Director of Public Prosecutions v Scott
[2024] VCC 1390
•6 September 2024
| IN THE COUNTY COURT OF VICTORIA AT SHEPPARTON CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-23-01174
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| TROY ASHLEY SCOTT |
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| JUDGE: | HER HONOUR JUDGE HARPER | |
| WHERE HELD: | Shepparton | |
| DATE OF HEARING: | 26 August 2024 | |
| DATE OF SENTENCE: | 6 September 2024 | |
| CASE MAY BE CITED AS: | DPP v Scott | |
| MEDIUM NEUTRAL CITATION: | [2024] VCC 1390 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Traffick commercial quantity drug of dependence, traffick drug of dependence, dishonestly receive stolen goods, fail to provide information
Legislation Cited: Sentencing Act 1991
Cases Cited:Bugmy v The Queen [2013] 249 CLR 571, Gregory (a Pseudonym) v The Queen [2017] VSCA 151, Barbaro v The Queen [2021] VSCA 277
Sentence:TES 6 years 9 months NPP 4 years 3 months
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr D. Cordy | Ms. A. Hogan, Solicitor for Public Prosecutions |
| For the Accused | Mr M. Brennan | Turnbull Lawyers |
HER HONOUR:
1Troy Scott, you have pleaded guilty before me to charges of trafficking in a drug of dependence namely 1,4-butanediol, trafficking in a drug of dependence in not less than a commercial quantity, namely methylamphetamine, dishonestly receive stolen goods and fail to provide information/assistance with data under warrant.
2You have also pleaded guilty to two related summary offences, being a rolled up charge of commit indictable offence on bail and a rolled up charge of contravene a conduct condition of bail.
3The maximum penalty for trafficking in a drug of dependence is 15 imprisonment. For trafficking in a commercial quantity of a drug of dependence the maximum penalty is 25 years. This is a category 2 offence, the meaning of which I will return to shortly.
4The maximum penalty for dishonestly receive stolen goods is 15 years imprisonment and for fail to comply with a direction it is 5 years. For each of the related summary offences the maximum penalty is 3 months imprisonment.
Circumstances of the offending
5The circumstances of your offending were outlined in the Summary of Prosecution Opening dated 1 March 2024. I will summarise those facts here.
6In April 2022, police from the Shepparton CIU commenced an investigation into drug trafficking in the Shepparton area, known as Operative VISTA.
7The investigation focused on several people suspected of being engaged in drug trafficking, including yourself. However, I note that you are not a co-accused with other primary targets in the investigation in the strict sense. You were investigated and charged independently in relation to your own drug trafficking business.
8On occasion, you would buy, sell and source drugs from other persons in the Shepparton area. As part of the investigation police obtained a warrant to lawfully intercept your telephone communications
9Evidence against you derived mainly from these lawfully intercepted telephone calls. You had no direct contact with covert operatives. Your phone was monitored from 28 July 2022 until 25 October 2022.
10The telephone intercepts reveal that you were engaged predominately in the sale of methylamphetamine on an almost daily basis and that you had a wide customer base.
11In relation to Charge 1, traffick 1,4-butanediol, you trafficked in 615mls of 1,4-Butanediol over 5 transactions involving 10mls, 20 mils, 35mls, 50mls and 500mls respectively.
12In relation to Charge 2, trafficking in a drug of dependence in not less than a commercial quantity, you trafficked in not less than 743.5g of methylamphetamine.
13It was found through the course of the telephone intercepts that you engaged in methylamphetamine trafficking on 97 occasions which ranged from 0.5g up to 84g at a time.
14It was discovered that you trafficked in methylamphetamine as follows:
• at least 10 instances where you trafficked in at least 28g;
• at least 11 instances where you trafficked in at least 14g; and
• at least 12 instances where you trafficked in at least 7g of methylamphetamine
15Evidence shows that you purchased an ounce of methylamphetamine for approximately $5,000 (although sometimes higher) and that you would sell an ounce of methylamphetamine for between $5,500-$6,000.
16I received several transcripts of telephone intercepts which demonstrate your engaging in selling methylamphetamine in various amounts to several people.
17At the time of the offending, you were the subject of a grant of bail for unrelated offences. This bail was entered into on 7 April 2022. This relates to summary charge 200, commit indictable offence on bail.
18One of the conditions of your bail prohibited you from possessing a drug of dependence. This relates to summary offence 201, contravene a conduct condition of bail.
Offence gravity
19Your offending, particularly that in Charge 2, was serious. You trafficked 743.5g, almost 3 times the mixed commercial quantity, of methylamphetamine over 97 transactions in 3 months. Three of these transactions, involving 84g, 56g and 42g respectively, are of note. There were also, as I have said, at least 10 instances involving 28g, at least 11 instances involving at least 14g and at least 12 instances involving at least 7g.
20The majority of your trafficking involved amounts of 7g or under. This is reflective of street level trafficking, but the examples of greater amounts demonstrate that your role was more significant than that.
21You clearly supplied other drug traffickers and were in the business of trafficking. While it is submitted that you did not profit significantly from this business, you were at times purchasing an ounce for $5,000 and selling the same amount for $5,500-$6,000. You may not have been living a lavish lifestyle but you were entrenched in the business of drug trafficking.
22 You were also trafficking in 1,4-butanediol in a not insignificant quantity.
23You were on bail at the time of your offending and have prior convictions for drug trafficking, both of which aggravate your offending.
24Your counsel submitted that your offending falls above mid level for offences of this type. I agree with that characterisation.
Plea of guilty and remorse
25Both parties accept that you were willing to resolve your matter from an early stage and you are entitled to a sentencing discount for your plea of guilty. You have saved the court and the community the time and expense of running a complex trial and spared the witnesses the ordeal of giving evidence. In those circumstances, you have facilitated the administration of justice and you are entitled to a benefit for the utilitarian value of your plea.
26By your plea of guilty you have also demonstrated an acceptance of responsibility for your offending, together with a level of remorse.
27When interviewed by Dr Treeby, whose report I will return to, you expressed regret, if not remorse, when you stated that you wish the offending had not happened. You accept that there will be consequences which may in fact be a positive for you as you are, in your own words, too old for this behaviour.
Personal Circumstances
28 I turn now to your personal circumstances.
29 You are a 50-year-old Yorta Yorta man, born in Shepparton in March 1974.
30You were raised by your mother until the age of four and a half when she died from cancer. Your father was largely absent due to imprisonment.
31You lived with your grandparents and some of your siblings until you were in Grade 3. Your grandmother was a positive influence; however your grandfather was reportedly a cruel man. By Grade 4 you had returned to live with your father. Your older sister Tracey took on a parental role, cooking and washing for you and her other siblings.
32Your father was a violent alcoholic, in and out of custody. Physical violence was also common between you and your siblings. Your brothers engaged in crime from a young age.
33You struggled with literacy and behavioural problems in primary school and regularly failed to attend school. You were using cannabis and alcohol by Year 7 and spending days at a time away from home. You changed schools in Year 8 but had dropped out of school altogether by the start of Year 9.
34You occasionally worked in your uncle’s scrap yard and by the age of 15 were living out of home, spending your time on the streets or couch surfing. Your drug and alcohol use increased, and you were using amphetamines daily.
35Your daughter Keanu was born in 1995 in what you say was a period of stability for you. By the time your son, Troy Jnr, was born in 1999 however, you had developed a daily methylamphetamine habit. Since that time, you have been a daily user and in and out of prison.
36As your father aged, you repaired your relationship with him and he in fact moved in with you when you were aged about 25. You then lived together for some 15 years before he moved into a retirement home in 2014 and ultimately passed away from cancer in 2016.
37You have worked periodically as a brick layer, in an orchard and fixing cars but your addictions have prevented you from consistently engaging in employment.
38After your release on parole in September 2020 you lived with your daughter Keanu who had just had her first child. You were in a relationship with a woman in Shepparton and moved to be closer to her, but you separated in March 2022 and you quickly reverted to drug use.
39By the time of your arrest on these matters you were using 1.7g of ice and in excess of 50ml of 1,4-butanediol daily.
40You have reportedly used your time in custody productively, undertaking a number of courses in alcohol and other drug treatment, together with courses to improve your literacy. You are also a peer listener and a participant in the Torch program.
41You were assessed by psychologist Mr Simon Candlish on 2 occasions in April 2024.
42Mr Candlish found that based on the presence of personality impairment and pathological trait domains and facets, [you] meet the criteria for a moderate personality disorder, with prominent features of negative affectivity, detachment, disinhibition and dissociality.
43He also found you to meet the criteria for severe stimulant disorder and severe alcohol use disorder, both in remission as you are in a controlled prison environment.
44Ultimately Mr Candlish found some cognitive issues and recommended a neuropsychological assessment which was undertaken by Dr Matthew Treeby in July 2024.
45Dr Treeby administered a number of tests, but you failed to meet performance validity checks during the assessment, indicating that you applied less than genuine effort. On some tests you performed within normal limits, other results were invalid.
46Dr Treeby found you to have enduring Cluster B antisocial personality traits, but he reports that 'there is no evidence to suggest that [you have] a longstanding intellectual disability, although [you do] have a longstanding weakness in reading and literacy skills'.” It was not possible to determine whether you have any form of cognitive impairment as a result of long-term drug use.
Sentencing principles and factors
47Mr. Scott, this was serious offending. Drugs are a scourge on society and through your trafficking business you directly contributed to this pervasive social problem.
48You have a number of prior convictions, including 2 for trafficking in methylamphetamine for which you were imprisoned. You well knew the consequences of your actions yet persistently engaged in the business of trafficking over a period of 3 months.
49General deterrence is clearly the paramount consideration. Others who choose to engage in drug trafficking and associated offences must be aware that detection will result in significant punishment. The courts and the community will not tolerate such behaviour.
50Mr Candlish found you to show “signs of considerable emotional neglect and repeated exposure to violence and criminal activities. These adverse events are likely to have contributed to [your] personality disorder and [your] severe substance use disorders. [You were] shown limited empathy as a child and so had limited role-modelling to develop empathic regard and perspective-taking for others. [You] developed emotional detachment to cope with these abusive childhood events. That has left [you] vulnerable to substance abuse.”
51Accordingly, your counsel Mr Brennan, submitted that the principles in Bugmy v The Queen [2013] 249 CLR 571 are applicable in a general and in a specific sense in this case. Mr Cordy, for the prosecution did not agree, arguing that the offending was not a momentary lapse in judgement and cannot be sufficiently linked to your upbringing.
52I find that your exposure to neglect, deprivation, alcohol and drug use and family violence renders your moral culpability less than that of an offender whose formative years have not been so marred. There seems to me to be a causal connection between your upbringing and your current drug use which underpins the offending. I moderate the sentence accordingly.
53I must of course then give appropriate consideration to community protection, which arises from your entrenched antisocial and criminogenic beliefs and your repeated offending.
54As I have stated, you have used your time in custody constructively and have made efforts at rehabilitation. If you are able to remain abstinent from drugs and alcohol upon your release, your prospects of rehabilitation are fair.
55You retain the support of your family, in particular your brothers Jason, with whom you will live upon your eventual release, and James and your daughter Keanu and her 2 children. This is a protective factor which bodes well for you.
56I note your sister Tracey is now terminally ill and you will not have the chance to spend time with her. Your brother James is also unwell. This will no doubt weigh upon you as you serve your sentence.
57I accept there has been a delay in your case in circumstances where you have always indicated an intention to resolve the matter.
58Trafficking in a commercial quantity of a drug of dependence is a category 2 offence, meaning I must impose a custodial order pursuant to s5(2H) of the Sentencing Act 1991 unless an exception applies. There is no suggestion by your counsel that such an exception is engaged here.
59I was referred to the cases of Gregory (a Pseudonym) v The Queen [2017] VSCA 151 by the prosecution and Barbaro v The Queen [2021] VSCA 277 by the defence.
60In Gregory, the court stated at [93] that “In particular, sentences well into double figures would have been expected for CQ trafficking offences where one or more of the following features was present:
· the quantity involved approached the LCQ threshold;
· the offender was in charge of the trafficking business;
· the business was conducted for a substantial period;
· the offender pleaded not guilty; and/or
· the offender had relevant prior convictions.
61Clearly, all of those factors are present in the instant matter. However, the sentence must be tempered by the matters put in mitigation.
62I also note the matters raised in Barbaro. Like you, the appellant had pleaded guilty at an early stage, called upon delay, had used the time between arrest and sentence productively and had reduced moral culpability by way of the Bugmy principles. Significantly, unlike you, the appellant had no relevant prior convictions, had completed residential drug rehabilitation and it was held that imprisonment would weigh more heavily on him than on a prisoner in normal health.
63I have taken current sentencing practices into account; however they are but one relevant consideration. I further apply the principle of totality when passing sentence upon you.
64Mr Scott, would you please stand.
Disposition
65On Charge 1, trafficking in a drug of dependence, you are sentenced to 12 months imprisonment.
66On Charge 2, trafficking in a drug of dependence in not less than a commercial quantity, you are sentenced to 5 years 9 months imprisonment.
67On Charge 3, dishonestly receive stolen goods, you are sentenced to 18 months imprisonment.
68On Charge 4, fail to comply with a direction, you are sentenced to 9 months imprisonment.
69On Summary Charge 200, a rolled up charge of commit an indicatable offence on bail, you are sentenced to 1 month imprisonment.
70On Summary Charge 201, a rolled up charge of breach a conduct condition of bail, you are sentenced to 1 month imprisonment.
71I direct that Charge 2 be the base sentence.
72I direct that 2 months of the sentence on Charge 1, 6 months of the sentence on Charge 3, 3 months of the sentence on Charge 4 and 1 month of the sentence on summary Charge 200 be served cumulatively on each other and on the sentence on Charge 2.
73For the avoidance of doubt, the sentence on summary Charge 201 is to be wholly concurrent.
74That makes a total effective sentence of 6 years 9 months imprisonment.
75I direct that you serve a minimum non-parole period of 4 years 3 months before being eligible for release on parole.
76Pursuant to s.18 of the Sentencing Act 1991, I declare that you have served 677 days, excluding today, by way of pre-sentence detention.
77I grant the forfeiture and disposal orders sought by the prosecution.
78Pursuant to s.6AAA of the Sentencing Act 1991, I declare that had you not pleaded guilty, the sentence I would have imposed would have been 9 years with a minimum non-parole period of 6 years.
79You may be seated.
80I will just give counsel a moment. Is there anything arising from either counsel?
81COUNSEL: No, Your Honour.
82HER HONOUR: Anything further?
83COUNSEL: No, Your Honour.
84HER HONOUR: Thank you. You can take Mr Scott out, thank you.
85Thank you, we will adjourn the court.
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