Director of Public Prosecutions v Robertson
[2014] VCC 638
•1 May 2014
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCase No: CR-13-02343
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| TYLER ROBERTSON |
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| JUDGE: | HER HONOUR JUDGE DAVIS |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 11 April 2014 |
| DATE OF SENTENCE: | 1 May 2014 |
| CASE MAY BE CITED AS: | DPP v Robertson |
| MEDIUM NEUTRAL CITATION: | [2014] VCC 638 |
REASONS FOR SENTENCE
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Catchwords: CRIMINAL LAW – Possession of drug of dependence
Legislation: Drug, Poisons and Controlled Substances Act 1981
Sentence: 12 Month Community Corrections Order with conditions---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms B Yildiz | OPP |
| For the Accused | Ms J Ellis | Melasecca Kelly & Zayler |
HER HONOUR:
1Tylar Robertson, you have pleaded guilty to one charge of possession of a drug of dependence, contrary to s.73 of the Drugs, Poisons and Controlled Substances Act 1981. Pursuant to subsection (1)(b) of section 73, the maximum penalty for this offence, where the court is satisfied on the balance of probabilities that the offence was not committed by the person for any purpose relating to trafficking in that drug of dependence is 30 penalty units or one year imprisonment or both. Pursuant to s.73(1)(c) in any other case, the maximum penalty is 400 penalty units or five years imprisonment or both.
2This case is a very unusual one for two reasons. Firstly, although the matter was originally listed for summary plea, the Magistrate presiding at the hearing asked that the brief be sent to the OPP and the matter was transferred into the indictable stream. The subsequent application for summary jurisdiction was refused and the matter proceeded by way of straight hand-up brief.
3As the result of the refusal of the magistrate to entertain the summary plea, you have had to wait two years for this matter to come to this court. It is most unfortunate that this matter did not proceed summarily as sought by the parties and then had to wait two years for the matter to be heard in this court.
4Secondly on any view, the circumstances in which you came to be in possession of the drug of dependence are quite extraordinary. The circumstances are set out in the summary of prosecution opening, as amended, which was tendered as Exhibit 1 on the plea. I sentence you on the basis of the facts set out in that summary, and these facts may be briefly summarised as follows.
5You are currently 39 and were 37 at the time of the offending. At that time you had been friends with Carl Hester for about 15 years. On 19 March 2002, Hester arrived at Melbourne Airport, having travelled directly from Los Angeles. He had ingested 106 condoms, each containing approximately five grams of cocaine. When Hester arrived in Melbourne he called you and asked if you would pay for his taxi ride to your place in North Melbourne. You agreed and he arrived there at about 11.20 am. He asked you to buy him laxatives and charcoal and you went to the pharmacy to do so. When you returned he used these products and then, in your bathroom, he vomited and eliminated from his body some of the condoms containing cocaine.
6At around 3pm, you drove him to the Royal Melbourne Hospital in your girlfriend's Holden Astra. You provided your details to hospital staff. According to your record of interview you told medical staff about Hester's drug history and waited at the hospital in case his doctors wanted to speak to you, and were told by staff at the hospital that police would possibly come to speak to you. Hester was declared dead at 3.15 pm. Hospital staff told you that he was dead and that doctors did not need to speak to you. You then returned home.
7Your offending involves what you did then, that is, you took the condoms containing cocaine from the bathroom and put them in a bucket. You cleaned the bathroom of vomit and faeces, you put some cocaine which you had at home for personal use, together with some other items of yours, into the bucket, you covered the bucket with a towel and placed it in the boot of your girlfriend's car, which was parked outside a nearby property.
8Police attended your apartment a few hours later and you told them that you, firstly believed Hester may have ingested the drugs prior to boarding the plane; that you did not know what drugs, if any, he ingested; that you had purchased charcoal and laxatives for Hester; that Hester had vomited into the bath and it was a watery consistency.
9You told the police that the charcoal and laxatives must be at the hospital, or have fallen out of your pocket and that the car was outside the hospital double-parked. You agreed to go to the hospital with police to find the car, but once there you pointed to an empty spot and indicated that the car must have been towed.
10Police returned to your house and located the car outside a nearby property. They searched it and found 20 condoms, each containing cocaine, weighing about five grams, worth about $45,000; a set of digital scales; a number of empty zip-lock bags, and a number of zip-lock bags containing small amounts of cocaine.
11You were arrested and interviewed. You said that you left everything behind when you took Mr Hester to hospital. You told medical staff about his drug history and assumed that they would consider whether he was having a drug overdose. Medical staff told you that they or the police would come to speak to you.
12After you returned from the hospital you took what Hester had vomited into the bath and put it into the bucket, along with whatever cocaine you had lying around, which was less than a gram, and any related equipment, including the zip-lock bags from your previous use of drugs three to four years ago. You did not know what to do with the bucket and put it in your partner's car. Your girlfriend cleaned the glass from the bathroom floor.
13You rang Hester's best friend, Dan, who had paid for Hester's ticket and told him Hester had died. You gave him the name of your solicitor in case he needed it. You told police that the car was at the hospital because you knew that illegal drugs were in it and did not know whether it was in your interest to disclose that it was there or not.
14At the plea hearing you admitted your prior convictions and consented to the Disposal Order sought by the prosecution for the exhibits.
15The prosecution's submissions may be briefly summarised. The prosecution does not say that you are in any way liable for the importation or for the death of Hester, and asserts that your possession commenced when you took the condoms from the bathroom and put them in your partner's car. However the prosecution argued that you have not discharged the onus you bear of establishing, on the balance of probabilities, that you did not possess the cocaine for the purposes of trafficking.
16In this regard the prosecution relied on a number of matters. You hinted to medics that Hester may have overdosed, but did not tell them that he had ingested or vomited drugs. You hid the drugs and the related paraphernalia from police. You put them in the car and told police that you did not know what you were going to do from then. You contacted Dan and gave him a solicitor's contact details. You lied about double-parking the car at the hospital and then lied when saying it had been towed.
17Far from being panicked, the prosecution submitted that your selective disclosure indicated clear thinking on your part. From your priors, you knew the value of the cocaine and how to sell it. It could be concluded or submitted that you hid the drugs in order to sell them.
18In the event that you have found not to have discharged the onus you bear to establish on the balance of probabilities that you did not possess the cocaine for the purposes of trafficking, the prosecution contended that in the light of your prior convictions, a custodial sentence was appropriate. However in the event that you were sentenced on the basis that you committed the offence of possession simpliciter, the prosecution took no issue with the imposition of a Community Corrections Order.
19Your counsel tendered a bundled of approximately 18 character references from family and friends, a large number of whom attended the hearing to support you. Your counsel also tendered a psychological report, dated 29 March 2014, from Mr Patrick Newton, forensic and clinical psychologist. Finally I heard evidence from a character witness, Mr Steven Charles. I will return to this material shortly.
20Your counsel submitted that I ought to treat this charge as one of possession simpliciter. He submitted that the circumstances of the offending were very unusual; that you pleaded guilty at the earliest possible stage; that there had been a deplorable delay of two years before which you were able to plead guilty; that during that time that you have shown that you have good prospects for rehabilitation and that it was appropriate for the court to impose a Community Corrections Order in this case.
21I propose firstly to deal with the question as to whether or not this matter is a matter of possession simpliciter. I have carefully considered the matters put by the prosecution in this regard. I have also carefully considered the matters drawn to my attention by your counsel, particularly your answers to a number of questions in your record of interview, including answers to Questions 170, 184, 212, 233, 234, 238, 297, 307, 378, 379, 384, 398 and 399.
22I consider that your answers to these questions reflects that you panicked in the extraordinary circumstances in which you found yourself, fearing that as a convicted drug trafficker, you would be thought to be involved in the importation of which you became aware, only when Hester disgorged cocaine filled condoms in your bathroom, shortly before his death.
23I consider that your actions in putting the vomit and faeces covered condoms in the bucket, along with your own very small residual stash of cocaine, and then putting the bucket in the boot of your girlfriend's car, as well as your misleading the police as to the location of the car, reflects your panic and confusion and your desire to get the drugs out of your house.
24I note that it was never put to you in the record of interview that you had put the drugs in the boot of the car because you had decided to keep the drugs or traffic them. In all the circumstances, I am satisfied on the balance of probabilities that your decision to put the drugs in the bucket and the bucket in the boot of the car, was not made for the purpose of selling those drugs.
25I am satisfied that you should be sentenced on the basis that your offending was that of possession simpliciter, and therefore that the relevant maximum penalty is 30 penalty units and/or one year imprisonment.
26I turn to your personal circumstances, which were set out in full in Mr Newton's report. You were born in Vietnam and spent your first nine months in an orphanage. You were severely malnutritioned at the time you were adopted by your adoptive parents, leaving you with liver dysfunction and small stature.
27Your adoptive parents have three biological children, and they also adopted two other Vietnamese children. Your family was financially secure and your parents had a good relationship. They tried to be fair to all their children, but you struggled to fit in with the family. You and each of your siblings has struggled with substance abuse and your relationship with your parents has varied, according to you drug use.
28You were small, one of only two Asian students at your school and also suffered from a tic. You were bullied at school. You repeated Year 7 because you were small and immature. You went to boarding school for two years and were bullied there. You had behavioural problems throughout secondary school and were suspended a number of times. Your parents were keen for you to leave school after Year 10, but you enrolled yourself in a secondary college where you completed Year 11. You described yourself as a good student.
29You started using cannabis at the age of 17 and continued to use it daily until November 2009.
30After finishing school you completed an administrative traineeship with the Department of Social Security, and worked there for about three years, before being made redundant. You then worked as a cleaner, in telesales and in call centres.
31In October 2009 you were convicted in the Magistrates' Court of possessing and trafficking cocaine, amphetamine, ecstasy and cannabis. You were sentenced to nine months imprisonment, with all but two months suspended for 18 months. On appeal this sentence was varied to be wholly suspended for 18 months. You have no other relative priors and no subsequent matters.
32You established your own commercial cleaning company in 2009 and this business is doing well. A number of your customers provided references to the effect that you are trustworthy and provide reliable services of a high standard.
33You have been married since 2012 and are very close to your wife, who was very supportive of you, as are other family members who provided references for you.
34Mr Newton felt that you used drugs to overcome feelings of social anxiety and poor self-esteem and to help you connect with your peers. You also used drugs to manage psychological problems, such as grief, anxiety and sadness. He felt that your drug use in the past met the criteria for moderate cannabis use disorder and moderate stimulant use disorder. He noted that you have been very anxious about your court appearance in relation to this matter and used cannabis until September 2013. Since then, however, you have been able to manage this stress with the support of your general practitioner and without resort to illicit drugs. For this reason Mr Newton felt that your conditions are in early remission. He did not consider that you are suffering from any mood disorder, anxiety related disorder or adjustment disorder. He felt that your current offending arose from your immaturity and poor judgment.
35I consider that the circumstances of your offending are exceptionally unusual. I take into account that you have pleaded guilty at the earliest opportunity and were willing to do so some two years ago.
36Mr Newton noted that your lifestyle has been very stable since 2009; that you have married, run a successful business, and re-engaged positively with family. Mr Newton's comments were echoed in the letters from your wife, father, some of your siblings, and some long-standing friends.
37It was also echoed in the evidence from Mr Charles, who also adopted young children from Vietnam in the mid-1970s and was familiar with the problems experienced by them in adapting to life in Australia and dealing with the racism that occurred during that period. Mr Charles met you in the context of dinners held for families who adopted children from Vietnam at a similar time and has recently seen more of you. He has met your wife, learned of the success of your cleaning business, and is impressed with your determination to build a future, which includes buying a home and raising children.
38
It is also clear from the letters of support, to which I have referred, that you have a most supportive family and social circle. Your wife confirmed that you have abstained from using marijuana for over six months and are determined to keep doing so, with the support of your doctor and family and friends.
I have no doubt that you will continue to consolidate the progress you have made since 2009. I consider that your recent offending was the product of panic and poor judgment; that you are most unlikely to re-offend; and that your prospects for rehabilitation are very good.
39I also note that Mr Newton concluded that the best way to help you maintain your recent progress and avoid re-offending, is for you to receive structured treatment in the community, with a strong emphasis on relapse prevention techniques and harm minimisation strategies, including random drug screening.
40I note that you were assessed by Correction Victoria on 14 April 2014, as suitable for a Community Corrections Order, and that you indicated your consent to undergo such an order if it were imposed.
41Would you please stand, Mr Robertson?
42On the sole charge of the indictment, possession of a drug of dependence, you are convicted and sentenced to a Community Corrections Order for a period of 12 months.
43I note the indication from your counsel that you are working seven days a week in your cleaning business. For this reason, notwithstanding your willingness to perform unpaid community work, I do not propose to impose this condition in the order I make. Rather I propose to impose the following conditions:
(1) That you attend for assessment and treatment, including testing for drug and dependency as directed, and;
(2) That you undergo mental health treatment as directed.
44In addition to the conditions that I have specifically imposed, you must also abide by the terms that apply to all Community Corrections Orders. These are that you must not commit any other offences during the period of the order being enforced, that is 12 months from today, any offence for which you could be imprisoned, even if a court would not choose to impose imprisonment. You must report to and receive visits from a Community Corrections officer. You must report to the Community Corrections Centre at Box Hill within two clear working days of today, that being Monday 5 May. Also you must not leave Victoria without first getting permission from a Community Corrections officer, and you must inform the Community Corrections Office of any change of address of where you live or where you work, within 48 hours of that occurring. Finally, you must obey all lawful instructions from and directions of the Community Corrections officers.
45Do you understand the conditions I have imposed and the general terms that apply?
46OFFENDER: Yes.
47HER HONOUR: All right. I must also tell you that if you do not comply with any of the terms and the conditions imposed, you risk being brought back in front of me and I would have to consider whether to re-sentence you. Do you understand?
48OFFENDER: Yes I do.
49HER HONOUR: All right. In the circumstances of this case, I decline to give any indication, pursuant to s.6AAA of the Sentencing Act. Please take a seat, Mr Robertson.
50I made the Ancillary Disposal Orders on the date of the plea, so is there anything else?
51COUNSEL: No, Your Honour.
52HER HONOUR: All right. Thank you. We will just prepare the orders and - thank you.
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