Director of Public Prosecutions v Scott
[2023] VCC 2041
•3 November 2023
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR-23-00548
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JARRYD SCOTT |
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JUDGE: | HIS HONOUR JUDGE MURPHY |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 2 November 2023 |
DATE OF SENTENCE: | 3 November 2023 |
CASE MAY BE CITED AS: | DPP v Scott |
MEDIUM NEUTRAL CITATION: | [2023] VCC 2041 |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Trafficking in a commercial quantity – Butanediol 1,4 – possession of a drug of dependence - Methylamphetamine
Legislation Cited:
Cases Cited:CDPP v Maxwell [2013] VSCA 50, Gregory(a pseudonym) v R [2017] VSCA 151, Ellis v R [2018] VSCA 221, Sharbell v R [2018] VSCA 324, ElDamachi v R [2021] VSCA 98, Roache v R [2020] VSCA 205, Arici v R [2019] VSCA 228, DPP v Stewart [2021] VCC 1484, DPP v Lin [2023] VCC 1677, DPP v Bchinnati [2018] VCC 372.
Sentence: 4 years 1 month imprisonment, 2 years 3 months non-parole period
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APPEARANCES: | Counsel | Solicitors |
| For the Office of Public Prosecutions | Mr M. Cookson | Office of Public Prosecutions |
For the Accused | Mr J. Adamo | Emma Turnbull Laywers |
HIS HONOUR:
1Jarryd Scott, you have pleaded guilty to one charge of trafficking in a commercial quantity of 1,4-Butanediol, one charge of possession of methylamphetamine, and one charge of possession of 1,4‑Butanediol.
2You have also pleaded guilty to uplifted summary charges of possession of property reasonably suspected of being proceeds of crime, fraudulently using an identifying number required under the Road Safety Act and fraudulently altering a document required under the Road Safety Act. The maximum penalties are set out in the prosecution opening which I incorporate by reference.
Circumstances of the offences
3The circumstances of the offences were set out in the prosecution opening which was read in open court yesterday. The offending occurred on 8 September 2022. On that date, police executed a search warrant at a unit in Wantirna South where you were living with your girlfriend and a co-offender Ms Bishop. At that address police discovered three ANZ debit cards in the name of a Lucy McLean. These had been fraudulently created by a person other than the named person on 23 July 2022. You have pleaded guilty to being in possession of those cards as proceeds of crime.
4Police also found false registration plates affixed to a red Holden Astra located in the parking bay appropriate to the unit. This is the charge of fraudulently altering an identifying number.
5Police located two bottles of a substance subsequently found to be 1,4‑Butanediol with a total quantity of 18.2 grams which gives rise to the charge of possessing a drug of dependence.
6Later the same day, the police executed a warrant at a property in Donvale where you were working of a construction site. Police searched your vehicle and in a satchel bag in the vehicle discovered two Ziploc bags containing methylamphetamine in a total amount of 1.7 grams. This gives rise to the charge of possession of methylamphetamine, Charge 2.
7Police then searched an Apple iPhone as well as a laptop and found a number of messages referring to a person named 'Mr Huynh'. The messages also contained communications relating to a property at Patterson Lakes and photos appearing to depict 1,4-Butanediol.
8Also on the phone were images of a vehicle for sale similar to the Holden Astra vehicle with different registration plates that had been located at the Wantirna South address.
9The police ascertained that your mobile phone had been at an address in Patterson Lakes. Later that day, the police arrested Ms Bishop as well as Mr Brabyn who gave his address as Patterson Lakes.
10Police executed a search warrant on a unit at Patterson Lakes later that day. This unit had recently been rented by you on Airbnb under a false name using a fraudulent driver's licence in the name of a Mr Locic. This gives rise to the uplifted summary charge of fraudulently altering a road safety document.
11You paid for this rental using your own accounts.
12In the property the police found 36 500 milligram bottles containing 1,4‑Butanediol. There was also another glass bottle containing 12.6 grams of the substance, a glass bottle containing 2.4 grams of the substance and a blue plastic bottle containing a total of 192.7 grams. The total amount of 1,4‑Butanediol was 20.1647 kilograms. A commercial quantity is 2 kilograms and a large commercial quantity is 20 kilograms.
13You have pleaded guilty to the charge of trafficking a commercial quantity on the basis that you had in your possession that amount of Butanediol.
14Messages on your phone indicated that you had offered your co-offender, Mr Brabyn, the opportunity to stay at the property for $250 a week.
15In the record of interview you indicated that the property had been leased to allow your girlfriend to move from the Wantirna South property.
16In the record of interview you indicated you had been living in Wantirna South for a couple of months. The person listed in your phone as Mr Brabyn was a friend. You had rented the Airbnb on 1 September and had been there pretty much every day since that time.
17You said you had not seen the bottles of 1,4‑Butanediol during the time that you were there. You said that the bottles looked like a set-up. You also said that you had purchased the bottles a couple of bottles at a time and that you don't sell them but give them away. You said that the substance can be purchased for $400 a litre. You said that the methylamphetamine was for your personal use and that you had never received any money for the 1,4‑Butanediol.
Seriousness of the offences and moral culpability
18Drug trafficking in a commercial quantity is a serious offence as manifested by the maximum 25-year penalty. The authorities indicate that there is to be no differential in the types of drugs in terms of dangerousness. However, it is well known that 1,4‑Butanediol is a lower value drug and relatively easier to access. Thus, the yields from trafficking particular amounts are likely to be less than the other higher value drugs. This is relevant to considering the scale of your proposed operation.
19In a case of CDPP v Maxwell [2013] VSCA 50, the Court of Appeal said at paragraph [33] – [34]:
‘In our opinion, the consistently lower sentences imposed on importers of GBL can be seen to be reasonably justified by the enormous reward differential to which we have referred. Indeed, the very consistency of the sentencing practice can be seen to reflect the fact that sentencing judges view a drug offender's culpability as materially reduced in a case such as this, where the likely reward is relatively small.
Sentencing judges are also justified in treating the scale of the anticipated reward as relevant to considerations of deterrence, both specific and general.’
20The Court goes on to say that general deterrence is very important due to the financial rewards that may be gained from the activities and courts have got to ensure that they 'are outweighed by the risk of severe punishment', at [34]. The yields from the trafficking in particular amounts are likely to be less than other high value drugs.
21This is relevant to considering the scale of your proposed operation.
22In assessing the seriousness of your conduct here, you have admitted trafficking on a single day by being in possession of the drugs for sale. The amount involved is significant being over ten times a commercial quantity with the drugs already packaged into saleable quantities. The overall amount was greater than a large commercial quantity.
23You were the principal in the proposed drug trafficking operation. It appears you sourced the drugs from the internet as they are readily available. Your co-offender was to attend at the property and stay there. He was also working for you in your business. Thus, there was a degree of organisation in your conduct.
24Further, you had utilised false identification to rent the Patterson Lakes property. Thus, there was some sophistication in your conduct, although the business was very much inchoate. Your motivation was to fund your drug habit which was methylamphetamine and according to the references that were tendered on the plea, you were under financial pressure supporting your partner and other family members.
Prior convictions
25You have admitted a number of prior convictions. Your most serious early prior convictions were when you were aged 21 and appeared before the Magistrates' Court in Frankston on a charge of recklessly causing injury. You were placed on a 12-month community-based order without conviction. You failed to comply with that order and it was cancelled and you were sentenced to six months' imprisonment.
26On the same day, 22 October 2010, at the Frankston Magistrate's Court, you were sentenced to three months' imprisonment on charges of driving whilst disqualified and exceeding PCA. You appealed those sentences to this court on 18 February 2011. You appeal was allowed, and the driving sentence was altered to one month's suspended sentence and the recklessly causing injury altered to a community-based order.
27You subsequently appeared before this court on 21 October 2011 and 14 November 2014 for failing to comply with that order, but ultimately the order was confirmed.
28Your next appearance before the Magistrates' Court was on 8 June 2017 on charges of refusing to accompany police for a breath test, and breaching an interlock condition. You were placed on community-based order for 12 months.
29On 5 June 2019 on a charge of intentionally damaging property and recklessly causing injury, you were placed on a community corrections order for two years.
30On 4 December 2019 you were sentenced to three months' imprisonment on two charges of driving whilst disqualified and two charges of persistent contravention of a family violence order, recklessly causing injury and a number of other charges including stalking and contravening a conduct condition.
31On 31 July 2020, you were brought before the Magistrates' Court for breach of the community corrections order. It was cancelled and no further order was made.
32On the same day you were sentenced to a 12 months' community corrections order. You were also sentenced to 43 days' imprisonment for persistent contravention of a family violence order, stalking, driving whilst disqualified and possessing methylamphetamine and cannabis and using a carriage service to harass.
33On 7 December 2020, you were sentenced to six months' imprisonment for persistent contravention of a family violence order and stalking.
34On the same day you were dealt with for contravening the earlier community corrections order. It was varied and you were ordered to undertake a 12 months' community corrections order upon release from prison.
35Your criminal record for a 35-year-old is relatively confined and appears to be related to driving and family violence related offending. You do have convictions for possession of methylamphetamine, and possessing and using cannabis.
36Significantly, you do not have any prior convictions for trafficking in drugs. Your record shows that you have been placed on community- based orders which you have breached, although it appears you successfully completed the last order.
37You have only been sentenced to imprisonment on three occasions, once for driving-related offences and twice for family violence offences. Your current period of custody on remand is the longest period that you have been in custody.
Personal circumstances
38You are now aged 35 and were born and raised in the Frankston area. You have three younger siblings with whom you maintain a close relationship. You had a difficult childhood marked by both parents having problems with alcoholism and abusive behaviour towards each other and towards you.
39You left school early and left the family home at the same time during year 10 when you were aged 14.
40After you completed your schooling, you moved into the building industry in scaffolding and worked for 10 years with a scaffolding company. When the company closed, you purchased a truck and opened a business. You were successful in that business and hope to resume it.
41A significant event in your life was the death of your father in 2018 as a result of a violent assault where on your view the assailant was not held fully accountable. This even caused considerable turmoil in your life.
42At that point you were in something of a toxic relationship with another woman and had two young children. That relationship broke down and a family violence order was put in place, and you have not seen your two young children for the last four years.
43Following that time, you relapsed into substance abuse after a seven-year period of abstinence and started drinking heavily and using methylamphetamine and cannabis. You were then purchasing drugs online to fund your drug-use which escalated.
44You entered a relationship with your co‑offender, Ms Bishop, in 2021. In May 2023 she gave birth to your son. You have not been able to be involved in his life due to being on remand. Unsurprisingly, this is causing you significant stress as well as placing immense pressure on her.
45On the plea a number of references were tendered. A reference from your aunt, Donna Scott, indicates that the impact of the death of your father was very significant to the whole family and you were seeking to support the whole family even though you fell out with your mother. These sentiments were also supported by another reference from a Ms Lemke.
46Your current partner provided a reference indicating that shortly prior to this offending the relationship was under significant strain due to her health conditions and you were caring for her while trying to support her and the family financially. You were using drugs to cope with the pressure. She indicates that you are determined to put your drug-use behind you and to support her and your young child.
47Your prospects of rehabilitation are an important consideration. Prior to this offending, you had a good employment record and your own business. As I have indicated from the references, you have strong family support although you have fallen out with your mother.
48At your age and with your late entrance into serious drug-use and criminality and with appropriate therapy, I would regard your prospects of rehabilitation as reasonable. You have used your time in custody productively and have undertaken courses in drugs and alcohol and are working in the prison system.
49Your prospects of rehabilitation are to some extent supported by the psychological report from Ms Cidoni. She notes your difficult upbringing and that your insight and judgment were assessed by her as fair, and you were able to display remorse regarding your offending behaviour. She notes your drug-use commencing with cannabis at age 15 and also alcohol.
50She is of the opinion that you have both PTSD and substance abuse disorders and that they interact with each other. She is of the view that your risk of reoffending is medium to high due to your substance abuse, criminal record, adverse childhood experiences, turbulent relationships and psychological factors including PTSD. She recommends participation in structured drug rehabilitation programs as well as psychological therapy that addresses your mental health needs will reduce your risk of relapse and criminal behaviour relating to your substance abuse. I will order that the comments of Ms Cidoni be brought to the prison authorities.
Other matters in mitigation
51Your counsel relied on Ms Cidoni's report as making prison more onerous for you and also as to the type of sentence. I give it some weight in that regard.
52Your counsel on the plea emphasised your plea of guilty. It was an early plea entered at the committal mention stage. The plea is also evidence of your remorse and this is confirmed by Ms Cidoni and the reference from your partner.
53You have facilitated the course of justice. The plea was entered when the criminal justice system was facing COVID-related backlogs and you are entitled to a perceptible amelioration in sentence having regard to the plea at the stage that you entered into.
54Following the entry of the plea, you sought to have this matter referred to the Drug Court. Unfortunately, you were not able to be accommodated in the program. The attempt to participate in the Drug Court program, which was unsuccessful due to anything in your regard, is a matter that I take into account in your favour.
Sentencing submissions
55The learned Crown Prosecutor referred the court to the case of Gregory(a pseudonym) v R [2017] VSCA 151 where the Court of Appeal considered sentencing principles in relation to trafficking in a commercial quantity of illegal drugs and where the court suggested that there should be an uplift in sentences particularly in circumstances where the amount trafficked approached a large commercial quantity. That is the position here.
56A matter that must be considered however is the relatively lower value of the 1,4-Butanediol compared to other illegal drugs. As indicated in the case of Maxwell, lower sentences have been imposed than on other illegal drugs including imported drugs and I refer to the comments in Maxwell at paragraphs 33 and 34.
57The principles in Gregory have been considered in later cases brought to my attention by the learned prosecutor, including the case of Ellis v R [2018] VSCA 221 which dealt with trafficking in 1,4-Butanediol. In that case, the court noted that amount trafficked was a much lower amount of 1.75 times a commercial quantity. The prisoner in that case did have significant prior convictions including trafficking but was younger. The court reviewed a number of cases and noted that sentences in the range of two and a half to five years have been imposed for trafficking in 1,4-Butanediol in amounts less than a large commercial quantity.
58The learned prosecutor referred to the cases of Sharbell v R [2018] VSCA 324, ElDamachi v R [2021] VSCA 98 and Roache v R [2020] VSCA 205 as providing some assistance on current sentencing practices. Another case of Arici v R [2019] VSCA 228 was noted to be distinguishable.
59In ElDamachi a sentence of four years and two months was described as modest if not lenient and was imposed upon an offender who had served a previous sentence for trafficking in the same drugs and was on bail when he offended. The amount involved 42 kilograms, more than double a large commercial quantity and the case also dealt with issues of parity with a co-offender.
60Your counsel referred the court to County Court cases of DPP v Stewart [2021] VCC 1484, DPP v Lin [2023] VCC 1677 and DPP v Bchinnati [2018] VCC 372.
61I have considered all the cases as possibly providing evidence of current sentencing practices. Each of them involves different amounts of the drugs, different participation in the actual trafficking and different antecedents.
62In sentencing for this offence however comparable sentencing practices should be given considerable weight. Further, matters personal to an offender must carry less weight.
63General deterrence is an important consideration and some weight must be given to specific deterrence here.
64In sentencing you I have had regard to the issue of a plea of guilty in the COVID environment.
65In your case, you have been in custody on remand for a period of 14 months. That is significant as it does mean you have the uncertainty associated with this matter hanging over your head for that period notwithstanding your early offer to plead guilty. I regard a period on remand where programs are more limited as being significantly more onerous and I take it into account in sentencing you.
66I have also taken into account in your favour your inability to provide support for your partner and separation from the newborn.
67In the report of Ms Cidoni, she indicates that incarceration will be detrimental to your mental health. I have had regard to this but note that you should be able to access appropriate treatment in custody. In sentencing you I must also have regard to considerations of parsimony and totality.
68In regard to the two charges of possession of methylamphetamine and possession of a small amount of 1,4-Butanediol, I am satisfied that those drugs were for your personal use and therefore sentence you on the lower tariff.
69In relation to the three uplifted summary charges, I regard them as a course of conduct and regard it as appropriate to impose an aggregate sentence on those three charges and I'm going to impose an aggregate sentence on the possession charges.
70In fixing a non-parole period which is the minimum period required for you to be in custody that serves all sentencing purposes, I have determined to allow a longer period that where you may be eligible to serve your sentence in the community on the basis that a supervised released into the community with appropriate supports to address your mental health and drug-addiction issues is in the best interests of the community and this is confirmed by the report of Ms Cidoni.
Purposes of sentencing
71The basic purposes for which a court may impose a sentence are punishment, deterrence, both specific and general, rehabilitation, denunciation and protection of the community. In sentencing you, I must have regard to a range of factors such as the seriousness of the offences, your culpability for them, your personal circumstances and those of the victim, in any. I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that as far as possible offenders are rehabilitated and reintegrated in society.
72In sentencing you, considerations of denunciation and general deterrence are very important. A signal must be sent to those minded to profit from illegal drugs that they will pay a heavy penalty upon apprehension. Although the potential rewards that might be available to you in this type of drug were less than in the case of more valuable drugs, this principle remains very salient in sentencing. The legislative maximum penalty is also relevant.
73Further, as indicated in Gregory, higher sentences are demanded in the community interest. Current sentencing practices must be considered. It is also in the community interest that you be reclaimed and rehabilitated. This will be achieved by appropriate treatment in prison and supervision upon your release.
74Weighing the countervailing considerations is not without difficulty in this case given your age and lack of significant drug-related antecedents. I have taken into account all the matters urged on your behalf and sentence you as follows. Could you please stand?
75On the charge of trafficking 1,4-Butanediol in a commercial quantity, you are sentenced to four years' imprisonment.
76On the charge of possessing methylamphetamine, you are sentenced to seven days' imprisonment.
77On the charge of possession of 1,4‑Butanediol, you are sentenced to seven days' imprisonment which is an aggregate sentence with the Charge 2 – seven days' imprisonment is an aggregate sentence on Charges 2 and 3.
78On the summary offences of dealing with properties proceeds of crime, fraudulent use of an identifying number, fraudulently altering a document, under the Road Safety Act, you are sentenced to an aggregate sentence of three months' imprisonment.
79I order that one month of the sentence on that aggregate sentence be served cumulatively on the base sentence which is the sentence on Charge 1, the other sentence is concurrent, making a total effective sentence of four years and one month's imprisonment.
80I direct that you serve a minimum period of two years and three months before being eligible for parole. I declare that you have served 407 days' pre‑sentence detention.
81I declare that had you not pleaded guilty, I would have imposed a total effective sentence of seven years' imprisonment with a non-parole of four years and six months' imprisonment.
82The prosecution have sought a disposal order and a forfeiture order for the drugs seized and the other material seized on the search warrants and I will make those orders.
83I want to thank counsel on the plea and wish you, Mr Scott, all the best in the future to see whether you can get back into the community a productive member of the community, which you've been in the past.
84OFFENDER: Thank you, Your Honour. Thank you.
85HIS HONOUR: Right. I'll hand those to you Mr Cookson and adjourn the court sine die.
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