Director of Public Prosecutions v Walker

[2016] VCC 961

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

AT WANGARATTA
CRIMINAL JURISDICTION

CR 15-02085

DIRECTOR OF PUBLIC PROSECUTIONS

v

JOSEPH ALEXANDER WALKER

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JUDGE:	HIS HONOUR JUDGE GUCCIARDO
WHERE HELD:	Wangaratta
DATE OF HEARING:	30 June 2016
DATE OF SENTENCE:	5 July 2016
CASE MAY BE CITED AS:	DPP v Walker
MEDIUM NEUTRAL CITATION:	[2016] VCC 961

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr S. Ginsbourg	Office of Public Prosecutions
For the Accused	Mr M. Kozlowski	Cameron Marshall & Associates

HIS HONOUR:

1Joseph Alexander Walker, you have pleaded guilty to one count of trafficking a drug of dependence, namely methylamphetamine, between 23 May 2014 and 15 September 2014.  This criminal offence carries a maximum of 15 years' imprisonment. 

2At the time of this offence, you were living with your father in Albury, but you led a transient lifestyle, often travelling between Wangaratta and Albury, staying overnight with co-accused.  One of those persons was Jessica Fogarty, the principal in a significant drug trafficking ring in the Wangaratta region. 

3In particular, you resided with her between July and August of the relevant period while she was in the latter stages of pregnancy and after the birth of her child, during which time you assisted her with a number of aspects of her drug trafficking, including packaging, delivering, as well as enforcing and collecting debts at her behest.

4You also associated with a number of persons connected to Fogarty, including Short, Vincent, Orcher and Tymms, another alleged principal of the group.  

5The prosecution outlined in summary form your involvement, which you had described as "middle to high-level range".  A level, in my view, adequately comparable to the Robinson brothers, Matthew and Jamie, who were recently sentenced in this court.  The summary was tendered and made an exhibit. It will be retained on the court file. 

6For purposes of this sentence, to adequately describe your level of participation it will suffice to provide the salient aspects as taken from that summary.

7Examples were provided of the level of involvement in the movement of drugs in May and June 2014.  In late May Fogarty was travelling in a vehicle which belonged to you.  When advised by her that she was having difficulty collecting a debt, you offered to assist her pursue the debt on her behalf.  Fogarty can be heard advising a supplier in Melbourne that you were in Melbourne to purchase drugs and you were ripped off some $8,500. 

8In mid-June, responding to her query as to what you had been able to sell, you told her you were about to sell in order to repay her.  You can be heard discussing amounts and values like "1.75 grams" and "$1,500".  You were listed on a ledger as having paid Fogarty $4,300 for ice in late June, and you mention in conversation an $18,000 Rolex watch.

9In late June, you discuss packaging bags of ice with Fogarty.  By late June, Fogarty can be heard to call on you to assist in increasing her drug sales, and requests you for assistance.  You advised her you would collect drug debts on her behalf, and you discuss banking arrangements.  In late June you supplied Orcher and Seymour with drugs on Fogarty's behalf, drugs delivered to you by her.  You then advised her you had a customer waiting to purchase ice.  In late June again, following a complaint by a customer, you advised Fogarty that this customer threatened your mother, and you discussed your preparedness to "shoot it out" with them.  Fogarty agreed to intervene on your behalf.  You discussed available firearms with her.

10These communications took place on an encrypted device more often than not.  You then drove the co-accused Short to Melbourne to collect drugs.  On
30 June, whilst discussing the packaging of drugs for sale, you asked Fogarty whether you were required to mix the ice with a cutting agent.  You advised her on another occasion you had possession of Oxycontin and Valium. 

11On 11 July, you informed her you had cash to buy 3.5 grams of ice, and you asked if she wanted either money chased up or wanted you to sell drugs for her.  The next day she asked you to keep an eye out for a good laptop for business.  Later, you again requested 3.5 grams of ice. 

12On 13 July, you told her you were travelling to Albury to sell an ounce of ice, and during the next two days you discussed the sale of ice to your customers.  In mid-July, Fogarty can be heard requesting you to give her your iPhone in lieu of the debts owed from the transactions she describes, in which she refers to a "running balance", and in effect the commercial relationship which existed between you and her.  Later that night you requested 1.75 grams of ice and stated "'cause it's what I do, makes sluts money". 

13On 16 July, you again discussed your drugs deals, including in Albury, and on the 18th you again discuss money, drug sales, and exchange information with Fogarty.  You say "I'll hit Dad up for a loan tonight if I can't get it", which you later confirmed is what you did.  Later, you asked her to sort out what you owe her.  She provided a kind of accounting resume with which you were not satisfied.

14On 19 July, you informed her you collected and laundered money, and had "stuff" for her to sell.  On 20 July, you advised Fogarty that Miller and Short had been arrested, and advised her to change her phone number.  On 21 July you delivered drugs on behalf of Fogarty to a customer in Corowa, New South Wales, and received three laptops that you were paid, by her, for this service.

15In late July, you collected the drug debt from Rose and Fogarty arranged for you to collect other drug debts from Partington and Vincent.  You advised her you had a couple of customers, and she indicated her willingness to supply, and asked you to source a set of scales for her to use and weigh drugs.  In late July you had a number of conversations about the collection of drug debts from different people, and you delivered drugs on her behalf.

16You managed to let her know that if she needed anything for her that you would do it.  You then on 3 August facilitated a drug transaction between Fogarty and Booth.  During the next few days you discussed with her the collection of debts from a number of people and advised Fogarty that you had a customer who wanted to buy half a gram of ice. 

17You were arrested in September of 2014, and you were bailed on 9 April 2015, and have therefore spent 210 days in detention before sentence.  At the time of committing the offences, you were aged 21 years.  You are now 22, about to turn 23. 

18The circumstances of your involvement are in my view such that your role can be characterised as the prosecution has done.  Your willingness to cooperate with Fogarty and others brought you to the heart of the trafficking of drugs for the period of the charge.  Every relevant aspect of trafficking was involved as I have outlined above.  Your charge is of trafficking, but that count is probably seen in the context of a wider spectrum of activities which encompassed fully every necessary aspect of a commercial enterprise.

19I will of course sentence you for trafficking simpliciter, without the attendant descriptions as to commercial quantity.  That does not detract from the commercial reality of the trafficking you performed within a broader context.  Your participation was wilfully undertaken, probably with the view to your own personal use, as well as some ongoing benefits, whether that be some financial, social, some tied to the benefit of accommodation and belonging, some related to a twisted sense of loyalty and which portray a misguided sense of enjoyment in the tawdry business of criminality, without a solitary thought to the damage which a drug like ice in particular wreaks upon the community.

20Ice is an insidious drug which undermines society, damages health, destroys relations and families.  It creates waves of consequential crime and dysfunction, and costs the community in various ways.  The community rightly looks to the court to denounce this behaviour as thoroughly reprehensible and unacceptable, and to impose just punishment which will deter like-minded others, as well as you personally.

21I will take your personal circumstances into account.  The first aspect is your plea of guilty.  The prosecution conceded that this was given at a comparatively early time, and you waived a committal in this matter.  This entitles you to a discount in your sentence, which I will apply. 

22You have prior criminal history and subsequent matters which were brought to my attention properly.  In 2012, you were placed on a bond to undertake drug counselling for possession of cannabis and ammunition.  A few months later you were convicted of charges of possessing a weapon and ammunition amongst other offences, and you were placed on a community corrections order for 12 months.  You apparently completed that order.

23In June of 2015, after this offence, you were placed on another community corrections order for an affray and intentionally causing injury, an order for 18 months with 200 hours community work.  As part of that order you completed 104 and attended at the Gateway for counselling.  Your performance, however, was unacceptable, and you are no longer attending, with the likelihood that you will be breached upon that order.  These priors and antecedents are not directly related to drugs, but do show you have had contact with the criminal justice system, with a poor return in terms of attitude to offending, and to the courts' sanctions. 

24However, you are 22, 23 on 9 July, and you were 21 at the time of the offending.  I will deal with you as a youthful offender, and one which is on the cusp of moving beyond the age at which very relevant sentencing considerations do apply.  I intend to apply them in your case because it is a worthy object of the criminal law to seek to reclaim and rehabilitate young offenders.

25I will ameliorate the punishment aspect of this sentence because of this factor in order to seek to provide you with prospects of rehabilitation.  I consider that such prospects may be good, but this will need to be confirmed by your commitment to your future both in terms of your imprisonment, and particularly in terms of your conduct when released on the order I will make.

26You have your parents' support, and this is a positive factor in your future prospects.  They are in court, as they were during your plea, to lend this support in a visible way.  Your father is a retired ambulance officer, his partner is a nurse.  Your partner is studying nursing.  Your other half-sisters are interstate and of good character. 

27Your school years were marked by sporting prowess and achievement, but any future prospects of a career were marred by your involvement with drugs.  In Year 11 you were diagnosed with depression and put on medication.  You were diagnosed with ADD and prescribed Ritalin, which you took until age 19.  At the end of Year 11 you went to work and began a career path with Woolworths which included training in retail.  You worked there until you were 18 and a half.  At that stage your relationship with a young lady floundered and this, it appears, led you off the proverbial rails.

28You were introduced to drugs.  The fine and community corrections order were imposed at this time.  Thereafter you abstained from drugs from October 2013 until April 2014.  In that time, you got a job with Amare Safety in Albury, a security equipment company, but it did not last and you quit.  Your relationship with your father also became difficult, and this led to frequenting Wangaratta where you met Fogarty, Tymms and others.  You then took up the opportunity offered to you by Fogarty for drugs and accommodation to become part of the trafficking personnel, and including the babysitting of Fogarty, the infant.

29I accept this involvement did not provide you with a lavish lifestyle, but it fed your habit and provided you with an activity which you undertook for the relevant period with relative alacrity and purpose.  I accept your involvement must be defined by the timeframe charged.  I take into account the principle of parity.  Each case, however, must be dealt with, taking into careful account the circumstances which pertain to it.

30At one level, your involvement can be compared to that of the Robinsons, but there are, I already mentioned, important considerations which render parity relative in this exercise, though still relevant. 

31You spent your time in custody at the MRC, Fulham, and finally at Port Phillip.  This has meant that because of your family's distance, your reclusion was somewhat more isolated.  You completed a number of courses, including a drug and alcohol course, although you did not produce the relevant certificate, as well as other business and occupational type certificates.  It appears however that you gave candid instructions to your counsel that your drug use, though limited, still continues.  This is highly problematic, because any real hope of rehabilitation must be founded on your ability to abstain from drug use.

32You are working at a concreting business on a part-time basis, and it is to be hoped that your future rehabilitation will include the effort of work.

33I sought an assessment from Corrections, and received a report which found you suitable for an order despite your recent history with Corrections, and you being a medium risk of reoffending.  I intend to place you on such an order for 12 months, because its community work program component and supervision, in my view, are vital to your prospects. 

34What remains to be determined is what period of incarceration should combine with such an order.  It was argued that your time in custody comes close to sufficiency in response to your offending.  I cannot accept such a proposition.

35I accept that your plea is evidence of remorse, and subject to some troubling aspects like your continued drug use and drug associations, your prospects for rehabilitation are probably good, and your youth is a primary focus in any sentencing disposition which concerns you. 

36However, trafficking, even when not concerning a commercial quantity, is a serious offence.  Your participation during the relevant period was multi-faceted, wilful, and worthy of punishment by an appropriate period of incarceration, because the principle of general deterrence still carries substantial weight in the exercise of the synthesis of factors present.

37I made it amply clear at the close of the plea that neither making a community corrections assessment, nor the continuation of bail should be seen as an indication that I would not impose a greater term of imprisonment to be served.  I intend to impose such a term, at the end of which you will be released on a community corrections order for 12 months and to perform 200 hours of work, to be supervised, to undertake assessment and treatment for drugs, to undertake appropriate programs to reduce offending.  Please stand Mr Walker.

38On trafficking of a drug of dependence, you are sentenced to 14 months' imprisonment.  I note you have served 210 days by way of presentence detention.  I have signed the ancillary orders.  But for your plea of guilty, your total effective sentence would have been two years with an 18-month non-parole period. 

39I have signed orders in relation to s.464ZF.  A biological sample, scraping of the mouth, will be sought from you.  It is not a painful procedure, in order to provide a sufficient standard to be placed on the DNA database.  I should inform you that at the time that the request is made, 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, do you understand?

40OFFENDER:  Yes.

41HIS HONOUR:  Yes.  I have a jury waiting, are there any other ancillary orders?

42MR GINSBOURG:  No Your Honour.

43HIS HONOUR:  Thank you.  I note that Mr Walker's family is in court, if they wish to say anything to him, they should do so now before he is removed.  I will stay on the Bench.

44Yes, he needs to sign a community corrections order, so he needs to wait back here.

45Yes, you can remove Mr Walker, thank you.  Yes, I will stand down for a moment.

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