Director of Public Prosecutions v Uribe-Velez
[2015] VCC 1168
•13 August 2015
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-15-00857
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ESTEBAN URIBE-VELEZ |
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JUDGE: | HIS HONOUR JUDGE RYAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 13 August 2015 | |
CASE MAY BE CITED AS: | DPP v Uribe-Velez | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 1168 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr A. Albert (for plea) Ms D. Tang (for sentence) | Solicitor for Office of Public Prosecutions |
| For the Accused | Mr S. Norton | Stary Norton Halphen |
HIS HONOUR:
1 Esteban Uribe-Velez, on 6 August 2015 you pleaded guilty to recklessly dealing in the proceeds of crime (Charge 1) and possessing a drug of dependence, namely cannabis (Charge 2). The maximum penalty for Charge 1 is 10 years’ imprisonment, whilst the maximum penalty for Charge 2 in the circumstances is a fine, in your circumstances it is a fine of not more than five penalty units.
2 Tendered as Exhibit A on the plea and read aloud in court was the summary of prosecution opening on plea. In summary, through a friend in Colombia, Jorge Florez, you were introduced to Matthew Murphy. Matthew Murphy trafficked in cocaine on consignment. He sold cocaine at a rate of $130,000 per kilogram, for which he received a fee of $10,000 from his supplier. On three occasions you collected cash from Murphy and stored it at your home. The first two amounts totalled about $100,000. You delivered the $100,000 at the instruction of Murphy to a man at the Clifton Hill McDonald’s store. Jorge Florez informed you that you would be able to identify the man to whom you were to deliver the money by use of a serial number on a $5 note that would be in his possession. You were paid $500 for this delivery.
3 On 13 November 2014 you were arrested as you approached Murphy’s home address whilst it was being raided by police. Your purpose for attending at Murphy’s home was to collect more cash from him. After your arrest your home was searched, and $87,200 and 22.6 grams of cannabis were seized. As well, a $5 note and a number of mobile telephones and SIM cards were also seized.
4 You were interviewed under caution, and told police of the $100,000 delivery, a matter of which they were ignorant. As to the $87,200, you said that you had stored that money on Murphy’s behalf awaiting delivery instructions.
5 Of note is the fact that you used a dedicated phone to contact Murphy and Florez.
6 You told police that Murphy told you that he was in the construction industry and that the cash was to be used to pay workers and so avoid paying tax.
7 Tendered as an exhibit on the plea was a bundle of documents that included a report of Patrick Newton, psychologist, dated 31 July 2015, together with a number of references, as well as a letter from Victoria Police noting that you had been recommended for a bravery award arising out of your attempt to rescue a friend who was ultimately drowned in the surf near Cape Otway. I have read each of these documents with care.
8 You are 22 years of age. You were 21 years of age at the time of your offending. You were born and raised in Colombia. You travelled to Australia to study, and were on a student visa until it lapsed. You are currently on a bridging visa that will be the subject of review later this year. You have no prior convictions. Your father is a doctor in general practice, whilst your mother is a dentist. Your parents separated when you were eight years of age. You reacted poorly to this separation, and needed counselling to cope with it. Your father remarried, and you are friendly with your two half-sisters and have a positive relationship with your father and his second wife.
9 Whilst at high school you met Jorge Florez and you became fast friends. At this time you developed a cocaine habit that resulted in a marked deterioration in your behaviour. You also commenced to abuse cannabis at about this time. Whilst living in Colombia you received counselling in respect to your drug habit, but, like the counselling that you received in respect to your parents’ separation, it was of little benefit to you.
10 You were the subject of trauma in Colombia, being held hostage with your mother and sister by guerrillas for about 24 hours until you were rescued by Colombian police after a fire-fight with the guerrillas. Whilst you and your family escaped unharmed, many others died during the armed fighting. You have also witnessed violence in the streets of Bogota, the city nearest to your home.
11 You came to Australia to study at the insistence of your mother, who wanted you to have a new life free of the violence that you had witnessed in Colombia. Whilst in Australia you worked as a cleaner at Levels Nightclub, and you are a valued member of staff (see Exhibit 1). As well, you were a full-time student studying the Advanced Diploma in Engineering between 2012 and 2014 at Victoria University. The Diploma is one of the prerequistes to commencing a Bachelor in Civil Engineering at Victoria University which you intend to undertake.
12 Your life in Australia has not been without its own trauma. In 2014, whilst holidaying with friends in the Otways, one of your number entered the surf near Cape Otway and drowned. You, at great risk to your own life, tried to save him, and almost lost your own life in the process. You continue to suffer residual traumatic symptoms as a result of this event. As well, you currently suffer depressive symptoms and anxiety as a result of this prosecution.
13 In response to the drowning incident you sought counselling from Ms Gutierrez and Refuge of Hope. After ceasing your counselling you became a volunteer for Refuge of Hope, which is an organisation that provides social, cultural and welfare services to the Latin American community in Melbourne (see Exhibit 1).
14 Your abuse of cocaine continued in Australia, as did your abuse of cannabis, which commenced when you were about 14. Whilst it was said that you have ceased to abuse cocaine, you have not ceased abusing cannabis. It seems that your cannabis abuse is linked to your cocaine abuse, in that cannabis was used by you as a foil against the effects of cocaine on you, notably the inability to sleep.
15 You have little or no insight into your drug abuse, and Mr Newton described you as presenting as “an immature man who is experiencing noteworthy emotional disturbance. Regretfully, he has primarily sought to address his issues through recourse to drug abuse and made relatively sparse use of psychological or psychiatric treatment.”
16 You are a young man without prior conviction, although your life since your early teens has been marked by drug abuse. It is to be noted that all of your referees praise you. You’ve pleaded guilty at the earliest opportunity, and are entitled to the benefits that flow to you from that plea, being that it facilitates the course of justice and is evidence of your remorse. You have recently sought counselling with Ms Gutierrez in respect of your reaction to your offending.
17 You cooperated with authorities and made full admissions, as well as inculpating yourself in a transaction that the police knew nothing about. You are entitled to a discount of your sentence on both these bases.
18 In my view, with the assistance of counselling in respect to your anxiety and drug abuse, should you become drug-free your prospects for rehabilitation are promising.
19 Accordingly I had you assessed for a community correction order, and, having received a report that you are suitable for such an order, with your consent I intend to sentence you to a community corrections order with conditions.
20 Would you please stand up. Do you consent to being released upon a community corrections order?
21 OFFENDER: Yes, Your Honour.
22 HIS HONOUR: By this sentence I must punish you, publicly denounce your conduct, and deter you and others from committing these kinds of crimes. Taking into account the circumstances of the offences and their effects, with your personal circumstances and antecedents, endeavouring to produce a sentence that reflects and promotes the purposes of sentencing in a manner appropriate to you and your offending, I sentence you as follows.
23 In respect to each charge on the indictment I sentence you to a community corrections order with conditions for a period of three years. The conditions of the order are that:
(i) You undertake 300 hours’ unpaid community work.
(ii) You be supervised, monitored and managed as directed by the Secretary.
(iii) You undergo assessment and treatment (including testing) in respect of drug abuse.
(iv) You undergo mental health assessment and treatment.
24 Would you please be seated. My associate will bring down the appropriate document to you.
25 MR NORTON: Your Honour, might I accompany your associate to the back of the court?
26 HIS HONOUR: Yes, certainly, Mr Norton.
27 MS TANG: Your Honour, if I could perhaps just ‑ ‑ ‑
28 HIS HONOUR: Yes, Ms Tang.
29 MS TANG: Your Honour, if I could just interrupt for a moment. In the report that was received from Corrections I note on the first page it states recommendations for treatment of drug abuse and mental health assessment. In the body of the report it also recommends assessment and treatment for alcohol abuse.
30 HIS HONOUR: Yes. I understand that.
31 MS TANG: So Your Honour does not intend ‑ ‑ ‑
32 HIS HONOUR: No.
33 MS TANG: Okay. As Your Honour pleases.
34 HIS HONOUR: Thanks, Ms Tang. Now, I hand down the forfeiture order that was requested which is an order by consent and the disposal order. I’ve signed those. Now, Mr Uribe Velez, will you please stand up. I have released you upon a community corrections order for a period of three years. Apart from the mandatory conditions that apply to you by force of statute and which are set out in the order of which you will receive a copy as well – Mr Norton will have one for his records, and the Crown will have one for their records – I have placed further conditions on you that you must perform 300 hours of unpaid community work over a period of three years as directed by the regional manager.
35 You must be under the supervision of a community corrections officer for a period of three years. You must undergo assessment and treatment, including testing for drug abuse or dependency as directed by the regional manager. You must undergo any mental health assessment and treatment that may include psychological, neuropsychological, psychiatric or treatment in a hospital or residential facility as directed by the manager.
36 Now, if you breach any of the conditions of this order or you commit a crime during the period of this order, you breach the order. By breaching the order you commit a criminal offence. That criminal offence is punishable by a term of three months imprisonment. In addition, you will be brought back to me, and one of the options available to me is that I am at large in re-sentencing you. I recommend to you that you do not return to me. If copies could be made of that document and given to the accused and to each of the parties. Whilst that’s being done, the Crown have made an application for a forensic sample order. What is your attitude to ‑ ‑ ‑
37 MR NORTON: No opposition to that, Your Honour.
38 HIS HONOUR: Thank you very much. All right. There’s one final matter, and it’s this: the Crown has made application for a forensic sample, and I have made that order. The forensic sample that I’ve authorised is a scraping or a buccal swab from inside your mouth. Your obligation – and you will receive a copy of this order – is expressed in a rather ham-fisted way, and it works like this: you are under an obligation to report to the Moonee Ponds Police Station which is located at 766 Mount Alexander Road within a period of 28 days following the expiration of four weeks from today.
39 So four weeks pass, then your obligation commences, and you must attend at that police station for the taking of a sample within a period of 28 days. I have granted the order because of the seriousness of the circumstances of the offending warrant, the order. The order was not opposed, and the granting of the order is in the public interest.
40 I must inform you that if you do not consent to the taking of a mouth scraping under the supervision of an authorised member of the police force, then the sample to be taken will be a blood sample, and police may use reasonable force to enable that forensic procedure to be conducted. I hand down three copies of the order. You may come out of the dock. Are there any other matters?
41 COUNSEL: No, Your Honour.
42 HIS HONOUR: Thank you very much for your assistance. We will stand down now till 10.30.
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