Director of Public Prosecutions v Rowson
[2024] VCC 351
•25 March 2024
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 23-00289
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ANDREW ROWSON |
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JUDGE: | HER HONOUR JUDGE ELLIS |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 30 March 2024 |
DATE OF SENTENCE: | 25 March 2024 |
CASE MAY BE CITED AS: | DPP v Rowson |
MEDIUM NEUTRAL CITATION: | [2024] VCC 351 |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: One charge of importing a marketable quantity of a border controlled drug - one charge of importing a border controlled drug - one charge of possessing imitation firearm as a non-prohibited – plea of guilty
Legislation Cited: Crimes Act 1914 (Cth); Criminal Code (Cth): Sentencing Act 1991 (Vic);
Cases Cited: Bugmy v The Queen (2013) 249 CLR 571; Black v The Queen [2022] VSCA 125; Akoka v The Queen [2017] VSCA 214; Nguyen & Phommalysack v The Queen[2011] VSCA 32; The Queen v Nguyen & Pham[2010] NSWCCA 238; The Queen v Pham [2015] HCA 39; (2015) 256 CLR 550;
Sentence: 20 months imprisonment, to be released after serving 142 days and $200 fine
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr S. Ginsbourg | Office of Public Prosecutions |
For the Accused | Mr P. Bloemen | Yang & Vale Pty Ltd |
HER HONOUR:
1Andrew Rowson, on 19 March 2024, after receiving submissions, I granted your application for a sentence indication pursuant to s 207(1)(a) of the Criminal Procedure Act 2009. I indicated upon a plea of guilty to the proposed charges on a resolution, I indicated that I would impose a sentence of a particular type, being a sentence not involving immediate imprisonment. You then pleaded guilty on arraignment.
2Mr Rowson, you have pleaded guilty to:
· One charge of importing a marketable quantity of a border-controlled drug contrary to sub-section 307.2(1) of the Criminal Code (Cth) (‘the Code’) which carries a maximum penalty of 25 years' imprisonment and/or 5000 penalty units; and
· One charge of importing a border controlled drug contrary to s 307.3(1) of the Code, which carries a maximum penalty of 10 years' imprisonment or 2000 penalty units or both.
3Charges 1 and 2 are both rolled up charges.
4You have also pleaded guilty to a summary charge of possessing imitation firearm as a non-prohibited person contrary to s5AB(1) of the Control of Weapons Act1990, and you have agreed to this charge being heard in this court.[1] The maximum penalty for this offence is two years' imprisonment or
240 penalty units.[1] Summary charge 2.
Circumstances of Offending
5The circumstances of the offending were set out in a Prosecution Opening for Sentence Indication. It is upon the facts which are set out in this document that you fall to be sentenced.
6Charge 1 is a rolled up charge. It relates to the importation of eight consignments shipped from the United Kingdom and, in one instance, from Germany, to Melbourne between 29 September 2020 and 21 July 2022, which contained quantities of pure amphetamine. The packages were addressed to you at your home, in a variation of your name, with one exception, which was a false name. Six of the consignments contained associated shipping documentation describing the contents as ‘supplements’, one was described as a ‘lunch box’ and another had no description. Each consignment was examined and found to contain a whitish coloured substance in which there was between 8%-10% pure amphetamine. At the time, a marketable quantity of amphetamine was two grams. The individual amounts of amphetamine for each consignment are set out in the opening; the total quantity of these consignments was 66.6 grams of pure drug.
7Charge 2 is also a rolled up charge, this one concerning four consignments containing amphetamine shipped from the United Kingdom and arriving into Australia between 14 April and 26 May 2022. These consignments were weighed together and not individually. Forensic analysis of a joint sample of the substances located within the consignments determined there was 13.3% amphetamine. The total amount of amphetamine imported was 22 grams. The contents of these consignments were described as ‘Gym Supplement/s’. The delivery address for each was your address and the packages were in false names.
8Between 26 May and 8 June, contemporaneous with at least one of the importations, you exchanged telephone communications with a contact listed as ‘Lee– Work’. On 26 May, Lee asked via SMS:
'Hey could we sort 2 half bags again for the morning'.
You indicated: 'I have nothing atm'.
You said: 'Was expecting some but nothing has arrived'.
Lee said: Oh shit really no good oh well all good wen (sic) u think u be on'.
You said: 'No idea, should be now but last 4 haven’t shown up'.
You said: 'And its killing me to keep buying and no show…..I've messaged to try something else but waiting for a reply'.
9Lee followed up two days later and you indicated ‘nothing’.
10On 8 June you sent Lee an image of tracking information for a consignment shipped from the UK and messages which included 'we still have a chance'.
11On 19 July 2022, police executed a search warrant at your home in Chirnside Park. During the search police located a shoebox containing a number of empty clip seal bags and a set of scales. A gel blaster with brand TacToys with a packing slip for an order of three gel blasters dated 1 October 2021 was located. The possession of the gel blaster is the subject of the summary charge.
12The prosecution do not dispute that the gel blaster was for recreational use. You told the police when you were interviewed, that these were kids toys but you had bought a couple at the same time so that you and your nephew could play with them together. You told police the gel blasters had never left the house.
13In relation to police questions regarding the consignments, you gave no comment answers.
14You were remanded in custody on 19 July and ultimately bailed on 7 December 2022. You have served 142 days pre-sentence detention.
15A committal took place on 1 March 2023 and you were committed to stand trial. On 27 October 2023, an agreed basis for sentence indication was reached.
Prior Criminal History
16You have admitted a prior criminal history going back to 2004 where you were dealt with in the Children's Court. You have had a number of appearances in the Magistrates’ Court for dishonesty offences including theft of motor vehicle, shop thefts, threats to kill, stalking, affray (which was in September 2010 for which you were sentenced to nine months' imprisonment, five of which were to be served immediately), criminal damage, and driving offences. Your last appearance was in May 2018 when you were resentenced for earlier offending upon a breach of a community correction order.
Sentencing Considerations
17As Charges 1 and 2 are Commonwealth offences, you fall to be sentenced in accordance with Part 1B of the Crimes Act 1914 (Cth) (‘the Act’). Accordingly, I am required to have regard to a number of matters which are set out in s 16A(2) of that Act to the extent that they are relevant and known to the court, and I will do so, as I will elaborate. One of those factors, Mr Rowson, is your personal circumstances.[2]
[2]Crimes Act 1914 (Cth) s 16A(m).
Personal Circumstances
18These were set out in helpful submissions prepared by your counsel. You are now 38 years of age. You were raised in Ferntree Gully where you lived with your mother, father, and younger sister. You also have a half–sister who stayed with your family during visits with her father. The environment in which you grew up was characterised by the ongoing abuse perpetrated by your father. He used drugs heavily and would frequently verbally and physically abuse you and your sister, as well as your mother. You were regularly hit with wooden spoons by your father, and to this day have visible welts on your buttocks. Your father’s drug use and abuse were so frequent that you did not invite friends to visit because you were fearful of him and what he might do. He also emotionally abused you. When you were 9 or 10 years old, for example, you went on a holiday with your family to Tasmania where your father took you hiking and then abandoned you, leaving you to find your way back in the night.
19You and your siblings were very careful growing up to be quiet in the mornings for fear of waking your father and the physical assault that would occur if you did. You described waking each morning with crippling anxiety about making a sound in the house and this anxiety would continue throughout the school day until you would have to return home. Your father frequently destroyed the family's property when in a drug-fuelled rage and this include him deliberately damaging a number of the family’s prized possessions when he was angry. You in effect spent your childhood walking on eggshells.
20As a consequence you grew up with very poor self-esteem until eventually you were kicked out of the family home at the age of 14. You lived on the streets for a period, before moving into a friend's house. At the age of 17 you were incarcerated in a youth facility. At around the same time your mother finally left your father. Two years later you re-established a relationship with your father but by this time you had fallen in with a bad crowd. You were using drugs in an effort to numb yourself from intrusive thoughts about your upbringing.
21The volatile home environment to which you were exposed is corroborated in the character references prepared by your sister and half–sister. Your sister describes your father as an angry man but one with whom you always wanted to have a relationship. He exposed you to drug use to such an extent that you normalised what he was doing. Your house was frequently the target of police raids. Your sister describes an incident when your mother was the victim of an assault and the two of you found her on the floor covered in blood. It paints a compelling picture of the abusive environment in which you were raised.
22You attended high school up until Year 10 but you had difficulties learning and you suffered from social anxiety. You left school to go into an electronic technician apprenticeship. According to submissions prepared on your behalf, you have been engaged in employment in various customer service roles before finding work as a glazier in 2012 which you did for four years before moving into property maintenance. You have also been involved in transportation and your most recent role is one in traffic management.
23When you were aged 30 you were involved in a motorcycle accident which caused major injuries and you were hospitalised for over a week. As a result you have had wires put into your hand and you underwent months of appointments to check your spleen and for blood clots. You also sustained an eye and facial injury as a result of a bashing for which you were hospitalised and required surgery.
24You have a long history of substance abuse, which is perhaps unsurprising given your early exposure to this as a child. You began drinking on the weekends at the age of 15 and you later began using amphetamines and methamphetamines which you used daily for over five years. Despite years of entrenched drug abuse, you have taken steps towards your own rehabilitation. Significantly you have described that your period of incarceration gave rise to a realisation as to the impact of your actions on your own children.
25You have two children aged 6 and 10 from a previous relationship which has involved ongoing mediation. You pay child support for both of those children. You have a three year old son with your partner Zoie and she has three daughters from a past relationship. You have described a form of hyper vigilance to ensure that you do not become like your father was.
26Your counsel submits that when regard is had to the frequent violence and drug use to which you were subjected as a child, in particular the physical and frequent abuse inflicted upon you and the family by your father, that this enlivens principles set out in Bugmy v The Queen.[3]
[3](2013) 249 CLR 571.
27In that case the High Court noted the relevance of exposure to substance abuse and violence during an offender’s formative years, and the way in which a background of that kind may compromise a person’s capacity to mature and learn from experience. Here, the abuse that you witnessed and experienced yourself, is said to explain your recourse to illicit drug use, which is linked to your past offending and the offending here. I accept that the principles as set out in Bugmy have application here. As the High Court said:
'The effects of such social disadvantage do not generally diminish with the passage of time, and are likely to have profound and lasting consequences.'
28Significantly, an offender’s childhood exposure is relevant because his or her moral culpability for the offence being considered is likely to be less than that of an offender whose childhood has not been marred in this way. [4]
[4] See Black v The Queen [2022] VSCA 125 [22].
29Mr Ginsbourg, appearing for the prosecution, did not disagree that Bugmy principles had some application. I take the circumstances of your upbringing into account in accordance with Bugmy. The principles are relevant also when it comes to an evaluation of the significance of your prior criminal history.
30The trauma associated with your upbringing and the criminal history that has accompanied your illicit drug use, makes your recent efforts at rehabilitation since December 2022 all the more commendable.
31I have not received any expert reports in relation to your mental health. Your counsel submits that you have not received ongoing treatment but you have previously been prescribed antidepressants.
32You are very fortunate to have the support of your mother, sister, half–sister, friends, not to mention the support of your partner. They each speak highly of you and in particular they described the changes that they have observed in you since your arrest. Whilst in custody you wrote letters to your sister in which you described a realisation that you had taken your life for granted and how much you had hurt yourself and your family. You are reportedly committed to showing your son that he's loved so that he does not have to go through what you have been through. Your mother notes the impact that your incarceration has had on her. She suffers from multiple sclerosis and she depends on you to help her physically. She too describes your remorse. [5]
[5]Crimes Act 1914 (Cth) s 16A(f)(ii).
33Your partner describes the way in which you supported her following the birth of your son when she experienced postnatal depression, as well as the ongoing support you have given her in relation to having her own daughters return to her care, and their ongoing needs. I take these character references into account as well as the other references tendered, such as that of your brother in law, who refers to the deep remorse that you have expressed to him as well as that of one of your employers, with whom you have been working for the past few months. You are described as a vital part of the team, punctual hardworking and trustworthy.
34I mentioned a moment ago the efforts that you have made towards your own rehabilitation. As is evidenced by the very large number of certificates tendered on your plea, you have completed a considerable number of programmes during the period in which you were in custody. These include programmes in relation to drug and alcohol use, relationships, as well as other more practical certificates to be utilised as a contributing member of society and also in your employment. Your time spent on remand was no doubt difficult given that it occurred in the context of the pandemic or in the aftermath but it is to your credit that you have dedicated yourself to your own self–improvement and that you have completed this impressive number of courses. It is really because of these efforts, and the efforts that I will refer to in a moment, that I have given the indication that you would not be required to serve any further immediate time in custody.
35Your rehabilitation work continued upon your release from custody when you were bailed to The Cottage, a residential programme in which you participated in an effort to address your ongoing drug and alcohol issues. According to a letter from the general manager Aaron Gilhooley, you responded well to all aspects of the programme and you showed a firm commitment to your recovery from substance abuse. You reportedly took every opportunity to adhere to feedback given with respect to turning your life around. Mr. Gilhooley considers that your willingness to change and grow is genuine. Whilst there, you built up some discretionary offsite responsibilities and activities with the aim of providing social integration benefits.
36I accept your time at The Cottage involved a confinement and restriction of your freedoms. Applying the principle set out in Akoka v The Queen,[6] I take this time into account as part of the instinctive synthesis, and have moderated the sentence accordingly.
[6] [2017] VSCA 214.
37You provided consistently clean urine screens, and after the four month period, you moved into the phase four transitional housing programme which encourages further self–leadership and more independence. You remained within this programme for roughly six weeks. Indicative of your commitment to remaining abstinent, you underwent a drug screening in October 2023 by way of a follicle analysis which returned a negative result for any drugs. This bodes well for your prospects of rehabilitation.
38Indeed it is to your credit that despite using drugs for most of your adult life you have been able to commit yourself to remaining abstinent and I take this into account and give it a considerable weight. It is in the community’s interests to see offenders reintegrated back into society and rehabilitated. It seems that you have a real incentive to become a better person so that you can be a better father and role model to your children. Although you yourself have been exposed to a less than ideal father figure by way of your own dad, you do not need to follow in his footsteps as you have begun to demonstrate.
39You have been on bail since December 2022 and you have not committed any further offending. I take this into account. Whilst these matters have been hanging over your head you have used your time productively, and no doubt these proceedings have weighed heavily upon you.
40Although you do have a prior criminal history, given the extensive efforts you have made at rehabilitation, and the fact that you have the support of your partner and family, that you have engaged in employment, I consider that you have very reasonable prospects of rehabilitation and these will be enhanced if you remain abstinent.[7]
[7]Crimes Act 1914 (Cth) s 16A(n).
Plea of Guilty
41I take into account your plea of guilty. You have accepted responsibility for your conduct, and in doing so you have saved the community the significant expense of a trial. Your plea has a utilitarian value and demonstrates a willingness to facilitate the course of justice. It is also reflective of your remorse and I accept that you are remorseful. [8]
[8]Crimes Act 1914 (Cth) s 16A(g).
Crimes Act 1914
42As I have already noted, you fall to be sentenced in accordance with the Crimes Act 1914 (Cth). Section 16A(1) of the Act requires me to impose a sentence that is of a severity appropriate to all of the circumstances of the offence. As indicated, I have had regard to the matters set out in s16A(2).
Nature and Gravity of the Offending
43Pursuant to s16A(2)(a) of the Act, I must take into account the nature and circumstances of the offence. In doing this, I must assess your level of criminality.
44The offending here, particularly on Charge 1, is inherently very serious as is reflected by the maximum penalty applicable. Higher courts in Australia have emphasised often enough that those who engage in offending involving marketable quantities of unlawfully imported border-controlled drugs must expect to receive significant punishment if caught.
45The prosecution submits that Charge 1 is a serious example of a serious offence. As Mr. Ginsbourg points out, this offending involved eight separate importations covering a substantial period of time, approximately 22 months. Each separate consignment exceeded the marketable threshold, and the total amount imported, being 66.6 grams, was more than 30 times the threshold.
46You fall to be sentenced on the basis that you intended to sell some of the drugs or believed that another person intended to do so. Here, the communications with Lee (proximate to the importations covered by Charge 2) suggests that the ultimate aim upon receipt of these drugs, was for their on-sale. Lee was also aware, it seems, of your previous efforts to import drugs. The drug paraphernalia located at your place supports that this was your intention. It appears that you were communicating with somebody overseas in order to arrange this. I take into account that the offending was not particularly sophisticated and it would not have been particularly difficult for authorities to link the consignments with you.
47Charge 2 also covers multiple consignments over the period of one month, and again your exchange with Lee illustrates the ultimate purpose was to sell at least some of the drugs.
48I have had regard to the principles summarised in the Victorian Court of Appeal decision in Nguyen & Phommalysack v The Queen[9] previously distilled in the New South Wales decision in The Queen v Nguyen & Pham.[10] Those cases largely concerned importation offences, and the principles are applicable here. These principles include that the quantity of the illegal drug involved is a highly relevant factor in determining the objective seriousness of the offence and is often the main factor to assess comparative seriousness of criminality. In this case, the total quantity of drugs here, being more than 40 times the marketable quantity, makes the offending serious. I do note however that the purity of each importation was individually and collectively low. This indicates that you contemplated trafficking at a retail level.
[9][2011] VSCA 32; (2011) 31 VR 673.
[10][2010] NSWCCA 238; (2010) 205 A Crim R 106.
49As a matter of logic you did so for financial gain, though I accept that as you yourself were a user of drugs, having developed a deeply entrenched habit, you likely intended some of the drug for personal use. This is relevant to my assessment of the gravity of your offending.
Current sentencing practices
50 I must have regard to current sentencing practices. However, this is only one factor and not the controlling factor when fixing a just sentence. As the High Court set out in The Queen v Pham,[11] when sentencing for a Commonwealth offence, I must have regard to sentences that have been imposed in other states and territories.
[11][2015] HCA 39; (2015) 256 CLR 550.
51 A table was tendered by the prosecution which summarised cases involving sentences for Federal drug offences concerning marketable quantities of border-controlled drugs. The prosecution submits that these cases provide guidance as to the application of relevant sentencing principles and illustrate a sentencing pattern for drug offending of this kind. I have had regard to that table and to each of the cases referred to therein. I have also had regard to the comparable cases provided by your counsel, for those sentenced within this jurisdiction for similar offending, both in terms of the method employed and the quantities involved.
52As for the State charge, I accept that it was purchased legitimately from interstate but these items are prohibited in Victoria. Some of them can give the very real appearance of being a legitimate firearm and to the uneducated, this item might too have given the impression that it was a real firearm.
General and specific deterrence
53Given the seriousness of the offending, general deterrence assumes prominence in the sentencing exercise. This is prescribed in s16A(2)(ja) of the Crimes Act 1914. Offences of this nature are often difficult to detect, and the great harm that such drugs can cause within the community is well-known.
54The sentence that I impose must reflect the significant punishment that is to be expected by people who participate in enterprises such as this involving marketable quantities of drugs. The court denounces your conduct. Given that you have a prior criminal history and the fact the offending occurred repeatedly over a period of almost two years, there is also a need for specific deterrence.[12]
[12]Crimes Act 1914 (Cth) s 16A(j).
55 As I have said, in formulating an appropriate sentence, I have had regard to each of the matters discussed, the relevant provisions of s 16A(2) of the Act and the need to impose a sentence that is just in all of the circumstances.[13]
Sentencing Submissions
[13]Crimes Act 1914 (Cth) s 16A(k).
56Your counsel submitted that I should sentence you in a way that does not involve any further period of confinement. The prosecution submits that a recognisance release order would be an appropriate release mechanism. The question as to whether any further time would be required to be served is a matter for the court. As I have indicated, I am prepared to impose a sentence that does not require any immediate imprisonment and I intend to release you on a recognisance release order. However, should you commit any further offences during the period of the recognisance, you may be required to serve the remaining portion of any sentence.
57I have considered whether Charge 2 could be dealt with by way of a community correction order but it appears that this is not open in this case where a term of imprisonment (and here, one which would in effect exceed 12 months) is to be imposed. In any event, I have come to the conclusion that the offending is too serious to impose a sentence on Charge 1 of less than 12 months' imprisonment.
58Could you stand up please, Mr Rowson.
Sentence
59On Charge 1, you are convicted and sentenced to 20 months' imprisonment.
60On Charge 2, you are convicted and sentenced to six months' imprisonment.
61Both of those sentences are to commence today, and so they are concurrent. The total effective sentence is therefore 20 months' imprisonment. I order that you are to be released after serving 142 days of that sentence, which I note you have already served.
62I declare 142 days pre-sentence detention to be reckoned as served on the sentence that I have imposed and deducted administratively, and order that this be noted in the records of the court.
63You will be released on a recognisance that you be of good behaviour for a period of two years from today’s date, on your own recognisance of $2,000.
64On Charge 3, the State charge, you are fined $200 without conviction.
65Now you are now going to be asked to sign some paperwork in a moment. I am just going to confirm with counsel that the practical effect of what I am seeking to do is correct.
66MR GINSBOURG: Yes. Yes, it is, Your Honour.
67HER HONOUR: Yes, all right. Mr Rowson, you are going to be asked to signed some paperwork which is the recognisance release order. I need to explain to you the effect of the sentence that I have imposed.
68It is not that dissimilar in some ways to a suspended sentence. So you have served 142 days. The overall sentence of imprisonment is 20 months' imprisonment but with you to be released after serving 142 days.
69So the 142 days is the period required to be served, which you have already served. Upon entering in the recognisance you will sign that agreement and what that effectively means is that the remainder of the 20 months' imprisonment will, in effect, be hanging over your head for a period of two years.
70If in that time you were to commit a further offence punishable by imprisonment, then you may well be required to serve out the balance of that 20 months, in addition to whatever penalty you might receive on any further offending.
71The recognisance amount, the $2,000 is only potentially payable by you if you breach the terms of the recognisance. That is, if you were to re-offend in the two year period.
Section 6AAA
72I indicate pursuant to s 6AAA of the Sentencing Act 1991 (Vic) that but for your plea of guilty, Mr Rowson, I would have sentenced you on the Commonwealth charges to a period of three years' imprisonment to be released on a recognisance after serving 18 months. That is what you would have received had you proceeded to trial and were found guilty of those two charges.
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