Director of Public Prosecutions v Thompson
[2020] VCC 1416
•28 August 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-20-00445
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| CHRISTOPHER MURRAY THOMPSON |
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JUDGE: | HIS HONOUR JUDGE GEORGIOU | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 26 August 2020 | |
DATE OF SENTENCE: | 28 August 2020 | |
CASE MAY BE CITED AS: | DPP v Thompson | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 1416 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Import marketable quantity of a border controlled drug - ingestion of 27 condoms each filled with heroin whilst in India – pure weight 12 grams – imported heroin mostly for personal use – full admissions to police – plea of guilty at the earliest opportunity - long history of heroin use.
Legislation Cited: 16A Crimes Act 1914
Cases Cited:
Sentence: Total effective sentence of 10 months imprisonment. Release after 9 months’ imprisonment on $1000 Recognisance Release Order with conditions.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms R Fleming | Commonwealth Directors of Public Prosecutions |
| For the Accused | Ms E Clark (plea) Mr A Maselli (sentence) | James Dowsley & Associates Pty Ltd |
HIS HONOUR:
1 Christopher Thompson, you have pleaded guilty to a charge that on 18 November 2019 you imported a marketable quantity of a border controlled drug contrary to s.307.2(1) of the Criminal Code (Cth).
2 The circumstances of your offending are outlined in the Prosecution Opening for Plea, which was read to the court, tendered and marked Exhibit P2.
Circumstances of offending
3 On 22 October 2019 you travelled to India. You returned to Australia on 18 November 2019.
4 From the airport at Avalon you caught a bus and train to your address in Mount Martha, arriving in the early hours of the morning on 19 November 2019. Shortly after you arrived home, you called triple zero, telling the operator that you had ingested heroin two days’ ago and were in need of a stomach pump. You then terminated the call.
5 The triple zero operator called back on your number and your mother answered the phone. Your mother was not aware of your earlier call and eventually found you lying on the front lawn. You could be heard during the call telling your mother that you had swallowed condoms containing heroin, and that they were still in your stomach. You said that you felt as though you were dying.
6 Paramedics attended at your address. You told them the following:
(i) that you had ingested 40 condoms each filled with 1.5 grams of heroin two days’ earlier whilst in India;
(ii) that you were intending to bring the heroin back to Australia for your personal use;
(iii) you had recently started to cough up small fragments of condoms;
(iv) you had previously consumed heroin pallets with no adverse effects, and this was the most you had ingested;
(v) you thought that the condoms had perforated because you had not followed your usual preparation of lining your stomach; and
(vi) that you called triple zero as you were fearful that the condoms were perforating and that you would die.
7 You were taken to the Frankston Hospital where a gastroscopy was performed. A number of the condom packages were removed from your stomach. You remained in hospital as an inpatient between 19 and 22 November 2019 and, during this time, a further seven packages were excreted by you. An additional package was found during a search of your hospital room following your discharge.
8 A search warrant was executed at your home address. Among the items found in a backpack was your passport, travel documents and an Indian e-Visa, showing a return to Victoria, and a completed Australian Customs Incoming Passenger Card.
9 You were arrested and taken to Frankston Police Station where you participated in a recorded interview during which you made a number of admissions.
10 Those admissions included:
(i) that you travelled to India to visit a friend whom you had met on an earlier trip to India. You stayed with your friend’s family in Kashmir;
(ii) you had some $3,400 Australian Dollars in cash and were intending to buy a “Royal Enfield Interceptor” motorbike although, ultimately, you did not have enough money for the purchase;
(iii) you had about 12 hours before your flight. You approached a taxi driver and asked about purchasing heroin. You purchased approximately 30 grams of heroin for about $3,500;
(iv) you also purchased condoms and placed the heroin into approximately 30 condoms, tied each into knots, and then swallowed each one;
(v) you had not prepared properly and were aware, from others, that you should have drunk milk as part of the preparation process;
(vi) you stated that your intention was to use the heroin yourself over the next two months, and you denied intending to sell it to others;
(vii) you started to feel unwell on the plane and, upon your arrival in Australia, you contacted triple zero because you knew something was wrong;
(viii) you did not recall telling hospital staff that you had ingested 40 condoms containing 1.5 grams of heroin each;
(ix) you knew it was illegal to import heroin, and you swallowed the drugs so that you would not be detected coming through border control;
(x) you were prescribed Methadone for your heroin addiction and have been using heroin since the age of 17, using it daily.
11 Victoria Police Forensic Services received and analysed a total of 27 rubber packages with a net weight of 27.6 grams. Analysis of those packages confirmed they contained heroin with a purity range of 42-58 per cent. The learned prosecutor, Ms Fleming, stated I should sentence on the basis that the pure weight of the heroin is 12 grams. A marketable quantity is 2 grams. Therefore, you illegally imported six times the marketable quantity.
12 You have been in custody since your arrest on 22 November 2019. As at today, you have served 280 days of pre-sentence detention, that is, a little over nine months.
Background and personal circumstances
13 You were born on 28 August 1956 and today you turn 64 years of age.
14 You are single and have a daughter aged 21. You were estranged from your daughter for some five years when she was aged between 11 and 16 years. However, you and she reconnected some four years ago and were in regular contact until earlier this year. I was not told why that contact has since ceased, but I note that your daughter was present, on the video link, during the plea hearing.
15 The reason you were estranged from your daughter for that five year period was because of your drug use.
16 Your parents divorced when you were aged 17. You have a younger sister with whom you have no contact.
17 Your parent’s relationship was an unhappy one marked by abuse and violence. Whilst your father was verbally abusive towards your mother, you reported that your mother was physically violent towards your father.
18 Your father died of cancer in 1989. Your mother is 94 years of age and, until your arrest, you were living with and looking after her. You remain in contact with your mother, speaking to her by telephone twice per week.
19 Approximately three years ago you became her carer, although that is not a function you will perform upon your release.
20 You attended Trinity College until Form 4, and then Box Hill Technical College, where you completed Forms 5 and 6.
21 During your younger years at school you were subjected to bullying, largely due to you being overweight. You also did not enjoy your classes, other than those related to art. At Box Hill Technical College, you focused on graphic design, textiles and photography. On completion of your secondary education, you undertook a graphic design course which you did not complete.
22 Since leaving school, you have worked variously in mechanical repairs, photography and, since the age of 27, in garden maintenance. You ran your own gardening business for over 30 years. You ceased that business approximately three years ago when your car was stolen. In more recent times you have worked on a casual basis for a labour hire company.
23 In approximately 1990, you were placed on a disability support pension as a result of injuries suffered in a motorbike accident. The pension was a ‘part payment pension’ which allowed you to perform some work.
24 You have a very long history of heroin use. I was told, by your counsel, Ms Clark, that at the age of 16 you began using heroin socially with your friends. You instructed Ms Clark that heroin assisted you with issues of self-esteem. By the age of 18, you were using heroin intravenously.
25 At the age of 22, you voluntarily attended Odyssey House, where you remained for some 18 months. On leaving Odyssey House, you were abstinent for a period of approximately 10 months. You then relapsed into heroin use.
26 You have also been on a methadone program for a significant period of time. You were on methadone when you travelled to India. You remain on methadone treatment at this time. It has not done much, it would seem, to cure your addiction.
27 You have admitted your criminal history. Your last conviction was in May 1990 where, at the Sunshine Magistrates’ Court, you were fined $450 for theft. In October 1989, you were convicted and fined for possession of heroin and other offences, and in 1977 for “use/prescribe/sell/supply DOA-self admin” for which you were placed on a $100 Good Behaviour Bond. The criminal history does not specify which of those activities you undertook. As can be seen, you have not been convicted of any offence since 1990 and I do not place much weight on your criminal history.
28 However, as I discussed with your counsel, your admitted use of heroin from the age of 17 until your incarceration in 2019 means that you were regularly in breach of the law. Use and possession of heroin is a criminal offence.
29 With regard to your offending, Ms Clark informed me that your primary purpose in bringing the heroin into Australia was so that you may use it. She stated that you contemplated selling some of the heroin imported. Given your history of drug use, and the answers in your record of interview, I accept that you would have used most of the heroin yourself.
30 Tendered on your behalf was a reference from your friend Stewart Carter. Mr Carter has been a friend since your school days and speaks highly of you. He is aware of your long history of heroin addiction and your efforts to rid yourself of that addiction. Despite that addiction, Mr Carter stated that you have always been a worker, an economic contributor to the community, and have cared for your mother and daughter.
Submissions
31 Ms Clark relied upon the fact that you imported a relatively small quantity of heroin putting yourself at significant risk in so doing.
32 Reliance was also placed upon your plea of guilty, cooperation with investigating police, your admissions and remorse.
33 It was submitted that your plea of guilty is of significant utilitarian benefit and that the admissions made to police meant that you would be charged for the more serious offence of importation rather than the possession of heroin.
34 Ms Clark also relied upon the fact that you have a limited criminal history and that this is your first time in jail. Your period on remand has been rendered more onerous given the COVID-19 pandemic restrictions, which mean no face to face visits with friends or family; a reduction in the availability of therapeutic and other programs; and an increase in lockdown regimes. Further, the pandemic has created a concern for your own health and wellbeing within the prison environment and a concern for others, particularly your elderly mother. The emotional stress arising from those concerns, it was submitted, adds to the burden of imprisonment.
35 Ms Clark submitted that your prospects for rehabilitation are good given:
(a) the significant period of abstinence from drug use whilst in custody;
(b) a demonstrated capacity for employment;
(c) your limited criminal history;
(d) engagement in programs in custody when they were available to you;
(e) the admissions you made to police and the acceptance of responsibility for your offending.
36 Ms Clark acknowledged the importance of denunciation, general and specific deterrence, and just punishment. However, she submitted that having regard to your limited prior criminal history, specific deterrence should not overwhelm the other considerations. It was further submitted that this was not a case in which community protection looms large.
37 Ms Clark submitted that, having regard to your time on remand, I should release you forthwith on a Recognisance Release Order.
38 Ms Fleming submitted that denunciation and general deterrence were prime sentencing considerations.
39 Further, that whilst the amount imported was towards the lower end of the spectrum, six times the marketable quantity is not an insignificant amount of heroin. The estimated street value of the drug you imported, according to the prosecution, was between $4,800 and $6,000. As already mentioned, you told police you paid $3,500 for the heroin.
40 Ms Fleming, whilst noting that the weight of the drug is ordinarily a highly relevant factor in assessing criminality, also relied on the fact that you knew that the substance was a border controlled drug; you believed its purity was much better than what you normally purchased in Australia; you organised and carried out the importation alone; and that at least part of the drug imported was intended for sale.
41 Ms Fleming did not dispute that a large amount of the drug was intended for your personal use.
42 It was also accepted that your plea of guilty was entered at the earliest opportunity but, given your lengthy history of heroin use, it was submitted that there are reservations concerning your remorse and rehabilitation.
43 The learned prosecutor did not dispute that your immediate release upon a Recognisance Release Order with conditions was an appropriate disposition.
Conclusion
44 Section 16A Crimes Act 1914 sets out matters to which I am to have regard when passing sentence for a federal offence. It is not an exhaustive list. I have had regard to each of the applicable considerations in that section in sentencing you.
45 The offence to which you pleaded guilty carries a maximum penalty of 25 years’ imprisonment or 5,000 penalty units, or both. This, of itself, should signify to you just how serious is the offence of importation.
46 I accept Ms Fleming’s submission that the maximum penalty serves as a yardstick and as a basis for the comparison between your offending and the worst case.
47 I accept also that the amount of drug you imported into Australia was a relatively low quantity and that in doing so you were exposed to a significant risk to your liberty and to your life. You were fortunate to have made it to Australia without detection and fortunate to have survived. You acted on your own and for your own benefit. You told police, in effect, it was cheaper for you to buy the drug in India than here. This importation was not part of a bigger, more sophisticated operation. I do not find that there was any expectation that you would profit beyond saving yourself some money in feeding your unfortunate addiction. Whatever money you might have derived from the sale of some of the drug would have been marginal.
48 However, you clearly knew that your conduct was illegal and you took the risk. It was not submitted that there was any excuse or justification for your conduct that would reduce your moral culpability.
49 You made full admissions to police and you pleaded guilty to the charge at the earliest available opportunity. Police were not required to waste resources investigating the commission of the offence. You have saved the community the cost of a committal hearing and trial and have spared witnesses from having to give evidence. Those matters entitle you to a real measure of leniency in sentence.
50 I do not consider that you are entitled to an additional reduction in sentence on the basis that your admissions meant that police were able to charge you with importation rather than simple possession. The circumstances of your offending were such that there was ample independent evidence to show that you had just arrived back into Australia with some 27 condoms containing heroin concealed in your stomach. I do not consider that the charge of importation would have been difficult to prove without your confession.
51 As to your prospects for rehabilitation, in your favour are your admissions and co-operation with police, as well as the fact that you have not been convicted of a criminal offence in the last 30 years. Further, you have a relatively good work history and have completed several ‘self-improvement’ courses whilst in custody. However, you have a lengthy history of almost daily heroin use and without appropriate treatment, the risk of relapse into illegal heroin use is a matter of concern. Without such treatment, I consider that your prospects of rehabilitation are guarded at best.
52 I accept also that your cooperation with police, your admissions and your plea of guilty is an indicator of your remorse for your conduct. Beyond that, however, there is no other evidence.
53 I am required to give effect to the principle of deterrence, both general and specific. The sentence to be imposed must deter others who are minded to offend in the way that you did, and must also deter you from future offending. Given your history of illicit drug use I consider that specific deterrence is an important consideration. I must also impose a sentence that denounces your conduct and that adequately punishes you for your offending. Yours is not a victimless crime. Your use of heroin encourages the insidious drug trafficking industry. I have little doubt that your use has also caused significant misery to the other members of your family.
54 I have had regard to the conditions in which you have served your time on remand since COVID-19 restrictions were put in place in March this year. They have made the conditions under which you have served part of your remand more onerous.
55 I have had regard to the cases to which I was referred by both Ms Fleming and Ms Clark. They are of some assistance but there were considerable differences in the combination of factors applicable in each case including the quantity of drugs imported, the ages of the defendants, their backgrounds and their motivation for offending. None were in any meaningful sense comparable to your offending. In the end you must be sentenced on the facts and circumstances applicable to you as well as each of the relevant sentencing considerations set out in s. 16A of the Crimes Act.
Sentence
56 In my opinion, having regard to all of the above considerations as well as the matters put to me during the plea hearing, adequate punishment can only be achieved by requiring you to serve an actual term of imprisonment.
57 Mr Thompson, you are convicted and sentenced to 10 months' imprisonment. Pursuant to s.20(1)(b) of the Crimes Act 1914, you are to be released after serving 9 months' imprisonment upon you giving security by recognisance of $1,000 to comply with the following conditions:
(a) that you be of good behaviour for a period of 6 months;
(b) that you are to attend for assessment, counselling and treatment for drug abuse programs as directed by the Deputy Commissioner Community Correctional Services or his or her nominee;
(c) that you report to the Dandenong Community Corrections Centre by 4 pm within two clear working days of your release from prison;
(d) that you report to and receive visits from a Community Corrections Officer or Officers;
(e) that you are to notify an officer at the specified Community Corrections Centre of any change of address or employment within two clear working days after the change; and
(f) that you are not to leave Victoria except with the permission of an officer at the specified Community Corrections Centre; and
(g) that you are to obey all lawful instructions and directions of Community Corrections Officers.
58 Mr Thompson, before I make the order I will explain the purpose and effect of the proposed recognisance release order, the consequences that may flow if you without reasonable excuse or cause fail to comply with condition of the proposed order and that any recognisance given in accordance with the order may be discharged or varied.
59 The purpose and effect of the recognisance release order is to grant you conditional freedom from today. The conditions are that you be of good behaviour for a period of six months and attend for assessment and treatment in programs as ordered. If you breach the recognisance released order you will be brought back before the court, most likely before me, to be dealt with for that breach and you may be required to serve the remaining term of imprisonment, or the order may be extended or revoked. A breach would also mean that the sum of $1,000 would be forfeited. Now, in addition to what I have said I will ask your legal representative to explain to you the workings and operations of the order, and the consequences of any breach of it.
60 Mr Thompson do you understand each of the conditions of the order?
61 OFFENDER: It was explained to me yesterday. Yep, thank you.
62 HIS HONOUR: All right and - forget about what was explained to you yesterday, did you understand each of the conditions that I set out.
63 OFFENDER: Yes, I did, I understood exactly what you said. Yes, Your Honour.
64 HIS HONOUR: All right and do you agree to abide by those conditions?
65 OFFENDER: Yes, I do, Your Honour.
66 HIS HONOUR: All right, excellent.
67 I declare also that a period of imprisonment reckoned as already served under this sentence is 280 days.
68 Ms Fleming, is that your calculation?
69 MS FLEMING: Sorry. Yes, Your Honour, that's my understanding.
70 HIS HONOUR: Mr Maselli, do you agree?
71 MR MASELLI: I do, Your Honour, yes.
72 HIS HONOUR: Thank you. Ms Fleming, am I required to give a s.6AAA declaration?
73 MS FLEMING: Your Honour, I understand that the 6AAA declarations are still given in Commonwealth matters.
74 HIS HONOUR: All right. Mr Thompson, what that means is this: you of course have pleaded guilty to the charge and I mentioned in my sentencing remarks that you are entitled to a reduction in your penalty because of your plea of guilty.
75 But for your plea of guilty the sentence I would otherwise have imposed is one of 16 months imprisonment with a non-parole period of 12 months. All right?
76 All right, are there any other matters?
77 MS FLEMING: Thank you, Your Honour.
78 HIS HONOUR: All right, well - - -
79 MR MASELLI: Nothing further, thank you, Your Honour.
80 HIS HONOUR: All right, I am grateful to counsel for their assistance in this matter.
81 Mr Thompson, I wish you good luck on the order. I hope not to have to see you again. All right, please adjourn the court.
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