Director of Public Prosecutions v Sexton
[2023] VCC 265
•24 February 2023
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 22-01681
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DARREN SEXTON |
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JUDGE: | HIS HONOUR JUDGE M.P. BOURKE |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 16 February 2023 |
DATE OF SENTENCE: | 24 February 2023 |
CASE MAY BE CITED AS: | DPP v Sexton |
MEDIUM NEUTRAL CITATION: | [2023] VCC 265 |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms S. Hogan | Office of Public Prosecutions |
For the Accused | Mr G. Hughan |
HIS HONOUR:
1Darren James Sexton, you are to be sentenced for one charge of possessing a border-controlled drug (heroin), suspected of being unlawfully imported (the maximum sentence, two years' imprisonment) and one charge of attempting to possess a marketable quantity of an unlawfully imported border-controlled drug (methylamphetamine). That carries a maximum sentence of 25 years' imprisonment.
2You pleaded guilty before me on 16 February. When interviewed by police on 24 May 2022, you exercised your right to silence. On 16 September 2022, committal went by hand-up brief, after which you entered a plea of guilty.
3You receive the benefit of your guilty plea and that level of cooperation in the proceeding, both from an early stage. Your plea has facilitated the interests of justice, accepted responsibility, and expresses remorse. The utilitarian benefit is greater given the continuing impact of COVID-19 on the criminal justice and corrections systems.
4At your plea hearing, also on 16 February, Mr Hogan for the Crown tendered a written prosecution opening. He provided written submissions on sentence and also a schedule and summaries of comparative sentencing cases. Mr Hughan, for you, tendered the forensic psychological report of Marlese Bovenkerk, dated 3 February 2022, and the letter of your brother, Karl Sexton, dated
13 February 2022. Mr Hughan also provided written submissions on sentence.5The circumstances of your offending are comprehensively set out in the tendered Crown opening, which is Exhibit A. My own summary may therefore be shorter. It is also informed by matters put on your behalf, not challenged by the prosecution.
6In May 2022, you were in immigration custody at the Melbourne Immigration Transit Accommodation (MITA). You had been placed there in August 2021 upon parole release from a South Australian District Court sentence imposed in July 2018 but stated to commence from December 2017, given remand custody from then.
7The offending for which you were so sentenced occurred almost 10 years earlier, in June 2019. At that time, you absconded awaiting trial. However, this South Australian sentence meant automatic cancellation of your Australian permanent resident visa. You had been here since the age of about 21 months, that is for over 50 years. Your applications for revocation of the cancellation and for review in the Australian Federal Court had failed. Under present law, it is certain that you will be deported to the country of your birth, England.
8As to Charge 1, possession of an unlawfully imported drug, on 11 May a friend named Halse visited you at MITA carrying, secreted on his person, a small quantity of heroin, two glass pipes, and a syringe. He passed these to you in the visitor's area of the facility. Mobile phone communication had arranged this, the price you paid being $1,100. Analysis revealed 0.9 grams of powder at purity of 16.6 per cent heroin.
9Charge 2 is markedly the more serious offence. On 11 May 2022, a consignment (a box containing an audio system) arrived at Melbourne Airport. It was addressed to you at MITA. Examination by Australian Border Force revealed that it, in turn, contained 120 grams of a crystalline substance. Analysis ultimately identified methylamphetamine at a purity of about 80 per cent. Accordingly, the pure weight of that drug at 95.64 grams.
10This led to a controlled delivery to the MITA on 24 May; that is an inert substance being placed within the consignment and that being surveilled. Mr Hogan directed me to evidence of mobile conversations within the depositional material; That is, not stated in the prosecution summary Exhibit A. I have considered that material. It suggests some involvement by you in drug movement into and within MITA outside the dates charged. It does not satisfy me beyond reasonable doubt of that. You will be sentenced on the basis of the indictment charges.
11As I have said, on 24 May there was the controlled delivery. You received the consignment. After that there was movement of it within a number of rooms in that part of the facility. You and others were engaged in that. Ultimately, in one of those rooms, the controlled delivery consignment was found to be opened up, broken into, and the substituted substance missing.
12There was considerable discussion at the plea hearing about your role. Within the limits of the available evidence and bearing in mind the principles stated in such cases as R v Storey, I find that you were an important player in the arrival and receipt of the drug consignment. I do not find beyond reasonable doubt that you were a principal in it, better put, the major player in the entrepreneurial exercise. Your exposure to detection is a factor that, in my mind, places you other than towards the high end of the enterprise. You had the important responsibility of receiving and then a role in the drug's movement and protection within the centre. You were more than what might be called a mere courier.
13Related to Charge 2, the legislative threshold for marketable quantity of methylamphetamine is 2 grams. The higher commercial quantity is 750 grams.
14You are presently in criminal remand custody, having been transferred there when charged on 24 May 2022. You were born in London and, as I have said, came here with your family when very young. You have an older brother and sister. You keep contact with your brother. You report no significant trauma in childhood.
15After leaving school at 14, you have worked mainly as a butcher and plasterer, in various jobs throughout Australia. You seem to have worked consistently until being imprisoned in 2017.
16However, you have been drug dependent for many years. You began using cannabis at 13 and heroin at 25. You have also abused alcohol.
17You have a significant but mainly old criminal record. In Victoria, between May 1988 and Decision 2013, I count 12 court appearances; eight fall within the years 1988 and 1994. There is a variety of offending, including less serious drug offences, dishonesty, and some violence. Most recently, there is the South Australian conviction and sentence in 2017/2018 for the 2009 offending, to which I have referred. That is violent offending. Mr Hughan's submission document gives some explanation of the circumstances of that and of similar offending in Victoria in 2006. Each are said to originate in events involving members of your family.
18You have been married. That ended after 17 years, during your South Australian prison sentence. You have three children aged between 22 and 33. You have contact with a son.
19As to your mental health, psychologist Marlese Bovenkerk diagnoses alcohol, cannabis and opioid use disorders; also a depressive disorder. This seems reactive to your immigration and custodial predicament.
20Your offending is serious, particularly that of Charge 2. An adverse feature is that of the institutional setting. You have prior offending, albeit of age. The nature and seriousness of the offending make relevant sentencing considerations and purposes of your moral culpability, deterrence, particularly general deterrence, condemnation of the offending and proportionate punishment. General deterrence is a primary sentencing purpose.
21I take into account moderating factors. They including the following.
22(1) Your early plea of guilty and cooperation.
23(2) Your personal hi. tory and circumstances. This includes your mental health conditions.
24(3) As to your personal circumstances and situation, I bear in mind impending deportation. As pointed out in the plea hearing, this does not fit well into the category of extra curial punishment. You were already in immigration custody facing almost certain deportation when you offended. That circumstance is as stated, an adverse feature. However, you have been in Australia for over 50 years; since very young indeed. You have made your life here and have little or no connection to England. I find both the harsh fact of deportation and the impact of its certainty upon the hardship of your imprisonment to be relevant and important matters.
25(4) Hardship to others (for example, you family) has not been raised as a significant moderating factor.
26(5) I apply the principle of totality.
27(6) The principle of parity with your co-offenders sentenced for Charge 1 has some relevance. I am advised that Halse was sentenced to two months' imprisonment. Relevant circumstances personal to him, including prior convictions, if any, are not known to me.
28These moderating factors I identify have relevance to your head sentence, and particularly, I find, to your minimum term.
29It was put to me that I impose a sentence of no more than three years to enable a recognizance release rather that eligibility for parole. Ultimately, I find that the circumstances of your case do not justify such a sentence. There should be a head sentence and minimum term. As I have said, there can be set, for the reasons given, a more merciful minimum term.
30I have considered the comparative sentencing cases provided. However, I also bear in mind the need to sentence individually to your case.
31Having considered and weighed and what I see to be the relevant matters, I sentence you as follows.
32For Charge 1, three months' imprisonment.
33For Charge 2, imprisonment for three years and four months.
34I direct that two months of the sentence for Charge 1 be served cumulatively on the sentence for Charge 2. As this is a Commonwealth matter, that means that I should set a date for commencement for the sentence for Charge 2 - two months after today.
35Now, you can come back to me on that, Mr Hogan, if I have got it wrong. That is therefore, using the Victorian statement of it, a total effective sentence of 3 years and 6 months, 42 months. I set a minimum of term before eligibility for parole of 18 months. I declare under s18 all of the equivalent, or I apply s18 of the Victorian Sentencing Act and declare pre-sentence detention of 276 days.
36Under s6AAA of the Victorian Act, I indicate I would have, had you not pleaded guilty, I would have imposed a sentence for five years with a minimum of three years. Now, are there any other matters that I need to deal with?
37MR HOGAN: Not that I am aware of.
38HIS HONOUR: No. And what happens? There is no necessary order for disposal or anything like that? Well, no, it went missing, did it not? Well, I suppose what about the Charge 1, disposal/forfeiture for those things? It happens automatically in a Commonwealth order.
39MR HOGAN: There is another ongoing matter, another co-accused.
40HIS HONOUR: All right, so there is no further orders required. And so, I thank you for your assistance in this matter, and I think now - I am sorry, I have just sentence another name there, I will deal with that in a moment. In a short time, Mr Sexton will be turned off, but before that happens, there was a request by somebody, I presume it is the person named John Smith to be present electronically.
41I do not think Mr Smith claims any particular interest or relationship to anyone involved in it. Do you know anything about him? Can you see and hear me, Mr Smith? Well, that does not seem to have been achieved. I meant to raise it at the start, I am sorry I did not. Do you know anything about it?
42MR HUGHAN: No. I think we saw it, Your Honour. I imagine Mr Smith, whoever he is, is on mute.
43HIS HONOUR: Yes, well, I was going to make this comment, I do not know where Mr Smith is placed, but we have reached a point at which people can attend court physically and observe as they have always been able to observe, our criminal justice system at work. It is no longer necessary in the normal course, if somebody lives in the Melbourne area, to necessarily set up a link, but you would look at each case individually.
44MR HUGHAN: Yes.
45HIS HONOUR: All right, that is all I think I need to say. Thank you for your assistance.
46MR HUGHAN: As the court pleases.
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