Director of Public Prosecutions v Wagner
[2018] VCC 1690
•17 October 2018
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR 18 00215
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| KURT RICHARD WAGNER |
---
| JUDGE: | HIS HONOUR JUDGE LACAVA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 3 October 2018 |
| DATE OF SENTENCE: | 17 October 2018 |
| CASE MAY BE CITED AS: | DPP v Wagner |
| MEDIUM NEUTRAL CITATION: | [2018] VCC 1690 |
REASONS FOR SENTENCE
---Subject: Trafficking in Methamphetamine, Trafficking in Heroin
Sentence: 5 years' imprisonment with a non-parole period of 3 years---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr C. Thomson (Plea) Mr H. Tighe (Sentence) | |
| For the Accused | Mr S. Kenny (Plea) Mr L. Carter (Sentence) |
HIS HONOUR:
1Kurt Wagner, you have pleaded guilty to one charge of trafficking in a drug of dependence methylamphetamine in a quantity that was not less than a commercial quantity. The maximum penalty for this offence is imprisonment for 25 years.
2You have also pleaded guilty to one charge of trafficking in a drug of dependence heroin for which the maximum penalty is imprisonment for 15 years and other charges. The other charges are one of theft for which the maximum penalty is imprisonment for 10 years and six charges of handling stolen goods for which the maximum penalty for each charge is 15 years imprisonment. You also pleaded guilty to possession of a drug of dependence cannabis for self-use for which the maximum penalty is 5 penalty units.
3You pleaded guilty to the charges after your trial had commenced but before empanelment of a jury. There was pre-trial argument about the admissibility of some evidence to be led by the prosecution and the matter resolved into a plea shortly after I ruled in favour of the prosecution on that application.
4Although your pleas of guilty were made late they are still of good utilitarian value. By your pleas you have saved the time and costs of a trial and you have accepted responsibility for your offending. In pleading guilty you have advanced the administration of justice. For this you must receive a lesser sentence than you would have received had you fallen for sentence after a trial and this will be reflected in the sentence that I will shortly pass.
5When you pleaded guilty you admitted a lengthy criminal record commencing in 1994 when aged nearly 18 years you were convicted of possession and use of cannabis. You are now aged 42. You are a long term drug addict as is reflected in your criminal record which occupies some 33 printed pages involving approximately 25 previous court appearances. Your prior convictions include six previous convictions for trafficking either heroin, or methylamphetamine.
6On the 9th May 2017 you were convicted in the Melbourne Magistrates’ Court on drug charges including trafficking in heroin. You were sentenced to an aggregate sentence of two years imprisonment to be served by way of a drug treatment order. On the 12th July 2017 you were again before the same court on further drugs charges including another charge of trafficking in heroin and a short further sentence of imprisonment was imposed also to be served by way of a drug treatment order. This offending occurred two weeks later on the 26th July 2017. Because of your extensive criminal record I was told and accept that you have served the entirety of the sentences imposed upon you post 2005 because you have not been admitted to parole doubtless because of the repetitive nature of your offending.
7You were arrested on the day of your offending and have remained in custody since then. Your drug treatment order was cancelled and you have remained in custody serving the custodial part of the sentence imposed by the drug treatment order it having been activated as a result of your further offending and failure to comply with the drug treatment order. I was told that you are due for release from that sentence on the 4th January 2019 by which time you will have served 17 months and 9 days approximately which does not count as pre-sentence detention for the sentence that I must impose. In passing sentence upon you for this offending I must and do have regard to the totality of the sentences that you will be required to serve as a result of this further offending.
8The circumstances of your offending are outlined in a summary of prosecution opening prepared for trial the relevant parts of which were read on the plea by the prosecutor Mr Thomson. Your counsel Mr Kenny accepted the facts outlined by the prosecutor as being accurate.
9On the 26th July 2017 police executed a search warrant at the home of your friend Candice Stanton. She was the target of the warrant; not you. I was told and accept police were surprised to find that you were at the house. After elaborate steps taken by you to evade police you fled the scene but were eventually apprehended nearby. In fleeing you badly injured yourself and you required medical treatment. When apprehended you were found to be in possession of 156 grams of pure methylamphetamine where the threshold for a commercial quantity is 100 grams (Charge 1). You possessed this drug for trafficking. You were also found to be in possession of 31.9 grams of heroin where 3 grams is a traffickable quantity (Charge 3). You also possessed this drug for trafficking. Other items usually associated with drug trafficking including $4,179.20 in cash were also found in your possession. A bag of green vegetable matter (cannabis) was also found in your possession. (Charge 5). The prosecution accepts you possessed this for self-use.
10The trafficking charges relate to trafficking on one day only and are based on the fact you possessed the respective drugs for sale.
11Inquiries also revealed you possessed a Nissan motor vehicle that had been stolen (Charge 7 theft) and 4 separate driving licenses belonging to various persons that had been stolen from them (Charges 9, 10, 11 and 12), also there was a stolen Medicare card (Charge 13) and, a stolen Commonwealth Bank card (Charge 14).
12Your offending in the trafficking charges is serious although I accept that having regard to the amounts of methylamphetamine and, heroin found in your possession it falls towards the low to mid-range for this kind of offending. The offending in the other charges is also serious although the charges reflect the kind of dishonesty offences almost always associated with drug addicts. What makes your offending so serious is the fact it occurred whilst you were on a drug treatment order. It would appear that all attempts to rehabilitate you with non-custodial dispositions have failed. I have formed the strong view that your prospects for rehabilitation are bleak. I accept that your rehabilitation is entirely dependent on your ability to rid yourself of drugs.
13I turn to some matters personal to you. You were born and raised in the south eastern suburbs of Melbourne. You have one sibling, a sister. Your parents separated when you were young but you maintain a close relationship with each of them. Your father was a member of Victoria Police. In your early teens, because of the company you were keeping and, doubtless because of your early drug use, your relationship with your parents became strained. You have a daughter aged 11 from a previous relationship. She lives with her mother and you do not see her whilst in prison. There is DHS involvement with your daughter she having been offended against by a neighbour. You have a close relationship with your daughter and speak with her regularly on the phone from prison.
14You were a good school student but began truanting after you started using drugs which also involved police contact. You have had only sporadic employment. As I have said you have a long history of drug addiction following a familiar path from cannabis and alcohol at a young age, and later progressing to stronger drugs of various kinds. Having consented to the making of a drug treatment order on 9th May 2017 you soon thereafter re-lapsed into methylamphetamine use resulting in this offending.
15There was no issue on the plea that the only appropriate disposition here requires me to impose a term of imprisonment and fix a non-parole period. Sentencing in a case such as this requires the court to impose a sentence which reflects just punishment, deterrence (both general and specific) and denunciation. Mr Kenny acknowledged these sentencing principles as being appropriate here and asked me to moderate the sentence having regard to your pleas of guilty at an early time, the fact that you injured yourself whilst fleeing which he submitted, and I accept, acts here as a form of extra-curial punishment and the fact that you will have served more than 15 months for previous offending with no credit for pre-sentence detention raising an appropriate totality issue. In passing sentence upon you I have taken all of this into account.
16On Charge 1 trafficking in a commercial quantity of methylamphetamine you are convicted and sentenced to a term of imprisonment of 4 years.
17On Charge 3 trafficking heroin you are convicted and sentenced to a term of imprisonment of 18 months.
18On Charge 5 possessing a drug of dependence cannabis you are convicted and discharged.
19On Charge 7 theft you are convicted and sentenced to a term of imprisonment of 6 months.
20On Charge 9 handling stolen goods you are convicted and sentenced to a term of imprisonment of 3 months.
21On Charge 10 handling stolen goods you are convicted and sentenced to a term of imprisonment of 3 months.
22On Charge 11 handling stolen goods you are convicted and sentenced to a term of imprisonment of 3 months.
23On Charge 12 handling stolen goods you are convicted and sentenced to a term of imprisonment of 3 months.
24On Charge 13 handling stolen goods you are convicted and sentenced to a term of imprisonment of 3 months.
25On Charge 14 handling stolen goods you are convicted and sentenced to a term of imprisonment of 3 months.
26I direct that 6 months of the sentence imposed on charge 3, 3 months of the sentence imposed on charge 7 and, 1 month of the sentence imposed on each of Charges 9, 10, and 11, cumulate upon the sentence imposed on Charge 1, and upon each other, making a total effective sentence of five (5) years imprisonment.
27I direct that you serve a minimum term of 3 years before being eligible for release on parole.
28I declare there has been no pre-sentence detention under the sentences passed this day.
29For the purposes of s. 6AAA of the Sentencing Act 1991 had it not been for your pleas of guilty to the charges I would have imposed an overall sentence of eight and a half years imprisonment and I would have fixed a non-parole period of six years.
30I have been asked to sign a disposal order. That application was not opposed and I will signed it.
31Are there any questions arising out of that?
32COUNSEL: No, Your Honour.
33HIS HONOUR: Very well. Thank you. Would you remove Mr Wagner please?
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