Director of Public Prosecutions v Trowsdale
[2022] VCC 1496
•7 September 2022
IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for PublicationAT MELBOURNE
CRIMINAL JURISDICTIONCR 20-01361
CR 22-01407
THE DIRECTOR OF PUBLIC PROSECUTIONS v RYAN TROWSDALE ---
JUDGE: HIS HONOUR JUDGE LAURITSEN WHERE HELD: Melbourne DATE OF HEARING: 10 August 2022 DATE OF SENTENCE: 7 September 2022 CASE MAY BE CITED AS: DPP v Trowsdale MEDIUM NEUTRAL CITATION: [2022] VCC 1496 REASONS FOR SENTENCE
---Subject: CRIMINAL LAW
Catchwords: Trafficking in a commercial quantity of a drug of dependence – possession of a tablet press – prohibited person possessing a firearm – possession of a drug of dependence – failing to provide information from data – persistent contravention of family violence intervention order – criminal damage – related summary offences - amount involved at the upper end of the range for a commercial quantity – denunciation and deterrence important sentencing factors – time in custody spent in more restrictive conditions
Legislation Cited: Sentencing Act 1991
Cases Cited: Worboyes v R [2021] VSCA 169; Verdins v R (2007) 16 VR 102
Sentence:Global sentence of seven years and three months imprisonment on both indictments, with a global non-parole period of four years and four months
---
APPEARANCES:
Counsel Solicitors For the Director of Public Prosecutions Mr J. Singh Office of Public Prosecutions For the Accused Mr I. Crisp Vassis & Co
HIS HIS HONOUR:
1At the outset, Mr Trowsdale, I propose to sentence you to a total effective sentence of seven years and three months' imprisonment for both sets of charges and set a non-parole period of four years and four months and I will declare the 532 days of your pre-sentence detention as time served under these sentences. I will explain how I arrived at the sentences.
2You have pleaded guilty to charges on two indictments. For indictment K1250007.1, you have pleaded guilty to five charges, including a charge of trafficking in a drug of dependence in not less than a commercial quantity. For indictment N10800402, you have pleaded guilty to four charges, including three charges of persistent contravention of a family violence protection order. You have also pleaded guilty to summary offences.
3The maximum penalty for the offences are:
(a) trafficking in a commercial quantity of a drug of dependence - 25 years' imprisonment;
(b) possession of a tablet press - five years' imprisonment or a fine of 600 penalty units or both;
(c) prohibited person possessing a firearm - 10 years' imprisonment or a fine of 1,200 penalty units or both;
(d) possess a drug of dependence - one year imprisonment or 30 penalty units or both;
(e) failing to provide information for data - five years' imprisonment;
(f) the summary charge of possessing cartridge ammunition - 40 penalty units;
(g) persistent contravention of a family violence intervention order - five years' imprisonment;
(h) criminal damage - 10 years' imprisonment;
(i) the summary charge of committing an indictable offence on bail - three months' imprisonment or 30 penalty units;
(j) the summary charge of unlawful assault - three months' imprisonment or 15 penalty units.
4The circumstances behind the charges in both indictments are set out in documents entitled 'Summary of Prosecution Opening upon Plea'. They are respectively Exhibits A and B. The former is in two parts. Both parts set out in some detail conversations between you and others. In many instances, the conversations occur in your motor vehicle and outside a particular address. On about 24 September 2019, the police executed search warrants at various addresses.
Circumstances
Indictment K1250007
5In relation to the first indictment, between 11 April and 16 September 2019, your actions were monitored through a series of surveillance devices, tracking, visual and listening. In that period, you trafficked cocaine on 19 occasions: 11 and 24 April; 15, 18, 23 and 26 May; 4, 5, 6, 10, 21 and 29 June; 1, 3, 5, 8, 9 and 24 July; and 4 September.
6The total amount involved was about 1.2 kilograms. However, the Director concedes an inability to prove the relevant intent in respect of some of the amounts. Her counsel does not specify the total amount of cocaine you trafficked but says it is in the upper level of the quantity comprising a commercial quantity of cocaine. The upper threshold of which is one kilogram. These circumstances, together with others, constitute Charge 1, trafficking in a drug of dependence in not less than a commercial quantity.
7On 24 September 2019, you were arrested. You then possessed two mobile phones. The police had a warrant which required you to provide them with the passcodes to your phones. When required, you refused. These circumstances constitute Charge 5, failing to provide information for computer or data storage device.
8The Police searched Apartment 4207, 7 Riverside Quay, Southbank. Among other things, they found a plastic container with 304 tablets. On analysis, these tablets contained 40 grams of methandieone. These circumstances constitute Charge 4, possessing a drug of dependence. A small quantity of this drug is 50 grams or less. I am satisfied your possession of this drug was not for any purpose related to its trafficking.
9In the car park of the building containing Apartment 4207, the police found and searched a motor vehicle with the registered number KAO S63. They found two bags: one contained 234.7 grams of cocaine of a purity between eight and nine per cent; the other contained 234.2 grams of cocaine with a purity of 3.5 per cent. These circumstances form part of Charge 1.
10Hidden in the engine bay was a box containing .22 calibre ammunition and a Ziploc bag containing assorted firearm ammunition. These circumstances constitute summary charge 7, possessing cartridge ammunition.
11Nearby was another motor vehicle, registered number AXK 335. The keys to this vehicle and KAO S63 had been found on you when searched earlier. On searching, the police found four items including a Beretta handgun, hidden in a baby seat. The gun was capable of firing and its serial number had been partly erased. These circumstances constitute Charge 3, a prohibited person possessing a firearm. You were then a prohibited person because of the sentences imposed on 28 November 2014 in this court.
12Different police members searched 58 Bungower Road in Somerville. They found and seized a trailer. It held a large water tank. Within the tank there was a large industrial sized tablet press. Later analysis found evidence of MDMA in the press. These circumstances constitute Charge 2, possessing a tablet press.
Indictment N10800402
13
In relation to the second indictment, on 22 November 2021, the
Magistrates' Court at Melbourne granted an interim family violence protection order where you were the respondent and Tiara-Lily Sheridan was the protected person. Since the order contained a number of standard conditions it is colloquially known as a 'full order'. You were served with a copy of this order.
14Exhibit B sets out the events of 22 April 2022 involving you and Ms Sheridan between 5.06 and 5.46 pm. Despite those circumstances giving rise to contraventions of the family violence intervention order you have not been charged with those offences. However, at 6.00 pm you tried to force Ms Sheridan into your car. This is the subject of summary charge 11, an offence of unlawful assault upon her. During the same incident, you managed to smash Ms Sheridan's sunglasses. This constitutes Charge 4 on the indictment, a charge of criminal damage.
15At 11.26 am on 23 April, you were arrested. At the time of these offences you were on bail. This constitutes the offence of summary charge 5, committing an indictable offence while on bail.
16Ms Sheridan gave the police your email address, the names of your Instagram and Facebook accounts and your mobile phone number and showed them emails, text messages, call logs and Snapchat messages from you. They form the basis of Charges 1, 2 and 3 in this indictment.
17Between 3 January 2022 and 27 January 2022, you contravened this order by contacting Ms Sheridan on 22 occasions through phone calls and Snapchat. This constitutes Charge 1.
18Between 11 February and 4 March 2022, you again contravened the order by contacting Ms Sheridan on 29 occasions by phones calls, Snapchat and WhatsApp. This constitutes Charge 2.
19Finally, between 10 and 23 April 2022, you contravened the order by contacting her on 51 occasions by phone calls, Snapchat, text messages and emails. This constitutes Charge 3.
20Most of the phone calls were unanswered. Exhibit B gave five examples of other messages. They bear the dates 11 February, 10 and 22 April. They are very unpleasant. The first example contains these words. 'I'm gonna pay some junkie to throw acid in your face dog.' These examples are relevant to Charges 2 and 3.
Victim impact statement
21There is no formal victim impact statement of Ms Sheridan. However, the prosecutor tendered a copy of her statement made on 9 May 2022. She clearly does not want you charged with kidnapping or for contravening the family violence intervention order. Since you have not been charged with any contravention arising out of the events between 5.06 and 5.46 pm, it appears the police have complied with her wishes.
Criminal history
22Between 25 November 2002 and 9 July 2018, you have appeared in a criminal court on nine occasions and have been convicted or found guilty of 27 charges. You have been sentenced to imprisonment four times with one being a suspended sentence.
23Your longest sentence was two years and nine months' imprisonment for causing serious injury recklessly and making a threat to kill.
24Your criminal history does not reveal offences necessarily relating to addiction. There are two significant offences. On 22 May 2013 and 14 August 2014, you were sentenced to imprisonment over several charges including trafficking methylamphetamine. On the second occasion, you successfully appealed the sentences but a term of imprisonment was still the outcome.
Personal
25You are now 37. You were born in Frankston. Shortly after your birth, your parents separated and you have never had any contact with your father. You have nothing but praise as to the way your mother raised you.
26You were educated to Year 9 level, leaving school during Year 10. You started but did not finish a pre-apprenticeship course in plumbing.
27Since then you have worked in skilled and unskilled employment in the building industry. More recently, you set up a trucking business which ended with your imprisonment.
28You were in a relationship with Laura, which ended about two years ago. You and she have a son, Luca. He is now three. He lives with his mother and you have ample contact.
29You drank alcohol from the age of 14. Between the ages of 18 and 24, your drinking caused you problems through making you moodier and more likely to engage in fights. Although still a social drinker, alcohol is no longer a problem for you.
30At about the same time, you started using cannabis. In your early 20s, it was a regular habit. However, you have not used cannabis for some years.
31From the age of 18 you used amphetamine. You started using methamphetamines when about 27. Your usage was significant, up to a gram a day. Although in speaking to Dr Sullivan, you denied an addiction to the drug, its use could leave you 'scattered, disorganised, paranoid'.
32From the age of 20, you have used cocaine. You have used GHB with methamphetamine. You have used various forms of anabolic steroids.
33According to Mr Healey, psychologist, from October 2020, you spent about four months at The Cottage in Shepparton. This is a residential drug rehabilitation facility. You then lived for a month at a place arranged by The Cottage before spending two to three months living with your mother. By May 2021, you were living in Southbank.
34You told Dr Sullivan that in the weeks preceding your arrest, you used methamphetamine, cocaine, GHB, anabolic steroids and alcohol. It is fair to say at the time of your offending you were affected by drugs.
35You are supported by your mother, who watched these proceedings by an audio visual link. You have retained what your counsel calls a 'working relationship' with the mother of your son and enabling extensive contact before your remand in custody.
Counsellor
36Maria Hutchinson is an addiction treatment counsellor.[1] Until January 2022, she was the chief executive officer of The Cottage.
[1] Report dated 2 August 2022
37In June 2020, Ms Hutchinson interviewed you. Having been granted bail, you spent five months at The Cottage. During that time, she interacted with you almost every day. After leaving The Cottage you and she maintained contact until you were re-arrested.
38She saw your son as the key motivator for you to address and challenge your beliefs and behaviours with a focus on ensuring you are a better and more present influence for Luca.
39She concludes:[2]
'Given Ryan's attitude, his willingness to voluntarily seek out counselling and the significant growth I have personally witnessed in his recovery, I continue to remain very supportive of him and his ability to rehabilitate as a positive contributing member of society. I maintain my willingness to support and work with Ryan in the future.'
[2] Report at page 2
Neuropsychologist
40
Lindsay Vowels is a neuropsychologist. On 11 November 2014, she assessed you at the request of your present counsel.[3] You were then in
Dhurringile Prison.
[3] Report dated 18 November 2014
41Dr Vowels administered tests. She assessed your full scale intelligence quotient at 72 and concluded your intellectual abilities were in the low average to borderline range.
42Dr Vowels identified you suffered from several significant cognitive disabilities. The most important was your mild intellectual disability. She also identified mild disorders in your language, reading and communication. She considered the possibility of you having an acquired brain injury as high. So much so, she diagnosed a Dysexecutive Syndrome.
43For you, the principal features of this syndrome were your impaired ability to persevere with a task, your impaired ability to learn new things, your impulsiveness, your lesser ability to think in terms of concepts, your reduced ability to reason and your inability to shift off reinforced ideas or reactions.
44Among her recommendations, Dr Vowels recommended your referral to a specialist mental health service to assist with your long term behavioural habits.
Psychiatrist
45Danny Sullivan is a consultant forensic psychiatrist. On 21 May 2020, he interviewed you at the request of your solicitors.
46Dr Sullivan diagnosed you as suffering from a substance use disorder, which he described as significant. This disorder involved various substances. He noted that you did not satisfy the criteria for dependence.
47Despite earlier assessments of your intellectual functioning, Dr Sullivan suspected you lay in the low average to borderline range. Your adaptive functioning was better than expected by the neuropsychologist.
48He did not detect any language disorder when you spoke to him. He found no compelling evidence of an attention deficit hyperactivity disorder.
49Dr Sullivan provisionally diagnosed you as suffering from a recurrent depressive disorder of mild to moderate severity.
50Dr Sullivan recommended you stop using drugs or, as he put it, a 'sustained abstinence'. This requires your willingness to stop with the help of prolonged psychological support with an addiction focus.
51At present, Dr Sullivan did not recommend the prescription of medicine or psychiatric treatment.
52On 22 July 2022, Dr Sullivan re-interviewed you. He thought you were of average intelligence. He maintained his previous diagnoses. Although you told him of symptoms of a mood disorder, mainly anxiety, he would not diagnose a mood disorder. Your substance use disorder was in remission because you are in prison.
53Dr Sullivan thought certain medicines may assist with your anxiety and sleep. Additionally, psychological treatment might help you with your ability to cope and lower your distress.
54Dr Sullivan did not link your mental disorders with your offending. But imprisonment would be more burdensome to you because you are separated from other prisoners and this worsens your anxiety.
Psychologist
55Bernard Healey is a clinical psychologist of enormous experience. On about 24 January 2022 he interviewed you at the request of your solicitors. Mr Healey had already interviewed you in May 2018.
56After moving to Southbank, you were referred back to Mr Healey in 2021 and he saw you on four occasions.
57He assessed you as mildly intellectually disabled. He also considered you suffer from a post-traumatic stress disorder caused by the death of a friend who was shot and what you believe was an attempt to kidnap you shortly before 23 September 2019. He identified other disorders, generalised anxiety, bipolar spectrum, drug use and various personality disorders.
References
58Karen Trowsdale is your mother. She speaks of your love for Luca. The effect on you of the abandonment of your father. The benefit of the counselling you have received from Ms Hutchinson and The Cottage. She finishes by saying:[4]
'I will finish this by asking you to please try to see through the Tattoo’s and the image he portrays and know that there are a lot of great things about Ryan and I think he has started to realise this himself, he is now an amazing Dad, he has a great relationship with the Mother of his Child and I know once this chapter in his life is over, he will go on to be a great role model for Luca.'
[4] Letter signed by Karen Trowsdale undated
59Pamela and Neil Trowsdale are your maternal grandparents. They speak of your good qualities, especially your love for Luca. They regret your imprisonment at the age of 22 through the association with hardened criminals. They see your love of Luca as a 'huge incentive' to get your life back on track. In this regard, you would have their support and that of your mother and stepfather.
60Laura Mullan is Luca's mother. She speaks of your close and loving relationship with Luca. Both you and she have worked successfully together in the interests of the child. She believes the drug rehabilitation has resulted in you being a happier and calmer person.
61Georgie Athans is a longstanding friend. She shines light on an aspect of your character when as a teenager you were so helpful to her son, Alan, who suffered from Asperger's Syndrome.
62Robbie Santamaria is the director of B & R Boring Pty Ltd. You have worked with or for this company between 2006 and 2009 and again between 2012 and 2019. Mr Santamaria regards you highly as a worker and as a person. He believes your time in drug rehabilitation benefited you.
63Through her husband, Jamie-Lee Mercuri has known you for about eight years. She speaks of your loving relationship with your son, as being a loyal friend to her and her husband and a good neighbour to others. She concludes her letter:[5]
'Despite the current case, I still believe Ryan is an honourable individual, a valuable member of my community, and a good human being.'
[5] Letter from Jaime-lee Mercuri dated 29 July 2022
Discussion
Purposes
64Section 5(1) of the Sentencing Act 1991 (‘the Sentencing Act’) sets out the purposes for which sentences may be imposed:
(a) to punish the offender to the extent and in a manner which is just in all of the circumstances;
(b) to deter the offender or other persons from committing offences of the same or a similar character;
(c) to establish conditions within which it is considered that the offender's rehabilitation may be facilitated;
(d) to manifest the denunciation of the type of conduct the offender engaged in;
(e) to protect the community from the offender.
65Each of those purposes is relevant to your case.
66Given your criminal history, especially your previous convictions for trafficking methylamphetamine, deterring you from committing the offence of trafficking a drug of dependence and protecting the community from you are important considerations.
67Plainly, trafficking a drug of dependence in not less than a commercial quantity is a very serious offence. The amount involved is at the upper end of the range for a commercial quantity. An indication of the seriousness of this offence is the maximum penalty for it, namely 25 years' imprisonment. My sentence for that offence should serve to denounce the offence and, particularly, deter other persons from committing such an offence.
68I have focused my discussion of the purposes of sentence on the trafficking charge because it is far and away the most serious of the charges you face.
69
Three of the charges concern your persistent contravention of the conditions of a family violence intervention order. There are many judgments in the
Court of Appeal stressing the need to impose sentences which cause persons to obey the conditions of such orders. One of the earlier statements was given by Charles JA in R v Cotham[6], where His Honour said:[7]
‘Intervention orders must be strictly adhered to, and it is very much in the interests of the community that those against whom such orders are made be under no misapprehension that the courts will punish severely those who breach such orders.’
[6][1998] VSCA 111
[7]At paragraph 14
70Section 5(2) of the Sentencing Act sets out various factors which I must take into account where they are relevant.
Guilty plea
71Your pleas of guilty were indicated at the earliest reasonable opportunity.
72By pleading guilty to the charges, you have avoided a trial. You have saved the time and expense of a trial. You have allowed other trials to be listed earlier than would otherwise be the case. You have spared upwards of 26 witnesses the burden of giving evidence in a trial. Giving evidence is not easy, especially, I would imagine, for your former partner.
73We are still in the throes of the pandemic. At the present time, pleas of guilty deserve a greater discount on sentence. Why this is so was explained in the case of Worboyes v R[8], where the court said:[9]
‘As is abundantly clear, one of the pernicious effects of the current pandemic is that the lists of the criminal courts in this State have become severely congested. Unacceptable delay in the disposition of criminal cases is endemic. Indeed, it is not an overstatement to say that the system of criminal justice in this State is in crisis, requiring a response from the courts. We therefore consider that, whilst the courts of this State continue to labour under the adverse effects of the pandemic, a sentencing court should view a plea of guilty as carrying with it a greater utilitarian benefit than at other times and in other circumstances, and, concomitantly, as attracting an augmented mitigatory effect on sentence, simply because the plea will benefit the beleaguered administration of justice. Given the unhappy state of the courts’ lists, the courts must, in an endeavour to alleviate the strain on the system, encourage those accused who are guilty to so plead. Such encouragement must come from an actual and palpable amelioration of sentence.’
[8] [2021] VSCA 169
[9] At paragraph 35
74The Court reiterated the point a few paragraphs further into its judgment:[10]
‘For these reasons, we consider that — all other things being equal — a plea of guilty entered during the currency of the COVID-19 pandemic is worthy of greater weight in mitigation than a similar plea entered at a time when the community and the courts are not afflicted by the pandemic’s effects. A plea of guilty during the pandemic ordinarily should attract a more pronounced amelioration of sentence than at another time. Although a sentencing judge need not quantify the extent of any ‘discount’, he or she must ensure that the plea of guilty results in a perceptible amelioration of sentence.’
[10] At paragraph 39
75I would treat your pleas of guilty as evidence of your remorse.
76Overall, your pleas of guilty require a very significant discount on the sentences I would have imposed in their absence.
Rehabilitation
77I accept you are remorseful for your offending and determined not to re-offend. However, your addiction is longstanding. It will take a great deal of effort for you to overcome your addiction. As Ms Hutchinson points out:[11]
‘This has been extremely challenging at times for Ryan after many years of using substances and with the life-style he had led. Given that addiction is a chronic relapsing disease with no known cure, Ryan knew that he was up against a challenge and he showed incredible determination and vulnerability to continue to 'show up' at our appointments always with a strong desire and purpose to create a different and better future.’
[11] Report dated 2 August 2022 at page 1
78Given the family and other support and your determination, I consider your prospects of rehabilitation are as good as can be expected in the face of a serious, longstanding addiction.
Conditions in custody
79Your time in custody has been spent under the restricted conditions due to the pandemic. Throughout, you have been in a management unit. This involved staying in your cell for 23 hours a day. For seven months of that time, you have had no visitors.
Verdins
80You place no reliance upon the propositions in Verdins v R[12] except that imprisonment would be more burdensome for you due to your separation from other prisoners and that this worsens your anxiety. To a limited extent, this reduces the sentences.
[12] (2007) 16 VR 102
Sentences
Indictment K1250007
81Turning to the first indictment:
82On Charge 1, trafficking in a commercial quantity of a drug of dependence, I sentence you to six years' imprisonment.
83On Charge 2, possessing a tablet press, I sentence you to one year's imprisonment.
84On Charge 3, a prohibited person in possession of a firearm, I sentence you to one year and six months' imprisonment.
85On Charge 4, possessing a drug of dependence, I sentence you to one month's imprisonment.
86On Charge 5, failing to provide information or assistance for data under warrant, I sentence you to six months' imprisonment.
87And on the summary charge of possessing cartridge ammunition, I sentence you to a fine of $500.
Indictment N10800402
88On the second indictment:
89On Charge 1, persistent contravention of a family violence intervention order, I sentence you to 6 months' imprisonment.
90On Charge 2, persistent contravention of a family violence intervention order, I sentence you to 9 months' imprisonment.
91On Charge 3, persistent contravention of a family violence intervention order, I sentence you to 9 months' imprisonment.
92On Charge 4, criminal damage, I sentence you to one months' imprisonment.
93On the summary charge of unlawful assault, I sentence you to 3 months' imprisonment.
94On the summary charge of committing an indictable offence while on bail, I sentence you to one month's imprisonment.
95The base sentence is Charge 1, the trafficking charge. Six months of the sentence on the charge of being a prohibited person possessing a firearm and the entirety of the sentence on Charge 3 on the second indictment will be served cumulatively upon themselves and the base sentence. The remaining sentences will be served concurrently. The total effective sentence is seven years and three months' imprisonment and I will set a non-parole period of four years and four months' imprisonment.
Pre-sentence detention
96Excluding today, you have been in custody for a total of 532 days in relation to these charges. I declare those days as time served under my sentences.
Section 6AAA
97If you had not pleaded guilty to these charges and had been found guilty at a trial, I would have sentenced you to a total effective sentence of ten years' imprisonment and set a non-parole period of six years' imprisonment.
Forfeiture and disposal orders
98I will make the disposal order in the terms sought.
99I will make the forfeiture order in the terms sought with the exclusion of the Mercedes Benz sedan, registered number KAO S63 and the keys relating to that vehicle.
Fines
100Finally, I will refer the fine to Fines Victoria for collection.
101As to the two remaining items on the forfeiture order, I will adjourn the application for their forfeiture to a date to be fixed and grant the parties liberty to apply upon reasonable notice to the other for that matter to be heard in the court.
- - -
1
0