Director of Public Prosecutions v Searl
[2017] VCC 732
•9 June 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| GENERAL LIST |
Case No. CR-16-01746
Indictment No. F1251336
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| WAYNE MICHAEL SEARL |
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JUDGE: | HIS HONOUR JUDGE BROOKES | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 18 May 2017 | |
DATE OF SENTENCE: | 9 June 2017 | |
CASE MAY BE CITED AS: | Director of Public Prosecutions v Searl | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 732 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – trafficking in a drug of dependence (Cannabis L) – courier – possess a drug of dependence (methylamphetamine) – ss71AC & 73 of the Drugs, Poisons and Controlled Substances Act 1991 – plea of guilty
Legislation Cited: Drugs, Poisons and Controlled Substances Act 1981, ss71AC and 73; Crimes Act 1958; Sentencing Act 1991; Road Safety Act 1986, s49(1)(bb)
Cases Cited:R v McKee; R v Brooks (2003) 138 A Crim R 88; R v Ma (1999) 107 A Crim R 252; R v Jarman [2001] NSWCCA 178; R v Horne [1999] NSWCCA 391; Boulton v R [2014] VSCA 142; Atanackovic v R [2015] VSCA 136; Director of Public Prosecutions v To [2014] VCC 1109; Ramadan v R [2011] VSCA 50; Dowdell v R [2012] VSCA 125; Director of Public Prosecutions v Gardam [2016] VCC 191; Bala v R [2010] VSCA 78
Sentence: Convicted and sentenced to two years and six months’ imprisonment with a non-parole period of eighteen months. Fine of $1,000.00. Section 6AAA declaration: Five years’ imprisonment with a non-parole period of two-and-a-half years.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms A Moran | John Cain Solicitor for Public Prosecutions |
| For the Accused | Mr L Dean | Slades & Parsons Solicitors |
HIS HONOUR:
1
Wayne Michael Searl, you have pleaded guilty to one charge of trafficking in a drug of dependence, namely cannabis L pursuant to s.71AC of the Drugs, Poisons and Controlled Substances Act 1981 (Charge 1), also one charge of possessing a drug of dependence, namely methylamphetamine, pursuant to s.73 Drugs, Poisons and Controlled Substances Act 1981 (Charge 2), and one uplifted summary offence of driving a motor vehicle with a more than the prescribed concentration of an illicit drug present in your oral fluid contrary to s.49(1)(bb) of the Road Safety Act 1986. These offences occurred on
8 July 2015.
2 The maximum penalty for trafficking in a drug of dependence is 15 years’ imprisonment, the maximum penalty for possessing a drug of dependence is one year’s imprisonment, and the maximum penalty for driving with a more than prescribed concentration of drugs in oral fluid is a fine of not more than 12 penalty units.
3 A prosecution opening was tendered on the plea and it is an agreed summary.
Criminal history
4 You admitted your prior criminal history:
· On 15 November 1996, you appeared in the Bacchus Marsh Magistrates’ Court for theft of a motor vehicle and criminal damage and without conviction were ordered to serve a community correction order for six months and to perform 55 hours of unpaid community work.
· On 13 February 2002, you appeared in the Melbourne Magistrates’ Court for handling or receiving or retention of stolen goods, where you were convicted and fined $1000 and had your licence cancelled and disqualified for 12 months.
Circumstances of the offending, the substance of which is as follows:
5 On 5 July 2015, you attended at the Budget Rental Melbourne Office and rented a Toyota Sedan, registration number 1D0 1KY.
6 The rental contract was for the period between 5 July 2015 and 10 July 2015.
7 At approximately 3.30 pm on 8 July 2015, you were intercepted by police driving the Toyota Sedan. You were driving northbound on the Hume Highway at Benalla and you were the sole occupant of the vehicle.
8 Police asked you about the purpose of your journey. You said that you were travelling to attend a funeral in Sydney. Police formed the view that you were acting nervously and concealing something in the vehicle.
9 You consented to police conducting a search of the vehicle. Police opened the boot of the vehicle and located two large suitcases. Each large suitcase contained a vacuum-sealed bag. The vacuum-sealed bag contained individual packages of cannabis L. There were 50 individual bags containing cannabis L with a total weight of 22.53 kg. The trafficable quantity of cannabis L is 250 g or 10 plants.
10 During the search of the vehicle, police located a backpack in the front passenger seat. In the pocket of the backpack, police located in a small Ziploc bag containing 0.5 g of methylamphetamine in crystal form. An ice pipe was also located in the backpack. That's Charge 2, possessing a drug of dependence.
11 At the time when you were intercepted by police you underwent a preliminary breath test for alcohol. The test returned a negative result.
12 You underwent a preliminary oral fluid test. The rest of the test indicated that you contained a prescribed illicit drug in your bloodstream.
13 At approximately 5.40 pm, you accompanied police to Benalla Police Station. At Benalla Police Station, an oral fluid test was administered. The test confirmed that you had the presence of a prescribed illicit drug in your fluid.
14 The fluid sample was analysed by the Victorian Institute of Forensic Medicine and the results confirmed that methylamphetamine was detected.
Personal Circumstances
15 You were born on 10 July 1978, and at the time of offending you were aged 36 years.
16 Present in court to support you were your mother and stepfather. You instruct that you attained Year 10 at high school but always struggled with learning difficulties and were often bullied.
17 Upon leaving school, you had a chequered development but were employed generally in car detailing until the age of twenty. Also, you lived with your grandmother at the ages of 18 through 19. In this period, you also had a brief engagement.
18 In the Year 2000, you were made redundant from this job and thereafter, for the last 17 years, you have performed odd jobs here and there but have mostly been unemployed. Your odd jobs have been in the cleaning industry.
19 You have been living with your mother and stepfather, who have provided you with shelter and meals but no money. In this period, you were subjected to negative peer influences which led to your drug use. You further instruct that since being released on bail, you have adhered to your mother’s policy of no drugs in the house, and you have not been charged with any other offences since.
20 You have instructed your counsel that at the end of 2014, you were mixing in the wrong crowd and built up a substantial drug debt. At this time, you were using methylamphetamines and not working and, accordingly, your drug debt accumulated.
21 You have instructed that you agreed to transport the cannabis in question to erase a debt to your drug dealer. It is put on your behalf that your role, accordingly, should be seen at the lowest level as you were not receiving any financial gain, and paying a debt only. Accordingly, it is submitted that your responsibility is at the lower end of moral culpability.
Defence Submissions
Synopsis
22 In summary, the matters relied upon by your counsel as relevant to your plea in mitigation are that you played a role in the trafficking operation that was confined to transportation of the cannabis, that you have pleaded guilty at the earliest stage in the proceedings, and that you have a lack of relevant prior criminal history, and have positive prospects of rehabilitation in light of the above matters.
Role in offending
23 It is submitted by your counsel that the following factors in mitigation are present with respect to your role in the trafficking operation: Your role is confined to transportation of the cannabis; you have not alleged to have been in possession of the cannabis for the purposes of selling it to other parties, and you are not alleged to have stood to gain financially from the conduct.
Plea of guilty
24 It is submitted by your counsel that your plea is significant because it was offered at the earliest opportunity at committal mention, and has saved court time and resources, evincing a willingness to facilitate the administration of justice, and as an indication of your remorse. I note the utilitarian value of this plea and that by doing so, acknowledge that you have saved the time and cost of running a trial and the expenditure of the valuable resources of the court.
Rehabilitative prospects
25 You instructed your counsel that you were using up to 1 g of methylamphetamine per week at the time of the offending, before the court. The circumstances of your arrest are consistent with these instructions. You also instructed your counsel that you have ceased illicit drug use since the offending occurred and now reside with your mother and stepfather, separated from negative peer influences. Your addiction and the steps you have taken thus far are relevant in assessing your prospects of rehabilitation. I have had particular regard to what Buchanan JA said in the Case of McKee & Brooks (2003) 138 A Crim R 88 (CCA Vic) at [13]:
An addiction to heroin may also bear upon the question of rehabilitation, where the prospects of success will often depend upon the likelihood of the addiction being successfully treated [See, for example, R v Ma (1999) 107 A Crim R 252 at 255; R v Jarman [2001] NSWCCA 178; R v Horne [1999] NSWCCA 391 at [13] per Greg James, J]. In my view, a sentencing judge may have regard to the circumstances which led to an addiction that caused the commission of the offence and to whether the addiction has continued or is being treated in deciding upon a sentence appropriately tailored to the personal circumstances of the offender.
26 It is submitted that in light of your attitude towards your drug use, lack of relevant prior criminal history, and lack of subsequent matters, your prospects of rehabilitation can be categorised as positive.
Sentencing submissions
27 It is submitted by your counsel that general deterrence and rehabilitation should be the court’s primary considerations in this case and that protection of the community and specific deterrence should be moderated with regard to your abstinence from drug use, separation from negative peer influences, and lack of subsequent criminal matters. I agree that specific deterrence does not loom large in this case, but that this is emolliated to some extent by the seriousness your offending, especially when taking into consideration the quantity of cannabis involved in this offending.
28 In light of the above, your counsel submitted that a community correction order pursuant to part 3A of the Sentencing Act 1991 can be imposed to accommodate the most relevant sentencing principles. In reliance of this your counsel put, before the court, submissions based on the well-known case of Boulton[1].
[1]Boulton v The Queen [2014] VSCA 142
Prosecution submissions
29 The prosecution, on the other hand, submit that the amount of cannabis transported is only slightly below that of a commercial quantity and approximately 90 times more than the lower limit for a trafficable quantity.
30 Further, it is submitted that it is inherently unlikely that a drug dealer would entrust you with such a quantity of cannabis if you were merely paying off a debt. The quantity of cannabis involved implies a degree of trust and reliability placed in you by those who supplied you with the drug. It is submitted that it is more likely that the whole operation has an element of sophistication in which you were willingly involved.
31 Accordingly, it is submitted that the principle of general deterrence looms large in this matter. With respect to general deterrence, I have had specific regard to what our Court of Appeal said in Atanackovic v The Queen [2015] VSCA 136 at paragraph 159, where the court stated:
“Our conclusion at [158] above would have been the same even if Boulton[2] had been applicable in the present case. There is nothing in that case that alters the longstanding principles for assessing the seriousness of individual offences and the weight to be given to particular sentencing considerations in relation to them. Drug offences are intrinsically serious and even though specific deterrence may not be prominent for some offenders, general deterrence will ordinarily be a primary consideration. Offending of the nature and scale undertaken by the appellant in the present case has traditionally been dealt with by a lengthy period of imprisonment and there is nothing in Boulton that requires a different sentencing disposition in the present case.”
[2]Ibid.
32 Further, as His Honour Judge Gucciardo remarked in Director of Public Prosecutions v To (24 May 2014) with respect to the role of a courier in trafficking offences, His Honour said:
“However, the movement of drugs is at the heart of trafficking and so couriers play a valuable and indeed indispensable role to the traffick mechanism.”
33 It is clear that due to the serious nature of drug offences that your role as a courier does not displace the primary consideration of general deterrence.
Comparable cases
34 A number of cases were handed up by the prosecution at the time of the plea. I have had regard to them as well as others and the sentencing snapshot relevant to the offence of trafficking cannabis, prepared by the Sentencing Advisory Council[3], sentencing snapshot 69, February 2009. The comparative and relevant cases that the prosecution referred me to included but were not limited to the following:
[3]Sentencing Snapshot No.69 February 2009.
· Ramadan v The Queen [2011] VSCA 50
· Dowdell v The Queen [2012] VSCA 125
· Director of Public Prosecutions v Gardam [2016] VCC 191
· Bala v The Queen [2010] VSCA 78
· Atanackovic v The Queen [2015] VSCA 136
35 Having read these cases, I must distinguish this matter from the case of Dowdell. In that case, the appellant relied upon significant mitigating factors including, but not limited to excellent prospects of rehabilitation, he had suffered a severe financial loss as a result of property connected with his offending being forfeited, and there had been a significant delay between the offending and sentence being imposed. The Court of Appeal noted that the circumstances of the offending and the appellant’s antecedents were most unusual[4].
[4]Dowdell v The Queen [2012] VSCA 125, [16]-[17].
Community Corrections Assessment
36 On the plea, I had you assessed for a community corrections order. That assessment has found you a medium risk of reoffending and I have heard submissions from both counsel with respect to that assessment.
37 However, in balancing the respective submissions of counsel, I find I must have regard to the principles of general deterrence and denunciation, and having considered the comparable cases provided by the prosecution, the imposition of a community corrections order is not in range due to the serious nature of this offending. This is, to some extent, due to the limitation period of 12 months to which a person may be sentenced to a period of imprisonment and still be eligible to receive a community corrections order.
Sentence
38 Mr Searl, will you please stand?
39 On the charge of trafficking in a drug of dependence, namely cannabis L, you are convicted and sentenced to two years and six months’ imprisonment.
40 On the charge of possessing a drug of dependence, namely methylamphetamine, you are convicted and sentenced to six months’ imprisonment.
41 On the summary charge of driving a motor vehicle with a more than the prescribed concentration of an illicit drug present in oral fluid, you are convicted and fined $1000, and you are disqualified from obtaining a motor vehicle license for a period of three months.
42 I direct that the term of imprisonment on Charge 2 be served concurrently with the term of imprisonment on Charge 1.
43 I further direct that you not be eligible for parole until 18 months from today.
44 The total effective sentence is, therefore, two and a half years’ imprisonment. I direct that you serve 18 months of that sentence before being eligible to be considered for parole. Accordingly, you will be required to serve a minimum period of imprisonment of not less than 18 months and, thereafter, if you are released on parole, the balance of your sentence will be served in the community, subject to the conditions of your parole. Any such parole order may be amended or revoked. If you fail without reasonable excuse to fulfil the conditions of your parole, your parole may be revoked and you may be ordered to serve the balance of your sentence in prison.
Pre-sentence detention
45 Pursuant to s.18(4) of the Sentencing Act 1991, I declare that you have already served 13 days of the sentence, not including today, that I have just imposed upon you and this is to be noted in the records of the court.
Ancillary orders
46 Counsel for the prosecution has made application for the taking of a forensic sample pursuant to s.464ZF of the Crimes Act 1958 for an intimate forensic sample to be taken from you. You consent to this. I am satisfied it is in the interests of justice, having regard to the seriousness of your offending, to make the order, which I do in terms of the draft. I must inform you that the relevant authority may use reasonable force to enable that procedure to be conducted.
47 Counsel for the prosecution also made application for a forfeiture order for various property used in the commission of the offence and for a disposal order for drugs and drug-related paraphernalia. Those orders will be made.
48 Pursuant to s.6AAA of the Sentencing Act 1991, but for your pleas of guilty, you would have been sentenced to a term of imprisonment of five years, with a non-parole period of two and a half years.
49 I would like to thank counsel for their submissions and assistance in this matter.
50 Is there anything further?
51 MS MORAN: No, thank you, Your Honour.
52 MR DEAN: Thank you, Your Honour. No, Your Honour.
53 MS MORAN: Do you already have the drafts?
54 HIS HONOUR: No.
55 MS MORAN: Okay, I will just hand up the drafts to your associate.
56 HIS HONOUR: I also should point out that I order that your motor vehicle license be cancelled and I disqualify you for three months from today, pursuant to s.50 of the Road Safety Act 1986.
57 COUNSEL: As Your Honour pleases.
58 HIS HONOUR: Yes, thank you. You may remove the prisoner, thank you.
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