Director of Public Prosecutions v Robinson

[2016] VCC 792

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 16-00676

DIRECTOR OF PUBLIC PROSECUTIONS

v

JAMIE ROBINSON

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JUDGE:	HIS HONOUR JUDGE GUCCIARDO
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	8 June 2016
CASE MAY BE CITED AS:	DPP v Robinson
MEDIUM NEUTRAL CITATION:	[2016] VCC 792

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr M. Perry	Office of Public Prosecutions
For the Accused	Ms Z. Garde-Wilson	Garde-Wilson Lawyers

HIS HONOUR:

1Jamie Leigh Robinson, you have pleaded guilty to two charges of trafficking in a drug of dependence, that is, methylamphetamine and Oxycodone, Charges 1 and 2, and to possession of a drug of dependence, methylamphetamine, Charge 3.

2The prosecution produced and tendered a summary of your offending for the plea and this document will be kept on the court file as exhibited.  Suffice to say for purposes of this sentence that you were detected as part of Operation Juliet investigation.  The relevant periods of the charges are 29 January 2014 to 1 September 2014 in relation to the drug ice and between February 2014 and 22 June 2014 in relation to Oxycodone and possession on 11 September 2014. 

3The plea to Charge 1 was accepted by the prosecution on the basis of the telephone intercepts, not in dispute, provide five specific instances of transactions totally, some 9.75 grams of mixed substances containing ice.  That is a minimum quantity.  The amount trafficked was in excess of that by evidence contained in intercepts but which cannot be precisely quantified.  The prosecution also made clear that acts and events which constituted other criminal or illegal activity but not the subject of a charge were not related or recited as circumstances of aggravation but in order to provide a broader background and context to the offending.

4The prosecution alleged you supplied and sourced methylamphetamine and were used to recover debts by those with whom you dealt in this combination of traffickers, particularly those higher up in the scale of the enterprise such as Jessica Fogarty and Jessica Short.  You would exchange items of property for drugs like motor vehicles and would receive requests to follow up for a payment of moneys owed.  You sought ice for customers on a regular basis and you can be heard discussing amounts of drugs, amounts of money and frequency of sale. 

5You discussed the transfer and movement of money and the purchase of ice on credit and on an occasion in February you contacted Fogarty and offered an unknown quantity of OxyContin at a cost of $350, mentioning a customer who owed you 600 and your plan to take their television as payment.  The next day a warrant executed on Short's premises revealed drug ledgers which indicated you owed in excess of $9,000 to Short.

6On 11 February 2014 you messaged a drug associate requesting that money be placed into a TAB account.  In May 2014 you communicated with Fogarty, offering her OxyContin for sale for exchange with ice.  A few days later you confirmed you had OxyContin available to you and you discussed money.  In early June you agreed to supply Fogarty with 20 OxyContin tablets for an unknown quantity of ice.  You would travel in and around the Wangaratta region to meet and traffic OxyContin and ice.  Also in early June you can be heard asking Fogarty if she wants to do a few runnings and offering to sell on her behalf, offering OxyContin and supplying ice to her and informing her on 5 June that you had a customer wanting half a gram of ice.  You indicated that you could source OxyContin and ice in a few hours and sell the same to satisfy debts owed to her with the proceeds.

7On 13 June you contacted her requesting 3.5 grams of ice and you agreed to travel from Albury to collect drugs from her in Wangaratta and that you were in possession of drugs worth between 1,500 and 2,000 and 14 OxyContin tablets to be used in exchange for ice, an offer which was declined by Fogarty. 

8A number of co-accused and associates have outlined your trafficking.  Quantities and values are indeterminate from this material but it is generally confirmatory of your conduct.  Police actually saw, in early August, a delivery of drugs by you at a hotel.  They found you hiding inside upon your arrest with $4,525 cash, with drugs and paraphernalia, in the room and in the cars outside. 

9In a conversation of August 2014, with Fogarty, you disclosed being owed 3,000 for a drug debt and in which you describe as the enforcement of a debt.  On a number of occasions leading to 11 September you can be heard on telephone intercepts arranging to meet to supply drugs.  When you were arrested you were in possession of approximately three grams of ice and $4,160 in cash. 

10For purposes of your sentence I accept that your role can be adequately described as a midrange, falling just below those, others whom I have sentenced previously, that is, Vincent, Rose and Miller.  I am not sentencing you for associated dishonesty or violent offences but strictly speaking for your trafficking and the incidental conduct pertaining to it. 

11The trafficking of drugs is a pernicious trade and it visits upon the community misery and costs in terms of health, law enforcement, the fraying of social structures, the erosion of family relationships and consequential crime, to name but a few effects.  In a circumscribed area like the districts in and around Wangaratta this effect is even more pointed.  The community looks to the court to denounce such wanton disregard for the law and deter others by just punishment.

12I take your plea into account.  It was offered at a relatively early stage and will attract a discount by operation of the law.  I consider that it is evidence of some remorse and a proper acknowledgment of your responsibility which also has a utilitarian value deriving from having saved the community the costs of a criminal trial. 

13I take your personal circumstances into account.  You are 30 years of age.  You have a prior criminal history from 2006.  This history is relevant to your prospects of rehabilitation.  In that year you were using and in possession of cannabis with drug offences for which you were fined.  In 2009 again you were convicted of using cannabis, possess amphetamine and cannabis and most relevantly trafficking in methylamphetamine.  On that occasion you received a wholly suspended sentence of imprisonment.  It was ordered that you continue to attend upon a psychologist to continue to abstain from drugs.

14In 2014 you were again before a court for possessing and using amphetamines.  It is clear the sanctions of the court in 2009 were insufficient either as a chance to reform or to deter you from further offending involving drugs.  You also have priors in New South Wales in 2013 and 2014, drug possession and a number of contraventions of domestic family violence orders, one of which in May 2014 resulted in a suspended sentence, and another in June 2014 which resulted in imprisonment for two months between March and May of 2014.

15These latter offences relate to a relationship breakdown with the mother of two of your children.  It was said that this current offending occurred in the context of a heavy drug addiction but that provides no explanation or excuse.

16Your parents reside in Wangaratta and were present in court and are supportive of you.  You completed schooling at 16 and worked at McDonald's for six months.  You then attended TAFE college and completed a two year carpentry course.  However, it was difficult to find work in this trade and you went to Yarrawonga abattoirs for six months.  You then had stints in a vineyard and working for a fruit and veg wholesale depot in Melbourne.  In 2005 you secured a plastering apprenticeship in Wangaratta and moved back there.  During your fourth year of that apprenticeship, scaffolding collapsed and you suffered a severe back injury requiring significant back surgery.  OxyContin was prescribed as your pain medication.  You received WorkSafe payments until 2014.  Unfortunately this injury and consequent pain led you to cannabis and methamphetamine use. 

17After your initial arrest you spent 188 days on remand at the MRC and then you were bailed to a Recover Oz program, a residential drug treatment facility in Box Hill.  There, together with a female associate with whom you struck up a relationship, you used drugs on site and you were exited from that program.  You were rearrested have remained in custody for a total of 552 days as at the time of the plea. 

18In July 2015 you were at the MRC when a riot broke out.  For the following ten months you served your time in 23 hour lockdown.  You had been apparently charged with some offences due to your role in the riot but that matter is undetermined and contested.  You remained in such a regime until bailed again in April of this year.  Those ten months I do consider to have been served under difficult circumstances and I take them into account, not only as the lockdown regime is extremely restrictive and harsh but programs and opportunities have been unavailable to you during that time. 

19You have been offered a part time job which would enable you to complete your apprenticeship.  Upon release I was told you would return to your parents' house, at least for a while.  Once you completed your apprenticeship you will in all likelihood be able to continue within your trade. 

20You have a ten year old daughter who lives in Queensland with her mother and two other children aged five and nine.  The mother of these children is currently in custody in New South Wales in relation to drug matters.  The children are in the care of a maternal grandmother and your ongoing contact with them through DHS and shared custody with your parents and custody arrangements are being made to have the children every second fortnight, all on the basis that you remain drug free.

21There has been some delay in this matter, not inordinate, in my view, for matters involving long and difficult drug trafficking investigations.  However, given your progress during that time I will take this delay into account in slight amelioration of the sentence.

22I had you assessed for a community corrections order and that assessment has found you suitable and I intend to combine such an order with a term of imprisonment.

23Much will depend in your future on your ability and willingness to remain drug free. 

24I consider the issue of parity in relation to your brother Matthew in particular.  In my view your detention in conditions of lockdown for the period outlined and the remand for the detention constitutes for purposes of this sentence probably sufficient time served for your non-parole period which I will impose.  Would you please stand?

25On the first count of trafficking you are convicted and sentenced to one year and six months' imprisonment.  On the second count of trafficking you are convicted to one year and six months' imprisonment and on Count 3 of possession you are convicted and sentenced to three months' imprisonment which I hold concurrent.

26That makes a total effective sentence of 22 months.  I fix a non-parole period of 14 months.  I declare that you have spent 552 days in pre-sentence detention.  The practical effect of that is that you will be eligible to be released having completed your non-parole period if that is what the authorities decide.  But for your plea I would have sentenced you to three years' imprisonment with a non-parole period of 24 months.

27I have signed the disposal and forfeiture orders.  I have also signed orders for the taking of a biological sample from you.  When authorised police officers come to get that from you by way of a mouth scraping which is not a painful procedure, if you do not consent to that procedure, then that officer will be able to use reasonable force to obtain a blood sample from you.  Do you understand?

28OFFENDER:  Yes.

29HIS HONOUR:  Take a seat.  Are there any other orders,
Mr Perry?

30MR PERRY:  Only for the sake of completion, sir, I take it you have considered what conditions of the community corrections order to be appropriate or?

31HIS HONOUR:  No, no.  I - sorry, I should announce what the details of that are.  You are right.  That community corrections order will be imposed upon your release.  It will be for 12 months.  You will perform community work.  The amount of community work is 250 hours.  You will undergo assessment, treatment and rehabilitation for drugs and you will undergo programs to reduce reoffending.  I am just trying to - yes, and you will be under supervision in relation to that period. 

32MR PERRY:  Thank you, Your Honour. 

33MS GARDE-WILSON:  I do apologise, it must be my confusion, Your Honour.

34HIS HONOUR:  Yes.  No, it is probably me.

35MS GARDE-WILSON:  You've given him an aggregate sentence in relation to the matters and you've given him a non-parole period of 14 months or is it a combined sentence?

36HIS HONOUR:  I - this is one of those matters where I never really quite know how to structure that sentence properly.  I know that he has served insufficient time for his total effective sentence.  But my intention is that the time served should be sufficient by way of that period, of the non-parole period which means he will be released - he would be released forthwith to be under the community corrections order currently.  I know that there is in a sense a contradiction in terms of being under a community corrections order in a current parole period, if you like.  But that is - to my mind that is something that Corrections - I am not sure that that is an invalid sentence as much unless you tell me that it is.

37MS GARDE-WILSON:  If I can assist, Your Honour, my understanding in relation to it is that you can't order - on an aggregate sentence you could order on Charge 1, for example, a term of imprisonment with a non-parole period and you ‑ ‑ ‑

38HIS HONOUR:  Yes. 

39MS GARDE-WILSON:  ‑ ‑ ‑ could on Charge 2 order ‑ ‑ ‑

40HIS HONOUR:  A community corrections order.

41MS GARDE-WILSON:  A Boulton or whatever situation it would be.  What would happen, however, is you have to finish the entire parole period before the community corrections sets in.   So it is actually an either/or situation.

42HIS HONOUR:  The entire non-parole period or the ‑ ‑ ‑

43MS GARDE-WILSON:  Correct.  They won't put you under the supervision of parole at the same time as a community corrections order because it's effectively two state bodies working in parallel.

44HIS HONOUR:  All right.  Then what I will do is I will impose a term of 22 months on Charge 1 with a non-parole period of 14 months.

45MS GARDE-WILSON:  If I - you have to finish the entire term ‑ ‑ ‑

46HIS HONOUR:  The entire total term?

47MS GARDE-WILSON:  The entire total ‑ ‑ ‑

48HIS HONOUR:  The head term.

49MS GARDE-WILSON:  ‑ ‑ ‑ term ‑ ‑ ‑

50HIS HONOUR:  Yes.

51MS GARDE-WILSON:  ‑ ‑ ‑ before the Corrections order kicks in.  So in effect Your Honour can either make a decision to have him under the supervision of the parole board or the supervision of community corrections.  To give effect to your sentence, if you order your term as a head - as - yes, it really needs to be effectively an either/or.

52HIS HONOUR:  One or the other.  That is fine.  I will restructure the sentence to take ‑ ‑ ‑

53MS GARDE-WILSON:  Or you could ‑ ‑ ‑

54HIS HONOUR:  ‑ ‑ ‑ into consideration - yes.

55MS GARDE-WILSON:  You could order, for example, on Charge 1, not - just an indication, Your Honour ‑ ‑ ‑

56HIS HONOUR:  An example, yes.

57MS GARDE-WILSON:  ‑ ‑ ‑ Charge 1, whatever term it is you deem is sufficient that could be time served as an ‑ ‑ ‑

58HIS HONOUR:  Yes.

59MS GARDE-WILSON:  ‑ ‑ ‑ actual sentence.  And then on Charge 2 or 3 order a community corrections order in relation to those matters.  It's ‑ ‑ ‑

60HIS HONOUR:  I do not know why those two authorities could not get their act together and sort it out but in any event.

61MS GARDE-WILSON:  They don't - yes.

62HIS HONOUR:  Yes.  All right.  That is fine.  I calculate that pre-sentence detention at about 18 months.  Am I correct about that?

63MR PERRY:  I understand it was 547 on the opening and ‑ ‑ ‑

64HIS HONOUR:  Or just over. 

65MR PERRY:  Yes. 

66HIS HONOUR:  Yes.  Well I am content to sentence him to 18 months on that first count which is the sentence that I imposed in the first place and rather than impose the consequent gaol term for the Count 2 with cumulation I will impose a community corrections order for 12 months on Charge 2. 

67MS GARDE-WILSON:  As Your Honour pleases. 

68HIS HONOUR:  With the conditions that I have outlined before and the period under Count 3 will be concurrent with Charge 1.

69MR PERRY:  Yes.

70HIS HONOUR:  Yes.  It is just a straight out 18 month term. 

71MR PERRY:  Thank you, Your Honour.

72HIS HONOUR:  Well that is fine, the - I ‑ ‑ ‑

73MR PERRY:  And I just take it Your Honour confirms the declaration of pre-sentence detention already made.

74HIS HONOUR:  Yes, of course I - that is - yes, I will confirm the pre-sentence declaration that I have made at 552 days.

75MS GARDE-WILSON:  As Your Honour pleases.

76MR PERRY:  The rest of them an administrative matter, Your Honour, I think.

77HIS HONOUR:  Yes.  It raises an issue for me in relation to the next sentence. 

78MR PERRY:  I take it Your Honour doesn't intend to alter the 6AAA declaration.

79HIS HONOUR:  No.

80MR PERRY:  Thank you. 

81HIS HONOUR:  Yes, I think that is all in relation to this Mr Robinson.

82MR PERRY:  I think so, Your Honour.

83HIS HONOUR:  Yes, thank you.  I think that Mr Robinson will have to be processed before being released so he can be removed for the moment.

84UNIDENTIFIED SPEAKER:  Yes, Your Honour.

85HIS HONOUR:  If you just - sorry, if you just wait, are there orders to be signed in relation to - yes, in relation to the community corrections - no, I was thinking that perhaps ‑ ‑ ‑

86MS GARDE-WILSON:  Certainly.

87HIS HONOUR:  ‑ ‑ ‑ he could sign them downstairs but it would probably be better if he signs them here.  Just take a seat in court.

88MS GARDE-WILSON:  Can I just briefly approach him?

89HIS HONOUR:  Yes, certainly.

90MS GARDE-WILSON:  Thank you.

91HIS HONOUR:  Mr Perry, is it the case that Mr Robinson has to be processed by the correctional authorities before he can be released or can he be released from court?

92MR PERRY:  I'm unsure of that, Your Honour, I would've thought probably he has to go down in custody briefly for the calculation to be made.

93HIS HONOUR:  I would have thought that that is right, I mean I can make certain, I have made declarations and I can assume that that is what is going to happen but I would have thought that Corrections are the funnel through which he has to be ‑ ‑ ‑

94MR PERRY:  I think that's right, with respect.

95HIS HONOUR:  ‑ ‑ ‑ conducted before he can be released immediately in any shape or form.

96MR PERRY:  One would have to make their enquiry and what their records ‑ ‑ ‑

97HIS HONOUR:  Yes.

98MR PERRY:  ‑ ‑ ‑ indicate to ‑ ‑ ‑

99HIS HONOUR:  Before he can be released. Yes, all right, well Mr Robinson can be removed for the moment.  It will be up to the correctional authorities to release him once they have done their processes.  Thank you.  He can be taken down.

100MS GARDE-WILSON:  As the court pleases.

101MR PERRY:  Thank you, Your Honour.

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