Director of Public Prosecutions v Thomas

[2017] VCC 1060

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR -16-01080

DIRECTOR OF PUBLIC PROSECUTIONS

v

DAMIEN DAVID THOMAS

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JUDGE:	HER HONOUR JUDGE PATRICK
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	2 August 2017
CASE MAY BE CITED AS:	DPP v Thomas
MEDIUM NEUTRAL CITATION:	[2017] VCC 1060

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	Ms K. Breckweg	Office of Public Prosecutions
For the Accused	Mr C. Dane QC

HER HONOUR:

1Damien David Thomas, you have pleaded guilty to one charge of attempting to possess a marketable quantity of a border controlled drug.  The maximum penalty for that offence is 25 years imprisonment and/or a fine of 5000 penalty units.

2The circumstances of your offending are set out in detail in the Crown Plea Summary, Exhibit A.  In brief the circumstances were as follows.  On 11 March 2016 Australian Border Force intercepted an airmail parcel post consignment in Melbourne.  The consignment was addressed to "Phillip Martin" at a private mail box in Hawthorn.  The package had originated from the Netherlands and its contents were described as "documents".  The private mail box was leased on 28 November 2014 by you in the name Phillip Martin.

3On inspection the consignment was found to contain blank sheets of paper and 502.2 grams of crystals inside a plastic pouch.  The crystals were analysed.  The analysis showed that the crystals contained 392.7 grams of pure MDMA.  A marketable quantity of MDMA is half a gram.  The amount you imported was almost 800 times the marketable quantity.  The amount imported was
78 percent of a commercial quantity.  You have been charged with attempt because you were not able to obtain the MDMA because the consignment was reconstructed with an inert substance placed inside. 

4About 18 March 2016 you called the company with the private mail boxes. 
You identified yourself as Phillip Martin.  You said that you were expecting a package and ask that you be contacted when it arrived.  On 21 March 2016 a message was left advising that the parcel was ready for collection.  On 22 March 2016 you attended at the private post box and collected the consignment.  As you departed from the premises police identified themselves.  You then threw the package into the air and ran on to Burwood Road, Hawthorn.  There was a brief pursuit.  You fell to the footpath and were arrested.  You refused to provide your name, address or date of birth.

5At the time of your arrest you were found in possession of a backpack containing various items including a VicRoads driver's licence in the name of Julian Price, which was a false document.  You had used the driver's licence to fly to Melbourne from Cairns under that name on 22 March 2006 leaving Cairns just after 5.00 am on that morning.  You had booked a return flight on
31 March 2016 in the same name.

6The estimated wholesale of the MDMA is between $15,000 and $25,000.  The estimated street value of the amount of MDMA is between $52,296 and $108,950.

7You were committed for trial following a straight hand up brief committal on
22 June 2016.  At that time you indicated that you would be pleading not guilty.  On 14 February 2017 at the final directions hearing you indicated an intention to plead guilty to the charge. 

8In sentencing you I have taken into account your background and personal circumstance.  Your personal circumstance were outlined in the Outline of Defence Submissions for Plea, Exhibit 1, and in the report from Mr Michael Crewdson, psychologist, dated 16 July 2017, Exhibit 2.  You are now 41 years' old.  You grew up in the Melbourne area in a stable and supportive family. 
You, at an early stage, showed signs of considerable intelligence but with some unusual personality traits.  Your family moved around to an extent while you were in primary school.  You went to three high schools.  You suffered some bullying at school.  Overall it appears that you found high school boring.

9You completed a Bachelor of Arts degree at Melbourne University.  Since then you have had intermittent employment.  You particularly enjoyed some communications and IT work you did with a solar system company between 2007 and 2011.  Unfortunately that employment ended when the company's business decreased.

10Very sadly, your father died when you were 16.  This was a very great loss to you.  Your father, in particular, had shared his interest in railway history with you.  As I understand it you had a somewhat isolated childhood but had been very close to your father.  You had also been close to his friends who were engaged in railway activities.  This was a very important relationship to you. 
It appears from what you told Mr Crewdson, that you have not been able to deal with that loss.

11The only significant relationship you have had was one for 18 months in Cairns.  That relationship broke down.  It appears from the material that you may have already been taking drugs at that time but that your drug taking increased in the context of the relationship breakdown.  That was also the context in which your offending occurred.

12Since June 2016 you have been assisting as a volunteer with the South Oakley Wildlife Shelter.  A reference from that organisation was tendered as Exhibit 3. 

13Mr Crewdson's report provided interesting and detailed reading.  Mr Crewdson describes you as clearly intelligent.  He says you function comfortably in the above average range of intellectual abilities.  Mr Crewdson says that you are generally law-abiding and pro-social but that you reject, with great conviction, established socio-political systems.

14Mr Crewdson says that you appreciate that your actions involved in this offending were at least reckless, illegal, potentially dangerous and inappropriately initiated.  It appears that whilst you have considerable understanding of various matters it is Mr Crewdson's opinion that in practical terms you have very little insight into the underlying forces which influence your behaviour.  Mr Crewdson says,

"In summary this is a highly unusual individual but the mental state examination overall was unremarkable in that there were no indications of any major psychological illness such as a psychosis or a bipolar disorder".

15It appears from what you told Mr Crewdson that your drug taking was in part to do with a desire for some sense of "transcendental experiential enlightenment".  In your own words you told Mr Crewdson,

"… causing harm to the community and others was never my intention however I now realise that by my actions I contributed to those who do (those selling fake ID's, illicit drugs) and have exposed family, friends and myself to harm".

16I note also that Mr Crewdson says that you used false identities to protect yourself in these transactions and other transactions but conceded there was some pleasurable satisfaction from the sense of power in obtaining and having the false identities. 

17Mr Crewdson says that the results of testing indicate that you are more inclined than most to follow your own urges and that you lack control of them.  In conclusion Mr Crewdson says,

"The history, clinical examination, psychometric and extensive personality testing with an independent actuarially based appraisal provide evidence for the existence of a chronic and severe persistent depressive disorder of mood with features of anxiety, complex personality functioning with paranoid elements and alexithymia, factors of anomic disaffection and gross eccentricity and general psycho-social functioning, remorse, cessation of substance abuse, a positive contribution to the community".

18You have admitted a prior criminal history.  That criminal history is limited and it includes mainly dishonesty offending.  There is no relevant or drug related offending.

19In submissions your counsel particularly relied on your plea of guilty. 
Your counsel addressed the circumstances of your offending and submitted that various aspects should be taken into account.  Your counsel submitted that your background and personal circumstances including the matters set out in
Mr Crewdson's report ought be considered and impact on sentence.  
Your counsel submitted that your prospects of rehabilitation were high. 
Your counsel said that there was no reliance on Verdins principles and it was accepted that a sentence of imprisonment was inevitable.  Your counsel submitted that your offending was at the lower end for this type of offending and that the decision in DPP v Maxwell [2013] VSCA 50 ought apply in view of the relatively low value of the MDMA imported.

20In prosecution submissions the prosecutor submitted that general deterrence ought to be the paramount sentencing consideration and that a sentence of imprisonment involving a non-parole period would be the appropriate sentence.  The prosecutor submitted that there were no factors to moderate general deterrence or to reduce your moral culpability.  The prosecutor submitted that naivety was not uncommon in this type of offending but accepted that your offending was relatively unsophisticated.

21Damien Thomas, you have committed a very serious offence.  The maximum penalty of 25 years' imprisonment indicates the seriousness with which parliament, on behalf of the community, takes this type of offending.  You have pleaded guilty to attempting to import a marketable quantity of MDMA. 
Any involvement in the importation of illegal drugs is a serious offence. 
The importation of illegal drugs causes harm to individuals and to society as a whole.

22Your offending was not particularly sophisticated but it did involve planning and organisation.  You were the principal in this attempted importation.  You used the dark web to organise substances in a significant amount.  You used a false name for the delivery and collection.  You used a false name for your flight to Melbourne.  I accept that it is part of your personality that you wish to hide your identity from authorities, not just when committing crimes, but I am satisfied that you knowingly hid your identity in the context of this offence understanding that that would make detection more difficult.

23You clearly knew what you were doing was illegal.  That was demonstrated when you tried to run away when you were caught.  You have some experience of life.  You may have a somewhat unusual personality but you are not entirely naïve. 

24The amount of MDMA involved is significant.  I accept that there is no evidence of sale or intention to sell the MDMA.  You, yourself, were using drugs at the time and associating with others using drugs.  I accept the importation was in that context.  The MDMA would have had value if it had been sold wholesale or on the street but that value is considerably lower than the value of other drugs such as heroin or cocaine.  I accept that the decision in Maxwell applies.  I have also taken into account that there was only one attempted importation.

25General deterrence is the paramount sentencing consideration.  There are no factors which reduce your suitability as a vehicle for general deterrence. Specific deterrence ought have some weight in sentencing you to impress upon you the need to comply with the law.  The matters set out in Mr Crewdson's report suggest that you have considerable capacity for self-discipline but that you may have some difficulty controlling impulses to engage in activities which are illegal.  You must understand that whatever your personal views are, you must comply with the law otherwise punishment will follow accordingly.

26I have taken into account that you have spent 38 days in gaol already, which has had some impact on you.  You have previously complied with a suspended sentence.  You have family support.  You have engaged with an drug and alcohol counsellor and have ceased drug use.  You have reached the age of 41 without any relevant drug priors.  The references provided are positive in that they describe a considerable capacity, on your part, to work hard and, within the limitations of your personality, to get on well with other people in the work place.  I consider that your prospects of rehabilitation are very good.  I have taken that into account in mitigation of sentence. 

27I have also taken into account in mitigation of sentence your plea of guilty.  There was no contested committal.  Your plea of guilty was not indicated at the very earliest opportunity but it was indicated early in the process in this court.  That plea of guilty has had considerable utilitarian benefit.  I accept that your plea of guilty is also indicative of your remorse.  I accept from what you have told Mr Crewdson that you are remorseful for your offending and the impact that it has had. 

28I have considered current sentencing practices insofar as they are available. 
I have considered the table of comparative cases which was tendered as Exhibit B. I have also considered cases which are summarised in the Victorian Sentencing Manual.

29On the basis of what Mr Crewdson said in his report, I accept that your depressive condition will make imprisonment more difficult for you as will your condition of anxiety.  I have also taken into account that your general personality traits are likely to make imprisonment more difficult for you. 

30This is the first sentence of imprisonment that you will be required to actually serve.  A sentence of imprisonment is clearly the only appropriate sentence for the purposes of general deterrence, just punishment, denunciation and specific deterrence.  I have taken into account matters in mitigation and your prospects of rehabilitation in setting a lower non-parole period than I would have otherwise.  Could you please stand, Mr Thomas.

31On Charge 1 of attempting to possess a marketable quantity of a border controlled drug you are convicted and sentenced to a term of imprisonment of three years and six months.  I fix two years as the period you are required to serve before you are eligible for release on parole.  But for you plea of guilty
I would have sentenced you to a term of imprisonment of five years.  I declare that you have served 38 days of this sentence by way of pre-sentence detention, which will be deducted administratively.  Can you please take your seat, thank you.  Is there anything I need to repeat?

32Ms BRECKWEG:  No, Your Honour, thank you.

33HER HONOUR:  Or any technical problems that can be foreseen in that?

34Ms BRECKWEG:  No I don't think other than the obvious just the sentence commences today.

35HER HONOUR:  Yes and the sentence commences today.  I need to state that with Commonwealth offence.

36Ms BRECKWEG:  Yes.

37HER HONOUR:  That's right and the sentence commences today.  All right thank you very much for your assistance.  Mr Thomas, I hope that we see no repeat of this sort of activity.  You have obviously got the ability to understand what I have said and I hope that you will comply with the law in the future.  Thank you.

38(Short adjournment.)

39Ms BRECKWEG:  Apologies, Your Honour.  Your Associate very cleverly detected what appears to have been a misunderstanding.  Well, I didn't know what had happened but to cut a long story short, a very minor summary offence of failing to state name and address to police was transferred to this court ‑ ‑ ‑ 

40HER HONOUR:  Right.

41Ms BRECKWEG:  ‑ ‑ ‑ for determination.  It was never our intention to proceed with that before Your Honour.

42HER HONOUR:  Right.

43Ms BRECKWEG:  It was incorporated into the summary of facts.

44HER HONOUR:  Yes.

45Ms BRECKWEG:  I'm not sure of the procedure, whether I formally withdraw that in front of Your Honour.

46HER HONOUR:  Yes.  That's what you do.

47Ms BRECKWEG:  Yes so I withdraw that then.

48HER HONOUR:  That's the easiest way of dealing with that.  That happens and I know that there's often discussions that have occurred and everybody understands it except that we - it does come across ‑ ‑ ‑ 

49Ms BRECKWEG:  Yes.

50HER HONOUR:  ‑ ‑ ‑ and then it ends up on the computer.

51Ms BRECKWEG:  Or we forget.

52HER HONOUR:  We have to do something with it.

53Ms BRECKWEG:  Yes, yes.

54HER HONOUR:  I don't look at the computer to work out what's there, which I could but I don't.

55Ms BRECKWEG:  Yes, yes.  I hadn't realised, yes.

56HER HONOUR:  Anyway so that's withdrawn.  So it'll be struck out as withdrawn. 

57Ms BRECKWEG:  Yes.

58HER HONOUR:  Thank you very much.

59Ms BRECKWEG:  Thank you so much, Your Honour.

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