Director of Public Prosecutions v Roxburgh

[2020] VCC 265

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-19-01971

DIRECTOR OF PUBLIC PROSECUTIONS

v

EVAN ROXBURGH

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JUDGE:	HER HONOUR JUDGE HASSAN
WHERE HELD:	Melbourne
DATE OF HEARING:	17 March 2020
DATE OF SENTENCE:	20 March 2020
CASE MAY BE CITED AS:	DPP v Roxburgh
MEDIUM NEUTRAL CITATION:	[2020] VCC 265

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW

Catchwords:              Sentence — trafficking in a drug of dependence (commercial quantity) — trafficking in a drug of dependence — deal property suspected proceeds of crime — commit indictable offences whilst on bail — contravene certain conduct conditions of bail — plea of guilty — relevant prior criminal history — long history of drug use — general deterrence — specific deterrence — prospect of rehabilitation

Legislation Cited:      Sentencing Act 1991 (Vic); Drugs, Poisons and Controlled Substances Act 1981 (Vic)

Cases Cited:R v Verdins (2007) 16 VR 269; Gregory v The Queen (2017) 268 A Crim R 1

Sentence:Total effective sentence of 4 years and 9 months with non-parole period of 3 years and 6 months

Section 6AAA declaration: 7 years with non-parole period of 5 years

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms A Dickens	Solicitor for the Office of Public Prosecutions
For the Accused	Mr Clamart and Mr G Barns	Michael J Gleeson & Associates

HER HONOUR:

1Evan John Roxburgh, you have pleaded guilty to one charge of trafficking in a drug of dependence — commercial quantity (charge 1), for which the maximum penalty is a term of imprisonment of 25 years, and one charge of trafficking in a drug of dependence (charge 2), for which the maximum penalty is a term of imprisonment of 15 years.

2You have also pleaded guilty to three related summary charges:

i.   dealing with property suspected of being the proceeds of crime (summary charge 5), for which the maximum penalty is a term of imprisonment of two years;

ii.    commit an indictable offence while on bail (summary charge 7), for which the maximum penalty is 30 penalty units or three months’ imprisonment; and

iii.   contravene certain conditions of bail (summary charge 8), for which the maximum penalty is 30 penalty units or three months’ imprisonment.

3The offence of trafficking in a commercial quantity is a category 2 offence pursuant to s 3(1) of the Sentencing Act 1991 (Vic) and therefore, pursuant to s 5(2H) of that Act, the Court must impose a sentence of imprisonment, other than a combined sentence of imprisonment and a community correction order, unless a special reason exists under the Act. It was not submitted by your counsel that a special reason exists and therefore you are caught by the mandatory application of s 5(2H).

4You have a relevant criminal history with multiple convictions for drug use and possession of drugs, including amphetamine, MDMA, cannabis, GHB, LSD and methylamphetamine. You also have a conviction for trafficking amphetamine from the Ringwood Magistrates’ Court on 31 May 2013. In conjunction with other offending, which included being a prohibited person in possession of a firearm, dealing with property suspected of being the proceeds of crime, and handling stolen goods, you received an aggregate sentence of six months’ imprisonment.

5On 17 March 2015, you were convicted and sentenced to 180 days’ imprisonment for trafficking MDMA. You have multiple prior convictions for dealing with property suspected of being the proceeds of crime and going equipped to steal, as well as other convictions for dishonesty offences, the possession of weapons, and driving offences.

6Tendered at the plea as exhibit 1 was a ‘Summary of Prosecution Opening’ dated 18 February 2020.

7In brief, the circumstances of your offending were as follows. On Tuesday 30 October 2018, police received information that you were trafficking methylamphetamine. Further similar information was received on 12 February 2019. On the basis of the information received, an investigation was commenced into your activities.

8Surveillance was conducted of a Pope Street address and it was confirmed that this was where you were living. It was ascertained that numerous people in vehicles were coming and going from the address over short periods of time, indicative of drug trafficking.

9A search warrant pursuant to the Drugs, Poisons and Controlled Substances Act 1981 (Vic) was obtained for 25 Pope Street, Boronia. Whilst police were checking the house, Senior Constables Rinderhagen, Paxinos and Howe and Constable Borci were entering the rear yard via a gate between the house and the driveway. As they entered the backyard, they observed you run from the garage towards the fence behind the garage. Senior Constable Rinderhagen observed that you were carrying a dark-coloured satchel as you ran.

10Police called out for you to stop and get on the ground, but you did not and threw away the satchel that you had been carrying towards the garage. You were then restrained and arrested. The satchel that you had been carrying was located next to the garage.

11A search of the satchel found the following:

i.   four ziplock bags containing methylamphetamine and two smaller bags and a smaller plastic container containing methylamphetamine (combined total weight of 76.204 g pure);

ii.    a plastic container holding approximately 92.7 g of 1,4-butanediol;

iii.   a tick list entitled ‘Keeping Track’, referencing money owed;

iv.   $1,020; and

v.    various items of drug paraphernalia.

12On you was located a wallet containing $740 and a mobile phone, the contents of which included text messages indicative of drug trafficking. In your car on the driver’s seat was located $300.

13You were transported to the Croydon police station on 19 February 2019 to be interviewed and were arrested. You participated in a record of interview, where you remained mute throughout the interview and exercised your right to answer ‘no comment’ to all questions put to you.

14At the time of this offending, you were on bail. In addition to this, you have failed to report on bail on 12 occasions between 14 November 2018 and 19 February 2019.

15You pleaded guilty to the charges on the indictment on 1 October 2019. This was on the day on which a contested committal was scheduled. You pleaded guilty before any witnesses were called. This is an early plea. It has saved the witnesses and the community the time and cost of a trial. It therefore has utilitarian value. I also accept that it is indicative of remorse. I will take your plea of guilty into account in sentencing you.

16I turn now to your personal circumstances. You were born on 5 October 1985 and you are presently 34 years of age. You were 33 years of age at the time of the offending. You grew up in Wantirna in a siblingship of three. Your parents, Joy and Ian Frazier-Roxburgh, attended the plea to support you and wrote a letter to the Court outlining their ongoing support of you, including their preparedness to pay in full for a private residential rehabilitation place at The Cottage, Shepparton.

17Mr Aaron Gilhooley, Client Services Manager at The Cottage, also wrote to the Court outlining its program and confirming your acceptance into the program, as did Maria Hutchison, an addiction treatment counsellor and consultant at The Cottage. She met with you at the Melbourne Remand Centre on 13 January 2020 to assess your suitability for The Cottage’s program. I was told by your counsel, Mr Barns, that this placement is an open one and will be available to you upon your release from custody, whenever that occurs.

18Your parents have described your upbringing as normal and unremarkable. You attended Wantirna College, where you completed year 10. You wrote a letter to the Court, in which you said you were severely bullied at school and that you turned to drugs at a young age as solace. You reported to Ms Hutchison that your drug use began when you were only 13 years of age.

19You have seen Mr Tim Watson-Munro, a consultant forensic psychologist, on three occasions in relation to court appearances by you since 2013. Most recently, you saw him on 6 February 2020, and he prepared a report for your plea. In that report, he referred to your earlier attendances with him and to his early reports. You spoke with Mr Watson-Munro about your background when you saw him in May 2013 and February 2015. You told him that you started to drink heavily and abuse alcohol at the age of around 16. You told him you also started using cannabis at the same time.

20You told him you began working after you left school. You worked at Electric Motor Power for around six years, during which time you completed an apprenticeship as a fitter and turner. After this, you worked at a scaffolding company for around three years, before being made redundant. You then worked as a car detailer. It seems your drug and alcohol use were already problematic when you began working, aged 16, but you confined yourself to weekends and were able to maintain your employment until your drug use began to take over your life. By 20, you were using amphetamines and then ice.

21Your criminal record begins in 2009, when you were 24 years of age, and it was at this point that your life began to spiral out of control, until the point your drug use prevailed over everything else in your life.

22A character reference was provided to the Court by Ms Belinda Low. Ms Low has been a close friend of yours for 18 years. In her letter, Ms Low says that since you have been in custody, she has become aware that you are the father of her three-year-old daughter, Ashleigh. She says that upon informing you of this, you have expressed a strong desire to be part of Ashleigh’s life. Ms Low says that, if you are to be part of Ashleigh’s upbringing and life in the future, she will not tolerate you using illicit drugs. I accept the submission that becoming a father and the support of Ms Low will motivate you to try to rehabilitate.

23You also told Mr Watson-Munro that your sister had also battled drug addiction and that you had witnessed the suffering that your parents had endured because of both you and your sister. You also saw how your sister was able to rehabilitate. I accept that your sister’s example and the desire to stop hurting your parents will also motivate you to try to rehabilitate.

24Mr Watson-Munro is of the opinion that you suffer depression, anxiety and substance abuse disorders. These conditions have been a feature of your life for many years. You were admitted to a psychiatric hospital in 2013.

25Your counsel did not submit that there was any application of Verdins principles,[1] but did submit that I should take your mental health difficulties into consideration generally when assessing the effects of imprisonment upon you.

[1]R v Verdins (2007) 16 VR 269.

26Tendered at the plea was a letter from you to Damien McNally, setting out the days that the Melbourne Remand Centre (the ‘MRC’) has been in lockdown since you have been there. There has been around one month in total of days of emergency management. On these days, you have been confined to your cell until around 1:00pm to 3:00pm. You have also witnessed the suicide of a fellow inmate with whom you were friendly during your time in custody. Notwithstanding these difficulties in prison, you have, however, completed many certificates in practical skills and in relationships. I will take these matters into account in sentencing you.

27I now turn to an assessment of the objective gravity of your offending. It hardly needs to be stated that trafficking in a commercial quantity of a drug of dependence is serious offending. The maximum penalty is 25 years’ imprisonment. Drug trafficking is a scourge on society. It destroys the health and wellbeing of its victims and it results in the ruination of lives, most often young lives.

28In the case of Gregory v The Queen,[2] the Court of Appeal held that current sentencing practices for the offence of trafficking in a commercial quantity were inadequate. In serious examples of the offence, the Court stated that there was an expectation that there would be sentences ‘well into double figures’.[3] The features set out by the Court that would warrant a sentence ‘well into double figures’ were that the quantity involved approached the large commercial quantity threshold, that the offender was in the trafficking business, the business was conducted for a substantial period of time, the offender pleaded not guilty, or the offender had relevant prior convictions.[4]

[2] (2017) 268 A Crim R 1.

[3] Ibid 24 [98].

[4] Ibid.

29On your behalf, it was submitted that your offending was at the lower end of seriousness for this offence. The prosecution resisted that characterisation but agreed that your offending was not sophisticated. The prosecution further accepted that there is little that can be established, in terms of the details of your offending. It cannot be established how long you were trafficking, it cannot be established whether it was for a substantial period of time, and it cannot be established the extent of your trafficking business.

30What is established is that the amount of methylamphetamine you trafficked was approximately one and a half times the commercial quantity threshold. The sentencing regime for trafficking offences is quantity-based. The quantity trafficked is therefore a highly relevant consideration in sentencing for trafficking offences. Put simply, other things being equal, the greater the quantity trafficked, the more serious the offence.

31In respect of charge 2, traffick simpliciter of 1,4-butanediol, the amount trafficked by you was just under double a traffickable amount, and it was well short of the commercial threshold for the drug, which is 2 kg.

32I accept that your trafficking is at the lower end of seriousness for both the offence of traffick in a commercial quantity and traffick simpliciter. Your offending is, however, aggravated by the fact that you were subject to a community correction order and you were on bail when it occurred.

33I now turn to the relevant sentencing principles. In addition to specifying matters to which I must have regard in arriving at an appropriate sentence, the Sentencing Act 1991 (Vic) prescribes the purposes, indeed the only purposes, for which a sentence may be imposed. These are: just punishment, deterrence, rehabilitation, denunciation, and protection of the community. A custodial sentence must only be imposed as a last resort.

34I must take into account the effects of your crime and I must have regard to current sentencing practices and to maximum penalties. The primary sentencing considerations in this case, as in all cases of drug trafficking, are general deterrence and denunciation. Drug offences are prevalent. The message must be sent out to others who would behave as you did that the courts will not tolerate drug trafficking and such activities will result in terms of imprisonment. Specific deterrence is also a relevant sentencing principle, given your criminal history.

35It was submitted candidly and appropriately by your counsel that your prospects of rehabilitation must be assessed as guarded. This must be the case, given your criminal history and your polysubstance addiction, which has now spanned many years. It is encouraging, however, that you do have structures in place to assist you upon your release, as well as the ongoing support of your parents and an offer of employment from your former employer.

36Taking all relevant sentencing principles into account and balancing them as best I can, I intend to sentence you as follows.

37On charge 1, traffick in a commercial quantity of a drug of dependence, methylamphetamine, I convict and sentence you to four years and six months’ imprisonment.

38On charge 2, traffick in a drug of dependence, 1,4-butanediol, I convict and sentence you to 12 months’ imprisonment.

39On the summary charge of dealing with property suspected of being the proceeds of crime, you are convicted and sentenced to one month of imprisonment.

40On the summary charge of commit an indictable offence on bail, you are convicted and discharged.

41I pause there to say that I have taken into account that the prisoner was on bail as an aggravating circumstance of charge 1, hence, cautious to avoid double punishment, I convict and discharge on this charge.

42On the summary charge of contravene bail conditions, you are convicted and sentenced to one month of imprisonment.

43Charge 1 will be the base sentence. I direct that three months of the sentence on charge 2 be served cumulatively on charge 1.

44That makes a total effective sentence of four years and nine months.

45I am directing that you must serve a period of three years and six months before you are eligible for parole.

46Pursuant to s 6AAA of the Sentencing Act 1991 (Vic), had you pleaded not guilty, you would have been sentenced to a total effective sentence of seven years and a non-parole period of five years.

47Pursuant to s 18(4) of the Sentencing Act 1991 (Vic), I declare that you have served 383 days of the sentence that I have passed upon you and I direct that this is entered into the record.

48I make the disposal and forfeiture orders as applied for by the prosecution. These orders were consented to by the defence.

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