Director of Public Prosecutions v Smith

[2018] VCC 561

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

AT LATROBE VALLEY
CRIMINAL JURISDICTION

CR-17-01817

DIRECTOR OF PUBLIC PROSECUTIONS

v

ASHLEY SMITH

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Latrobe Valley
DATE OF HEARING:
DATE OF SENTENCE:	26 April 2018
CASE MAY BE CITED AS:	DPP v Smith
MEDIUM NEUTRAL CITATION:	[2018] VCC 561

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr S. Devlin	Office of Public Prosecutions
For the Accused	Mr J. Kantor	Emma Turnbull Lawyers

HIS HONOUR:

1Ashley Smith, you have pleaded guilty to one charge of trafficking in a drug of dependence, one charge of prohibited person in possession of a firearm and one charge of possession of small amounts of other forms of drug of dependence.  Those crimes carry maximum penalties of 15 years, ten year and - it is one year for personal use, isn't it?

2COUNSEL:  Yes, Your Honour.

3HIS HONOUR:  Yes.  And in this situation, one year.  I am not interested in imposing fines, so they will all be custodial sentences.  You are now 32 year of age.  you do have a prior criminal history but that criminal history is not alarming and there are no priors for either firearms or for trafficking in illegal substances.  I also note that there is one charge of possess cartridge ammunition on which I convict and discharge.

4The circumstances of the offending are that you were clearly under police surveillance and between early November 2016 and 21 December 2016, that surveillance together with covert operations and telephone materials indicated that you had trafficked in methamphetamine in excess of 160 grams - I cannot make it any more precise than that.  It is a significant amount of amphetamine - Amphetamine that was actually sold or seized from you revealed it to be 61 per cent pure which is not street value but certainly - I would have to accept it is not at the head of such an operation.

5The trafficking was persistent and has to be regarded as serious.  An active custodial sentence of significant proportions is inevitable.  Also as a result of a raid and you having sent a photograph to a co-accused, police found a sawn-off single-barrel shotgun which was capable of being fired and was hidden in your shed.  Trafficking amphetamines and sawn-off shotguns - general deterrence plays a large part in the sentencing process as well as personal deterrence to you, denunciation and appropriate punishment.

6When the raid was carried out, small amounts of MDSM were discovered and that gives rise to the possession charges.  I am aware because of having sentenced people involved with you previously of the overall circumstances around this trafficking in Wonthaggi at about time.  I sentenced - I think it was three, maybe even four - people for conducting a purported run through where they fired at you in your shed with shotguns.  They were charged with reckless endangerment and reckless endangerment it most certainly was.  And therefore, I just take into account so far as parity is concerned their shotgun sentences which were 12 months each. I do take into account your trafficking co-accused was given a 450 days straight sentence.

7I then look to matters personal to you and they are contained within a psychological report that has been tendered as well as references from your mother and certainly, sister.  You have a number of problems and have battled with a number of problems.  You come clearly from a dysfunctional background situation.  Your father passed away in 2016 I am told and you have had difficulties all through your life.

8You stated using amphetamine around about ten years ago and clearly that all - as well as cannabis from an earlier time - that all generated the offending for which you appear before me.  I accept on the material that by and large you have been a hard worker.  You are in a relationship or have been in a relationship and you have a number of children and I take that into account in this sentencing process.

9The psychological report which I do not - again - do not have to go into detail.  It can be - it will be kept on the file if anybody really needs it - indicate that you have been diagnosed as having generalised anxiety disorder, major depression, bipolar disorder (type 2) with anxious distress moderate/severe, post-traumatic stress disorder, sleep disorder, adult ADD and - for what they are worth - disinhibition and impulsiveness.  You have - it clearly gives rise, certainly to some application of the principles involved in Verdins and if the psychologist is correct and I cannot really argue with him in this situation, it is surprising that your criminal history is not worse than it in fact is.

10You have clearly had anger problems in the past insofar as this sort of offending is concerned and all that adds up to what has to be a significant custodial sentence.  Prospects of your rehabilitation are really up to you.  It is going to need an effort on your part.  You cannot just sit back and say, "This was never done for me, that was never done for me".  You know what your problems are, you are going to have to deal with them. I take into account you are undergoing in protection.

11I will be sending obviously these sentencing remarks together with all the materials to the adult parole board and would ask them to take this into account in terms of assessing you for release, that you be released with the appropriate assistance that is outlined in the psychological report of Mr Hewson.  The fact of the matter is, as I have indicated, amphetamine trafficking and sawn-off shotguns are not a good combination.

12Accordingly on the charge of trafficking you are sentenced to be imprisoned for a period of 18 months.  On the charge of prohibited person, 12 months.  On the charge of possess drug of dependence, three months.  I direct that be served concurrently with the 18 months.  I direct that six months of the sentence imposed on charge two be served cumulatively.

13The sentence imposed upon charge one which gives an effective head sentence of 24 months.  I direct that, having done the arithmetic, I direct that you serve a period of 17 months before becoming eligible for parole which on my calculation would mean that your parole date would be up now, if not up now and after that it is going to be matter for you.

14I direct that 491 days be reckoned as having being served under this sentence and advise that but for your plea of guilty, would have sentenced you to be in prison for a period of three and a half years with a minimum term of two and a half.  There are no other orders I have to make?  No?  No.  All right, thanks ‑ ‑ ‑

15MR DEVLIN:  No, Your Honour.

16HIS HONOUR:  All right you understand that, all right?  You'll be eligible for parole if not now, pretty soon.  That's a matter for you.  If you get out and start this sort of behaviour again, someone's going to give you a really long sentence or someone's going to shoot you.  And that's what it really comes down to doesn't it?

17OFFENDER:  Yeah, yes it does.

18HIS HONOUR:  Up to you.  Yes.  Thanks Mr Devlin.

19MR DEVLIN:  Thank you, Your Honour.

20HIS HONOUR:  Thanks Mr Kantor.

21MR KANTOR:  As Your Honour pleases.

22HIS HONOUR:  Yes you can take him now, thank you.

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