Director of Public Prosecutions v Thompson

[2021] VCC 469

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-20-01412

DIRECTOR OF PUBLIC PROSECUTIONS

v

BEN THOMPSON

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JUDGE:	HER HONOUR JUDGE HASSAN
WHERE HELD:	Melbourne
DATE OF HEARING:	16 April 2021
DATE OF SENTENCE:	23 April 2021
CASE MAY BE CITED AS:	DPP v Thompson
MEDIUM NEUTRAL CITATION:	[2021] VCC 469

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW

Catchwords:              Sentence — trafficking a drug of dependence in a commercial quantity — possession of a drug of dependence — possession of a prohibited weapon — possession of a schedule 4 poison — plea of guilty — complicit — methylamphetamine — cocaine — sildenafil — drug addiction — brain injury — remorse — prospect of rehabilitation — Court Integrated Services Program — general deterrence — specific deterrence — denunciation

Legislation Cited:      Sentencing Act 1991 (Vic)

Cases Cited:Director of Public Prosecutions (Vic) v Holder (2014) 41 VR 467

Sentence:                  Total effective sentence of three years with a non-parole period of two years

Section 6AAA declaration: four years with a non-parole period of three years

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr P Raimondo	Office of Public Prosecutions
For the Accused	Mr C Nikakis	Haines & Polites Lawyers

HER HONOUR:

1Ben Thompson, you have pleaded guilty to one charge of trafficking a drug of dependence in a commercial quantity (charge 1), for which the maximum penalty is a term of imprisonment of 25 years.

2You have also pleaded guilty to possession of a drug of dependence (charge 2) in circumstances in which the prosecution accept your possession was not for any purpose related to trafficking, and therefore the maximum penalty is a term of imprisonment of one year or 30 penalty units.

3You have also pleaded guilty to the summary charge of possession of a prohibited weapon, for which the maximum penalty is two years’ imprisonment or 240 penalty units, and to the summary charge of possession of a schedule 4 poison (sildenafil), for which the maximum penalty is 10 penalty units.

4The offence of trafficking in a commercial quantity is a category 2 offence pursuant to s 3(1) of the Sentencing Act 1991 (Vic) and therefore, pursuant to s 5(2H) of the Act, the Court must impose a sentence of imprisonment, other than a combined sentence of imprisonment and a community correction order, unless a special reason exists under the Act. It was submitted that you suffered impaired mental functioning at the time you committed the offence which substantially and materially reduced your culpability (s 5(2H)(c)(i)), but I reject this submission for reasons I will explain in more detail in the course of these reasons. You are therefore caught by the mandatory application of s 5(2H) in respect of charge 1.

5Tendered on the plea as exhibit 1 was a ‘Summary of Prosecution Opening’ which sets out fully the facts and circumstances of your offending.

6In brief terms, a warrant was executed at your residential address on 12 February 2020. Specifically, the police located and seized the following items.

(a)   From the house:

(i)a ‘Swann’ brand digital video recorder (CCTV) in the ceiling;

(ii)an extendable baton in a bedside table drawer (summary charge 3) in the master bedroom; and

(iii)a white Apple iPhone on the mattress in the master bedroom.

(b)   From the garage:

(i)two glass jars containing a clear liquid;

(ii)two blue diamond-shaped tablets;

(iii)two opened vacuum-sealed bags containing white crystals;

(iv)one clip seal bag containing a white rock substance; and

(v)a plastic case containing a white crystal substance.

(c)   From the backyard:

(i)in a PVC pipe buried in the backyard, a clip seal bag containing a white crystal substance;

(ii)a vacuum-sealed bag containing a white crystal substance; and

(iii)a set of scales.

7Following this find, the police further searched the backyard and found a similar-sized hole underneath a birdbath and a post hole digger in one of the sheds. No further drugs were detected in the backyard.

8Subsequently, the police viewed the CCTV footage obtained from your house. The footage shows that on 7 February 2020, you accessed the hole underneath the birdbath with a shovel. You were next observed carrying a red post hole digger in the backyard. You are seen removing a PVC container from underneath the birdbath and moving it to the hole in which it was later discovered by the police. On 9 February 2020, CCTV footage shows you accessing the hole at various times, carrying a PVC pipe back and forth from the backyard.

9The clear liquid, white crystal substance, two blue tablets and white compressed powder seized were subsequently analysed and the following results were obtained:

(a)   The clear liquid and the crystals weighed a total of 335.8 g and contained methylamphetamine. The commercial quantity for a mixture containing methylamphetamine is 250 g (charge 1).

(b)   The two blue diamond-shaped tablets contained sildenafil (Viagra) (summary charge 5).

(c)   The off-white compressed powder weighed 0.1 g and contained cocaine.

10You were interviewed by police and told them that the methylamphetamine found at your home did not belong to you but to a friend who had died a week ago. You said you were just doing him a favour. You said you knew the drug you were storing was ‘ice’ and you estimated you had about 200 g.

11The prosecution have accepted your explanation in your record of interview. The case against you, and to which you have pleaded guilty in respect of charge 1, is that you were in possession of the methylamphetamine for sale on behalf of another (that is, your deceased friend) and that your acts, namely agreeing to hold the drugs, vacuum sealing the drugs to protect them and hiding the drugs in a hole in the backyard, were all intentional acts done to assist your deceased friend, and thus you were complicit in the offending.

12You pleaded guilty to the charges on the indictment and to the related summary offences at a committal mention on 29 October 2020. There had been a number of mentions attempting to resolve this matter. Mr Nikakis, who appeared on your behalf, submitted that you have struggled to understand how your conduct amounted to trafficking. I accept this explanation, and in any event your plea is an early one. There was no committal conducted. Your plea has utilitarian value in that it has saved the witnesses, the community and the Court the expense of a trial. This is of heightened value given the continual difficulties and delays running jury trials because of the restrictions in place necessitated by the COVID-19 pandemic. I also accept that your plea, in conjunction with your admissions to the police, is indicative of remorse on your part and a willingness to facilitate the course of justice.

13I now turn to your personal circumstances. You were born on 27 March 1982 and you are presently 39 years old. You were born in North Dandenong. You had a stable upbringing, and your parents remain supportive of you. Your father wrote a reference in which he stated you were a hard worker and a loving husband and father. Your parents attended at the plea hearing.

14You were struck by a motorcycle when you were in year 7 and around 13 years of age. You sustained a head injury in this accident. You had difficulty with your schooling from this time and only managed to attend school until year 10.

15You have worked since leaving school, mainly doing labouring work. After you were recently bailed in May 2020, you have worked as a concreter and your employer provided a reference which was tendered at your plea. He described you as reliable and punctual.

16You have been with your partner Ms Zoe Bain for 13 years. You have two children together and you are expecting a third child in June.

17You began using alcohol when you were 16 years old. By 18, your drinking was excessive. You told Dr Matt Treeby, clinical neuropsychologist and clinical psychologist, who assessed you on 22 March 2021 and who prepared a report that was tendered at your plea, that by the age of 18 you were drinking up to 24 cans of beer a day. You drank heavily until around 2018 when you were around 36 years old. However, your reduced consumption of alcohol was only as a result of methamphetamine becoming your drug of choice, and your increasing dependence upon it.

18You used cannabis since the age of 19 and amphetamine since your early twenties, and methamphetamine since around the age of 28. You told Dr Treeby that you became dependent on methamphetamine and would smoke around 3.5 g a day. You said you were using heavily at the time of your offending. You told Dr Treeby that you have used cocaine intermittently between the ages of 19 and 37.

19Dr Treeby assessed your intellectual ability as in the low average range. He assessed you as falling below expectation on some tasks which formed the basis of his neuropsychological testing. Most notably, he found you to have mild to moderately impaired information processing speed and some difficulty with verbal memory recall.

20He reviewed your medical and psychiatric history, which disclosed that you were admitted to hospital on 31 October 1995 after being struck by a motorcycle. You were diagnosed with a concussive head injury. It was noted that you experienced a brief period of loss of consciousness (retrograde amnesia) up to around a day, which Dr Treeby states is consistent with a moderate traumatic brain injury. A CT scan conducted at the time was normal.

21A neuropsychological assessment was conducted upon you on 15 June 1999 by Dr Jamie Drury. Dr Drury concluded that your head injury was a ‘mild to moderate concussive type’ and that, given the extent of your head injury, it is possible that you sustained ‘mild residual organic brain damage’.

22You underwent further neuropsychological assessment conducted by Dr Maureen Molloy on 13 November 2001. Dr Molloy stated that you had sustained a ‘head injury which has been described as concussive of moderate severity, but without any indication of brain damage as measured on [a] CT scan’. She went on,

This does not refute the possibility [that there] has been some disturbance in brain function at an organic level which is not currently visible to radiological techniques available. Such disturbances can result in disruption in physiological processing at a microscopic level and this is considered to be the underlying reason for long lasting disturbances in cognitive function.

23Upon assessment by Dr Molloy, you were found to have impaired information processing speed, and impaired ability to remember information consistently and efficiently. You yourself reported to Dr Treeby ongoing episodes of migraine since your accident at 13.

24Dr Treeby concluded,

Based on a review of medical records and his below expectation performances on neuropsychological assessment, my impression is that he has a permanent mild acquired brain injury due to the head trauma he experienced at the age of 13 after he was struck by a motorcycle.

25Dr Treeby goes on to opine that your impairments in cognitive function would have been evident at the time of your offending.

26On the basis of Dr Treeby’s report, it was submitted that on the balance of probabilities I could be satisfied that you had impaired mental functioning which was causally linked to your offending, such that your culpability was ‘substantially and materially’ reduced. As I have indicated, I reject that submission. First, I do not consider that the material substantiates that you do indeed have a brain injury. But even if you do so, the material does not establish a causal link between your brain injury and its effects and your offending, especially given the contribution of your methamphetamine use to your offending. In your interview, you told police you offended because you were trying to clear your debt by doing favours for others to work it off. Your offending was plainly motivated to suit your own objectives and I can find no evidence that impaired cognitive function played any role in the choices you made, nor in your actions.

27I do accept that your offending is a somewhat unusual case of traffick in a commercial quantity, given that you were not involved in either the manufacturing or selling of the drugs, but only in storing them for sale by another. It was submitted on your behalf that I should regard your offending as low level. On the other hand, Mr Raimondo, who appeared to prosecute, submitted that given the amount of methylamphetamine seized, 85.8 g above the commercial threshold, and that your offending was in breach of a correction order imposed on you at the Dandenong Magistrates’ Court on 8 May 2019 for trafficking methylamphetamine, your offending was of mid- to low-range seriousness for the offence of traffick in a commercial quantity.

28The prosecutor, Mr Raimondo, referred me to the authority of Director of Public Prosecutions (Vic) v Holder,[1] in which the Court of Appeal held that the prosecution had erroneously submitted on the plea below that the appellant’s culpability was reduced by virtue of him not being involved in the distribution of drugs to the ultimate consumers. The Court of Appeal stated that trafficking is no less serious merely because some of the drugs trafficked are not in fact distributed to the ultimate consumers. The Court of Appeal noted that the legislative scheme which established the offence of trafficking does not distinguish between acts of trafficking on that basis. In all the circumstances, I accept the submission of the prosecutor. I regard your offending as a mid- to low-range example of the offence of trafficking in a commercial quantity.

[1] (2014) 41 VR 467.

29I now turn to the relevant sentencing principles. In addition to specifying matters to which I must have regard in arriving at an appropriate sentence, the Sentencing Act 1991 (Vic) prescribes the purposes for which a sentence may be imposed. These are just punishment, deterrence, rehabilitation, denunciation, and protection of the community. A custodial sentence must only be imposed as a last resort. I must take into account current sentencing practices and have regard to the maximum penalties for the offences to which you have pleaded guilty.

30The primary sentencing considerations in this case, as in all cases of drug trafficking, are general deterrence and denunciation. Drug offences are prevalent. The message must be sent out to others who would behave as you did that the courts will not tolerate drug trafficking and such activities will result in terms of imprisonment. Specific deterrence has some application, given your relevant prior conviction, although I do note, aside from your May 2019 conviction for trafficking methylamphetamine, your criminal history is otherwise very limited.

31I am guarded about your prospects of rehabilitation. On one hand, you have pleaded guilty and are remorseful. You have a good work ethic and you enjoy the continued support of your family, all of which bodes well for your rehabilitation. But you have a serious and entrenched drug addiction which you must address if you are to remain offence free.

32As part of your bail conditions, you participated in the CISP program. Your initial and final CISP reports were tendered at your plea. Your final report dated 22 September 2020 states that you engaged positively with the program for four months and could be regarded as having successfully completed the program, and therefore you were no longer required to participate as part of your bail conditions. It bodes well for your rehabilitation that you were able to successfully engage with the CISP program as you did.

33Between the plea hearing and today’s sentence, you have been remanded for other matters, but I do not know anything about the circumstances of those matters.

34I take into account the current onerous conditions in custody necessitated by the COVID-19 pandemic in sentencing you.

35Taking all relevant sentencing principles into account and balancing them as best I can, I intend to sentence you as follows.

36Mr Thompson, on charge 1, you are convicted and sentenced to three years’ imprisonment. On charge 2, you are convicted and fined $200. On summary charge 3, you are convicted and sentenced to one month’s imprisonment. On summary charge 5, you are convicted and fined $100.

37The sentence on summary charge 3 is concurrent with the sentence on charge 1.

38This makes a total effective sentence of three years. I am directing that you must serve a period of two years before you are eligible for parole.

39Pursuant to s 6AAA of the Sentencing Act1991 (Vic), had you pleaded not guilty, you would have been sentenced to a total effective sentence of four years, with a non-parole period of three years.

40Pursuant to s 18(4) of the Sentencing Act1991 (Vic), I declare that you have served 87 days of the sentence I have passed upon you and I direct that this be entered into the records of the Court.

41I make the disposal and forfeiture orders as applied for by the prosecution.

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