Director of Public Prosecutions v Vincent
[2019] VCC 1530
•20 September 2019
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 19-00197
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| YOSHAAN VINCENT |
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JUDGE: | HIS HONOUR JUDGE DYER |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 12 September 2019 |
DATE OF SENTENCE: | 20 September 2019 |
CASE MAY BE CITED AS: | DPP v Vincent |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1530 |
REASONS FOR SENTENCE
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Subject: Criminal law
Catchwords: Trafficking in a drug of dependence (commercial quantity)
Legislation Cited:
Cases Cited:
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr J. Singh | Office of Public Prosecutions |
For the Accused | Ms M. Altman | Lethbridges |
HIS HONOUR:
1Yoshaan Vincent, you have pleaded guilty to an indictment containing the following charges:
Charge 1, trafficking in a drug of dependence, namely cocaine;
Charge 2, failing to comply with an order to provide information;
Charge 3, trafficking in a drug of dependence of not less than a commercial quantity, methylamphetamine and;
Charge 4), knowingly deal with the proceeds of crime.
2On the date of your arraignment for these offences, 12 September 2019, you additionally consented to the court dealing with related and unrelated summary offences, and entered guilty pleas to the following summary offences:
Summary Charge 5, that you possessed a prohibited weapon, namely a sword without the exemption of approval;
Charges 6 and 7, which are rolled-up charges, you committed an indictable offence by trafficking cocaine and methylamphetamine whilst on bail and;
Summary Charges 8, 9, 10, 11, 12, 14 and 15, you contravened conditions of your bail by associating with members of the Comancheros Motorcycle Club and by having multiple mobile phone numbers and;
Finally, Summary Charge 13, you possessed a Schedule 4 poison, namely Somatropin, without being authorised or licenced to do so.
3The maximum penalties for these offences are as follows: Charge 1, trafficking in a drug of dependence, 15 years' imprisonment; Charge 2, fail to comply with an order to provide information, five years' imprisonment; Charge 3, this will be the base sentence, trafficking in a drug of dependence of not less than a commercial quantity for that drug of dependence, being methylamphetamine, 25 years' imprisonment; Charge 4, knowingly deal with the proceeds of crime, 15 years' imprisonment.
4The maximum penalties for the summary charges are as follows: Summary Charge 5, possessing the prohibited weapon is 240 penalty units or two years' imprisonment; Summary Charges 6 and 7, commission of the indictable offences whilst on bail, 30 penalty units or three months' imprisonment; Summary Charges 8, 9, 10, 11, 12, 14 and 15, breaching the bail conditions, 30 penalty units or three months' imprisonment and; Summary Charge 13, possessing a Schedule 4 poison is a fine of up to 10 penalty units.
5The details of your offending are set out in the summary of the prosecution opening, which was tendered, together with your admitted criminal record as Exhibit A.
6In summary, you had been arrested on 29 November 2017 in relation to other alleged blackmail offences for which you were subsequently acquitted in June 2019.
7You were bailed in relation to this offending by the Supreme Court on
25 January 2018. Your bail contained special conditions, including the following:(a) that you not associate with any member of the Comancheros Motorcycle Club;
(b) that you not contact any co-accused;
(c) that you only have one mobile phone number and provide that number to the police informant;
(d) that you provide the passcode to the mobile phone to the police informant upon request.
8Your offending in relation to Summary Charges 8, 12, and 14, and 15, involved you using more than one mobile phone number from 14 February up until the date of your eventual arrest on 23 May 2018, and associating with members of the Comancheros between 23 February 2018 and 10 May 2018.
9Your offending in relation to the first charge on the indictment, that is the trafficking in cocaine, occurred on 25 April 2018 in a park in Mitcham, where you trafficked four bags containing 8.1 grams of cocaine with a purity between 26 and 28 percent to one David Witanga. The transaction occurred following Snapchat messages being exchanged between you and Witanga. The amount of cocaine trafficked was 2.7 times the trafficable quantity.
10Your offending in relation to Charge 3 was partly revealed during a police search of your premises following your initial arrest in late-November 2017. On that occasion, 20.7 grams of methylamphetamine was located in a snap-lock bag on a desk in your bedroom.
11Several months later, a detailed police examination of your vehicle located a secured lock-box hidden beneath the rear passenger wheel arch. This was found to contain some 14 snap-lock bags containing a total of 390 grams of methylamphetamine. In total, the police located 417.7 grams of methylamphetamine with a purity between 76 per cent and 82 per cent.
12The commercial quantity of a substance, including methylamphetamine, is 250 grams; thus, the amount of the drug trafficked by you was 1.67 times the statutory minimum constituting a commercial quantity.
13Charge 2 on the indictment involves your refusal to provide access codes to mobile phones and other electronic devices found at your home when the warrant was executed in November 2017, and further devices which are in your possession when you were arrested in May 2018.
14The final indictable charge concerns amounts of cash that were found at your premise in November 2018, totalling some $23,210, and a further amount of $6,900 found in a bag in your vehicle at the time of your arrest in May 2018.
15During the course of a police search of your premises in November 2018 a Samurai sword, identified as being a prohibited weapon, was found. Additionally, nine vials marked Oztropin, which contained the Schedule 4 poison and growth hormone, Somatropin, were found in your fridge.
16The circumstances of your offending reveal a level of sophistication and pre‑planning which was clearly directed towards the avoidance of detection and the maintenance of your ability to continue your involvement in this highly lucrative but socially evil pursuit of drug-trafficking. I regard your involvement in each of the indictable offences as being mid-range offending.
17The summary offences involving breaches of your bail conditions and the commission of indictable offence whilst on bail must be seen as significant, given the commencement of your offending was only some five weeks after you had been granted bail by the Supreme Court.
18You have a relevant criminal history, in particular, a conviction for trafficking methylamphetamine recorded in the Ringwood Magistrates' Court in November 2016. Your criminal history dating back to 20 December 2013 records additional convictions, involving possession of firearms and other controlled weapons, offences of dishonesty and some violence.
Your personal circumstances.
19You are presently 30 years of age and the current offending occurred shortly before and after you 29th birthday. You were born in Melbourne and attended private school, completing VCE in 2006. Your parents have had no involvement with police, nor have either of your two siblings. You initially commenced a carpentry pre-apprenticeship in 2007 and continued in that area of training for approximately 18 months.
20I accept that issues concerning both the separation of your parents and your father's serious health issues impacted on your vocational training and you were forced to give up your apprenticeship and take on full-time employment in the retail sector between 2009 and 2013. I accept that a serious injury to your Achilles tendon in 2017 has restricted your ability to re-join the construction industry upon your release from custody.
21I was greatly assisted by the helpful submissions made by Ms Altman on your behalf. In particular, I accept that you have the support of your family and your partner, Ms Laura Bowden, as set out in the character references which were tendered during your plea.[1] I also accept that your offending occurred in circumstances where you were actively using drugs.
[1]Exhibit 1
22I am reluctant to wholly accept the submission that your trafficking, particularly in relation to Charge 3, was motivated simply by your need to fund your own addiction. Nevertheless, your own drug use and your difficulty in securing employment due to a physical injury may have compromised your judgment and thereby moderated your moral culpability at that time.
23You had pleaded guilty at an early stage and I accept, as urged by Ms Altman, that your pleas of guilty are indicative of some degree of genuine remorse and warrant a greater discount on sentencing than would be the case if your pleas of guilty were of not more than utilitarian benefit in saving the community the time and expense of a trial. This view is supported by the opinion of
Mr Cummins, whose psychological report, dated 22 August 2019, has tendered during your plea.[2][2]Exhibit 2
24I have also taken account of the opinion of Ms Amanda Brown, a clinician who you had seen for drug rehabilitation and counselling shortly after you were granted bail in January 2018 and, on a later occasion, after your further arrest. Her letter, dated 10 September 2019, was tendered as part of Exhibit 1 and notes:
“Mr Vincent had gained insight into his condition and admitted that whilst on bail he had become bored and restless leading to his relapse to drug use. He had immediately admitted his relapse to this girlfriend and was arrested shortly after the admission.
The writer has met with Mr Vincent on 3 occasions since he was remanded to custody. He is observed as being remorseful at relapsing placing himself and the community at risk. He has reflected heavily over the past months in custody and is committed to rehabilitating his life.”
25Ms Altman also tendered on your behalf a number of certificates relating to course participation and drug screening during your recent period of incarceration.[3] The negative drug-screening, in particular, provides to me some evidence of your intention to avoid relapsing into drug use upon your release.
[3]Exhibit 3
26You have currently served 545 days in pre-sentence detention and I accept the submission made by Ms Altman that the celebration of your 30th birthday in prison has caused you to reflect deeply on your future options and to continue those reflections to a considerable degree.
27Whilst you desire to avoid relapsing into drug use and further criminality is laudable, there remains a further troubling issue, your association with the Comancheros Motorcycle Club. Such an association may, in some cases, be relevant to a court's assessment of your criminality.[4]
[4]Sherwani v R [2017] VSCA 26
28In your case, I do not believe your criminality is increased by your association with the Comancheros or any other group. It is clear that drug trafficking and related offending, to which I have referred, involve you as the sole offender, albeit as part of what of I regard as clearly an organised drug trafficking operation.
29My real concern for you is that any involvement with a motorcycle gang would greatly impede your efforts to rehabilitate yourself in the future upon your release and to avoid further criminal activity.
Sentencing considerations.
30During the course of your plea, I was provided with a number of appellate authorities relating to current sentencing practices of trafficking in a commercial quantity of drug of dependence. The most recent authority was an appeal in the matter of DPP v Condo[5], where an initial sentence in this court of five years and nine months was found by the court to be manifestly inadequate. The Court of Appeal in that case re-sentenced the offender to nine years and nine months' imprisonment on that charge, and in relation to related charges, imposed a total effective sentence of 10 years' imprisonment, with a seven year non-parole period.
[5][2019] VSCA 181
31In DPP v Condo the court re-sentenced on the basis that the amount of drugs trafficked must have been perilously close to the large commercial quantity threshold for which a sentence of life imprisonment is mandated by Parliament. Your case is clearly a substantially lesser quantity of drugs, and this is a quantity-based sentencing regime.
32The court in Condo referred to earlier binding authorities in Gregory[6] and Fernando[7], which had generally provided guidance for this court to increase sentences in the mid to higher ranges of trafficking of drugs of dependence of a commercial quantity.
[6]DPP v Gregory (a pseudonym) [2017] VSCA 151
[7]Fernando v The Queen [2017] VSCA 208
33Current sentencing practices, however, are not the sole determinant of an appropriate sentence in your case[8], nor is the maximum sentence the sole determinant. These are amongst many factors which must be taken into account in the sentencing exercise. Nevertheless, the maximum penalty of 25 years' imprisonment remains an important factor in determining a fair sentence in a quantity-based sentencing regime.
[8]DPP v Dalgliesh (a pseudonym) [2017] HCA 41
34Your offending, unfortunately, involves aggravating factors that were considered in Gregory, in that you have relevant prior convictions, and the period of your offending was conducted over a substantial period.[9] The fact that your offending occurred whilst you were on bail and involved breaches of bail conditions has exposed you to further penalties applicable to the summary offending to which you have pleaded guilty. This court must be careful to ensure that you are not doubly penalised in relation to these summary matters.
[9]DPP v Gregory (a pseudonym) [2017] VSCA 151 at [98]
35Your offending in relation to the trafficable quantity of cocaine is the subject of a separate indictment and there must be some additional penalty imposed upon you. The remaining indictable offences are, in my view, inherently part and parcel of your commercial trafficking activity and do not necessitate, in my view, any significant cumulation of terms of imprisonment upon your base sentence. Nevertheless, some cumulation is warranted.
36The remaining summary offending concerning the sword and the Schedule 4 poison does not, in my view, warrant any additional period to cumulate upon the base sentence.
37The sentencing guidelines of general and specific deterrence and denunciation of your conduct must be given prominence in the sentence that impose upon you. Nevertheless, I do accept that your early plea of guilty warrants a significant discount for the reasons to which I have already referred. I am also of the view that your age and the progress that you have made towards the avoidance of further criminal activity warrants the imposition of a lower minimum period than would ordinarily be the case.
38If you would stand up now, I will propose to sentence you as follows.
39On Charge 1, you are convicted and sentenced to one year imprisonment.
40On Charge 2, you are convicted and sentenced to one year imprisonment.
41On Charge 3, and this is the base sentence, you are convicted and sentenced to six years' and six months' imprisonment.
42On Charge 4, you are convicted and sentenced to two years' imprisonment.
43In relation to the summary charges, Summary Charge 5, you are convicted and sentenced to one month imprisonment.
44Summary Charges 6 and 7 are rolled-up charges, you are convicted and sentenced to one month imprisonment.
45Summary Charges 8, 9, 10, 11, 12, 14 and 15, again, one rolled-up charge, you are convicted and sentenced to one month imprisonment.
46Finally, Summary Charge 13, you are convicted and fined $500.
47I direct that three months of the sentence imposed in relation to Charge 1 be served cumulatively on the base sentence.
48I direct that three months of the sentence imposed in relation to Charge 2 be served cumulatively on the base sentence and upon the sentence imposed for Charge 2.
49I direct that six months of the sentence imposed in respect of Charge 4 be served cumulatively upon the base sentence and upon the sentence imposed for Charges 1 and 2.
50The sentence in respect of the summary offending will be concurrent with the base sentence.
51The total effective sentence is seven years and six months.
52I direct that you serve a minimum of four years and six months before you become eligible for parole.
53I declare that 545 days spent in pre-sentence detention be reckoned as the period already served under the sentence; I direct the records of the court reflect the same.
54I declare that pursuant to s.6AAA of the Sentencing Act, the sentence that would have been imposed, but for your guilty plea, would have been 11 years' imprisonment, with an eligibility for parole after serving seven and a half years of that sentence.
55I will make two ancillary orders. There is a forfeiture order pursuant to s.34(1) of the Confiscation Act, the property referred to in the three schedules attached to the order, dated 20 September 2019, be forfeited to the minister.
56Further, a disposal order pursuant to s.78 of the Confiscation Act 1997, the property referred to in the two schedules, dated 20 September 2019, be placed in the custody of the Chief Commissioner of Police and held by him until 28 days from this date or the conclusion of any appeal proceedings, where they may be tested and/or analysed and then destroyed.
57Ms Altman, are there any further matters?
58MS ALTMAN: No. No, Your Honour, no.
59HIS HONOUR: All right. Mr Singh?
60MR SINGH: No, thank you, Your Honour.
61HIS HONOUR: Thank you. Well, Mr Vincent, I am afraid you will have to go with the custody officers now. I do wish you success with your rehabilitation eventually. Thank you. If there are no other matters, we will adjourn the court.
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