Director of Public Prosecutions v Todman

[2017] VCC 18

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 16-01783

DIRECTOR OF PUBLIC PROSECUTIONS

v

BRETT TODMAN

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JUDGE:	HIS HONOUR JUDGE LACAVA
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	31 January 2017
CASE MAY BE CITED AS:	DPP v Todman
MEDIUM NEUTRAL CITATION:	[2017] VCC 18

REASONS FOR SENTENCE
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Subject:  3 charges of trafficking.  1 of trafficking in a commercial   quantity.
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:  5 years' imprisonment.
  Non-parole period of two years and nine months.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms S. Wenthall
For the Accused	Mr P. Tehan QC

HIS HONOUR

1Brett Todman, you have pleaded guilty to one charge of trafficking in
a commercial quantity of a drug of dependence, namely, methylamphetamine, Charge 1; and one charge of trafficking in a drug of dependence, MDA,
Charge 2; and one charge of trafficking in a drug of dependence, being
1,4 Butanediol, Charge 3.  You also pleaded guilty to a summary charge of dealing with the proceeds of crime, namely $29,350 cash found in your possession.

2Your offending occurred on 5 April 2016.  On that day a search of your premises revealed that you were in possession of 233.1 grams of white crystals, of which 177 grams was pure methylamphetamine.  The threshold for a commercial quantity of this drug is 100 grams pure.  You were also found in possession of 138 grams of brown tablets, of which 17.94 grams consisted of the drug known as MDA.  A trafficable quantity of this drug is 3 grams mixed.  You were also found in possession of 1.32 kilograms of colourless liquid, which was
1,4-butandiol, and a trafficable quantity of this substance is 50 grams mixed.

3The prosecution case is that you possessed the drugs for sale.  A search of your home and car found the various drugs secreted in different places.  When the search was conducted, police also located $29,350 in cash and five mobile phones.

4You were arrested and you have remained in custody ever since.  It took some time for the drugs to be analysed and so there was a delay before the committal proceeding took place.  The matter resolved into a plea at committal, after the informant had been cross-examined.  The prosecution concedes that you should be treated as having pleaded guilty at the first available opportunity.  It is to your credit that you have pleaded guilty to the charges at the earliest available opportunity.  For this you are entitled to a reduction in sentence.  Your pleas of guilty have saved the time and cost of a trial and I also treat your pleas as evidencing genuine remorse by you for your crimes.

5The maximum sentence for the crime alleged in Charge 1 is 25 years' imprisonment; and the maximum sentence for each of the crimes in Charges 2 and 3 is 15 years' imprisonment; and the maximum sentence for dealing with the proceeds of crime, which is the summary offence, is two years' imprisonment.  In passing sentence upon you, I have had regard to the maximum sentence for each charge, as I must.

6The prosecution case is detailed in a written summary, dated 16 January 2017.  The summary was read in open court by the prosecutor, Ms Lenthall, and was accepted by your counsel, Mr Tehan QC, as being accurate and as forming
a proper basis upon which I can proceed to pass sentence upon you.  It is not necessary that I here set out what is already contained in the prosecution summary.  

7Your offending was very serious. Although it is confined to only one day, the case against you was that you possessed the drugs for sale.  The amount of drug in each of the charges possessed for trafficking is relatively large.  In Charge 1, you possessed for sale well above the threshold for a commercial quantity, and in Charge 2, you possessed for sale and amount well in excess of a mere trafficable quantity and this is also the case with Charge 3.  The amount of money found in your possession was relatively large and the fact that you possessed five mobile phones, suggests that you also possessed these to assist in trafficking drugs. 

8When you pleaded guilty, you also admitted a limited criminal history. You were born on the 12 November 1979 and at the time of offending, you were 36 years old.  You were first convicted at the Melbourne Magistrates' Court on 11 March 2016, about three weeks before this offending.  On that occasion, you were convicted of four charges of trafficking simpliciter and possession of various drugs and handling stolen goods.  You were placed on a community corrections order with conviction for a period of 18 months and there were various conditions imposed, designed to assist in bringing about your rehabilitation, both as an offender and as a drug user. Whilst you commenced your community corrections order, you did not get far with that before you were apprehended for this offending, which occurred as I say, about three weeks after you were placed on a community corrections order.  That is an aggravating factor.

9Mr Tehan provided me with a full outline of submissions in writing, which
I marked as Exhibit 1.  I also received into evidence a psychological report from Dr Markus Lorbergs, which I marked as Exhibit 2.  You were referred to him at 4Thought Psychology by your general practitioner in May 2015 for clinical psychological support in relation to depressive symptoms.  You attended four sessions but then disengaged from treatment, but in October 2015, you
re-engaged.  Dr Lorbergs diagnosed you as suffering from a major depressive disorder, which was described as "recurrent and severe".  He recommended that you continue to attend for counselling.

10I also received into evidence a psychiatric report from Dr Lester Walton, who saw you for that purpose at Marngoneet Prison on 16 January this year.  In the history given to him by you, you commenced to experience significant depression around seven years ago.  The trigger for this at that time was apparently a number of parental responsibilities which were troubling you at that time.  You told Dr Walton of your previous psychological treatment and the fact that you had previously been prescribed with an anti-depressant medication.  According to the history given to Dr Walton, you suffered
a worsening of long-standing depression around of May 2015.  You told
Dr Walton that you suffered what you described as a "nervous breakdown", in the context of considerable financial strain, business failure and increasing conflict with your wife and you impulsively separated from her.

11Soon after you entered into a new intimate relationship with a woman who was a drug user and you began using illicit drugs and this is said to be the context in which you were first apprehended and convicted.  You were using ecstasy and methamphetamine principally.  You told Dr Walton that at no stage did you become addicted.

12Your parents separated when you were about six years of age.  Your father is said to have been violent toward your mother and whilst you have maintained some contact with him, you are not close.  Your mother remarried when you were eight years of age and you continue to enjoy a good relationship with your step-father, who gave evidence before me.

13Your mother is aged 67 and you get on well with her.  She was in court to support you and provided a written reference.  Your mother and step-father live near Marysville and operate a bed-and-breakfast business on a property there and your step-father, Tony Thompson, told me and I accept that he will employ you at that property when you are released from prison.  Mr Thompson also provided a written reference, which I marked as Exhibit 4, in which he told me of your mother’s health problems and of the change in you for the better that he has noticed since you have been on remand.  In passing sentence, I have taken Mr Thompson’s evidence and his reference fully into account and I have also taken fully into account a written reference from your mother, Exhibit 5, which was also tended on your behalf.

14You were married in 2005 and you have a six-year-old daughter and a
nine-year-old son and whilst you separated from your wife some time ago, since you have been incarcerated, you have become reacquainted because you sought her out by writing to her.  Your wife gave evidence on your behalf and she told me of the difficulties that you had during the marriage and how your whole personality seemed to change leading to your separation and later forming a new relationship.  She told me and I accept that she has been visiting you weekly and she told me of the change she has recognised in you for the better.  She associates this with the fact that you are no longer taking drugs.  She was a good witness and she told me that you both plan to get back together and have a meaningful and working marriage.  I formed the view that she recognises difficulties in all of this, but you will be assisted by some ongoing psychological counselling and help which you both recognise you will need in order to succeed in making your marriage work.  I also received a written reference from your wife, which I have taken fully into account.

15Dr Walton gave the opinion that you were suffering from a chronic depressive disorder which has become complicated by drug abuse.  He described you as a man of normal intelligence who remains cognitively intact.  In passing sentence, I have taken the fact that you suffer from a chronic depressive disorder into account.

16I received into evidence a number of written references from Christine Smith, Leslie McDonald, your aunt, and also from a family friend, Ann Coish, and
I received evidence from Mr Burrows, a retired legal practitioner who is
well-known in this court.  He is also a family friend well known to you.  In his evidence, which I accept, he told me much of your background and related to your career and your devotion to your family.  ­I accept his evidence that you lapsed into drug use suddenly and without warning at a crisis point in your life.

17In all of this evidence, what comes through is that, your offending aside, you are a decent and hard-working person who has contributed well towards making the society a better place.  You have worked hard to educate yourself and enhance your qualifications and you have worked very hard in order to support your family.  

18In 2014 or 2015, you went off the rails for the first time in your life.  You appear to have met a crisis point and unfortunately you turned in the wrong direction.  You left your wife and children and took up with a person who was a drug abuser and the rest is history.  This explains your conduct, but unfortunately it does not excuse it.  However, I have taken your background circumstances and the way you are regarded generally by a loving and caring family and by friends and the community, fully into account.  

19It is relevant in this way.  Firstly, I accept the evidence from your wife and your step-father and from Mr Burrows, that you are very remorseful for what you have done, and I accept the evidence that you have remained drug-free whilst in custody.  Secondly, I am comforted by the evidence that shows that when released, you will have the full benefit of support from your family and friends and you will have a job to go to.  Because of this, I think your prospects for rehabilitation are reasonably good, provided you have access to proper counselling for your depression and also for the fact you have been a drug user.  You will also need the full support of the Parole Board.

20Whilst you have been on remand, you have used your time well and consistent with your early life where you have worked to gain qualifications in a number of different fields, so to whilst in custody, you have completed a number of courses available to you and all of that will assist you in rehabilitating yourself when you are released.  You have remained drug-free.

21Drug trafficking is a prevalent offence and because of this, the sentence imposed must have full regard to the proper application of the principle of general deterrence.  The sentence imposed must deter those who would seek to offend as you have.  Further, because you committed this offence whilst on a community corrections order, which was imposed a short time before this offending for similar offending and whilst I accept that you are now remorseful, the sentence imposed upon you must reflect some element of specific deterrence, that is to say, the sentence I impose must, by its terms, deter you from further offending.  Further, the sentence must appropriately denounce offending of this kind.

22As I said earlier, your offending was of a very serious kind and you must be appropriately sentenced for it to a term of imprisonment and it was not suggested otherwise.  Recognising this to be the only appropriate disposition, Mr Tehan asked that I impose a sentence that provides for a relatively early release on parole.  He submitted that you would benefit from a lengthy period of parole.  I generally accept this submission.  With the support of the Parole Board and your family upon release and proper counselling, I think you will be provided with the best prospects for a full rehabilitation and to ensure that you stay away from drug use and to deal with your depression and I have endeavoured to reflect this in my sentence.

23Would you please stand, Mr Todman.

24On Charge 1, you are convicted and sentenced to a term of imprisonment of four years.

25On Charge 2, you are convicted and sentenced to a term of imprisonment of
15 months.

26On Charge 3, you are convicted and sentenced to a term of imprisonment of
15 months.

27On the summary charge, you are convicted and sentenced to a term of imprisonment of six months.

28I direct that six months of each of the sentences imposed on Charges 2 and 3, cumulate upon the sentence imposed on Charge 1, making a total effective sentence of five years' imprisonment.

29I direct you serve a minimum term of two years and nine months, before being eligible for release on parole.

30I declare there has been 301 days pre-sentence detention and that 301 days be reckoned as time already served under the sentences passed this day and be entered into the records of the court and deducted administratively.

31I declare that had it not been for your pleas of guilty to the charges at the earliest opportunity, I would have imposed a total effective sentence of six years' imprisonment, with a non-parole period of four years.

32I have been asked to sign a disposal order and a forfeiture order.  These were not opposed and I have signed them.  I have also been asked to make a forensic sample order, which was also not opposed and for the reasons stated in the order, I have also signed it, which means, Mr Todman, that a member of the police force may use reasonable force to take a forensic sample from you whilst in custody and in this case, that will be a swab that will be taken from your mouth.

33Are there any questions arising out of that, Mr Tehan?

34MR TEHAN:  No, Your Honour.

35HIS HONOUR:  Ms Westlake?

36MS WESTLAKE:  No, Your Honour. 

37HIS HONOUR:  You seem somewhat ambivalent.  Is there something that
I have not ‑ ‑ ‑

38MS WESTLAKE:  No, I was just - sorry, I was just checking whether - I believe the submission wasn't made at the plea, but whether Mr Todman would fall to be a serious drug offender?

39HIS HONOUR:  There was no mention of that.

40MS WESTLAKE:  No submission.  No, I just noted it here as I was reading the materials, so - yes.

41HIS HONOUR:  Sorry, what is the submission?

42MS WESTLAKE:  No, there wasn't a submission made at the plea, I was just - as I was going through the checklist, I realised that I think that a submission should have been made about it.  (Indistinct), I think for a serious drug offender, it be once he's been convicted of one drug offence for any second or subsequent offence after that he would fall to be a serious drug offender, is my understanding of the legislation, but I'm happy to re-check it. 

43HIS HONOUR:  That matter was not raised with me on the plea.

44MS WESTLAKE:  No, it wasn't.  No, it wasn't.  Sorry, that was - I just - that's why I was a bit ambivalent, because I've just been reading it as I was going through the materials, but I understood it wasn't raised at the plea, so.

45HIS HONOUR:  Are you seeking to raise it?

46MS WESTLAKE:  I don't know whether it's too late to raise it now.

47HIS HONOUR:  I certainly will not be altering my sentence.

48MS WESTLAKE:  No, that's fine. 

49HIS HONOUR:  Very well.  Thank you. 

50Mr Tehan, can I hand back to you the original of Exhibit 11?

51MR TEHAN:  Yes, thank you, Your Honour. 

52HIS HONOUR:  I have taken a photocopy of it, which will remain on the court file.

53MR TEHAN:  Thank you.

54HIS HONOUR:  But I thought it best that your client have the originals of those.

55MR TEHAN:  Yes.  Yes, thank you, Your Honour.

56HIS HONOUR:  With all of those certificates. 

57MR TEHAN:  Thank you. 

58HIS HONOUR:  Would you take Mr Todman back into custody please. 

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