Director of Public Prosecutions v Thomas

[2013] VCC 2184

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-13-00737

DIRECTOR OF PUBLIC PROSECUTIONS

v

DAVID THOMAS

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JUDGE:	HER HONOUR JUDGE PATRICK
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	19 December 2013
CASE MAY BE CITED AS:	DPP v Thomas
MEDIUM NEUTRAL CITATION:	[2013] VCC 2184

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 G Hughan
For the Offender	Mr D Langton

HER HONOUR: 

1David Thomas, you have pleaded guilty to one charge of trafficking in a drug of dependence, Charge 1, and one charge of possession of a drug of dependence, Charge 2.  You have also pleaded guilty to five uplifted summary charges of driving without a licence.  Those are summary Charges 6, 10, 13, 19 and 20.

2The maximum penalty for trafficking in a drug of dependence is 15 years imprisonment.  The maximum penalty for possession of a drug of dependence in the circumstances of this case is five penalty units as I am satisfied on a balance of probabilities that you possessed a small quantity of cannabis and did not possess those drugs for any purpose related to trafficking in them.  The maximum penalty applicable to the summary charges of unlicensed driving in your circumstances is 30 penalty units or four months imprisonment.  The prosecution made application for a disposal order of certain items and your counsel consented to the making of that order on your behalf.

3Your offending was detected as a result of a police investigation in to the trafficking of heroin in the eastern suburbs of Melbourne.  The principal target of that investigation was Ms Brooke Sherrif who operated a business selling heroin at a street level between 25 February and 25 October 2011.  Ms Sherrif engaged in that activity on multiple occasions on a regular daily basis.  Ms Sherrif was charged on the basis that she trafficked at least 320 grams of heroin over that period.  You were in a relationship with Ms Sherrif and lived with her for part of that period.  You are charged with trafficking heroin between 25 June 2011 and 25 October 2011 on the basis that you assisted Ms Sherrif. 

4You disputed the way in which the prosecution summarised the case against you.  After a contested plea hearing I am satisfied beyond reasonable doubt that you were generally supportive of Ms Sherrif's trafficking during the period covered by Charge 1 and specifically on three occasions you collected heroin yourself from Ms Sherrif's supplier and on two occasions sold heroin on her behalf.  You were clearly aware of Ms Sherrif's business and benefited from it in the sense that you were provided with free heroin.  Both you and Ms Sherrif were daily users of heroin in that period.  You were working throughout that period and I accept that you had limited direct involvement in the business.  You did not direct or instruct Ms Sherrif but did from time to time make suggestions on such matters as who should be able to buy on credit and whether a person should be allowed to come to your home to buy heroin.

5You were arrested on 25 October 2011 and a small amount of cannabis was found in your possession.  You said it was for personal use.  You were observed to be driving on five occasions between 19 September 2011 and 18 October 2011.  You did not have a driver's license and those occasions are the subject matter of the uplifted summary charges.

6

When interviewed you told police you had met

Ms Sherrif when buying heroin from her.  You admitted using a gram of heroin every day which was given to you by Ms Sherrif.  You admitted that you were nearby on occasions when Ms Sherrif sold heroin and were aware of what she was doing.  You have spent 150 days in pre-sentence detention in respect of these matters.

7In sentencing you I have taken in to account your personal circumstances.  You are now 41 years old.  Your father was in the navy and you moved around during your childhood returning to Melbourne when you were 11 years old.  Your family lived in the Lilydale area and you have lived in that area ever since.  You started drinking alcohol at the very young age of 10.  You began drinking regularly and had behavioural problems from then on.  You were placed in state care when you were about 11 and remained in care until you were 18. 

8You have had little formal education.  Given these circumstances it is to your credit that you have a good work history.  You have worked in three bakeries for periods between five and ten years.  You are confident you will be able to obtain employment on your release.

9You have had three significant relationships.  You have two children from one relationship who are 12 years old and six years old.  The younger child is in care and you have no contact with that child.  You have a five year old child from a relationship with a second partner.  This partner is not a drug user and you say this has been a positive relationship.  It was during that relationship in the period 2007 - 2011 that you stayed out of trouble with the law.  Whilst on remand you have had contact with your 12 year old and five year old children.  You also have a one year old child with Ms Sherrif but consider that the relationship with her is probably at an end.

10You were introduced to heroin when you were 27.  Your use greatly escalated during your relationship with Ms Sherrif.  You were on a methadone program before your arrest and have continued that while in custody. 

11You have admitted a significant prior criminal history.  You have served a number of periods of imprisonment.  Your prior offending has mainly involved violence, damaging property and driving offences.  This history is consistent with your counsel's submission that much of your prior offending occurred in the context of alcohol abuse.

12It is particularly significant that in March 2001 you were placed on a 12 month intensive correction order for offences including trafficking in heroin.  You breached that intensive correction order and in March 2002 were ordered to serve the unexpired portion of 258 days.  Since your arrest in October 2011 you have served a sentence of five months imprisonment.  This sentence was imposed in respect of offences of criminal damage and assault.  You have spent your time in custody as a protected prisoner because many years ago you agreed to give evidence in relation to an attempted murder.  You are not in the highest level of protection but are restricted in terms of your exercise and access to programs or work.  This access may improve if you are transferred to another prison on being sentenced.

13Your counsel said you had been doing comparatively well in more recent years and that on your release you wish to work, develop your relationships with your children and remain on the methadone program.  Your counsel said you understand that you must deal with your alcohol and drug problems or return to court.  Your counsel submitted that you would be assisted by supervision and support which should be taken in to account in setting a non parole period.

14Your counsel addressed parity issues in respect of the sentence which I imposed on Ms Sherrif and submitted that your involvement was significantly less than hers.  Your counsel also relied in mitigation on your plea of guilty.  He also submitted that the five months you have served for subsequent offending ought to be taken in to account in application of the totality principle.

15In respect of the driving offences your counsel submitted I should impose monetary penalties as you were driving while unlicensed rather than driving while disqualified and there was no untoward driving involved.  Your counsel submitted that alternatively any sentences should be served concurrently with a sentence imposed on Charge 1, of drug trafficking.  Your counsel also submitted that there should be no interference with your ability to get a driver's licence, particularly in view of your potential employment in the baking industry.

16The prosecutor conceded that your offending in respect of drug trafficking occurred for a shorter time and involved less of a quantity than was involved in respect of Ms Sherrif.  The prosecutor submitted that it should be taken in to account that Ms Sherrif had a significantly lesser prior criminal history.  The prosecutor submitted that specific deterrence would be an important sentencing consideration, given your prior criminal history, especially in relation to driving matters.  The prosecutor submitted that it was an aggravating feature that your offending occurred during the operational period of a suspended sentence of imprisonment imposed in January 2011.  The prosecutor said in view of the gaps in your offending there was some modest cause for hope for your rehabilitation and that a significant parole period would be appropriate.  The prosecutor submitted that general deterrence would be a primary sentencing consideration.

17Mr Thomas, your involvement in drug trafficking is clearly serious offending.  The selling of illegal drugs for profit is an evil trade.  Those who engage in this trade exploit the vulnerabilities of others.  The use of illegal drugs causes harm to individuals, families and the community as a whole.  Your own situation is reflective of the harm caused by the use of illegal drugs.  I accept that your involvement was a result of your desire to obtain free heroin and your relationship with Ms Sherrif who had an established business before your involvement.  I accept that your involvement was considerably more limited than Ms Sherrif's involvement.

18Your offending in relation to the cannabis is less serious.  You have a number of previous convictions for driving offences, included unlicensed driving.  You have exhibited a blatant disregard for the licensing requirements.

19I have taken in to account a number of matters in mitigation.  You are entitled to a significant discount for your plea of guilty.  You also made significant admissions to the police.  You have saved the time and expense of a trial.  You have accepted your legal responsibility.  I have no doubt you regret your offending but I do not conclude that you are remorseful.

20Clearly your prospects for rehabilitation depend on your ability to stop abusing alcohol and using illegal drugs.  Your long criminal history is of concern.  It is also of concern that you committed these offences while a suspended sentence was hanging over your head.  There is some cause for optimism in that you have remained offence free for greater periods as you have got older.  Presumably this is an indication that you are maturing.  It seems that you did particularly well while you were in a more positive personal relationship.  It is also encouraging that you have demonstrated both a willingness and capacity for hard work.  I consider that you do have prospects for rehabilitation, although at present I would assess these prospects as being reasonably low.  I consider that specific deterrence ought to be given significant weight in your sentence to provide an incentive to you to stay away from further offending. 

21I have taken in to account in mitigation that you have been and will remain in protection as a prisoner. 

22I consider that a sentence of imprisonment is warranted on the drug trafficking charges for purposes of denunciation, punishment, general deterrence and specific deterrence.  General deterrence needs to be given significant weight in the hope that others will be discouraged from drug trafficking by the prospect of going to gaol.

23In respect of the cannabis offence I consider that a monetary penalty would be appropriate.  Indeed that is the only penalty available in the circumstances. 

24In respect of the driving offences, in your circumstances I consider that a short sentence of imprisonment ought to be imposed.  Such a sentence would serve to punish you and also deter you and others from driving without a licence in the future.  I consider it appropriate that the sentences be served concurrently with a sentence to be imposed on Charge 1 of drug trafficking.  I do consider a period of disqualification to be appropriate in these circumstances.

25In determining the appropriate sentence and non parole period I have taken in to account the principles of parity, proportionality and totality.  I have taken in to account in that consideration the five months served since your arrest on this matter.  I have also taken these considerations in to account in setting an appropriate non parole period.  I consider that supervision would assist your rehabilitation if the Parole Board considers that you ought to be released on parole.

26Please stand Mr Thomas.  On Charge 1, trafficking in a drug of dependence, you are convicted and sentenced to 12 months imprisonment.  On Charge 2, possession of a drug of dependence, you are convicted and fined $300.  On each of summary Charges 6, 13, 10, 19 and 20 you are sentenced to one month's imprisonment.  The sentences are all to be served concurrently.  The total effective sentence is 12 months' imprisonment.  I fix six months as the period required to be served before you are eligible for release on parole.

27I declare that you have served 150 days of this sentence by way of pre-sentence detention.  In respect of Charge 20, any licences held by you are cancelled and you are disqualified from driving in the state of Victoria for four months effective from today. 

28But for your plea of guilty I would have sentenced you to 16 months' imprisonment with a non parole period of 10 months. 

29I will make the order for disposal that you have consented to.

30Mr Thomas if you are released during the period while you are disqualified from driving you must not drive.  You in fact must not drive until you get your licence back.  I have imposed sentences of imprisonment so if you are found driving unlicensed again I would expect that you are likely to receive further sentences of imprisonment. 

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