Director of Public Prosecutions v Roach

[2019] VCC 145

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-18-01899

DIRECTOR OF PUBLIC PROSECUTIONS

v

MARK ROACH

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JUDGE:	HER HONOUR JUDGE DAWES
WHERE HELD:	Melbourne
DATE OF HEARING:	30 January 2019
DATE OF SENTENCE:	15 February 2019
CASE MAY BE CITED AS:	DPP v Roach
MEDIUM NEUTRAL CITATION:	[2019] VCC 145

REASONS FOR SENTENCE
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Subject: Trafficking 1,4-Butanediol
Catchwords: 
Legislation Cited: Sentencing Act 1991 s.5(1), s.5(2H), s.5(2H)(e), s.5(2HC), s.5(2I)
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr L. Cameron (For Plea) Ms V. Mellios (For Sentence)
For the Accused	Ms N. Kaddeche

HER HONOUR: 

1Mark Roach, you have pleaded guilty to the following.  One charge of trafficking in a commercial quantity of 1,4-Butanediol (1,4-B).  One charge of criminal damage, one charge of negligently dealing with proceeds of crime, being $11,543 in cash, six charges of possession of various drugs of dependence and a related summary charge, possessing prescription medication.

2You have admitted prior convictions most of which occurred in similar circumstances to the facts in this case and are relevant.  On 4 March 2016, you were found guilty at the Melbourne Magistrates' Court of offences of possession of drugs of dependence and fined with conviction an aggregate of $3,500.  On 22 September 2017, you were convicted at the Melbourne Magistrates' Court of trafficking methylamphetamine, trafficking 1,4-B, possession of drugs of dependence and other charges.  You were fined an aggregate of $6,000 and also released on a two-year undertaking with conviction.  On 31 October 2017, you were convicted at the Melbourne Magistrates' Court of trafficking in methylamphetamine and other charges and released on a community correction order for 12 months

3The offences that have now proceeded were committed approximately three and a half months after that community correction order was imposed and during the period of the adjourned undertaking.  This is an aggravating feature of your offending.

4On Saturday, 19 February 2018, the police executed a search warrant at room 10.05, District Apartments, 10 Claremont Street, South Yarra.  The apartment had been rented by another person who then assisted you to move in.  Initially attention was drawn to your room as a result of damage that you had caused to the door after locking yourself out and forcing entry back inside.  When spoken to by a maintenance worker and cleaner, you admitted causing the damage which you have now paid for.  As a result of observations made by those two men, police were called.

5Approximately 25 minutes later you were arrested and police searched the property, seizing 6.32 kilograms of 1,4-B, as well as a number of sets of electronic scales and mobile phones.  The scales and phones have not been analysed.  A commercial quantity of 1,4-B is 2 kilograms.  The amount seized upon your arrest is one that is well in excess of that amount.  The police also located a total of $11,543 in cash and this is the subject of a charge of negligently dealing with proceeds of crime.

6Small amounts of cocaine, methylamphetamine, cannabis, tetrahydrocannabinol, diazepam, methylamphetamine, amphetamine and clonidine hydrochloride tablets were also seized.  The prosecution accept that your possession of these drugs was for your own use.  I am satisfied that the possession of these drugs relates to a purpose other than trafficking and so a maximum of one year is the applicable penalty. 

7When spoken to by police you made a no comment record of interview.  You were charged and remanded in custody.  You were held for two days before being released on bail on 20 February 2018.

8The charge of trafficking in a commercial quantity of 1,4-B arises from your possession of the commercial quantity of that drug.  Your instructions are that you were stockpiling it for both your own use and for sale.  You admit that you exercised custody and control over the drugs.  1,4-B can be used as a recreational drug.  It exerts similar effects to GHB.  Charge 1 does not relate to your sourcing or distributing the drug.  The offence was committed on a single date, being 19 February 2018.

9The offence of trafficking in a commercial quantity of this substance is an inherently serious charge.  Your culpability is illustrated by the fact that you possessed three times a commercial quantity of that drug.  You have entered your plea of guilty at an early opportunity.  Whilst you made a no comment record of interview, you entered your plea prior to a contested committal hearing.  That plea has a significant utilitarian benefit.  You have saved the court and the community the time and expense of running a trial.  In those circumstances you have facilitated the efficient administration of justice and are entitled to a benefit for that.

10Dr Borrell, your treating clinical psychologist prepared a report for court dated 12 January 2019.  Throughout your consultation with her, you have constantly expressed shame and described feeling repulsed by your past behaviour and the impact that it has had on your family.  You have repeatedly questioned the morality of your past choices.  This sentiment is consistent with the character references that have been tendered on the plea.  I accept that you are genuinely remorseful.

11I have received reports from the DayHab addiction treatment centre confirming that you have successfully completed an inpatient program, outpatient program and then continued with ongoing therapy.  Your sponsor David Miller has written to the court confirming your commitment to the 12-step rehabilitation program and to narcotics anonymous.  Urine screens collected between October 2018 and January 2019 further confirm that you have maintained a state of sobriety since your release into the community.

12I appreciate that the steps you have taken towards rehabilitation have not been easy.  You have worked hard to create a positive future by abstaining from illicit substance use.  The significant effort made by you is consistent with your plea of guilty and with genuine remorse.  I am prepared to moderate your sentence to reflect that. 

13You are 36 years of age.  At the plea hearing you were accompanied in court by your parents, your sister and by a number of character referees.

14You have described to Dr Borrell that your early childhood was unremarkable.  Your parents separated in 2001.  You attended two different primary schools before attending and completing year 12 at Wesley College.  You then enrolled in a Bachelor of Arts degree at the University of Melbourne which, after a short deferral, you successfully completed.  You are not currently in a relationship.  You have previously had employment in various jobs, including in a number of call centre positions.

15You are currently unemployed and in receipt of unemployment benefits.  A letter to the court from Simon Fenech from Fruit2Work confirms that you have been available to obtain casual work through that organisation since October 2018.  Your engagement with that network was facilitated by Lauris Hanlon, your case manager at FirstStep, a mental health and addiction service in St Kilda. 
Ms Hanlon arranged for you to be placed on a mental health care plan, enabling you to attend six sessions with Dr Borrell, as well as assisting you to engage in casual employment with Fruit2Work. This is your first form of employment since approximately 2015. 

16Your drug use commenced in secondary school.  You have told Dr Borrell you were addicted to cannabis throughout the last four years of your secondary education.  You commenced using other drugs whilst at university as well as continuing to smoke cannabis.  Your drug use continued and escalated while working at a night club in Prahran.  After losing that job in 2009, you started to use GHB and continued to use methylamphetamine.  You describe your drug use as snow balling to unprecedented levels between 2011 and 2017. In 2015 you felt that you were unable to exist without drug use.  Your drug-related criminal offending commenced at this time.  You were then 33 years old.  I accept that at the time of your recent offending you were homeless and dysfunctional. 

17Dr Borrell has diagnosed that you potentially have suffered from undiagnosed attention deficit disorder throughout your life.  In her report she describes that initially you presented as being emotionally disconnected from your predicament and unsure whether or not you would be able to continue to avoid drug use. During your rehabilitation over the past 12 months you have had difficulty in adjusting to a normal life and to find a sense of purpose for your future.  You described being overwhelmed by shame when your family became aware of the severity of your addiction.  Dr Borrell states that over the last few months, your self-reflection has been brutally honest.  You are making good progress in therapy.  You are aware of the consequences of your previous choices in your life and of the effect of your previous drug use on your lifestyle.  This period of abstinence of 12 months is significant and the only period of extended abstinence that you can recall for many years.  It augers well for your future.

18The support of your family has been an integral part of your successful effort to address your rehabilitation.  Your sister, Jodie Sher, gave evidence.  She was an impressive witness and I accept her evidence.  She described your past behaviour and the way in which your drug use had a negative impact on your lifestyle and on your relationship with your family.  She expressed the frustration felt by your family as a result of your lifestyle.  She stated that when you were released on bail for these offences, you acknowledged that you desperately needed to address your drug addiction.

19Your family supported you when you were living in residential rehabilitation and saw you weekly during that time.  You described to them that you were struggling to successfully complete the program.  Your family continue to support you as an outpatient and you have now moved to live with your mother and step-father next door to your sister, her husband and her three children.  They see you every day keeping watch over you, anxious for your sobriety to continue.  You now have an honest adult relationship with your sister and your parents.  Ms Sher describes you as developing self-respect, respect for your family and a positive improvement in your attitude.

20Your family clearly support your goal to establish a better life and will continue to do so in the future.  I accept that your drug use contextualises your involvement in this offending.  Your prospects for successful rehabilitation have been established by your conduct on bail over the last 12 months.  It is conceded by the Crown that your prospects are very good.  Clearly your capacity to remain drug-free in the future is a critical factor in your success.

21When considering sentence in this matter, I am obliged to consider that trafficking in a commercial quantity of a drug of dependence, is a category two offence, pursuant to the Sentencing Act 1991. The Act is prescriptive in the type of penalty to impose in such a case, being a term of imprisonment. The threshold to impose an alternative disposition is very high. Relevantly, s.5(2H) of the Sentencing Act states that the court is required “to make an order, that is a term of imprisonment (other than a sentence of imprisonment imposed in addition to making a community corrections order)” unless subsection (e), “there are substantial and compelling circumstances that are exceptional and rare that justify not making such an order.”

22Defence counsel have submitted that subsection (e) has application in this case. The prosecution dispute that submission. The legislation in s.5(2HC) provides the relevant criteria for consideration as to whether there are substantial and compelling circumstances. In particular, I am obliged to prioritise general deterrence and denunciation over other sentencing considerations set out in s.5(1) of the Sentencing Act.  I accept that in this case, general deterrence must be given significant weight in the sentencing process, as must the factor denunciation and also of punishment.  I am also obliged to give less weight to your personal circumstances than to other matters, such as the nature and gravity of the offence.

23In light of your criminal history and the timing of the commission of this offence, specific deterrence is also relevant when considering the gravity of your offending.  It was conceded by your counsel that your personal circumstances include your efforts to rehabilitate over the past 12 months.  The section directs that this plea material must be given less weight than the nature and gravity of the offending when considering sentence.  Further, the Act specifically directs that the court must not have regard to your early plea of guilty or to your prospects of rehabilitation in considering whether there are substantial and compelling circumstances.

24In view of this, I am unable to be satisfied that your circumstances are exceptional and rare.  It is clear from material referred to by your counsel that successful rehabilitation and then maintaining a drug-free lifestyle for 12 months is not common.  You are to be commended for your efforts to achieve this since being released from custody. However, I am unable to conclude that your level of reformation from drug use can be correctly characterised as exceptional and rare. 

25At s.5(2I) of the Act, the court is directed to have regard to Parliament's intention that in sentencing for this offence, a term of imprisonment should ordinarily be made, unless the circumstances in which a departure from this express Parliamentary intention could be justified. The intention of Parliament is clear from the language used. Whilst I am impressed by the evidence that has been provided to the court of the efforts that you have made over the past 12 months, my sentencing discretion in this case has been pared down by Parliament. I am not satisfied that you have established the exceptional circumstances that you rely on. In relation to the other charges that are before the court, general deterrence, specific deterrence and protection of the community must be given significant weight in the sentencing process. Rehabilitation must also strongly feature in the sentencing mix.

26Drug trafficking is a scourge on our society.  I have referred to your criminal history.  Taking that into account with the current offence, you have now been found guilty of trafficking on four occasions.  The most recent offence is one of trafficking in a commercial quantity.  This demonstrates an escalation in the seriousness of your offending. 

27I take into account the maximum penalties for each offence and current sentencing practices. I have read the relevant cases provided to me in the course of submissions.  I am positively satisfied that your prospects for rehabilitation are very good, notwithstanding your criminal history. 

28HER HONOUR:  Mr Roach would you please stand? 

29Balancing all of the factors as best I can, I sentence you as follows. 

·Charge 1, I sentence you to three years and three months' imprisonment.  This is the base sentence. 

·Charge 2, you are sentenced to 14 days' imprisonment to be served concurrently. 

·Charge 3, you are sentenced to six months' imprisonment, that will be partially cumulative. 

·Charges 4, 5, 6, 8 and 9, on each charge you are convicted and sentenced to two months' imprisonment. 

·Charge 7 and the related summary charge, I am unable to impose a term of imprisonment for those offences.  In light of the principles of totality, you are convicted and discharged. 

·I direct that three months from Charge 3, be cumulative upon Charge 1.  All other sentences are to be concurrent.  That is a total effective sentence of three years and six months' imprisonment.  I direct that you be eligible for parole after serving a period of two years' imprisonment.

30I enter in the records of the court that you have served 18 days on remand for these offences.  I make the ancillary orders as requested, being the forfeiture of the cash and your driver's licence.  I make an order for disposal of drugs and all other property. I will make an order as requested under 464ZF, that you are to undergo a forensic procedure by the taking of a buccal swab from the inside of your cheek, so that a sample of your DNA can be obtained and placed on the database.  I make that order in light of the seriousness of the offending in the context of your criminal history and I am satisfied that it is in the community's interest to have your DNA sample for the detection of further crime.

31I need to advise you, Mr Roach, that if you do not comply with this order, police may use reasonable force in order to take your sample. 

32s.6AAA declaration -  four years and six months' imprisonment with a minimum of three years.  Is there anything further?

33MS KADDECHE:  No, Your Honour.

34MS MELLIOS:  No, Your Honour.

35HER HONOUR:  We'll adjourn the court.

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