Director of Public Prosecutions v Scott
[2017] VCC 401
•7 April 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-16-01761
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JACOB SCOTT |
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JUDGE: | HER HONOUR JUDGE DAVIS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 6 April 2017 | |
DATE OF SENTENCE: | 7 April 2017 | |
CASE MAY BE CITED AS: | DPP v Scott | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 401 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Trafficking in a drug of dependence – MDMA – Ketamine
Legislation Cited:
Cases Cited:
Sentence: Community Corrections Order of 3 years with conditions
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr M. Roper | OPP |
| For the Accused | Ms A. Burnnard | Stary, Norton, Halphen Criminal Lawyers |
HER HONOUR:
1
Jacob Scott, you have pleaded guilty to two charges of trafficking in a drug of dependence. The maximum penalty for this offence, on each charge, is
15 years imprisonment. Charge 1 concerns trafficking in 1325 pills, which is the equivalent of 331 grams of MDMA in seven transactions between 7 December 2015 and 23 March 2016. A trafficable quantity of each of these drugs is
3 grams, and a commercial quantity of each of them is 500 grams.
2 Charge 2 concerns trafficking in 250 grams of Ketamine on 29 December 2016. You have also pleaded guilty to negligently dealing with proceeds of crime, in respect of $1950 cash which was located in your car on 23 March 2016 when a search warrant was executed at your address. This is the subject of Charge 3. The maximum penalty for this offence is 5 years' imprisonment.
3 The details of your offending are set out in the Summary of Prosecution Opening which was tendered on the plea and I sentence you on the basis of the facts set out in that document. It is not necessary to repeat them here in detail, but I will summarise them briefly.
4 This case stems from a police and drug task force operation conducted between November 2015 and late March 2016 which targeted James Mobasheri and his drug trafficking operations. His phone calls were tapped, and his car fitted with a tracking device. There was also video surveillance footage of those involved at various locations, such as shops, cafes, take away food outlets and so on. You were one of many people to be identified from this material as having bought drugs from him for on-selling. Many of them have been dealt with in the Magistrates’ Court and received community based dispositions. One of the people who bought drugs from him, Troy Donaldson, has been sentenced by this Court to a substantial period of imprisonment, but his case is very different to yours.
5 Charge 1 concerns seven transactions between mid-December 2015 and late January 2017. In the first transaction you rang Mobasheri and arranged to buy 50 ecstasy pills from him. You met him and concluded the transaction.
6 In the second transaction you rang Mobasheri and asked him to provide you with 100 ecstasy pills. You exchanged text messages, then met in Kilsyth to complete the transaction. In the third transaction you rang him and asked him for 350 ecstasy pills, and arranged to meet him in a car park behind Mocha Jones in Glen Waverley. You met there and completed the transaction.
7 In the fourth transaction, you rang Mobasheri and asked him to supply you with 200 ecstasy pills, which you obtained from him shortly thereafter when you met behind KFC in Wantirna South. In the fifth transaction, you rang Mobasheri and asked him to supply 150 ecstasy tablets, and you obtained those from him about one hour later when you met in Chelsea Heights. In the sixth transaction you rang Mobasheri and asked him to supply 200 ecstasy pills, and he provided those to you about an hour later when he met you on Ferntree Gully Rd.
8 In the seventh transaction, you had conversations with Mobasheri in which you arranged to obtain 275 ecstasy pills from him at Chadstone Shopping Centre. You met him there and obtained the drugs.
9 Charge 2 concerns one transaction concerning 250 grams of Ketamine. You arranged with Mobasheri to obtain the Ketamine for an associate. You had a number of conversations with him as to the price to be paid, and the profits you and Mobasheri were to derive from the sale. Mobasheri was going to pay $25,000 for the ketamine, and you were going to sell it to your associate either for $28,000 or for $26,000 with the balance in tablets. The sale of the Ketamine took place near a Mocha Jones café in Glen Waverley. Your instructions are that as a result of this transaction you received some ecstasy tablets which you consumed personally.
10 A search warrant was executed at your home address on 23 March 2016. Investigators seized your mobile phone and a white t-shirt that was consistent with the security video images taken from the Mocha Jones café. They also located 16 ecstasy pills and $1950 in cash in your car. When interviewed, you admitted using ecstasy and ketamine in recent weeks but denied selling them; and you refused to comment when specific allegations were put to you. You stated that the cash was money you had earned working for your father and $150 of it was winnings from a tennis tournament. You answered no comment to questions about knowing Mobasheri, or about the Ketamine transaction with him at Mocha Jones which was captured on CCTV footage.
11 The matter resolved on 23 August 2016 prior to the second committal mention, and the prosecution conceded that your plea of guilty was made at the earliest opportunity.
12
Before me, forensic, disposal and forfeiture orders were sought by the prosecution and not opposed by you. The disposal orders concerns the
16 ecstasy pills found in your car. The forfeiture orders concern the cash found in your car and the mobile phone found at your home.
13 I turn to your personal circumstances. Your counsel tendered three psychological reports (one from Dr Aaron Cunningham dated 14 December 2016, one from Rachel Joll dated 4 April 2017, and one from a former treating psychologist, Rebecca Kenny, dated 8 September 2016), as well as a letter from your general practitioner (who was treating you with Valium for your anxiety over this court case), a bundle of clean urine screens for a period up to August 2016, and a bundle of references from family, friends and a former coach. I have taken all of this material into account.
14 There were a number of people yesterday in court to support you, including your father, sister, close friend, former coach, and other friends. Your father gave evidence. Your mother was overseas on a business trip and was unable to be present, but provided a supportive letter.
15 You are currently aged 21 and were 19 years old at the time of offending. Therefore you are to be sentenced as a youthful offender. You have a sister who is six years older than you and currently eight months pregnant. You have always lived with your parents. You attended Box Hill Secondary school from Years 7 to 10 in order to participate in its specialist tennis program, and began travelling to play in tournaments at the age of 13.
16 You received sponsorships in the form of clothing and equipment, and at the age of 17 achieved your highest ATP ranking of 1150 out of a possible 1900. You were training hard and socialising mainly with your fellow tennis players. You had used ecstasy and ketamine since the age of 18, largely in a social context.
17 In late 2015 you were playing tennis professionally and travelled to Europe to compete in summer tournaments. You sustained an injury to your right ankle and toes, and upon returning received treatment by way of medication. You were advised to take six months away from tennis to recover. You were bored and lonely. Your parents took you to counselling but you only went to one session.
18 You met Mobasheri at a nightclub and bought ecstasy from him for your own use. You told Dr Cunningham that you fell in love with the drug because it released you from stress and exhaustion. As you were only working part-time helping your father in his excavation business, you began offending to support your own habit and to make money.
19 The psychological reports indicate that you suffer from no mental illness but are suffering from some anxiety relating to the outcome of this matter. You have had a solid upbringing in the context of a loving and supportive family. Your father runs a truck-driving business and an excavation business. During your time on bail, you have run the excavation business and have worked long hours. You have obtained your heavy rigid licence.
20 Your father puts away your income so that it pays for some of the excavating equipment and for savings towards a deposit on a house. You have not been able to play in tennis tournaments because of your inability to travel, and you have lost your ranking and the sponsorship that went with it. You saw Ms Kenny for five months in 2016 until being informed that she had passed away. Since August 2016 you have been seeing Rachel Joll for weekly drug counselling sessions, for which you are paying yourself.
21 Dr Cunningham explains your offending behaviour in terms of your being immature and rebelling against the discipline required of a career in professional tennis, and of you falling in love with the social aspect of drug use as well as the effect of the drug on your mental state. I consider that your trafficking activities were above street level. It was not submitted that your offending occurred solely to fund your drug habit; clearly, you were making some money from the activities, which were above street level. I therefore attach little weight to your addiction.
22 I note that you have pleaded guilty to this offending at the earliest opportunity and that you have saved the community the expense and inconvenience of a trial. The plea of guilty warrants a substantial discount in sentence. The plea reflects your remorse, and I accept that you are remorseful. Through your counsel you indicated that you have stood back and gained an understanding of the impact of drugs on your life and on the community. You have no prior convictions.
23 The plea on your behalf focused on your youth and the steps you have taken in the past year towards rehabilitating yourself. Your father gave evidence that you live at home with your parents, and play an important part in the excavation business he runs. He invested in some small excavators which you are licensed to tow and which you deliver regularly to customers. You run that side of the business. You have also obtained a heavy truck licence.
24 You have an agreement with him that your income is to be kept by him and applied, firstly, to the weekly interest payments on that new machinery and, secondly, to saving for a deposit for your first home. You no longer associate with your former nightclub associates. You are training and playing tennis. Your mother, sister, friends and former coach all attest to your strong personal qualities, and to the new direction you have now that you are working with your father.
25 Dr Cunningham and Ms Joll pointed to the current protective factors which may reduce your risk factors, stabilise you within the community, and improve your psychological functioning. They are as follows. You have a stable and supportive family. You can work in the family business and live at home. You have maintained your fitness through regular training and your wellbeing through consistent counselling sessions which you initiated. You are motivated to return to professional tennis.
26 You understand the seriousness of your behaviour and expressed your remorse and fear of incarceration. On the material before me, in the light of your insight into your offending behaviour and the damage it caused you and others in society, and your actions since your arrest and in particular your abstinence from drugs and your undergoing drug counselling, I consider that you have excellent prospects of rehabilitation.
27 In your case, both the prosecution and defence agree that the imposition of a Community Corrections Order can meet the sentencing requirements of general deterrence, punishment and denunciation. You have been assessed as suitable for such an order in a report dated 6 April 2017, which notes that because of the factors I have mentioned above you are assessed at low risk of reoffending, and not in need of supervision, mental health treatment or offender specific programs. However, the report recommended that conditions providing for unpaid community work and for drug and alcohol treatment be included in any Community Corrections Order.
28 In the light of all the material before me, I consider that you have excellent prospects of rehabilitation and that specific deterrence is of limited application to you.
29 Drug trafficking is a very serious offence and causes great harm to the community. The seriousness of the offence is reflected in the maximum penalty of 15 years’ imprisonment. Individuals who become involved in the business of selling drugs to often vulnerable and addicted members of the community need to know that such conduct will be severely punished. Principles of denunciation of conduct, just punishment, general deterrence and protection of the community are all important sentencing considerations.
30 Usually, but not always, such offending will result in the imposition of an immediate term of imprisonment. However, these considerations must be weighed against matters personal to you, including your youth, plea of guilty, remorse, and the very significant steps taken by you towards rehabilitation, particularly that you are continuing to undergo drug counselling. I am required to impose a sentence of imprisonment only as a last resort.
31 I consider in all the circumstances that the imposition of a Community Corrections Order is the disposition that will satisfy the requirements of proportionality, parsimony and just punishment, while affording the best prospects for rehabilitation. I propose to give you a chance to remain in the community and to continue your efforts towards rehabilitation, although you will be subject to a strict order for a significant period of time. If you commit any breaches in relation to the order I make, you will come back before me for re-sentencing on the charges, and I will have no hesitation in imposing a sentence of imprisonment in respect of the two trafficking offences.
32 The final matter before I ask you to rise to receive the sentence in broad terms relates to whether or not the disposition that I impose should be accompanied by a conviction or not. This is a discretionary matter. Your counsel has emphasised your wish to return to professional tennis and then the possibility that your ability attend to overseas to some countries to play in tournaments may be adversely affected by a conviction.
33 The evidence of this coming from the bar table is less than the strength of evidence upon which one would normally wish to act in matters such as this. I have to take into account the serious nature of the offences for which you are being sentenced. I do take into account of course your previous good character, the fact that you have no prior convictions and your youth, and particularly your desire to perhaps return in the future to professional tennis.
34 However, having regard to the seriousness of the offending in this case, notwithstanding the fact that in some contexts a convictions may, as it were, travel with you and have an impact on your life, the offences for which you are being sentenced are very serious ones and they are not ones in which it could be said that they are victimless crimes. These have real victims.
35 So for those reasons in the circumstances of this offence, whilst I acknowledge the excellent efforts that you have made in rehabilitation I do not feel that it is appropriate to impose a non-conviction disposition. For those reasons, if you would stand please?
36 You are convicted on all charges. I also make an aggregate order placing you on a CCO for a period of three years. I have heard your counsel's submissions in relation to not wishing for that length of the community corrections order to be particularly onerous in terms of its length, but I feel having regard to what has been indicated in the report from Corrections that efforts can be made to release you from obligations so that you can travel outside Victoria if you wish to to attend tournaments. This will not cause you as much difficulty as you might have thought it would.
37 You will be required to complete 200 hours of unpaid community work, and to undergo drug assessment and treatment. Presumably what you are currently undergoing will suffice to satisfy the Director of Corrections in this regard, but it is a terribly important part of your rehabilitation and I urge you to continue that so that you can continue to work on making yourself invulnerable, as it were, on that score.
38 In addition to the conditions 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 in force - that is, three years 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 Pakenham within two clear working days, which will be 11 April 2017.
39 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, where you live or work, within 48 hours of that occurring. Finally, you must obey all lawful instructions from, and directions of, Community Corrections officers.
40 Do you understand the conditions I have imposed and the general terms that apply?
41 OFFENDER: Yes, Your Honour.
42 Before you consent to the making of such an order, you must understand that the contravention of any condition attached to the community corrections order, except for a contravention of a direction by the Secretary, is itself an offence punishable by three months' imprisonment. Contravention of a community corrections order also carries with it the prospect that you will be brought back before me and resentenced for the original offences. Do you consent in those circumstances to the imposition of such an order?
43 OFFENDER: Yes, Your Honour.
44 Application was made by the prosecution for the provision of a forensic sample by taking a scraping from your mouth, or a blood sample. Having regard to the seriousness of the circumstances of the offending, I find that the granting of the order is in the public interest and you have consented to that order. I will make the order and sign it shortly.
45 I am required to warn you that if at the time you are requested to supply a sample of your DNA by scraping from the inside of your mouth, under supervision by an authorised member of the police force, then the sample will be taken in that way. But if, when requested by the officer to provide the sample in that way, you either fail or refuse to provide the sample, the officer is authorised to obtain a blood sample, and to use reasonable force to obtain that blood sample.
46 I will also make the forfeiture order and disposal order sought by the prosecution. The order I make is an aggregate order in the circumstances for a three year Community Corrections order with the conditions I have imposed.
47 I indicate that pursuant to section 6AAA of the Sentencing Act, but for your plea of guilty I would have imposed an aggregate sentence of two years’ imprisonment with a non-parole period of one year. Are there any other matters or any inaccuracies which you wish to point me to right at this moment?
48 MR ROPER: No, Your Honour.
49 MS BURNNARD: No, Your Honour.
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