Director of Public Prosecutions v Symons (a pseudonym)

[2023] VCC 1284

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

AT MELBOURNE
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

BAILEY SYMONS (A PSEUDONYM)

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JUDGE:	HIS HONOUR JUDGE HIGHAM
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	24 July 2023
CASE MAY BE CITED AS:	DPP v Symons (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2023] VCC 1284

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW

Catchwords:  Sentence – trafficking in a drug of dependence – possession of a drug of dependence – prohibited person possess imitation firearm – dishonesty receive stolen goods - dealing with property suspected of being the proceeds of crime – possess a prohibited weapon without exemption – plea of guilty – rehabilitation

Legislation Cited:              Sentencing Act 1991 (Vic) ss 5(1), 18X(1)
Cases Cited:   Gregory v The Queen [2017] VSCA 15

Sentence:Total Effective Sentence of 80 days imprisonment Drug and Alcohol Treatment Order for 33 months

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr B. Sharp	Office of Public Prosecutions
For the Accused	Mr T. Battersby

HIS HONOUR:

1Bailey Symons[1], you have pleaded guilty to

·        1 charge of trafficking in a drug of dependence (Charge 1) for which the maximum penalty is a term of imprisonment of 15 years;

·        1 rolled up charge of possession of a drug of dependence (Charge 2) for which the maximum penalty is a term of imprisonment of 1 year;

·        1 charge of dishonestly receiving stolen goods (Charge 3) for which the maximum penalty is a term of imprisonment of 15 years; and

·        1 charge of being a prohibited person in possession of an imitation firearm (Charge 4) for which the maximum penalty is a term of imprisonment of 10 years.

[1] A pseudonym.

2You have also pleaded guilty to summary offences, namely:

·        One rolled up charge of deal with property suspected of being proceeds of crime (Related Summary Charge 9) for which the maximum penalty is a term of imprisonment of 2 years imprisonment;

·        One charge of possessing a prohibited weapon without exemption (Related Summary Charge 19) for which the maximum penalty is a term of imprisonment of 2 years imprisonment.

3Tendered as Exhibit 1 on the Determination Hearing was a Summary of Prosecution Opening which set out the agreed facts of your offending. In brief, the circumstances of your offending are as follows:

4In January 2022 police launched an investigation into your co-offender, Ryan Paul[2]. On 27 January 2022 operatives from the State Surveillance Unit (SSU), began an active surveillance of Mr Paul. During the course of that day you were identified as an associate of Paul and were observed driving both a stolen Volkswagen Golf and a stolen red Navarra Utility vehicle. The operation concluded with the arrest by members of Eastern Region Crime Squad of yourself, Paul, another co-offender Marcus Small[3] and your then partner Laura Paul[4], the sister of Ryan, at your home address in Clayton South.

[2] A pseudonym.

[3] A pseudonym.

[4] A pseudonym.

5A pat-down search of your person located a plastic container containing a clear viscous substance believed to be 1,4 butanediol (part Charge 2).

6A subsequent search relevantly located the following:

7From two bags located next to the porch: -

·        1 x zip lock bag containing a crystal-like substance believed to be MDMA (Charge 2); and

·        2 x glass vials of testosterone (Charge 2).

8From the Volkswagen Golf -

·        Victorian registration plates (Charge 3); and

·        A total of $2,400 (part RSO 9).

9From the Ford Utility – parked in the driveway of the property -

·        Stolen Victorian registration plates (Charge 3);

·        Black box containing various power tools (RSO 9);

·        Cambridge plumbing pressure set tool (RSO 9); and

·        Milwaukee Pack-out toolbox containing various tools (RSO 9).

10Obviously you were intending to go into business and put Bunnings out of business, Mr Symons.

11Then from inside -

·        A total of $11,885 across various areas (RSO 9);

·        2 x Ziplock bags containing 13 Xanax tablets (Charge 2);

·        2 x bags containing various quantities of crystal-like substance confirmed to be Methylamphetamine with a total weight of 84.9 grams at a purity of 83 per cent (Charge 1);

·        2 x bags containing green vegetable matter believed to be Cannabis (Charge 2);

·        2 x Stolen Victorian registration plates (Charge 3);

·        Black and grey metal imitation handgun (Charge 4);

·        Silver imitation firearm barrel (Charge 4);

·        Flick Knife (RSO 19);

·        2x glass vials of Testosterone (Charge 2); and

·        Various suspected stolen tools (RSO 9).

12Also located but not seized was a money scale/counting machine on the kitchen benchtop.

13You were taken to Box Hill police station where you were charged and remanded and you have remained in custody since that date. After a considerable delay the matter resolved in November 2022 and then proceeded by way of straight hand-up brief. On 8 May 2023, shortly before your plea hearing, the matter was adjourned into Drug and Alcohol Treatment Court for a determination hearing which was held on 14 July 2023.

14Exhibit 3 on the determination hearing was a clinical adviser assessment report from Mr Alston Yan dated 22 May 2023. Exhibit 4 was a case management assessment report dated 5 June 2023 by Ms Xenia Clark. I also received an old neuropsychology report from Dr Sara Fratti (Exhibit 6AF) dated 25 October 2020, prepared for an earlier court hearing; a psychologist report from Ms Lisa Jackson dated 12 January 2019 (Exhibit 7AF) again prepared for an even earlier court hearing; a report from Ms Karly Doyle dated 22 May 2022 (Exhibit 8AF) detailing your engagement with AOD counselling; a bundle of certificates of course completion during your time in remand (Exhibit 9AF); and a letter to the court written by yourself dated 20 April 2023 (Exhibit 10AF); and your criminal record. Altogether these reports and records set out your personal narrative, your substance abuse, and forensic history and your future challenges. 

Personal  circumstances

15You were born in August 1992 and you are now 30 coming up for 31, and were 29 at the time of this offending. You are one of a sibship of four and you grew up in the eastern suburbs of Melbourne and attended local schools.

16Your paternal grandfather also lived in the family home. You report a tough childhood full of traumatic memories. Your family it seems experienced severe financial pressures and you describe both your father and your paternal grandfather as harsh and angry men who frequently lashed out at the children and at your mother (Exhibit 6AF). It seems (not surprisingly) that you early on demonstrated behavioural issues whilst at primary school, which became worse during your adolescence. I note Ms Jackson's tentative diagnosis in January 2019 of Oppositional Defiance Disorder (Exhibit 7AF).  Unhappily no such diagnosis was made at the time of your education when there could have been meaningful intervention. Ms Jackson also notes the (now) recognised causal connection between hostile parenting and the condition. These behavioural issues led to your leaving school in Year 10, although the precise circumstances remain to me unclear.  

17Growing up your closest attachment was with your maternal grandfather who was a parent, guide and role model all in one. Sadly he passed away after a long illness when you were 15/16 and you struggled to deal with his loss. This, it seems triggered greater substance use.  

18Upon leaving school you then completed VCAL at Wantirna TAFE and commenced a pre-apprenticeship in carpentry which you did not complete. You did maintain a consistent employment history up until 2014 when your capacity to manage workplace commitments, family and intimate relationships was compromised by your escalating drug use. You report estrangement from your siblings and your parents. From that period onwards it seems your life then became dominated by that drug use which in turn has driven your offending to date.

19Dr Fratti (Exhibit 6AF) assessed an IQ in the low average to average range of intellectual functioning. She noted your multiple past losses of consciousness due to fights and overdoses, but she was clear in her opinion there was no Acquired Brain Injury nor any permanent cognitive impairment. Ms Jackson (Exhibit 7AF) noted a 2017 diagnosis of depression whilst you were on remand. You have in the past been prescribed anti-depressant medication. At the time of her assessment (2019) you presented with high levels of stress and anxiety and she also assessed you as a medium/high risk of reoffending.

20Your substance use progressed from cannabis to methamphetamine at the age of 17. You quickly became a daily user and on occasion an IV user. You later developed a concerning GHB use – which has led to several concerning overdose presentations at emergency departments.

21Your criminal record reflects your substance use history. You first appeared in front of the courts in 2013 when aged 20. Since that time you have been sentenced to  community orders (both standalone or in combination with terms of imprisonment) all of which you have breached by non-compliance or on-order offending or both, and you have also been dealt with by immediate terms of imprisonment. Your offending has consisted primarily of drug offences (possession and trafficking, this being your fourth conviction for trafficking) property, dishonesty, driving offences (including when pursued by police, which is of great concern to the court), and Bail Act offences.

22In July 2021 you were sentenced to 6 months imprisonment and a community corrections order of 12 months' duration. This index offending, that is the offending for which you are being sentenced today, was committed four months after that last community corrections order commenced.

23Indeed, you have frankly described your past engagement with court ordered supervision in these terms: you stated that you would say anything to be released from prison while fully intending to return to drug use and your old criminal associates (Exhibit 4).

24Now whilst of course you do not fall to be sentenced again for matters for which you have already dealt with by the courts, but your prior criminal history does impact my assessment of the need for specific deterrence, that is to deter you from any repeat of this offending, your prospects for rehabilitation, your moral culpability - that means the degree to which you can be held accountable for your actions and for their consequences - and the need to protect the community from you. You demonstrate a remarkable consistency in your acquisitive offending.

25I note that during this current long period of remand you have seemingly applied yourself to a different course in life. You have completed as many programmes as possible (Exhibit 9AF) which is an achievement particularly during the COVID pandemic when so many programmes were shut down. You have engaged in privately funded AOD counselling (Exhibit 8 AF).  You have also unfortunately acquired an opioid dependence, whilst on remand, which is currently being treated by pharmacotherapy. You have otherwise remained drug free and you have also begun to reconnect with family although this is a slow and cautious process both for you and for your family who clearly want to take things slowly, no doubt as a result of many past promises which have been promptly broken by you.

Reports

26You reported to Mr Yan (Exhibit 3) daily use of methamphetamine (3 points) in addition to 50 mls of GHB at the time of your arrest for this matter. Mr Yan was of the opinion that you satisfied the diagnostic criteria for stimulant use disorder, severe in nature and currently in remission in a controlled environment of remand. He was also satisfied that the treatment and supervision component of a Drug and Alcohol Treatment Order (DATO) would be an appropriate intervention to address your substance use disorder, and that there were no significant concerns regarding your capacity to participate in such an order. He recommended treatment plans for you.

27Ms Clarke (Exhibit 3) noted that you presented to her as motivated to address both your substance use and your offending behaviours and recommended you as suitable for a DATO.  

28The particular purposes of a DATO are as follows[5]:

(i)to facilitate the rehabilitation of the participant (offender) by providing a judicially-supervised, therapeutically-oriented, integrated drug and alcohol treatment and supervision regime;

(ii)to take account of the offender participant’s drug or alcohol dependency;

(iii)to reduce the level of criminal activity associated with drug or alcohol dependency;

(iv)to reduce the participant's health risks associated with drug or alcohol dependency.

[5] S18X(1) Sentencing Act

29Daily use of GHB and methamphetamine is not a recipe for a long life. There is always a significant health risk attached and if you have managed to maintain your health up to this stage, that may be more by luck than judgment, given your concerning presentations at ER.

Submissions of Counsel

30Mr Battersby on your behalf, submitted that a DATO was an appropriate disposition having regard to all the circumstances of the offending and your own personal circumstances.

31Mr Sharp in fair and succinct submissions on behalf the Director conceded that such a disposition was open to the court and did not seek to persuade me otherwise.

Objective gravity

32Now, Mr Symons, those of us who sit in the criminal courts day after day are aware of this simple truth: drugs are tearing out the heart of our community. Our community is losing a second generation and those who participate in this evil trade can expect to be severely punished if and when they come before the courts. Because what might start out as a fun Saturday night, what might to begin with be regarded as recreational use that can be controlled, can quickly spiral into the horrors of addiction. And in that addiction many lose everything including their lives. 

33Your own lived experience must show you how close you have come to losing everything. Notwithstanding your view of your childhood, I note that you do retain the support of your parents who attended your plea hearing. Mr Symons, this means that you are truly fortunate, although you may not yet appreciate the full extent of your good fortune in that regard.

34Trafficking in drugs of dependence is serious offending as is clear from the maximum penalty that Parliament has seen fit to impose. Quantity, role, the duration of the offending and the duration and motivation for the offender's involvement in the offending are all important indicators of offence seriousness[6].

[6]See Gregory versus the Queen [2017] VSCA 15 2 par 24.

35Yours is a single date charge. Whilst I accept that you may have begun to traffick drugs of dependence to support your own substance needs, it is clear from all the material in front of me that you were engaged in your own commercial enterprise of trafficking from which you were gaining substantial material benefit, as the cash and collection of trade tools in your possession make clear (summary Charge 9).

36You would use stolen registration plates to hide the provenance of the vehicles that you were driving (Charge 3), although I make clear that, you are not charged in respect of the theft of either vehicle.

37Your offending demonstrates a complete disregard for the rights and property of others: everything was secondary to your own needs.

38As for the imitation firearm Charge 4: this is a matter of great concern to the courts.  There is no legitimate purpose for its possession by you in breach of the prohibition order. I do note that realistic imitation firearms are becoming a regular accessory for drug traffickers. All of this offending is aggravated by the fact that it was committed whilst you have been but four months on your latest community corrections order.

39Your drug dependence may have contributed to this offending but it most certainly does not excuse it. You well knew, I find, the wrongfulness of your actions and your moral culpability, that is the extent to which you will be held responsible for your actions and for the consequences, is high.

General principles

40Mr Symons in sentencing you I must have regard to a range of different factors. I must give effect to principals of general deterrence that is, deterring anyone outside this court from behaving as you did; and to specific deterrence, deterring you from any repeat of your offending.

41I must consider the need to protect the community. I must express the community's denunciation of your conduct.  I must take into account the effect of your crimes upon the community and have regard to current sentencing practices and the statutory maximum penalties for the offences to which you have pleaded guilty.

42I must ensure as far as possible that you are rehabilitated and reintegrated into society.  In short, I must try to balance your personal circumstances with the circumstances of your offending. I must also pass no greater sentence than is necessary in all the circumstances of the case as I find them to be.

43These sentencing purposes as identified in S 5(1) Sentencing Act are all still relevant in your case. Specific deterrence and the need to protect the community from your continued offending loom large in the sentencing process. However if the court is considering making a DATO then your rehabilitation and the protection of the community (that can be achieved through your rehabilitation) has greater importance than those other sentencing purposes.

Findings

44On all the material in front of me I am satisfied on the balance of probabilities that:

(i)you have a polysubstance dependency (including methylamphetamine and GHB);

(ii)that your dependency contributed, in broad terms, to the commission of the offending in front of me;

(iii)that otherwise it would be appropriate to impose an immediate sentence of imprisonment of no more than four years;

(iv)that you are not charged with offending nor are you subject to any order that would make you ineligible for a Drug and Alcohol Treatment Order; and finally 

(v)that it is appropriate in all the circumstances of the case to make such an order.  

Reasons

Plea of guilty

45Your plea was not entered at the earliest opportunity.  It may very well be there were resolution discussions on foot but it did not come early. Nonetheless a plea of guilty must always be recognise.  It saves the community the time and the cost, expense of a trial and it does show a willingness to - albeit eventually - facilitate the interests of justice.

46But also a plea of guilty, in the time of the COVID pandemic, must be given particular recognition.

47Also I have regard to the conditions of remand during the COVID pandemic.  Now Mr Battersby has not provided me with any particular examples of harshness but certainly I recognise that during the COVID pandemic your absence of choice, the absence of agency, heightens the concerns for yourself, heightened concerns for family out in the community, also reduces the opportunity for programmes, increases the length of lockdowns and such.  So that again is a matter that needs to be recognised.

48Apart from your custody opioid habit, you have maintained abstinence and I recognise the achievement that that represents.

49I recognise your engagement with Ms Doyle as she has spoken of (Exhibit 8AF).  You did five sessions, but certainly you indicate that you took the initiative and decided that you wanted to do it and you have demonstrated insight.

50You have supportive factors.  I note your mum and dad sat in the plea hearing, so you have got parents.  I understand it is possible that you are re-establishing a relationship with your siblings.  You have a partner who does not use.  And you have got some pro-social friends who have used in the past but have managed to stop and have turned their life around; so maybe they have a lot of wisdom that they can give you.

51Whilst in custody you lost both of your grandmothers, your grandmother and your Nona and you were unable to attend their funerals. It seems that this loss and the degree of separation that you had from your family at this time had a deep impact upon you and has also informed your resolve not to go back to your old ways.

52I have regard to your insight and resolve that you have demonstrated: as you indicate you are now 30 and realise that if you do not make a change now then you are going to turn around and you will be 60, if you make it that far. That demonstrative resolve was echoed both by Mr Yan (Exhibit 3) and Ms Clarke (Exhibit 4).

53You told Dr Fratti that you wondered why you always “fuck up” (Ex 6AF). Well simply it is because you always go back to methamphetamine, but there is always something more complex than that perhaps. 

54It seems to me, Mr Symons, that you have struggled to deal with loss, a loss that you confronted at a very early age. You have continued to demonstrate a lack of emotional resources to deal with rejection and to the challenges that life offers you, and whenever challenged you return to the comfort of your substance use because that is what you know and that is easy and it is much better than feeling. As you told Mr Yan very frankly (Exhibit 3) 'I do not know how to handle emotions'.

55You told Ms Doyle that you 'want to return to life when I was young'.  You are not the only one in this court room that might want to do that, Mr Symons 'before the drugs wrecked everything'.

56Well I make the observation, none of us can go back – but we can go forward, all right.  So I am going to give you the opportunity that you have asked for.

Sentence

57On Charge 2, you are sentenced to a term of 60 days' imprisonment.  That is the cornucopia of drugs of dependence that you possessed.

58On Summary charge 19, you are sentenced to a term of 50 days' imprisonment. 

59I am ordering 20 days on summary Charge 19 run cumulative to Charge 2.  So that makes a total effective sentence of 80 days imprisonment and I declare that you have already served the sentence passed upon you today in respect of Charge 2 and summary Charge 19.

60On Charges 1, 3, 4 and summary Charge 9, you are convicted and you are placed upon a Drug and Alcohol Treatment Order.

61A DATO has two parts: the treatment and supervision part and the custodial part. The treatment and supervision part itself has two parts, which are as follows.

62The core conditions, which are that:

(a)   you must not commit, whether in or outside of Victoria, another offence punishable on conviction by imprisonment during the time the Order is in force;

(b)   you must attend Drug Court when required by the Court to do so; 

(c)   you must report to the Melbourne Drug Court House within two clear working days after the Order is imposed; 

(d)   you must report to and accept visits from members of the Drug Court;

(e)   you must undergo treatment for alcohol and drug dependency as specified in the Order or by the Drug Court;

(f)    you must give notice of any change of address, at least two clear working days before the change, to a specified Drug Court officer;

(g)   you are not to leave Victoria without the permission of the Drug Court; and

(h)   you are to obey all lawful instructions from the Drug Court Team. 

63The core conditions will operate for 33 months, or until further order.

64The program conditions, which are that: 

(a)   you must submit for drug and alcohol testing, as directed; 

(b)   you must submit to detoxification or other treatments specified in the Order, as directed;

(c)   you must attend vocational, educational and employment programs, as directed;

(d)   you must submit to medical, psychiatric and psychological treatment, as directed;

(e)   you must not associate with Laura Paul, Ryan Paul and Marcus Small;

(f)    you must reside at a place directed by the Drug Court Team for the duration of the Order or until further Order; 

(g)   you are subject to a curfew that you must remain at a place directed by the Drug Court Team between the hours of 9:00 pm and 6:00 am, which is required until further order;

(h)   you are not to use a drug of dependence without lawful authorisation;

(i)    you are to abstain from alcohol; 

(j)    must attend a GP for pharmacoptherapy reviews as directed by the Drug and Alcohol Treatment Court team;

(k)   must only access the internet through one Device, which is to be nominated within 7 days and inform the Drug and Alcohol Treatment Court if you change devices and reasons for the change;

(l)    Must allow a designated Drug and Alcohol Treatment Court officer to view upon request at any time your internet search history and applications;

(m)     must not delete internet search history or any applications without express prior permission of the DATC team; and

(n)   you are to do or not do anything else that the Drug Courts consider necessary or appropriate concerning:

(i)your drug and alcohol dependency; and

(ii)the personal factors that the Drug Court considers contributed to your criminal behaviour. 

65You also are waiving all rights of confidentiality and communication between the Drug Court on the one hand and all treatment providers and other Government agencies, authorities and departments.

66These program conditions will operate for two years, or until further order. 

67The custodial part of the DATO is the term of imprisonment that I would have imposed had I not placed you on a DATO, and it is a term of imprisonment 33 months. That is made up as follows:

68Charge 1: 2 years one month imprisonment

69Charge 3: 6 months imprisonment

70Charge 4: 5 months imprisonment

71Summary Charge 9: 10 months imprisonment

72I Order: 2 months of sentence on Charge 3, 2 months of the sentence on Charge 4, 4 months of the sentence on summary Charge 9 run cumulative to each other and cumulative to the sentence on Charge 1.  So that is how we have got to 33 months.

73Section 18(4) declaration, I declare 463 days as pre-sentence detention.  This equals 543 days minus 80 days served. Now the 463 days just sits there, yes.  It only comes into play should you have your order cancelled.

74Now for a s6AAA it is particularly an artificial exercise when placing someone on a Drug and Alcohol Treatment Order, particularly the way this sentence has been formulated, but doing the best I can, had you not pleaded guilty you would have been sentenced to a total effective sentence of 4 years with a non-parole period of 33 months.

75All right, now I am going to ask you a question.  I think I probably know the answer. Do you consent to being placed on a Drug and Alcohol Treatment Order?

76OFFENDER:  Yes, Your Honour.

77HIS HONOUR:  No hesitation there.  All right, now, my associate Ms Irwin is going to come with a clean pen and there should be some sanitiser in there.  Is there any sanitiser?  Thank you.

78OFFENDER:  Oh yeah, here.

79HIS HONOUR:  I’m signing two forfeiture orders and one disposal order, Mr Sharp.

80MR SHARP:  Thank you, Your Honour.

81MR BATTERSBY:  As Your Honour pleases.