Director of Public Prosecutions v Ross

[2015] VCC 1256

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 15-00256

DIRECTOR OF PUBLIC PROSECUTIONS

v

BEAU ROSS

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JUDGE:	HIS HONOUR JUDGE LACAVA
WHERE HELD:	Melbourne
DATE OF HEARING:	28 July 2015
DATE OF SENTENCE:	31 July 2015
CASE MAY BE CITED AS:	DPP v Ross
MEDIUM NEUTRAL CITATION:	[2015] VCC 1256

REASONS FOR SENTENCE
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Subject:              Trafficking, Possession
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:           3 year CCO, Judicial Monitoring

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A. Patton
For the Offender	Ms M. McKay

HIS HONOUR:

1Beau Ross; you have pleaded guilty to one charge of trafficking in a drug of dependence; Butanediol, and one charge of possession of a drug of dependence; methylamphetamine.

2The maximum penalty for trafficking in a drug of dependence is 15 years' imprisonment.  The maximum penalty for possession of a drug of dependence where the possession was not for a trafficking purpose, as here, is 30 penalty units or imprisonment for one year, or both.

3The circumstances of your offending are summarised in a prosecution summary which was tendered in evidence and read in open court by the prosecutor, Ms McKay.  The summary was accepted as being accurate and as forming a proper factual basis upon which I can proceed to pass sentence by your counsel, Mr Patton.  It is not necessary that I here repeat what is there set out, except in the summary way.

4

In the early hours of the morning of 17 June 2014 you and a friend,

Grace Bones, were found in possession of drugs whilst in a vehicle in Frankston North.  Both you and Bones are drug addicts.

5In a black shoulder bag belonging to you police found 0.1 gram of methylamphetamine with an approximate purity of 100 per cent, a quantity of empty clip seal bags, a ledger containing a list of names and money owed, and empty plastic bottles.  A search of you located another 2.2 grams of methylamphetamine in two small plastic bags.  In a camera bag a plastic bottle containing 33.6 grams of Butanediol was also found.  A further pink bottle contained 459.9 grams of the same drug, and a yellow bottle, another 471.2 grams of the same drug.  A three litre orange juice bottle also found contained 1310 grams of Butanediol.  When apprehended you had $630 cash on you, and a further $800 was located in the vehicle that belonged to you.

6

In the context of the charges; on the trafficking charge you were found to be in possession of 2274.7 grams of Butanediol for sale by trafficking, where

2000 grams of this drug is a commercial quantity.  The prosecution proceeds as a charge of trafficking simpliciter and not trafficking in a commercial quantity of this drug, because the prosecution accepts it could not prove, on the evidence, that you, at all times, intended to traffick in a commercial quantity of the drug over a period of time.  However, in terms of assessing the seriousness of the trafficking charge, it is important to have regard to the quantity of the drug you had in your possession for sale, and that you had other things, such as cash money and records of drug debts owed, on your possession.

7Your offending in the trafficking charge is serious.  I was told, and accept, that you are, and were at the time of offending, an ice addict.  Butanediol is a chemical used by ice users to assist in coming down from the effects of ice.  That was the market that you were trafficking to for the purpose of raising money to fund your ice habit.

8On the possession charge you had a total of 2.3 grams of methylamphetamine in your possession, and you fall to be sentenced on the basis you possessed this drug for your own use.  To your credit, you have pleaded guilty to the charges.  In passing sentence I must, and will, take that into account.  The matter resolved into a plea on the day the matter was fixed for trial, but it was not your fault the matter resolved at the door of the court, because you had offered to plead guilty to the charge of trafficking simpliciter at an early date, and it was the prosecution that wished to press for more serious charges, which it ultimately must have accepted that it could not prove.

9I treat you as having offered to plead guilty at the earliest opportunity.  By your pleas of guilty you have saved the time and cost of a trial, and I treat your pleas as evidence in genuine remorse.  Because of your pleas of guilty you are entitled to a reduction in sentence, and this will be reflected in the sentence I will shortly pass.

10You are now 26 years of age.  Importantly, you are employed.  You have prior convictions for violence and weapons offences from two previous court appearances in 2011 and 2012.  The offending in 2012 breached a community-based order imposed in 2011, and that troubles me somewhat, but the prior offences are of a different kind to this offending.  You are presently serving a community corrections order imposed on you in November 2014 for other offending prior to these offences, but dealt with after your arrest.  An assessment of your suitability for a further community corrections order suggests that you may not have fully complied with the terms of that community corrections order, but you had not been breached.  However, what is contained in the assessment alerts me that I must be cautious in trusting you to comply with the conditions of a community corrections order, and this does affect the kind of sentence I will impose.

11I have decided to release you on a community corrections order, but there will be conditions; including judicial monitoring by me.  If you do not take the chance that I will give you you will be brought back before me quickly and I will deal with you.

12Mr Patton provided a helpful written outline of argument, which I marked as an exhibit.  He has there set out your family and background circumstances, and I borrow from that document.

13You are now 26 years of age, and although not a young offender, you are still relatively young and still have a very worthwhile life if you can rid yourself of drugs.  You appear to have had a good education and you have completed an apprenticeship as a landscape gardener and hold qualifications in horticulture.  You have a reasonable work record and have a good job.  I am impressed by the fact that your employer, knowing of your problems, fully supports you.  I received a written reference from her where she makes that perfectly clear.  You also have support of family and friends, as evidenced by those who turned up at court to support you, and from the written references I received.

14You suffer from depression and anxiety and you are receiving treatment and medication for this.  You have also sought and received some limited treatment for your drug addiction.  The efforts that you have personally made to do something about your drug issues is a sign, I think, that you genuinely want to turn yourself around, and in those circumstances I should not take any step in sentencing you that will prevent you, or harm your chances of reaching that goal.

15On the evidence presently to hand your prospects for full rehabilitation must remain guarded, because you will have to first rid yourself of drugs.  Normally in cases of drug trafficking the principles to be applied in sentencing centre around general deterrence; to discourage others from offending in the same way you have.  The problems you exhibit because of drugs are the very reasons why this kind of offending will no longer be tolerated in the community; because drug taking, and those who pedal drugs, cause so much harm to drug takers and their families, and the community in general.

16The sentence must also reflect just punishment and the court's denunciation of your offending.  For these reasons - although the prosecution agreed that a community corrections order was within the range of appropriate sentencing - it submitted that the community corrections order should be served after an appropriate term of imprisonment.  In making the submission the prosecution relied upon the quantity of Butanediol you had in your possession.  I understand that submission, but reject it in favour of a sentence that will give you one last chance to rehabilitate yourself.

17In your case, because you are reasonably young and appear to be wanting to change your life, and because you have work and family support, I have decided that a sentence by way of a community corrections order can be tailored to reflect proper application of appropriate sentencing principles.  I stress I will be monitoring your adherence to the community corrections order and its conditions.  If I see that you are breaching the orders I will have to deal with you again.  Whether or not that occurs is entirely within your control, and you should consider yourself on notice.

18On Charges 1 and 2 I make a community corrections order with conviction for a period of three years.  There will be conditions including that you perform 200 hours of unpaid community work, that you undergo assessment and treatment for mental health rehabilitation, that you undergo assessment and treatment for drugs and alcohol rehabilitation, and that you undergo supervision by a Community Corrections officer.  There will also be judicial monitoring every three months.

19I have been asked to sign relevant forfeiture and disposal orders.  Because the making of those orders was unopposed, I will sign them.  I have also been asked to make a forensic sample order, which was also not opposed, and for the reasons stated in the order, I have also signed it.  This order was not opposed, Mr Ross, and I have signed it because of the seriousness of your offending, your prior convictions, because it was not opposed, and I think it is in the public interest.

20

Having signed the order, you must undergo a forensic procedure for the taking of a scraping from your mouth.  That requires you to report to the

Frankston Police Station at 15 Fletcher Road, Frankston, during the period of four weeks commencing 28 days after the sentence.  So you have got four weeks from today, do you understand?

21OFFENDER:  Yes, Your Honour.

22HIS HONOUR:  It is a simple procedure.  It just requires the taking of a swab from your mouth.  Now, the community corrections order that I have imposed has conditions; were they explained to you by those doing the assessment?

23OFFENDER:  Yes, Your Honour.

24HIS HONOUR:  And did you agree to those conditions?

25OFFENDER:  Yes, Your Honour.

26HIS HONOUR:  Do you understand that if you commit another offence punishable by a term of imprisonment you will be brought back before me?

27OFFENDER:  Yes, Your Honour.

28HIS HONOUR:  Do you also understand that you will be brought back before me every three months and I am going to monitor how you are progressing?

29OFFENDER:  Yes, Your Honour.

30HIS HONOUR:  And on those occasions I will be told whether or not you are turning up for the unpaid community work, and whether or not you have been properly attending for any counselling sessions, or whatever that you may be required to undergo.  Do you understand that?

31OFFENDER:  Yes, Your Honour.

32HIS HONOUR:  Do you recognise that this is giving you a chance to achieve full rehabilitation?

33OFFENDER:  Yes, Your Honour.

34HIS HONOUR:  Well, I hope you do, because if you come back before me and you breach the orders that I have made, having made it very clear to you the impact of any breaching, I will be very disappointed, and I will take all that into account.  Do you understand?

35OFFENDER:  Yes, Your Honour.

36HIS HONOUR:  Very well.  Are there any questions?

37MR PATTON:  Your Honour, just with respect to the forensic sample order.  It's my understanding that it's a four week period following the expiration of an appeal period, which would be four weeks commencing 28 days from today, rather than it being four weeks from today.

38HIS HONOUR:  Well, it's on the order.  "Pursuant to section," I'm quoting from the order.

39MR PATTON:  Yes, Your Honour.

40

HIS HONOUR:  "The court orders that pursuant to s.464ZF, for the purpose of undergoing the said procedure you report to the officer in charge at

Frankston Police Station at 15 Fletcher Road, Frankston, during the period of four weeks commencing 28 days after the day of sentence, or once any instituted conviction appeal is finally determined and the conviction for the forensic sample offence is upheld."

41MR PATTON:  Thank you, Your Honour.

42HIS HONOUR:  This is a plea, was it not?

43MS McKAY:  Yes.

44MR PATTON:  Yes, Your Honour.

45HIS HONOUR:  Thank you, Mr Patton.  Any questions, Ms McKay?

46MS McKAY:  Not questions, Your Honour.  Well, in fact, it is a question.  Does Your Honour intend to make a s.6AAA declaration in relation to this matter?

47HIS HONOUR:  Am I required to make it?

48MS McKAY:  It's not required, Your Honour.

49HIS HONOUR:  I haven't, no.  I did indicate that I would, but I'm not going to.  I haven't sentenced to a term of imprisonment.

50MS McKAY:  As Your Honour pleases.  Your Honour, I'm instructed that the Crown's policy on judicial monitoring is that it usually doesn't have a representative appearing unless Your Honour orders that that occurs.  Does Your Honour require an appearance from the Crown at the first judicial monitoring appointment?

51HIS HONOUR:  Not unless there is something adverse in any report that I might receive.

52MS McKAY:  As Your Honour pleases.

53HIS HONOUR:  If there is, then I will.

54MS McKAY:  And will you run a ‑ ‑ ‑ 

55HIS HONOUR:  I make it quite clear that if there's breach of my order - any breach, I will - having put Mr Ross on fair notice and given him the opportunity to do so - I will take a very dim view of any breach.  And my approach is I give a chance - I give one chance, and if it's not taken then the provisions of the Act will apply; save in exceptional circumstances.

56MS McKAY:  As Your Honour pleases.

57HIS HONOUR:  And if I'm required to then decide whether or not there are any exceptional circumstances I'll be grateful for the assistance of the Crown.

58MS McKAY:  Yes, Your Honour.  Does Your Honour to propose a set a date for the first judicial monitoring today?

59

HIS HONOUR:  Yes.  The first date for the judicial monitoring will be

30 October at 9.30.

60MS McKAY:  As Your Honour pleases.

61HIS HONOUR:  Do you understand that, Mr Ross?  You'll have to come back every three months.

62OFFENDER:  Yes, Your Honour.

63HIS HONOUR:  Please take the chance I've given you.

64OFFENDER:  Yes, Your Honour.

65HIS HONOUR:  Very well.  You've got to sign the community corrections order.  You've seen this, Mr Patton, have you?

66MR PATTON:  Not that document, Your Honour, no.  But it seems to correspond with the materials I have seen.

67HIS HONOUR:  Yes.

68ASSOCIATE:  Do you confirm that this is your signature, Mr Ross?

69OFFENDER:  Yes.

70ASSOCIATE:  Thank you.

71HIS HONOUR:  Yes, very well.  On the rising of the court you're free to leave.

72MR PATTON:  If Your Honour pleases.

73MS McKAY:  Your Honour pleases.

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