Director of Public Prosecutions v Rhodes, Paul Damien
[2013] VCC 163
•21 February 2013
| IN THE COUNTY COURT OF VICTORIA | Revised |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-10-01988
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| PAUL DAMIEN RHODES |
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JUDGE: | HER HONOUR JUDGE GAYNOR | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 21 February 2013 | |
CASE MAY BE CITED AS: | DPP v Rhodes, Paul Damien | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 163 | |
REASONS FOR SENTENCE
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Catchwords:
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr J. Fitzgerald | |
| For the Accused | Mr J. McQuillan |
HER HONOUR:
1 Paul Damien Rhodes you have pleaded guilty before me to one charge of trafficking in a drug of dependence. You have also pleaded guilty to the summary charges of dealing with property suspected of being the proceeds of crime, possessing a danger article in a public place and driving whilst authorisation was suspended, which charges were uplifted pursuant to s.145 of the Criminal Procedure Act 2009 to be dealt with by this court. You have admitted prior convictions.
2
The facts underlying your offending were fully outlined in a detailed prosecution open summary which is annexed to these sentencing remarks. In brief terms, a police investigation code named Operation Disport, was begun in July 2009 focusing on methylamphetamine and ecstasy trafficking in the Bendigo area. One Marco Raveroto was the initial primary target of the operation and via telephone interception of his mobile phone between
6 August and 14 October 2009, other associates in his drug trafficking business were identified. One of those was a co-accused Trevor Arthur and intercepts on his phone led police to identify you as a person conducting the business of supplying methylamphetamine to both Arthur and Raveroto. Intercepts on your telephone established that between 1 and 14 October 2009 you trafficked a total of five ounces of methylamphetamine to Arthur and Raveroto.
3 You were arrested at about 8 pm on 14 October where you and Raveroto had parked your vehicles on the side of the Midland Highway, at which time you passed two ounces of methylamphetamine to him in exchange for $3300. The receiving of that cash comprises the summary offence of dealing with proceeds of crime. Police searched your car where they seized a set of scales and an icepick which the prosecution allege was used to chip of amounts of crystal methylamphetamine. Possession of that icepick comprises the summary charge of possessing a dangerous article in a public place. At that time your driver's licence had been suspended and your actions in driving to the destination where you were arrested, comprised a breach of that suspension.
4 Later that night you took part in a record of interview where you told police the money had come from your father as an inheritance. You admitted knowing Raveroto but told police you had spoken to him about engine parts and had no knowledge of the methylamphetamine found in his car.
5
The maximum penalty for trafficking in a drug of dependence is 15 years imprisonment. It is alleged by the prosecution that you trafficked between
1 and 14 October 2009 on three occasions, they being 1 October 2009 when you supplied two ounces of methylamphetamine to Raveroto and Arthur; on
4 October 2009 when you supplied Arthur with one ounce of methylamphetamine and on 13 and 14 October 2009 when you provided two ounces of methylamphetamine to Raveroto.
6 The maximum penalty for dealing with the proceeds of crime is two years imprisonment; the maximum penalty for possessing a dangerous article is six months imprisonment and the maximum penalty for driving whilst licence suspended is four months imprisonment if that is a subsequent offence.
7 I now turn to your personal circumstances. You are 43 years of age, the eldest of three children. You have two younger sisters neither of whom have been in trouble with police. You told psychologist David Ball whose report dated 21 November 2012 was tendered on the plea, that you came from a cohesive and caring family; your parents have remained happily married to the present day, but when you were four your family life changed suddenly when you were sexually abused without anyone's knowledge, by a family friend over a period of about a year. Your inability to tell your parents of what had occurred drastically changed your relationship with them, as you began what appears to have been long term self-alienation from your family where you distanced yourself and lashed out at them.
8 You attended St Paul's Technical School in Bendigo to Year 10, but were apparently a generally poor student with a number of problems stemming from your childhood abuse, including learning difficulty and social and minor disciplinary problems. On leaving school you joined the Victorian Railways, taking up an apprenticeship as a boilermaker which you completed, and this was the start of a long term and successful employment history where you worked as a contractor for a large number of companies in heavy industry.
9 However, when you were 25 you were found to be suffering testicular cancer and one of your testes was removed. The cancer spread and secondaries were discovered in your lungs and two kidneys, one of which was also removed. You were unable to work for about four years and underwent chemotherapy from which you continue to suffer long term side effects, including frequent nausea and lethargy, to this day.
10 You encountered further medical difficulties when you were 32, having undergone a drastic weight reduction program, dropping from 188 kilograms, very heavy, even for a man of your height at 6 foot 7 inches, to 98 kilograms. You then underwent cosmetic surgery to correct a sagging skin condition following your dramatic weight loss, but proper drainage plugs were not inserted during the operation and within days your stomach was bloated and you had to undergo a number of further other operations. You continued however to work as a contractor boilermaker up until about five years ago.
11 You started drinking at an early age and drank heavily until you were 25 when you were diagnosed with cancer, at which time you stopped drinking and have not touched alcohol since. You started using cannabis when you were 12 and amphetamines when you were 14 and have been addicted to these substances to the present time. You first used heroin when you were 30 and were addicted for a short period but eventually withdrew from that drug.
12 You told Mr Ball you started self-medication using drugs, initially to deal with the emotional after effects of your childhood sexual abuse, and then later to combat the pain, lethargy and nausea following your operations and extensive chemotherapy. You told him you used cannabis to stimulate your appetite and amphetamine to combat lethargy, and also told Mr Ball you believed those drugs had helped you to remain alive.
13 You have never married or fathered any children, but have had a number of relationships over the years. A major relationship began about 13 years ago, lasting for eight years, you living with your partner in Melbourne. She was described to me by your counsel as the love of your life. Following the demise of that relationship you returned to Ballarat in a somewhat depressed state, to live with your parents where your father got you a job driving trucks. However you dealt with the emotional distress from the relationship loss by increasing your drug use to the point that you had to stop working.
14 You met Arthur and Raveroto in Bendigo through a mutual interest in engine parts. You were approached by Raveroto once you stopped working, in order to source amphetamines for him, his sources in Melbourne having dried up. Your counsel told me you took the opportunity to make money to feed your habit while you were not working.
15 Since being released on bail, you were held in custody for seven days following your arrest, you have resided with your parents and largely discontinued your amphetamine use, although your counsel conceded that you continued to use it sporadically to this day. You are still a cannabis user; your health is not good.
16 I received a report from your local general practitioner, Dr Shah Shwkot Hossain dated 26 September 2012 confirming you suffer from chronic Hepatitis B and C.
17 Your father Robert Rhodes, now a TPI pensioner, gave evidence on the plea that you did not lead what he called a normal life. He said you were unable to get up until about 11 am or sleep until late at night. He said you were often nauseous, suffered sudden blood noses which occurred without reason and which were often quite severe. He said you slept badly, had little energy and continue to have a metallic taste in your mouth from the chemotherapy, apparently a lifelong side effect from that treatment. He said you were always hot and needed a fan in your room, had recently been diagnosed with jaundice and suffered chronic constipation, possibly as a result of the removal of one of your kidneys in your 20s.
18 You had been living with your parents until 18 months before the first plea hearing in this matter. You then took up the position as carer for an ex-girlfriend Joanne Eyers who suffers a bipolar condition and post-traumatic stress disorder. I received confirmation from Centrelink that after moving in with her you had been paid a carer's pension in that time. You ceased that role on 16 November 2012 because of the pending court appearance in relation to these matters and one of her daughters has now taken over.
19 However I received a letter from Ms Eyers in which she stated that thanks to her counsellors and your, "Many months of enduring my symptoms of PSTD and bipolar, my life has been and is starting to normalise." She said you were still imperative to the state of her mental health.
20 Returning to your father's evidence it was that he was aware of your long term amphetamine habit and could recognise when you had been using it. He said he had not noticed these symptoms for a long time.
21 You have admitted a limited prior criminal history largely comprising numerous traffic infringement notices for speeding, but beginning with an appearance at the Ballarat Children's Court in 1983 for retention of stolen goods. Between 1984 and 88 you were dealt with in the Magistrates' Court for possession of cannabis, wilfully damaging property and using unregistered vehicles. You received a Community-based Order in 1988 for the drug charges. In 1994 you were fined for use of cannabis, unlawful possession and possessing a firearm without a licence. In November 2011 you were fined for fraudulently using a registration label and in October that year were fined for using and possessing cannabis and carrying a prohibited weapon without approval. In January 2012 you were also fined for possessing a prohibited weapon and possessing a controlled weapon. You have never been gaoled.
22 There has been some delay in this matter. You were committed in October 2010 and the matter set down for trial in February/March 2011. It was not reached on circuit, being a multi-headed matter. Ultimately a plea of guilty was entered in the November circuit of 2012. You have not re-offended in the meantime.
23 It was the prosecution's submission that you should be dealt with by way of a sentence to be immediately served, of between 18 months and three years duration. It was the submission of your counsel that I should consider dealing with you by way of a wholly suspended sentence. Neither submission in my view, is entirely appropriate to your case.
24 It is accepted by the prosecution there is no evidence of enrichment on your part and I accept that what you did was done in the context of a long entrenched but escalating drug habit which had never before led you to crime, but occurred at a time when you were not working and that what you did was to enable you to support your own habit. I accept there has been more than one episode of trauma leading to your drug use, that being the early childhood sexual abuse which led you to drug use in your teens, then ongoing use following long treatment for serious bouts of cancers involving both primary and secondary cancers, resulting in the loss of a kidney, a testicle and what appeared to be life-long side effects from the prolonged chemotherapeutic treatment that was administered.
25 Despite all this, you have managed to maintain an excellent work history over many years and I further accept your habit escalated at a point where you in fact began offending in order to support it in the aftermath of a traumatic relationship break-up.
26 I am impressed by the role that you undertook as carer for your friend and the fact that in a period of more than three years of the commission of these offences, you have not only kept out of trouble (but I accept the evidence of your father on this point) largely attended to your amphetamine habit. Overall I regard you as a person who has struggled with a number of vicissitudes in your life which as I have already said in my view, directly underlie a long term drug habit which has however, also as I have said, not prevented you from being a productive and hard working member of this community.
27 Some of the delay in this case is attributable to your decision to contest to the charges and of course the plea was made at a late stage. Nevertheless you have saved the community the time and expense of a trial and it is the experience that multi-headed drug trials often time consuming and expensive and part of that delay arose from the traditional difficulties with trials such as yours being reached on circuit.
28 In any event delay has had the effect of you changing your circumstances in terms of decreasing your drug use and demonstrating therefore a lesser need for this court to take into account the issue of specific deterrence in sentencing you.
29 I do regard you as a person of reasonable rehabilitative prospects, particularly given your hard working past. You continue to enjoy the support of your parents. In addition you continue to suffer considerable ill-health and it is my view that a sentence of imprisonment would be more difficult for you because of the various conditions from which you suffer than for an ordinary prisoner.
30 Your offending however was serious and involved what can only be described as large scale trafficking, albeit that it covered a relatively short period of time, that is, two weeks. In my view your prospects of rehabilitation would be further enhanced which can only be of benefit to the community, by the application of supportive services such as those attached to a Community Corrections Order. I had you assessed for such an order and you were found suitable. The Community Corrections Officer who assessed you described you in his report as polite and cooperative, showing significant remorse and insight into your offending behaviour, stating, "He accepted that he had been trafficking significant amounts of methylamphetamine to fund his own addiction that he reported was spiralling out of control.
31 Overall, it was my initial view that you should serve some time in prison to mark the seriousness of your offending, but because of the mitigatory factors which I allow, that should be a confined period and I was going to order in relation to the charge of trafficking that you be imprisoned for three months and thereafter released on a Community Corrections Order.
32 However, on a previous occasion when I proposed to sentence you, indicating at the outset before commencing my sentencing remarks that I was going to sentence you to three months and then release you on a Community Corrections Order, you indicated in the strongest terms that what you wanted to do was serve a sentence of imprisonment. This was because it is ultimately your plan once you have finished gaol, to take yourself overseas and hopefully pursue employment in Germany, you having previously been offered an 18 month contract there which however you did not take up because you were then living with your girlfriend.
33 I of course cannot place a person on a Community Corrections Order without their consent and it is quite clear that I do not have your consent. My concern was that if I sentenced you to a term of imprisonment involving a parole period, that would delay your capacity to go overseas. However you counsel helpfully suggested that I deal with you by way of a combination sentence, that is, a term of imprisonment which is partially suspended. In the circumstances and for the mitigatory reasons that I have already outlined, it seems to me that that is an appropriate way of dealing with you.
34 I regard the fact that you have not offended in the past three years as a significant factor, together with your limited prior history which is of a completely different character than the matter for which I must sentence you today. Also as I have stated a number of times, your excellent work history is also an important factor in sentencing you.
35 I also accept that your plea of guilty, although made at a late stage is nevertheless indicative of remorse and indeed the remorse you showed was commented upon the Community Corrections Order so that the assessment that was undertaken was not entirely wasted.
36 It may be that you have regarded drugs as some sort of lifesaver in the past but you should make no mistake Mr Rhodes, they are not going to be a lifesaver in the future. You are going to have to hopefully find alternative means of dealing with your current physical difficulties. You seem to be a reasonable and resourceful man and I am quite sure you can come up with something else.
37 I therefore sentence you as follows. Could you stand up please? On the charge of trafficking in a drug of dependence I am going to sentence you to two and a half years. On the charge of possessing the proceeds of crime, I am sentencing you to two months imprisonment. On the charge of possessing a dangerous article I will sentence you to one month imprisonment, and on the charge of drive while disqualified I am going to sentence you to two weeks imprisonment. I am going to order that 18 months of that sentence be suspended for a period of 18 months, which means you will have to serve 12 months.
38 When you come out you will on the suspended sentence. I need to explain to you how a suspended sentence works just in case your plans for Germany do not come to fruition as quickly as you want them to and you are still hanging around in Australia, or if you find out you cannot get there at all.
39 While you are on a suspended sentence if you commit a crime punishable by imprisonment, and that does not mean you have to be sentenced to gaol, it is just something which theoretically you could be gaoled for, such as knocking off a box of matches from Woolworths. Theoretically you could go to gaol for that. You will be brought back on a breach of suspended sentence. The legislation says that unless there are exceptional circumstances attached to your offending and I often explain it this way Mr Rhodes; virtually unless you can demonstrate to this court that you have been offending in order to save the Western world from nuclear war, I have to make you serve part or all of that 18 months.
40 So the situation is you will do 12 months. When you get out you will be on the suspended sentence and the amount of gaol hanging over your head will be 18 months and the period in which you must not offend or the period in which, if you offend you will breach the 18 months, is in fact 18 months. So it is 18 months.
41 Obviously the other sentences that I gave for possessing the proceeds of crime, the prohibited article and driving whilst suspended are served concurrently. The total effective sentence is two and half years as I have said. 18 months of that will be suspended for a period of 18 months.
42 Pursuant to s.6AAA of the Sentencing Act I declare that had you not pleaded guilty I would have sentenced you to a term of imprisonment of two and a half years and order you serve a minimum term of 18 months. That is, there would have been no suspension at all. You would have come out on parole.
43 Have a seat Mr Rhodes. I also declare that 35 days of the sentence has already been served by way of pre-sentence detention and the licence situation. Mr McQuillan?
44 MR McQUILLAN: Your Honour I would ask that you do not affect his licence.
45 HER HONOUR: His employment seems to me to absolutely require a licence. Is that right Mr Rhodes?
46 PRISONER: Indeed, yes.
47 HER HONOUR: You have a good working history. You have a shocking driving history, but you are not going to be worrying anybody on the roads for a while. I suppose I should because by the time you get out of gaol you would have done the time for the suspension period. So what I am going to do is I am cancel your licence - have you got your licence at the moment?
48 PRISONER: Yes Your Honour.
49
HER HONOUR: You have. I am going to have to start again I am afraid
Mr Rhodes.
50 PRISONER: I have a truck licence too Your Honour.
51 HER HONOUR: Have you?
52 PRISONER: Yes.
53 HER HONOUR: You are a persuasive man Mr Rhodes, no doubt about you. I hear what you say. I am not going to make an order in relation to his licence. It is one of those situations where it would be meaningless in any event because he is going to be in gaol. He is not going to be on the road. If it is a truck licence as well and it is innately attached to his job prospects, because you will need an international driver's licence if you are going to go over, and you have such a good work history. For someone who has been such a long term drug user I have said this is the first time you have actually offended in order to support your habit. I think in the interests of the community it would be a meaningless and an empty gesture so you are a lucky man Mr Rhodes. I am not going to make any order in relation to your licence.
54 I am signing a forfeiture order. How has gaol been Mr Rhodes?
55 PRISONER: Yes not too bad Your Honour.
56 HER HONOUR: You are managing all right?
57 PRISONER: Yes Your Honour.
58 HER HONOUR: Probably one time where six foot seven does not hurt, yes.
59 PRISONER: Yes.
60 HER HONOUR: You can have a seat. Sorry before you do. What is happening with your Hep B and C, is that being treated all right?
61 PRISONER: Yes (indistinct) I mean I'm not taking any drugs now (indistinct) so I feel pretty good, so yeah.
62 HER HONOUR: It has saved your life and now you are feeling good?
63 PRISONER: Yes Your Honour.
64 HER HONOUR: You know of course you can get drugs in gaol. Do you reckon you can manage to give that one a miss?
65 PRISONER: Yeah, no I've been clean as Your Honour, so - - -
66 HER HONOUR: Good Have a seat. There is absolutely no reason why you should not have a perfectly good satisfying life in the future at all.
67 Those orders have now been signed.
68 MR FITZGERALD: Just to be clear Your Honour I understand there is a retention and there is also a disposal order the icepick and the scales.
69 HER HONOUR: I think I have that. Yes I have signed a forfeiture order, I have signed a disposal order and I seem to be writing my signature over and over. I think I have only one copy of the forfeiture - no I have two copies of the forfeiture order and I have three copies of the disposal order. One day I would like to be right and my Associate wrong but it is not going to be today. Yes, three copies of everything.
70 MR FITZGERALD: Thank you Your Honour.
71 HER HONOUR: All the best Mr Rhodes, thank you. You can take Mr Rhodes down thank you very much, and counsel are excused. I am going to stay on the Bench I have another matter.
72 MR McQUILLAN: If Your Honour pleases.
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