and those who participate in this evil trade can expect to be severely punished if and when they come before the courts. For what might start out as a fun Saturday night, what might be regarded as recreational use that can be controlled, can quickly spiral into the horrors of addiction. In that addiction many lose everything, some their lives. Your own lived experience must show you how close you have come to losing everything. Since 2014, as Mr Dean pointed out, you have only been in the community for three years.
29The trafficking offence to which you have pleaded guilty is a serious offence, as is clear from the maximum penalty of 25 years’ imprisonment which Parliament has seen fit to impose, and quantity, role, the duration of the offending, and the motivation for the offender’s involvement in the offending, are all important indicators of offence seriousness.[5]
[5] See Gregory v The Queen [2017] VSCA 15, 2 [24].
30Charge 4 on this indictment, knowingly deal with the proceeds of crime, is likewise a serious offence.
31The law serves the community interest in maintaining proper systems for the licensing and regulation of the possession, use, disposal and registration of firearms. The law is designed to protect against the risks that come with the accumulation of weapons illegally and the difficulty then in the detection of those who choose to do so.
32I am quite satisfied on the evidence in front of me that you were selling methamphetamine to other wholesalers in 28 gram (one ounce) bags. The quantity of methamphetamine in your possession was two and a half times the statutory threshold for a commercial quantity and 25% of the large commercial quantity threshold, which carries a maximum penalty of life imprisonment.
33The apartment in which you were then living has been rightly described as a drug den, containing all the paraphernalia necessary for your trade: deal bags, scales, and a cash counter to count the proceeds. Further, hearing a knock at the door and unsure of the identity of the callers, you decided to take a loaded pistol from the drawer in the bedside table and have it on your person, knowing that there was a prospect of confrontation.
34I have considered whether it was open to me to conclude that you had, in fact, loaded the pistol using the ammunition that also was found in the bedside drawer prior to going to the door. I cannot be satisfied of that. However, you taking a loaded pistol from the bedside table and placing it down your pants before going to the door speaks compellingly of the seriousness of your offending and further, of your complete immersion in the drug world.
35You, Mr Renard made a deliberate and calculated choice to begin trafficking to support both your drug and other material needs. You made a deliberate and calculated choice to protect yourself against the dangers, real or imagined, in practising such a trade. In my view, your history demonstrates that your default position is to see life through the lens of your own needs and to give no thought as to how your actions impact on others. In my view, your moral culpability for this offending is high indeed.
36In sentencing you I must have regard to a range of different factors. I must give effect to the principle of general deterrence, that is to deter anyone else from behaving as you did, and to the principle of specific deterrence, that is deterring you from any repeat of such offending. I must consider the need to protect the community. I must express the community’s denunciation of your conduct. I must take into account the effects of your crimes upon the community. I must have regard to current sentencing practices and the maximum penalties imposed for the offences to which you have pleaded guilty. I must ensure, as far as possible, that you are rehabilitated and reintegrated into society. In short, I have to balance your personal circumstances with the circumstances of your offending and I must also pass no greater sentence than is necessary in all the circumstances of the case as I find them to be.
37These sentencing purposes are all still relevant in your case. Specific deterrence and the need to protect the community from your continued offending loom large, Mr Renard. However, if the Court is considering making a DATO then your rehabilitation and the protection of the community, achieved through your rehabilitation, have greater importance than those other sentencing purposes.[6]
[6] Sentencing Act 1991 (Vic), s 18X(2).
38After some considerable reflection, on all the material in front of me I am satisfied on the balance of probabilities that:
· you have a polysubstance dependency on heroin, methamphetamine and GHB;
· your dependency contributed to the commission of the offending in front of me;
· otherwise it would be appropriate to impose an immediate sentence of imprisonment of no more than four years; and
· you are not charged with offending, nor are you subject to any order, that would make you ineligible for a DATO.
39This is serious offending; offending which sits, as Mr White, Counsel for the Director, correctly submitted, towards the upper range of offending for which a DATO would be an appropriate disposition. No court likes guns and the DATC particularly does not like guns, because it suggests that you know where to find them.
40However, your early guilty plea brings with it the practical benefit of saving the community the time and the expense of a trial. It also indicates a willingness by you to facilitate the course of justice.
41Your plea also demands particular recognition in the time of the COVID pandemic.
42I also view your early plea of guilty and the remarkably and unusually full and frank admissions in your Record of Interview as an indicator of your genuine remorse.
43You have the support of your father. You have the support of a partner who has struggled herself with substance issues, but has managed to achieve abstinence. You have an infant child, Lila, who is approaching five months old and whom you have yet to physically hold in person. In all of this, Mr Renard, you are truly fortunate, as many people who come in front of this Court seeking to be placed on a DATO have both had a childhood of unimaginable trauma, but also stand alone because those who loved them have found it too painful to still be present in their lives.
44You told Ms Kew that you wished that you had never gotten into this lifestyle. I note this is your second dive into that lifestyle Mr Renard, but I give you the benefit of the doubt in that regard. You said that because of your choices you were not present for the pregnancy, nor for the birth of your young daughter. You have expressed a desire to be a more present father, to be a good partner and son to your family, as you are, in your succinct words, “over this shit.”
45Mr Renard, words are very easy. Actions are difficult, but I am prepared to provide you with an opportunity to put those words into actions.
46On Charge 2, you are convicted and sentenced to 30 days' imprisonment.
47On Charge 4, you are convicted and sentenced to 11 months' imprisonment, which I have expressed as 330 days.
48I make no order for cumulation, therefore in relation to those two matters you are sentenced to 330 days’ imprisonment, all of which is time served by way of Pre-Sentence Detention
49On Summary Charge 9, you are convicted and fined a sum of $1500.
50On Charges 1 and 3, you are convicted and placed upon a Drug and Alcohol Treatment Order (DATO).
51A DATO has two parts: the treatment and supervision part and the custodial part. The treatment and supervision part itself has two parts, which are as follows.
52The core conditions, which are that:
(a) you must not commit, whether in or outside of Victoria, another offence punishable on conviction by imprisonment during the time the Order is in force;
(b) you must attend Drug Court when required by the Court to do so;
(c) you must report to the Melbourne Drug Court House within two clear working days after the Order is imposed;
(d) you must report to and accept visits from members of the Drug Court;
(e) you must undergo treatment for alcohol and drug dependency as specified in the Order or by the Drug Court;
(f) you must give notice of any change of address, at least two clear working days before the change, to a specified Drug Court officer;
(g) you are not to leave Victoria without the permission of the Drug Court; and
(h) you are to obey all lawful instructions from the Drug Court Team.
53The core conditions will operate for 42 months, or until further order.
54The program conditions, which are that:
(a) you must submit for drug and alcohol testing, as directed;
(b) you must submit to detoxification or other treatments specified in the Order, as directed;
(c) you must attend vocational, educational and employment programs, as directed;
(d) you must submit to medical, psychiatric and psychological treatment, as directed;
(e) you must reside at [omitted], for the duration of the Order or until further Order;
(f) you are subject to a curfew that you must remain at [omitted] between the hours of 9:00 pm and 6:00 am, which is required until further order;
(g) you are to comply with an exclusion zone of the suburb of Docklands;
(h) you are not to use a drug of dependence without lawful authorisation;
(i) you are to abstain from alcohol;
(j) you must comply with the directions of the Victorian Child Protection Service;
(k) you must not attend Gaming Venues, including but not limited to Crown, TAB venues, RSLs or any other venue with slot machines;
(l) you must not gamble online or via any Smart Device;
(m) you must not access any online platform that enables or promotes investment or trading in futures, crypto currency, shares, IPOs or the like; and
(n) you are to do or not do anything else that the Drug Courts consider necessary or appropriate concerning:
(i)your drug and alcohol dependency;
(ii)and the personal factors that the Drug Court considers contributed to your criminal behaviour.
55These program conditions will operate for two years, or until further order.
56The custodial part of the DATO is the term of imprisonment that I would have imposed had I not placed you on a DATO, and it is a term of imprisonment of 42 months. That is made up as follows:
57On Charge 1, 32 months; and
58On Charge 3, 22 months.
59I order that 10 months of the sentence on Charge 3 run cumulative to the sentence on Charge 1. That makes a Total Effective Sentence (TES) of 42 months.
60Pursuant to s 18(4) of the Sentencing Act1991, I declare that you have served 33 days of Pre-Sentence Detention.
61Pursuant to s 6AAA, in a case such as this it is a bit of an artificial exercise to form a view as to the sentence to which you would have been sentenced had you not pleaded guilty, but doing my best: had you not pleaded guilty you would have been sentenced to a TES of four years and five months’ imprisonment, with a Non-Parole Period of three years and two months.
62Mr Renard, you are also giving consent to waive all rights of confidentiality of communications between the Drug Court and those who work for it, on the one part, and all treatment providers and all government agencies, authorities and departments, on the other part.
63Do you consent to being placed on a DATO, Mr Renard?
64OFFENDER: I do, absolutely.
65HIS HONOUR: Yes, I thought that might be your answer somehow.
66OFFENDER: Absolutely.
67HIS HONOUR: All right. What is going to happen, I am going to sign the Order, you are going to sanitise your hands and sign the Order.
68OFFENDER: Yeah.
69MR WHITE: Your Honour, perhaps just while that is happening, but could I just remind Your Honour of the various forfeiture and disposal orders.
70HIS HONOUR: I was just about to sign them.
71MR WHITE: Thank you, Your Honour.
72HIS HONOUR: Those forfeiture orders and their contents, Ms Austin, they are all agreed?
73MS AUSTIN: Yes.
74HIS HONOUR: It is just important that we get it right at this stage, but I am signing them now. You can come out of the dock now, Mr Renard.
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