Director of Public Prosecutions v Smith

[2020] VCC 1225

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR-18-02527

DIRECTOR OF PUBLIC PROSECUTIONS

v

MARK SMITH

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JUDGE:	HIS HONOUR JUDGE MASON
WHERE HELD:	Melbourne
DATE OF HEARING:	6 August 2020
DATE OF SENTENCE:	11 August 2020
CASE MAY BE CITED AS:	DPP v Smith
MEDIUM NEUTRAL CITATION:	[2020] VCC 1225

REASONS FOR SENTENCE
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Subject:Plea - sentencing

Catchwords:            Trafficking in drug of dependence - possession of drug of dependence - handling stolen goods - commit an indictable offence whilst on bail

Legislation Cited:     Sentencing Act 1991

Cases Cited:DPP v Smith [2013] VCC 2088

Sentence:3 years and 6 months’ imprisonment, 2 years non-parole period

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. Plummer	Office of Public Prosecutions
For the Accused	Ms S. Pratt	Sarah Pratt & Associates

HIS HONOUR:

1Mark Jason Smith, you have pleaded guilty to one charge of trafficking in a drug of dependence, one charge of possession of a drug of dependence, one charge of handling stolen goods and one transferred summary charge of commit an indictable offence whilst on bail.

Trafficking in a drug of dependence carries a maximum penalty of 15 years’ imprisonment.  -    

Possession of a drug of dependence carries a maximum penalty of 5 years’ imprisonment and/or 400 penalty units.  -    

Handling stolen goods carries a maximum penalty of 15 years’ imprisonment.  -    

Committing an indictable offence whilst on bail carries a maximum penalty of 3 months’ imprisonment or 30 penalty units. -    

2You were born on 20 October 1976 and are now 43 years old.  You were aged 41 at the time of the offending in May 2018. 

3You have an extensive criminal history, about which I will go into more detail later.

4At the time of the alleged offences you lived in premises in Frankston North.

The circumstances of the offending are as follows:

5On 4 May 2018 you were arrested outside your premises and you were searched.  Your wallet contained $3700 cash.  The wallet and cash were seized. 

6On 9 May 2018 at about 8 am police attended at your premises to execute a search warrant.  Various items were located and seized inside the premises, including the following: 

1)    A black bag on a couch contained two snap lock bags containing cannabis.  A purse inside the black bag contained a snap lock bag containing 43.6 grams of methylamphetamine.  The purity of the methylamphetamine was approximately 86%.

The traffickable quantity of methylamphetamine is 3 grams, so this find gave rise to Charge 1 on the indictment of trafficking methylamphetamine.

2)    A small metal container in a drawer of the coffee table contained cannabis L.

3)    A Stihl chainsaw and a bottle of Cognac.  This gave rise to Charge 3 on the indictment of handling stolen goods. 

4)    A black garbage bag was found hard up against a fence in the backyard.  The garbage bag contained various vacuum-sealed plastic bags with cannabis inside them.  A baseball bat was found in vines on the fence immediately above the garbage bag.

The three items of cannabis were found to be: 

(1) cannabis L pooled from five plastic bags weighing 2.25 kilograms;

(2) cannabis L weighing 0.5 grams; and

(3) cannabis L pooled from two plastic bags weighing 175.5 grams.

The total amount of cannabis seized amounted to 2426 grams and a traffickable quantity of cannabis L is 250 grams.  This find gave rise to Charge 2 on the indictment of possessing cannabis L. 

7This matter resolved on 4 October 2019 and the trial date of 14 October 2019 was vacated.  You pleaded guilty at a hearing on 25 October 2019.

I now turn to your personal circumstances. 

8You were born in Frankston, immediately placed for adoption and spent your early years in the Gippsland area.  You ran away from home at age 12, transitioning through a number of foster or group homes and essentially becoming a child of the State.  You report that through this time you were verbally, physically and sexually abused and had experienced periods of homelessness.  You ceased school when aged 11 when you were expelled.

9After leaving school you were able to secure employment in concreting and bricklaying and, perhaps surprisingly, managed to buy a home at the age of 23.  This residence will be available to you when you are released.

10You are now 43 years old, you were 41 at the time of this offending and you have an extensive criminal record, commencing with an appearance at the Frankston Magistrates' Court in 1996 on the day before your 20th birthday when, for various drug, weapons and violence offences, you were given four months' imprisonment to be served by way of an intensive correction order.  Thereafter you have been sentenced for further offending, including drugs, weapons and violence.  You have received sentencing dispositions designed to encourage your rehabilitation, including the intensive correction order and several community-based orders.  There have been breaches.  You have received sentences of imprisonment and you continue to reoffend.

11December 2013 saw you in this court before Her Honour Judge Gaynor when, for negligently causing serious injury, setting a trap to cause serious injury and other drug, violence and driving offending, you were given four years' imprisonment with a non-parole period of 18 months.

12I have read Her Honour's sentencing remarks[1].  It is clear that Her Honour was persuaded that your prospects of rehabilitation were reasonable and placed a high emphasis in her ultimate sentence on encouraging that rehabilitation.  An important fact Her Honour found was that you realised that you needed to cease engaging in drug use. 

[1] DPP v Smith [2013] VCC 2088

13I note that the offending for which you are to be sentenced today occurred some 18 months after the completion of that sentence. 

14Whilst I also note that you have not before occasioned any convictions for trafficking in methylamphetamine, your offending amounts to serious street-level trafficking.  That activity is pernicious and prevalent in the community.  The trafficking occurred in the context of your possession also of a significant amount of cannabis which is again reflective of your association with illicit drugs.  Those matters, and your previous history of reoffending, suggest that principles of specific as well as general deterrence should be prominent in the sentencing discretion.

15In mitigation I have taken into account the submissions made by your counsel, and accept in particular:

·your plea of guilty,

·your disadvantaged early life - I accept that you experienced a tragic upbringing and it is not unlikely that your formative experiences were a significant factor in leading to your substance use disorders,

·your longstanding substance abuse habit, starting from ages 10 to 13,

·your compromised mental health involving personality disorder and intellectual impairment,

·the circumstances of your remand period, given the more onerous conditions caused by the current COVID pandemic, including greater lockdowns and limited access to treatment and educational courses directed towards your rehabilitation.

16I also accept the evidence that your intellectual deficits and psychological issues are likely to make your time in confined custody more onerous for you than upon an offender in normal health. 

17Mr Smith, on Charge 1 on the indictment of trafficking in a drug of dependence, you are convicted and sentenced to 3 years' imprisonment.       

18On Charge 2 on the indictment of possession of a drug of dependence, you are convicted and sentenced to 18 months’ imprisonment. 

19On Charge 3 on the indictment of handling stolen goods you are convicted and sentenced to 3 months' imprisonment.

20Charge 1 is the base sentence. 

21I direct that 6 months of the sentence imposed on Charge 2 be served cumulatively on the sentence imposed on Charge 1.  The sentences are otherwise concurrent. 

22The total effective sentence is three years and six months' imprisonment. 

23I direct that you serve a minimum period of 24 months' imprisonment before being eligible for parole.

24On the transferred Summary Charge 9 of commit an indictable offence whilst on bail, you are convicted and fined $300. 

25Pursuant to s.6AAA of the Sentencing Act 1991, but for your plea of guilty, the sentence that would have been imposed is five years' imprisonment with a minimum period of four years to be served before eligibility for parole.

26Pursuant to s.18(4) of the Sentencing Act 1991, I declare that the period of 622 days, not including today, be reckoned as time already served under this sentence and I direct that the fact of this declaration and its details be noted in the records of the court.

27MS PRATT:  As Your Honour pleases.

28HIS HONOUR:  At the plea hearing the Crown sought orders for forfeiture and disposal to which you consented, and I have also made those orders today.  That concludes my sentencing remarks.  Are there any comments or further submissions from either of the parties?

29COUNSEL:  No, Your Honour.

30HIS HONOUR:  All right, thank you.  That being the case this hearing can now be concluded.  Thank you

31MS PRATT:  As Your Honour pleases. 

32MR PLUMMER:  As Your Honour pleases.

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