Director of Public Prosecutions v Towns

[2018] VCC 1421

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

AT SHEPPARTON
CRIMINAL JURISDICTION

CR 18-01248

DIRECTOR OF PUBLIC PROSECUTIONS

v

PHILLIP TOWNS

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Shepparton
DATE OF HEARING:
DATE OF SENTENCE:	28 August 2018
CASE MAY BE CITED AS:	DPP v Towns
MEDIUM NEUTRAL CITATION:	[2018] VCC 1421

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 M. Perry	Office of Public Prosecutions
For the Accused	Ms C. Lynch

1HIS HONOUR:   Phillip Towns, you have pleaded guilty to one charge of traffic in a drug of dependence.  That crime carries a maximum penalty of 15 years' imprisonment.  You also pleaded guilty to one charge uplifted from the Magistrates' Court of committing an indictable offence whilst on bail and one charge of prohibited weapon being a Taser.

2On the indictable offence charge, I will just simply fine you $200.

3On the Taser charge, I will sentence you to be imprisoned for a period of one month to be served concurrently with any other sentence being imposed.

4The circumstances of the offending are that you were essentially detained as a result of a much larger operation.

5You are 41 years of age and you have a very extensive criminal history, both for drug use, dishonesty and on occasions, violence.  On the face of it, your history does not suggest that you are a great vehicle for rehabilitation, but this is the longest time you have been in custody as I understand it.  You are dry and I am prepared to give you at least an opportunity to rehabilitate if you can.

6The circumstances as I have indicated are that in this larger operation, you were involved and were purchasing and involved in the trafficking of methylamphetamine from a co-accused, Bourne.  You were assisting others to procure drugs and you had attempted to arrange supplies to Bourne through a Melbourne supplier known to you.  You were primarily a facilitator on the Crown case and your involvement so far as these charges are concerned last over a period of 16 or 17 days and put you at the lower end in terms of the overall criminality.

7The Crown opening will remain on file which outlines a number of the conversations that you have had in regard to trafficking.  It is certainly not a situation where that trafficking could in any way, shape or form be regarded as trivial and as if the trafficking of ice ever could be I suppose.

8But it is serious.  It calls for the application of general and potentially specific deterrence as well as denunciation and appropriate punishment.  That is the summary very much in a nutshell, but it suffices for these purposes.

9A custodial sentence is inevitable.

10Your personal circumstances are that as I have said, you are 41 years of age.  You at school got to about Year 8 level.  You have got three young children and your life essentially is described by your counsel as being ruined by the early onset of alcohol and drug use.  You graduated to methylamphetamine in your adult life and that has led to the offending behaviour and occasionally periods of incarceration.  You have struggled to overcome those addictions in the past and you have endeavoured to do so by means of community based orders on occasions and do not have a particularly good track record.

11I note that as you counsel has pointed out as well, that there was a long gap in your criminal history from 1995 to 2005 where you were able to remain stable and that gives me some hope that you may ultimately be able to rehabilitate yourself.

12You suffer from anxiety and depression.

13In this particular situation, it is very unusual.  The history of it is that you were arrested and remanded in custody on 28 November 2016 and you have remained in custody ever since.

14On 30 January 2017, you had a month imposed by the Magistrates' Court and accordingly that is a small amount of Renzella time.

15On 28 February 2017, that sentence expired and on 18 August 2017, you were sentenced to be imprisoned for a period of 21 months with a non-parole period of 11 months for being involved in the prison riots.  I am not going to take that any further other than 176 days of pre-sentence detention was used upon that process.  That sentence is due to expire on 18 October of this year.

16On 16 October 2017, you were given three months' imprisonment which was concurrent on the Magistrates' Court and you therefore should have been eligible for parole in December of 2017.  It is in those circumstances that because of these matters pending, you were not offered the opportunity of parole and in effect, it gives almost a period of almost two years of Renzella time, which as I indicated to counsel during the course of the plea, is very unusual indeed.

17It is also clear that because of the prison riots, you have spent something in the order of a year or so in lockdown and that is a very significant period of time to be by yourself.

18In any event, I take all those matters into account and I think they are of real significance in your situation.  I am not going to buy into arguments of parity with other co-accused in this matter.  You are obviously at the lower end, but it does remain serious and you are charged with trafficking simplicita, not trafficking in a commercial quantity.

19Your counsel's original submission was for a community corrections order to follow imprisonment.  But I have no confidence that that would be at all successful.  I think as I have indicated, the best bet is - and it will be a somewhat artificial sentence in a way because it would not accurately reflect what's taken place but what I'm going to do is on the charge of trafficking, sentence you to be imprisoned for a period of 12 months. 

20I direct that that charge run concurrently with any sentence proved of being currently undergone, and I direct that 63 days be reckoned as having been served under that sentence.  I direct that on that sentence, there be a minimum term of four months' imprisonment. 

21That means a situation where as from today, you have 12 months which will be running concurrently with the longer sentence and approximately two and a half months or so after the expiration of that sentence, you will be eligible for parole again.  That of course means that when I take into account the two months or so that has been declared, I have effectively added about four or five months to the sentence that you were undergoing.  That has been done in this way because of the principles of totality and the unfortunate way in which this has all unfolded. 

22The prospects of your rehabilitation have to be guarded.  The risk of you reoffending obviously has to be significant as well.  It's really up to you.  You will reach an age, Mr Towns, where you would be well aware, if you do not get this sorted out, you will spend the rest of your life in gaol.  You are now doing ridiculously unnecessary sentences and it is no way to spend your life as an old man. 

23Insofar as s.6AAA is concerned, it's utterly meaningless in this situation.  But I will do it in any event.  But for your plea of guilty, you would have been sentenced to be imprisoned for a period of two years with a minimum term of 15 months.  And Renzella obviously would have played a significant part in that.  I have made all the other orders that are necessary, I believe.  Is there anything else you need me to do?

24MR PERRY:  Your Honour, the disposal order is sought in respect of any drugs paraphernalia found and also the taser.

25HIS HONOUR:  Yes, I'll sign those.  Yes.  The only other thing that I will add in this situation, where I've declined to have you assessed for a community corrections order is that I'm being told by counsel and (indistinct) you have undergone a number of courses in custody and whilst according to Boulton, a sentencing judge is entitled to expect that a person will be released on parole at or around the time of the expiration of it, in your circumstances, I think there's fair chance of it.  I'll say no more than that, bearing in mind I'm not allowed to talk about it.  All right.  Disposal order and forfeiture order made and handed down.  Nothing else you need?

26MS LYNCH:  Sorry, can you just provide us ‑ ‑ ‑ 

27MR PERRY:  I'm sorry, Your Honour, I took it that - you announced at the start on all the summary matters, I think it was one month concurrent with ‑ ‑ ‑ 

28HIS HONOUR:  One month concurrent to the taser, $200 as I said for the ‑ ‑ ‑ 

29MR PERRY:  Thank you, Your Honour.

30HIS HONOUR:  For the indictable. 

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