Director of Public Prosecutions v Staff

[2020] VCC 1656

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 20-00809

DIRECTOR OF PUBLIC PROSECUTIONS

v

WAYNE STAFF

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JUDGE:	HIS HONOUR JUDGE CARMODY
WHERE HELD:	Melbourne
DATE OF HEARING:	9 October 2020
DATE OF SENTENCE:	14 October 2020
CASE MAY BE CITED AS:	DPP v STAFF
MEDIUM NEUTRAL CITATION:	[2020] VCC 1656

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW – Sentence

Catchwords:  Traffick a drug of dependence – commercial quantity – driving in a manner dangerous

Legislation Cited:  Criminal Procedure Act 2009; s.145, s.242

Sentence:Total effective sentence of four years’ and nine months’ imprisonment with a non-parole period of three years’ imprisonment before being eligible for parole.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms J. Fallar	Office of Public Prosecutions
For the Accused	Mr L. Richter	Giorgianni & Liang Lawyers

HIS HONOUR:

1Wayne Staff, at the County Court of Victoria in Melbourne on 9 October 2020, you pleaded guilty to the following charges on indictment No.C1913187: 

Charge 1, trafficking in a drug of dependence in a commercial quantity, the drug was methylamphetamine.  This charge has a maximum penalty of 25 years' imprisonment. 

Charge 2, fail to provide information to police concerning protecting data on a storage device, in this case a mobile phone.  This charge has a maximum penalty of five years' imprisonment.

2On the same day, you consented to a number of a related summary matters being heard, pursuant to sections 145 and 242 of the Criminal Procedure Act 2009. You pleaded guilty to the following related summary charges:

Charge 4, failing to stop when directed to do so by a police officer.  This charge has a maximum penalty of 10 penalty units;

Charge 5, fraudulent use of a registration number plate or label.  This charge has a maximum penalty of 10 penalty units or two months' imprisonment;

Charge 6, unlicensed driving.  This charge has a maximum penalty of 60 penalty units or six months' imprisonment;

Charge 8, driving in a manner dangerous to the public.  This charge has a maximum penalty of 240 penalty units or two years' imprisonment; 

Charge 12, dealing with property suspected of being the proceeds of crime, this charge has a maximum penalty of two years' imprisonment; 

Charge 13, unlawful possession of bank cards, licenses, and other identification documents.  This charge has a maximum penalty of one year imprisonment.

3On the day of your plea, you had spent 310 days as pre-sentence detention.  You have an extensive criminal history relevant to the matters before this court.  I now know that you have spent 315 days pre-sentence detention, not including this day.

Circumstances of your offending

4The prosecutor tendered the prosecution opening for plea dated 14 September 2020.  It was Exhibit “A”.  A bundle of 31 photographs was Exhibit “B”.  A compilation of video footage taken from the Victorian Police Air Wing helicopter which traced your movements to your address was Exhibit “C”.  Each of these exhibits set out your offending on 4 December 2019.

5On 4 December 2019, you were an unlicensed driver as your permit to drive a vehicle had expired on 30 October 2014.  In the earlier hours of 4 December 2019, you were driving a purple Commodore in Dandenong.  You passed a police vehicle which was on patrol, in the area of Foster Road and Lonsdale Street in Dandenong.  You turned left onto Dandenong Street when it was a red light.  Police checked your registration plate and found it to be a Beaconsfield address.  The police activated lights and sirens.  You accelerated away going towards Stud Road.  That was summary Charges 4 and 5.

6As you approached Stud Road you passed another motorist in close proximity.  That is part of the dangerous driving charge.  Due to the manner of your driving, the police switched off the emergency lights and notified police communications.  The police officers lost sight of your vehicle as you turned onto Stud Road.  Other police officers who were on patrol observed your vehicle turn left onto Herbert Street.  Around this time, the police Air Wing had observed you from the helicopter.  The video was activated; you were driving up Princess Highway on the wrong side of the road in a dangerous manner.

7Like a hawk in the sky, the police helicopter followed your vehicle driving erratically at very high speeds, merging on the wrong side of the road, swerving over middle barriers, causing oncoming motorists to take evasive action to prevent a collision, driving through red lights and in the presence of several motorists on the road.

8The police Air Wing continued to follow you.   You were observed to enter the driveway and into a garage of a unit in Dandenong.  A female was seen to emerge from an internal door of that premises and manually close the garage door behind your car.  Your movements were radioed to police on the ground.  Within minutes, the original police pursuit team and others, including the canine unit arrived at your address.  They knocked on the door numerous times with no answer.  They managed to open the garage door and saw the vehicle that you had been driving and called out to the occupants.

9The female occupant emerged saying she was in the shower and no one else was present.  She permitted the police to search the house.  One of the police members, Senior Constable Adcock went upstairs and observed that the manhole in the premises had been adjusted.  She also noticed a medium sized zip lock bag which appeared to contain methylamphetamine wedged between the lid and the corners of the manhole.

10The threat of the police dog being allowed to search for you in the roof cavity of the unit prompted you to surrender to police.  As you got down from the manhole, you tried to push the zip lock bag containing the drugs into the manhole.  The zip lock bag was seized by police.  Police then searched the premises; a sum of $950 was located on you, this is part of summary Charge 12, proceeds of crime.  The small zip lock bag containing 1.6 grams of methylamphetamine was located in your pants. 

11The search warrant was obtained by police.  During the search, police located the following items;  in the bedroom on the bed was a black Samsung mobile phone; on a shelf in a built-in wardrobe was a further $700 which is part of the proceeds of crime charge;  in the bathroom on the sink countertop, a black Optus mobile phone was located;  in the sandwich bag, contained methylamphetamine which is Charge 1; in the garage inside your vehicle was located a black Apple iPhone, and a brown wallet which contained documents of driver's licenses of a Jessie Speight and a Christian Rodriguez, Victorian health care cards of a Nicholas Cheaib and Bigoa Malout and a Commonwealth bank card in the name of Paula Rudowska.  

12There were fraudulent Victorian registration plates of AMJ 174 which was on the car that was subsequently determined the vehicle's correction registration should have been 1BU 4EN.  Finally, there was a black - what is described as a tick notebook, which contained a number of entries with names and numbers and sums of money on it, which is part of Charge 1.

13After the search the police returned with you to the police station.  You participated predominantly in a no comment record of interview, which of course is your right, but during the course of that record of interview, you made some admissions and they were as follows:

a) You admitted that the purple Commodore vehicle was your vehicle that you had driven earlier;

b) You had bought the car from a friend about two months' before; 

c) the unit in Dandenong was rented through Airbnb by your partner's mother.  Your partner went there ahead of you and you intended to stay there for the two or three nights;

d) a large bag of methylamphetamine had nothing to do with your partner, that it was yours and you knew it was ice and it was worth a few thousand dollars. 

e) the cash located in the house was $900. 

f)  you took the belongings to the property, that were a few broken phones but each of them would have been a working phone;

h) when asked about the passcodes to the phone as part of the search warrant, you declined to give police the details of that.  That constitutes the basis for Charge 2 on the indictment.

14In respect of the wallet with the numerous cards and ID's in it, you said you found it in a motel that you had stayed in somewhere that you were not sure about.  The bank card had been left in your car by a friend. 

15In respect of the number plates, you said the number plate was the number plate of your car.  You did not know whom the registration belongs to, you did not know that they were handmade, and that you did not know the real registration of the vehicle. 

16In respect of the small quantity of methylamphetamine, it is ice, and you know it is illegal to possess it.  Finally, you admitted that you were unlicensed and that you knew that it was illegal to drive without a license.

17A certificate of analysis revealed that the bag containing the off-white crystals was 235.7 grams, it had a purity of 77 per cent yielding, 181 grams of pure methylamphetamine.  The commercial quantity of methylamphetamine is
50 grams pure; in that case, you had slightly more than 3.5 times the proscribed quantity for commercial quantity for that drug of dependence. 

18There was a delay in the analysis of the drugs seized from you; your plea of guilty is to be treated as an earlier plea and proceeded as a straight hand-up brief at the committal stage.  As I have said, up to now you have served 315 days
pre-sentence detention to this day.

Personal circumstances

19You are now 28 years old.  At the time of the offending, you were 27.  You have a relevant criminal history for the charges you have pleaded to in this case.  In particular, you have prior convictions for trafficking cannabis at the Dandenong Magistrates' Court on 28 November 2011.  On the same day, you were also convicted of reckless conduct endangering injury arising as I understood it, from driving offending. 

20On 21 November 2013, at Dandenong Magistrates' Court you were convicted of trafficking methylamphetamine.  On 30 October 2014, at Dandenong Magistrates' Court, you were convicted of dangerous driving whilst being pursued by police.  In total, you have a criminal record that runs to 19 pages and six separate court appearances.  You also have a conviction for dealing in property suspected of being proceeds of crime.  Your criminal history is a concerning factor when considering your prospects of rehabilitation.

21Both of your parents are alive and continue to support you.  Your parents separated when you were about 10 years old.  You have a younger brother and sister.  You remained living with your mother and siblings after your parents separated.  You describe your mother to Warren Simmonds, psychologist, who examined you for the purposes of this plea, as caring but too lenient. 

22In your early teens, you commenced spending time with older peers.  You commenced your use of cannabis at the age of 13.  At 15 years you were taking amphetamines and ecstasy.  By the time you were 19, you had moved on to methylamphetamine.  You have used this drug until your arrest and incarceration for these offences.  You have also used GHB since 2014.  Your previous attempts to rehabilitate from drug use and dependence has met with little success.

23Your formal education is limited.  You were expelled halfway through Year 8 from Eummering Secondary College.  You told Mr Simmonds that you were attracted to the drug lifestyle and money to be made and had been doing it since school days.  Your criminal history bears this proposition out.

24After your most recent release from custody in 2018, you obtained work installing insulation for a period of approximately nine months.  You then worked as a scaffolder for five months.  You then relapsed to drug use and ultimately offended, bringing you back here before this court.

25You have been married at the young age of 19 years.  You have a six year old son from that relationship.  Your drug use was the cause of the breakdown of that marriage.  You have formed a new relationship with Ms Brittain, that is the lady who shut the garage door for you.  Together, you have two sons, two and one year old respectively.  Ms Brittain now lives with her aunty and has successfully completed a drug rehabilitation program.  Ms Brittain wrote a reference in support of you stating that in her opinion, you were now motivated to turn your life around and get off the drugs.

26Mr McAuliffe, who is Ms Brittain's grandfather, also wrote a letter of support saying you showed remorse for your offending and accepts that you are willing to change your lifestyle of drug use and your associates.

27Your own grandmother, Ms Booth, expressed her belief you were prepared to change your life and commence study to obtain some qualifications to assist you in changing your life.

28A reference from Luke Hayden, outlines how you have expressed to him your understanding of the contribution you have made to the drug problem in society, and you were ashamed and take full responsibility for it. 

29I take note of your letters to the court, setting out your understanding of the seriousness of your crimes, and your desire to change your life and become a father to your three sons.  You have sought a transfer from Fulham Prison to Hopkins Correctional Centre in order to remove yourself from drug associates and people from your past.  You are now in the prison section that is usually reserved for sex offenders, and as your counsel submitted, you have isolated yourself from your fellow prisoners.  You have engaged in numerous courses for drug and alcohol addiction, you are currently medicated on methadone.  Your ambition is to do a university course to help you move into the mental health sector upon your release from prison, so that you can assist other people who have similar problems to yourself now.

30You are prescribed mirtazapine to help you sleep.  Mr Warren Simmonds gave the opinion that you need real assistance for drug and alcohol rehabilitation.
I have noted the exhibits tendered on your behalf and have referred to them during the course of my reasons.

Sentencing Considerations

31The basic purpose for which a court may impose a sentence are just punishment, deterrence both specific and general, rehabilitation, and denunciation of your actions, and the protection of the community.  In sentencing you, I must have regard to have a range of factors, such as the seriousness of your offending, your culpability for it, and your personal circumstances. 

32I am also required to balance the interests of the community in denouncing your criminal conduct, with the interests of the community in seeking to ensure as far as possible, that you as an offender, are rehabilitated and reintegrated into society. 

33I am also required to take into account current sentencing practices in fixing your sentence.  That enquiry is directed particularly, but not exhaustively to the kinds of sentences imposed in comparable cases and the statistics for those sentences.  I have considered the statistics and the current sentencing practices, mindful that each case must be considered in light of its own particular circumstances.  Many of the cases would be distinguishable from your case, as indeed they are from one another.

34Charge 1 on the indictment is a Category 2 offence under the Sentencing Act and therefore, s.5(2H) applies to your sentence; this means that a head sentence of a non-parole period is the only lawful sentence applicable in your case.

35You have pleaded guilty to these charges.  Your pleas of guilty were indicated at the early stages as I have said before.  Your plea does have the utilitarian value of allowing for the orderly and effective administration of justice.  There is a certainty outcome and resolution of the substantive issues raised by your offending; your plea allows for the preservation of the court and police resources to deal with other matters.  Your plea vindicates the public confidence in the legal process set up to protect the community.

36Your plea is also a clear acknowledgement by you that you accept responsibility for your criminal behaviour on this occasion.  Your plea also recognises as you are willing to facilitate the course of justice in the community, and I accept that your plea of guilty to these charges indicates and demonstrates remorse on your behalf.  I accept that you are genuinely remorseful for the offending.

37I also accept that the plea of guilty in the circumstances of the COVID-19 pandemic has substantial utilitarian value.  I note that the practical management of a jury trial is yet to be resolved in this state; you have not sought to delay the finalisation of this prosecution by conducting a trial on an unknown future date. 

38In addition, it is relevant to take into account the impact of the lockdown restrictions that have been imposed as a result of the COVID-19 pandemic that will be applicable to you and indeed, upon all prisoners in the State of Victoria for an uncertain time in the future. As a result of those restrictions, you will not have the opportunity for contact visits from your partner or your sons.  There is also a risk of you having to spend more time in your cell than otherwise would be the case in ordinary prison time.  Further, you will not be able to receive any visits from your mother, for example, or other members of your family who have been very supportive of you.  These further restrictions will make your time in custody more onerous than ordinary prison conditions.

39Your imprisonment and the COVID-19 restrictions also mean that you have limited opportunity to participate in all courses during the time of your imprisonment, which will limit in part your rehabilitation in the early stages.

40It was determined by the psychologist Mr Warren Simmons, that you were suffering some level of anxiety and depression.  You have this anxiety and depression due to the COVID-19 risk to yourself personally, as you have no control over that risk or the methods of controlling that risk whilst you are in custody.  All of those circumstances will mean your time in custody will be and continue to be more onerous than otherwise for a prisoner in normal times.

41You have a relevant criminal history in respect of trafficking of drugs of dependence, driving in a manner dangerous to the public, and dealing with property suspected of being the proceeds of crime.  I have referred to these matters in your personal circumstances and will not repeat them again.  Your criminal history is to be considered when assessing the appropriate sentence and in particular, specific deterrence.  It is also relevant in an assessment of your prospects of rehabilitation.

42The objective seriousness of your offending on this occasion is indicated by the following matters; First of all, dealing with the drug-related offending:

1) you had a quantity of drugs which was in excess of three and a half times the minimum quantity for a commercial quantity of the drug methylamphetamine;

2) your notebook was indicative of ongoing transactions;

3) you had $1650 in cash in your possession on arrest;

4) you had no other means of support to have such a sum of money but for the drug trafficking.  At that time, you were on Newstart;

5) you refused to provide information to police, so that they could access your phone calls and records at the time.

43In respect of the driving offences:

1) You had sped away from the police when they indicated by lights and siren that they intended to intercept you;

2) the extensive nature of your high-speed, high-risk attempt to evade interception from the police.  This is clearly shown by the helicopter vision which was part of this case;

3) the near miss you had on one particular occasion crossing the highway; it was a very close near miss; and

4) you were not even licenced to drive a vehicle at that time.  

44Your offending is objectively serious.  I assess your drug trafficking activity to be in the low to mid-range of trafficking at a commercial level.  As your counsel submitted, you were attracted to the cars, the easy money, and of course, you funded your own drug habit from this trade.  The driving offences are also serious, and it is only due to good luck that you are not facing more serious charges and consequences if you had caused a tragic accident to innocent members of the public as you sought to evade the police.

45I will cumulate only those parts of the sentences in respect of the individual charges that reflect additional offending or seriousness, mindful that the principle of totality in sentencing dictates that the court is not to impose a crushing sentence on the offender.  I take into account the matters set out in your personal circumstances.

46I assess your prospects of rehabilitation as hopeful but guarded.  I say hopeful because you have taken steps to isolate yourself from drug influences within the prison and expressed a desire to change your life and understanding of the damage your past offending has done to members of our society.  I say guarded because your criminal history is a roadmap to where you are today, and a strong indicator that you relapse to the old ways after serving your time of imprisonment, as you have done so in the past.

47I have fixed a non-parole period to afford you the opportunity of obtaining parole, and if granted, you will have the supports put in place by the Adult Parole Board, to promote your chances of a successful rehabilitation. 

48The principles of sentencing of general deterrence and specific deterrence, denunciation of your actions, and the protection of the community are the most important considerations in your case.  A term of imprisonment is the only appropriate and just sentence.

49I sentence you as follows: 

50In respect of Charge 1, you are convicted and sentenced to four years' imprisonment.  That is the base sentence. 

51In respect to Charge 2, you are convicted and sentenced to six months' imprisonment.  Three months of that sentence is to be served cumulatively upon the base sentence on Charge 1.

52In respect of the related summary charges:

53Charge 4, you are convicted and fined $500.

54Charge 5, you are convicted and fined $500.

55Charge 6, you are convicted and sentenced to two months' imprisonment. 

56Charge 8, you are convicted to six months' imprisonment.  Four months of that sentence is to be served cumulatively upon the sentences in Charge 1 and Charge 2 on the indictment.

57Charge 12, which is the proceeds of crime charge you are convicted and sentenced to four months imprisonment.  Two months of that charge is to be served cumulatively upon the sentences in Charge 1 and 2 on the indictment and Charge 8 of the related summary offences.

58Charge 13, unlawful possession of documents you are convicted and sentenced to one month imprisonment. 

59That is a total effective sentence of four years and nine months' imprisonment.  I fix a non-parole period of three years' imprisonment.

60Pursuant to s.6AAA but for your plea of guilty, I would have sentenced you to six years and six months with a minimum non-parole period of five years.

61I declare that you have served 315 days' pre-sentence detention.

62In relation to Charge 8, which is the driving in a manner dangerous charge, all licenses are cancelled, and you are disqualified for a period of two years from this date, 14 October 2020.

63I have signed the disposal and forfeiture orders sought by the prosecution.

64HIS HONOUR:  Thank you, Mr Richter.  Mr Staff, in summary, I will leave the link open, I think.  Mr Richter, I was going to leave the link open so you could speak directly with your client. 

65MR RICHTER:  That would be appreciated, if it is possible.

66HIS HONOUR:  Yes, if you wanted, and everyone else will be out; that includes me and Ms Fallar.  Just before I go, Mr Staff, basically the sentence is four years and nine months' on the top, with three years on the bottom.

67OFFENDER:  Yes, Your Honour.

68HIS HONOUR:  All right, thank you.

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