Director of Public Prosecutions v Symons
[2022] VCC 1471
•5 September 2022
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
CR-22-00542
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| RHYS SYMONS |
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JUDGE: | HIS HONOUR JUDGE ROZEN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 22 August 2022 | |
DATE OF SENTENCE: | 5 September 2022 | |
CASE MAY BE CITED AS: | DPP v Symons | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1471 | |
REASONS FOR SENTENCE
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Subject:Criminal Law
Catchwords: Sentence – Trafficking in a drug of dependence – Possession of a traffickable quantity of firearms – Possession of an explosive substance – Possession of a drug of dependence – Related summary offences – Small-scale drug trafficking business – Committed while on bail – Previous convictions – Prospects of rehabilitation – Specific deterrence – Difficult childhood – Alcohol and drug abuse – Mental health
Legislation Cited: Criminal Procedure Act 2009 (Vic); Drugs, Poisons and Controlled Substances Act 1991 (Vic); Firearms Act 1996 (Vic); Crimes Act 1958 (Vic); Control of Weapons Act 1990 (Vic); Bail Act 1977 (Vic)
Cases Cited:Worboyes v The Queen [2021] VSCA 169; Verdins v The Queen (2007) 16 VR 269; Director of Public Prosecutions v Snow [2020] VSCA 67; Bugmy v The Queen (2013) 249 CLR 571; Black v The Queen [2022] VSCA 125; DPP v Malikovski [2010] VSCA 154
Sentence:Total Effective Sentence of 3 years’ and 1 month imprisonment; non parole period of 2 years – Fine – Disposal Order – s 6AAA declaration
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms G. Walker | Office of Public Prosecutions |
| For the Accused | Mr A. Patton | Sarah Pratt & Associates |
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HIS HONOUR:
1
Rhys Symons, you have pleaded guilty to six indictable offences and seven related summary offences which are transferred to this court pursuant to
s145 of the Criminal Procedure Act2009 (Vic). The indictable offences are:
(a) Trafficking in a drug of dependence contrary to s 71AC(1) of the Drugs, Poisons and Controlled Substances Act 1981 (Vic) which carries a maximum penalty of 15 years’ imprisonment;
(b) Possession of a traffickable quantity of firearms contrary to s 7C(1) of the Firearms Act 1996 (Vic) which carries a maximum penalty of 10 years’ imprisonment;
(c) Possession of an explosive substance contrary to s 317(4) of the Crimes Act 1958 (Vic) which carries a maximum penalty of 5 years’ imprisonment;
(d) Possession of a drug of dependence (Cannabis L) contrary to s 73(1) of the Drugs, Poisons and Controlled Substances Act 1981 (Vic) which carries a maximum penalty of 5 penalty units;
(e) Possession of a drug of dependence (MDMA) contrary to s 73(1) of the Drugs, Poisons and Controlled Substances Act 1981 (Vic) which carries a maximum penalty of 12 months’ imprisonment; and
(f) Possession of a drug of dependence (LSD) contrary to s 73(1) of the Drugs, Poisons and Controlled Substances Act 1981 (Vic) which carries a maximum penalty of 12 months’ imprisonment.
2 The related summary offences are:
(a) A rolled up charge of possession of a prohibited weapon (knives) contrary to s 5(1)(e) of the Control of Weapons Act 1990 (Vic) which carries a maximum penalty of 2 years’ imprisonment;
(b) Charge of possession of a prohibited weapon (extendable baton) contrary to s 5(1)(e) of the Control of Weapons Act 1990 (Vic) which carries a maximum penalty of 2 years’ imprisonment;
(c) Charge of possession of a prohibited weapon (nunchaku) contrary to s 5(1)(e) of the Control of Weapons Act 1990 (Vic) which carries a maximum penalty of 2 years’ imprisonment;
(d) Possession of ammunition without licence contrary to s 124 of the Firearms Act 1996 (Vic) which carries a maximum penalty of 40 penalty units;
(e) Dealing with property suspected of being proceeds of crime contrary to s 195 of the Crimes Act 1958 (Vic) which carries a maximum penalty of 2 years’ imprisonment;
(f) Committing an indictable offence while on bail contrary to s 30B of the Bail Act 1977 (Vic) which carries a maximum penalty of 3 months’ imprisonment or 30 penalty units; and
(g) Contravening a bail condition contrary to s 30A(1) of the Bail Act 1977 (Vic) which carries a maximum penalty of 3 months’ imprisonment or 30 penalty units.
Circumstances of offending
3 The circumstances of your offending are outlined in the prosecution opening upon the plea dated 28 July 2022. The following summary is based on that opening. From 4 May 2020 to 11 April 2021 you were imprisoned at Ravenhall for similar offending. On your release from prison in May 2021 you commenced residing at a property on East Road, Seaford, Victoria ('the property'). The property was a government housing unit leased to a friend of yours.
4
On 6 June 2021 you were placed on bail by Frankston Police in relation to certain offences alleged to have taken place on that day. On
9 November 2021 Frankston Magistrates' Court extended your bail, which included the following special conditions:
(a) to reside at a property in Caley Street, Frankston; and
(b) to not possess or use a drug of dependence.
5 On 17 November 2021, despite there being a condition on your bail in respect of residence, you resided at the property (Summary Charge 23 - contravention of conduct condition of bail).
6
At approximately 8.58 am on Wednesday 17 November 2021 police attended the property and executed a search warrant. Shannon Moyle answered the door and allowed the police inside the home. In addition, you and two other people were present. At approximately 9 am on the same date
Leading Senior Constable Wayne McNamara attended the property with a police dog to assist with the search.
7
Upon finding a Ziploc bag of methylamphetamine during the search Sergeant Ryan Collins entered the lounge area where you and the others were sitting and asked whose bag it was, and you admitted the bag was yours
(Summary Charge 24 - commit indictable offence while on bail). As a result of this admission, you were arrested and taken to the Frankston police station.
8 In the course of executing the warrant the police located various firearms and parts, including a revolver, a sawn-off bolt action rifle with loaded magazine, pistol grip packaging, revolver cylinder and sawn-off pistol grip and various fireworks. Also ammunition, including various calibres of ammunition, and one box of 22-calibre ammunition (Summary Charge 20 - possessing a cartridge of ammunition). Also three ASP batons (Summary Charge 8); one nunchaku (Summary Charge 9); knives, including a butterfly knife and 10 prohibited knives (amended Summary Charge 6); various items, including four black Smart phones and $68,740 in cash (Summary Charge 21); together with items that appeared to be drugs including 15 Ziploc bags containing crystal-like substances, two Ziploc bags containing pills, one Ziploc bag containing powder and two Ziploc bags containing cannabis.
9 The police confirmed that neither the handgun nor the sawn-off rifle located during the search were registered, and confirmed that you are not the holder of a firearms licence under the Firearms Act (Charge 2 - possession of a trafficable quantity of firearms).
10 The seized cannabis was subsequently analysed. It weighed a total of eight grams (that is Charge 4). The various bags of drugs seized from the property were subsequently analysed and found to contain 105.2 grams of methylamphetamine (which gives rise to Charge 1 and Summary Charge 22); 3-4 methylenedioxymethamphetamine (MDMA), 1.3 grams, and lysergic acid diethylamide (LSD) (Charge 6). The various fireworks seized during the search were analysed by a forensic officer and confirmed to contain explosive substances. You did not hold a pyrotechnician's licence issued by the VWA.
11
At approximately 1.05 pm Senior Constable Daniel Black and
Senior Constable Matthews interviewed you. During the interview you stated that all of the items found in the course of the search were yours, that you were unaware that the knives you had in your possession were illegal, that you knew the drugs in your possession to be methylamphetamine and cannabis, and that you did not have a current firearms licence. You refused to provide the passcodes to the three mobile phones and you otherwise gave a no‑comment interview.
Objective gravity and moral culpability
12 Turning to the assessment of the objective gravity of the offending and your moral culpability. Trafficking in methylamphetamine is a serious criminal offence as reflected in the maximum penalty of 15 years' imprisonment. The relevant quantity here was in excess of 100 grams which is a significant amount. However, I note that you are only charged that you trafficked methylamphetamine on the one day. Your counsel submitted that you were engaged in subsistence drug trafficking. Your supply to others was said to be limited to a small circle of friends and associates. This was to be contrasted, according to the submissions, with street level trafficking as a business.
13 This submission must be assessed in light of the quantity of drugs found in your possession, the significant amount of cash in your possession, the several mobile phones you had and the array of weapons, including loaded firearms. Contrary to your counsel's submission, I consider that you were running a small-scale drug trafficking business in which you were selling this pernicious drug, which causes so much social misery, for financial gain. That the money was also feeding your own drug habit does not detract from this conclusion. While it was not a large-scale sophisticated enterprise, I have concluded that the objective gravity of your offending on Charge 1 is significant, as is your moral culpability.
14 In relation to Charge 2, I accept your counsel's submission that the two firearms you possessed were not otherwise used in the commission of criminal offending. In relation to the summary charge concerning the possession of 10 knives, your counsel submits that you were unaware that possessing them was illegal, and in this regard, I note that you have been convicted of possessing knives on more than one previous occasion.
Personal circumstances
15 Turning to your personal circumstances. Yours was a difficult childhood. Your mother gave birth to you when she was 16 years old. She had her own mental health problems and was a drug user. You lived with your father between the ages of 13 and 16 and he too was using drugs. Your childhood lacked structure, routine and rules, and you moved from school to school, making it difficult to settle and make friends. You were expelled from school in Year 8 for drug possession and fighting. You have had a sporadic employment history.
16 You started using cannabis with your father at aged 16 and first used methylamphetamine when you were 19. You had a number of relationships with women that have been characterised by drug abuse. You are currently in a relationship with Shannon, who you met in April 2021. You told a psychologist, Ms Ferrari, that Shannon is a source of support for you and that you are both motivated to abstain from drugs, and Shannon visits you regularly.
17
The court received a letter from Susan Watson, Shannon's mother.
Ms Watson believes the two of you can settle down and have a future together. Ms Watson states that you are remorseful for the mistakes that you have made. A number of other references were tendered by your counsel. They are from your sister Bailey Symons, a family friend Jack Martin, and your aunt Sharon Wardley. The authors of these references describe you as kind and remorseful, and point out the link between your abuse of alcohol and other drugs, and your offending. They state that they will support you in future.
Psychological examination
18
Your solicitors arranged for you to see a forensic psychologist,
Ms Carla Ferrari, on 9 June 2022. Ms Ferrari's report, dated 8 August 2022, is before the court. After setting out your family, educational and vocational history, Ms Ferrari records your lengthy history of alcohol and substance use. She records that you are currently serving your seventh period in custody and that you have also been sentenced to several community correction orders. She records that you explained that your breaches of these orders were caused by laziness and forgetfulness related to appointments.
19 Ms Ferrari administered several tests, including the adult ADHD self-rating scale. She concluded that the results of this test were suggestive of ADHD. Ms Ferrari concluded that you have mild depressive symptoms, moderate anxiety disorder and that you are a high risk of drug dependence. Ms Ferrari's opinion is that your prejudicial upbringing was an invalidating early environment. She explains this is known to undermine cognitive and emotional development, and she considers that your untreated ADHD is relevant to your offending and that your untreated mental health has played a significant underlying role in your offending.
20 Ms Ferrari opines that you are considered a high risk of reoffending if your mental health remains untreated. She notes that, 'Imprisonment would likely weigh more heavily on Mr Symons than a person without his conditions'. And she also considers, 'It is unlikely that his mental health will be adequately treated in prison'.
Other mitigating factors
21 Your early plea of guilty entitles you to a significant discount on sentence. The utilitarian value of the plea has increased due to the ongoing effects of delays on the courts brought about by the pandemic.[1] The evidence about the effects of a sentence of imprisonment on your mental health enlivens both limbs 5 and 6 of the case of Verdins and I have taken this into account as a moderating consideration in sentencing you.[2] Your counsel accepts that the first limb of Verdins has no application to your case, however, he submits that in light of the deprivation you have experienced during childhood, the sentence the court imposes should be moderated by the exercise of mercy, and he cites the case of Director of Public Prosecutions v Snow[3] in support.
[1]Worboyes v The Queen [2021] VSCA 169.
[2] (2007) 16 VR 269.
[3][2020] VSCA 67 at [80]-[89].
22 While I do accept that your moral culpability is somewhat reduced by virtue of that deprivation, including your early exposure to drug use,[4] I note that the Court of Appeal described the case of Snow as ‘exceptional’.[5] I accept that you are remorseful about your offending. I also accept that your relative youth means that your rehabilitation is an important sentencing consideration.
[4] See Bugmy v The Queen (2013) 249 CLR 571 and Black v The Queen [2022] VSCA 125 at [27]-[28].
[5] [2020] VSCA 67 at [93].
23 Finally, I accept the time you have spent in custody since you were remanded has been more difficult to endure than is normally the case due to the effects of the pandemic. Despite the challenges of visitor limits and lockdowns you have managed to complete a number of courses while in custody. This is to your credit and I have taken it into account in assessing your prospects of rehabilitation.
Sentencing Considerations
24 An aggravating feature of your offending is that you were on bail at the time. You have a lengthy criminal history dating back to 2011. A number of these prior matters relate to possessing weapons, ammunition and drugs. You have also been twice convicted of committing an indictable offence while on bail. I do accept your counsel's submission that you have never previously been before the courts for trafficking drugs. While you are not to be punished again for the prior matters, your criminal history is relevant to the court's assessment of your prospects of rehabilitation and the need for specific deterrence as a sentencing consideration.
25 Your criminal history and the speed with which you lapsed back into your old drug-related habits after your most recent release from custody lead me to have real concerns about your prospects of rehabilitation. I am also concerned about your history of breaching community correction orders when you have been given the chance of serving your sentences in the community. As against that there is the support you have from family and friends and the steps you have taken to complete courses in custody to equip you for meaningful work when you are released. On balance, and despite these positive features of your case, I accept Ms Ferrari's assessment that you have a high risk of reoffending.
26 Turning to the relevant sentencing considerations, I consider that both general and specific deterrence are important in your case, along with denunciation and just punishment. Your counsel, Mr Patton, submits that the court should impose a combination sentence of a term of imprisonment of up to 12 months and a community correction order. He submits that such a sentence would meet all of the relevant considerations, including punishment and deterrence, while at the same time promoting your rehabilitation. Mr Patton submits that the promotion of your rehabilitation is in both your interest and those of the wider community, and the correctness of this general proposition has been emphasised by the Court of Appeal.[6]
[6] See, e.g., DPP v Malikovski [2010] VSCA 154 at [30].
27 In the alternative, your counsel submits that if the court considers that the offending is too serious for a sentence involving a community correction order a custodial sentence should be imposed. While your counsel's written submissions seek a longer than usual non-parole period, he clarified in oral submissions on 22 August 2022 that this should read a 'shorter than usual non-parole period'. Your counsel's submissions note that despite receiving a number of custodial sentences you have not previously had the opportunity for supervised release on parole. You have thus not had support and supervision available to you following your terms of imprisonment.
28 The psychologist Ms Ferrari records you as telling her that when you were released from gaol in April 2021 you pretty much 'returned to the same lifestyle as soon as I got out'. The concern I have is that in light of this, and your previous breaches of community correction orders, history will repeat itself if I accede to your counsel's primary submission. I note the recommendation by Ms Ferrari that any custodial sentence imposed on you in relation to this offending should incorporate a period of support and supervision after your release to support your transition between prison and the community.
29 I have had regard to all of the above and have taken into account the statutory principle of parsimony, which is that a sentence of imprisonment should only be imposed where the relevant sentencing considerations cannot be met through a non-custodial disposition.[7] In the orders I make for cumulation I have had regard to the principle of totality and also the statutory mandate that the presumption of complete concurrency in s16 of the Sentencing Act does not apply to you as you committed the offences for which you are being sentenced while on bail.[8]
[7]Sentencing Act 1991 (Vic), ss 5(3) and (4).
[8]Sentencing Act 1991 (Vic), ss 16(1A)(e) and (3C).
30 Taking all the relevant matters into account you are sentenced as follows:
· On Charge 1, trafficking in a drug of dependence, you are convicted and sentenced to a term of imprisonment of two years and six months.
· On Charge 2, possession of a trafficable quantity of firearms, you are convicted and sentenced to a term of imprisonment of one year.
· On Charge 3, possession of an explosive substance, you are convicted and sentenced to a term of imprisonment of six months.
· On Charge 4, possession of a drug of dependence, Cannabis L, you are convicted and fined $100.
· On Charge 5, possession of a drug of dependence, MDMA, you are convicted and sentenced to a term of imprisonment of one month.
· On Charge 6, possession of a drug of dependence, LSD, you are also convicted and sentenced to a term of imprisonment of one month.
31 On the related summary offences, you are sentenced as follows:
· On Charge 7, rolled-up charge of possession of a prohibited weapon, knives, you are convicted and sentenced to a term of imprisonment of three months.
· On Charge 8, possession of a prohibited weapon, an extendable baton, you are convicted and sentenced to a term of imprisonment of two months.
· On Charge 9, possession of a prohibited weapon, nunchaku, you are convicted and sentenced to a term of imprisonment of two months.
· On Charge 20, possession of ammunition without a licence, you are convicted and fined $200.
· On Charge 21, dealing with property suspected of being proceeds of crime, you are convicted and sentenced to a term of imprisonment of three months.
· On Charge 22, committing an indictable offence while on bail, you are convicted and sentenced to a term of imprisonment of one month.
· On Charge 23, contravening a bail condition, you are convicted and sentenced to a term of imprisonment of one month.
32
I order that three months of the sentence imposed on Charge 2, one month of the sentence imposed on Charge 3, one month of the sentence imposed on Summary Charge 7, one month of the sentence imposed on
Summary Charge 21 and one month of the sentence imposed on
Summary Charge 22, be served cumulatively upon the sentence imposed on Charge 1, which is the base sentence. I further order that all other sentences be served concurrently with each other and with the sentence imposed on Charge 1 (the base sentence). The total effective sentence is, therefore, three years and one month and the total of the fines is $300. The non-parole period is two years.
33 Noting that they are unopposed, I make the disposal orders and the forfeiture orders sought by the Director of Public Prosecutions.
34 Pursuant to s 18 of the Sentencing Act I declare 292 days is to be reckoned as time served in respect of the sentences imposed on you today.
35 Finally, pursuant to s6AAA of the Sentencing Act, I declare that but for your plea of guilty the total sentence I would have imposed would have been a term of imprisonment of four years, with a non-parole period of two years and nine months.
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