Director of Public Prosecutions v Turner, Neil Patrick

[2012] VCC 1984

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

AT MELBOURNE

CRIMINAL DIVISION

CR 12-01161

DIRECTOR OF PUBLIC PROSECUTIONS

v

NEIL PATRICK TURNER

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JUDGE:	HER HONOUR JUDGE WILMOTH
WHERE HELD:	Melbourne
DATE OF HEARING:	26 November 2012
DATE OF SENTENCE:	6 December 2012
CASE MAY BE CITED AS:	DPP v Turner, Neil Patrick
MEDIUM NEUTRAL CITATION:	[2012] VCC 1984

REASONS FOR SENTENCE

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Catchwords: Plea of guilty; 1 charge trafficking in commercial quantity of methyamphetamine, 2 charges  possession of drugs of dependence;  depression; co-accused; parity; 3 years imprisonment 18 months non parole period.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr H. Tighe	Office of Public Prosecutions
For the Accused	Ms D. Caruso

HER HONOUR:

1       Neil Patrick Turner, you have pleaded guilty to one charge of trafficking in a commercial quantity of a drug of dependence, namely methylamphetamine, which took place between 20 October 2010 and 12 May 2011.  You have also pleaded guilty to two charges of possession of a drug of dependence, cocaine in one case and cannabis in the other. 

2       You were charged with a number of others following a police operation in 2010.  Of those persons, Dorry Dawid was sentenced by Her Honour Judge Patrick of this court on 7 May 2012 to nine year's imprisonment, with six years and two months non-parole period.  Andrew Borg was prosecuted at the same time as you and I sentenced him on 22 October 2012 to three years' imprisonment with 18 months to serve before being eligible for parole.  The other two accused, Richard Barkho and Saigon Barkho are awaiting trial.

3       The prosecution case is that as a result of telephone intercepts and other forms of surveillance, you were identified as having been supplied with methylamphetamine by Dawid and Richard Barkho which you sold with such frequency as to fit the definition of trafficking. 

4       The prosecution summary of facts, in a document dated 3 September 2012, states at Paragraph 12:

"The Crown relies on all the relevant evidence in the hand-up brief as demonstrating the involvement of Turner and Borg in the commission of the offence detailed in Count 1 of the indictment."

However, the Crown conceded that it could not prove the trafficking of a large commercial quantity and so it became necessary to limit the facts forming the basis of the plea to reflect this.  As a result, both the defence and the prosecution agreed that you, like Borg, are to be sentenced on the basis of the trafficking of a commercial quantity at the upper end of the tier.  That is to say, under one kilogram, with a total sale value of $2500 per ounce.  By my calculation, relying on the statement of Detective Senior Constable Pierce, the sale value of one kilogram would be in excess of $80,000.  While there is no evidence of enrichment on your part, it is more than might have been expected to have provided for your personal use.

5       The maximum penalty for this offence is 25 years' imprisonment which indicates that drug trafficking at this level is an extremely serious offence.  The courts have held that general deterrence is the most important principle to be reinforced by sentences imposed on those guilty of this crime and that accordingly, those motivated by addiction, as you were, can expect to have that aspect of their circumstances given less weight.

6       Certainly there are mitigating factors in your case.  The first is that you have pleaded guilty at an early stage and that means you are entitled to a discount on your sentence because the expense and inconvenience of a trial has been avoided.  That is regarded as being of importance to the system of criminal justice and the plea is also recognised as an indication of remorse. 

7       Other mitigating factors emerging from your personal circumstance and from the extent of your involvement in trafficking, both individually and in relation to other offences - and I will address those matters in more detail. 

8       Your plea of guilty is accepted as deserving of a discount on your sentence for its utilitarian value in avoiding a trial, as I have said, and also as an indication of remorse.  Additional factors relevant to remorse are the fact that you offered to assist the authorities but that was not required.  You told the psychologist, Ms Lechner, that you regretted your offending and were ashamed of it. 

9       At the time of your arrest you were a heavy user of amphetamines to the extent that this has been described as being out of control. 

10      Even when arrested and released without charge, you did not stop using and it was only when you were imprisoned, after eventually being charged that you ceased and, indeed, found that extremely difficult.  Apparently you were relieved that you had been caught.  During the period of the offending you had been buying amphetamines in large quantities on credit and partly subsidising your own use and at the time of your arrest, you were found in possession of ten ounces. 

11      Once you were arrested on 3 August 2011, you were remanded in custody and not released on bail until 14 February 2012.  101 days of the 144 days spent in custody were taken into account when you were sentenced in the Magistrates' Court in July for trafficking methylamphetamine and failing to answer bail, for which you were sentenced to time served and placed on a Community Corrections Order.  Therefore pre-sentence detention for the present offences is 43 days.

12      When released in February, you attempted rehabilitation and made positive progress.  You immediately entered a residential program for drug treatment and remained there until mid-June, after which you found part time work as a plumber.  Your progress on the Community Corrections Order has not been satisfactory and breach proceedings are in contemplation for failure to comply with your obligations.  Despite that, you completed a program called Positive Lifestye Program which you have found of assistance and you have recently been continuing with counselling.

13      You are a single man aged 31 with a background of fairly steady unskilled employment and a very limited criminal history.  The only relevant previous convictions occurred in 2000 when you were placed on a Community-based Order for the trafficking, use and possession of hashish and possession and use of cannabis.

14      It seems that you have suffered from depression over the past few years in the context of an acrimonious separation from your girlfriend and a significant head injury inflicted by an assailant.  You turned to drugs and alcohol as a means of coping with the stress and you were drinking and using drugs heavily.

15      In October, you were seen by a neuro-psychologist, Dr Melissa Slayo, who considered that an acquired brain injury is an unlikely diagnosis despite findings of mildly reduced functioning of cognitive skills.  Dr Slayo considered that depression would exacerbate this and overall this reduced functioning would adversely affect your behaviour choices.  Dr Slayo also identified positive cognitive strengths which, in her opinion, give you good prospects for rehabilitation.

16      Ms Lechner's diagnosis was of clinical depression, scoring in the extreme level of the Beck Depression Inventory with a need for alternative prescribed medication to that which you have been using.

17      Ms Caruso, who appeared on your behalf, submitted that you are suffering from severe depression and while Ms Lechner's description might perhaps justify this description, your emotional condition will likely make your time in custody more onerous and I take that into account.

18       It seems likely that depression may have played a part in your failure to complete satisfactorily the Community Corrections Order and perhaps greater leeway might have been given to you, had the Corrections Officers known of this condition.

19      The principal of general deterrence must play a significant role in your sentence because of the seriousness of drug trafficking and in such a large amount.  The maximum penalty for this crime is 25 years' imprisonment and, indeed, those who facilitate the distribution of drugs must know that they will likely face a long prison sentence when brought before the courts. 

20      In the case of an offender to whom mitigating factors apply, some lenience may be called for.  I have referred to a number of mitigating factors which apply to you and, in combination, they persuade me that a proportionately shorter period in custody would be appropriate to enable you to focus on your improving prospects for rehabilitation whilst on parole. 

21      You have the support of your parents, despite some strain in your relationship caused by the forfeiture of a jointly owned property because of its connection to these proceedings. 

22      As to parity, even though you were the original target of the police operation, the Crown's position is that Dawid and Richard Barkho are the most serious offenders.  Your level of offending was similar to that of the co-accused, Borg, and your personal circumstances are not dissimilar in respect of relevant mitigating factors.  One point of difference is that Mr Borg has no prior convictions.  Your convictions that I have outlined already for drug related matters, including trafficking, occurred more than a decade ago and have less relevance to this sentencing task than do your more recent difficulties of addiction and tangible efforts towards rehabilitation. 

23      All these considerations lead me to conclude that an essentially identical sentence to that imposed upon Mr Borg is appropriate.  So I sentence you as follows:

·For Charge 1, trafficking in a commercial quantity, three years' imprisonment;

·For each of Charges 2 and 3, the charges of possession of a drug of dependence, one month, to be served concurrently with each other and with Charge 1.

24      I order that you serve 18 months before being eligible for parole.

25      If you had pleaded not guilty to this charge, I would have sentenced you to four years' imprisonment with a non-parole period of two years and six months.

26      I declare that you have spent 53 days in custody, I have made that calculation and I hope that is correct.

27      MR TIGHE:  It is, I agree with you, Your Honour.

28      HER HONOUR:  That is not including today.  That is to be reckoned as time already served and I shall cause that to be noted on the court record.

29 The prosecution seeks an order under s.464ZF of the Crimes Act for a forensic sample of saliva to be obtained. 

30      I do not think I have heard from Ms Caruso -I might be wrong - as to whether that is opposed or not.

31      MS CARUSO:  Not opposed, Your Honour.

32      HER HONOUR:  Not opposed.  I make that order.  I must advise you that the police do have the power to use reasonable force to obtain that sample but I trust that will not be necessary.

33      There was also an application for a disposal order in relation to a quantity of cannabis and I make that order as well.

34      Is there anything I have omitted, Mr Tighe?

35      MR TIGHE:  No.  Thank you, Your Honour.

36      HER HONOUR:  Ms Caruso?

37      MS CARUSO:  No, Your Honour.

38      HER HONOUR:  Thank you.  Mr Turner may go now, thank you.

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