Director of Public Prosecutions v Ware

[2020] VCC 1564

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 19-01374

DIRECTOR OF PUBLIC PROSECUTIONS

v

STEVEN WARE

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JUDGE:	HIS HONOUR JUDGE MULLALY
WHERE HELD:	Melbourne
DATE OF HEARING:	16 September 2020
DATE OF SENTENCE:	30 September 2020
CASE MAY BE CITED AS:	DPP v WARE
MEDIUM NEUTRAL CITATION:	[2020] VCC 1564

REASONS FOR SENTENCE

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. O'Doherty	Office of Public Prosecutions
For the Accused	Mr D. McGlone	Balmer & Associates

HIS HONOUR:

1Steven Ware, on 8 December 2018 two police officers stopped a car in which you were a passenger.  It was being driven by your co-accused, Ms Sharon Wyss.  In the car in a bucket, the police found methamphetamine measured out in zip lock bags.  You and Ms Wyss were arrested and taken to Morwell police station.

2

On the following morning, you indicated you wished to speak to police.  In that conversation, you revealed that hidden at your house in two milk cartons and a pair of jeans was a substantial amount of methylamphetamines, being a total amount you thought of as being 500 grams.  Your premises were in

Parer Avenue, Moe.  Ms Wyss lived in Margaret Street in Moe.

3The search was conducted at your house and was consistent with what you had told police.  They found a total of 725.95 grams of crystals at between 82 to 85 per cent pure; it was methamphetamines.  The majority, that is, 511.6 grams was in 18 zip lock bags in two milk containers.  In the jeans that you spoke of, was a further 197.2 grams.  Smaller amounts were found in a ring and earphone cases.  Also found was 85.6 grams of cannabis.

4After these discoveries, you were interviewed again by the police.  It was a long and comprehensive confession to your connection with the drugs, and one that outlined in detail the role of Ms Wyss as a drug trafficker and your role.  You told the police that you had eight or so days earlier, moved to the Parer Street address in Moe.  You ordinarily resided in Dandenong.  You told them you got in contact with Ms Wyss when you moved to Moe, having first had contact over Facebook with her some months before.

5

You contacted her in Moe to get drugs, which she sold to you.  You also went to her house to get some furniture to set up your new house.  While there, you saw she was renovating and offered to help.  You were given a significant amount of methamphetamines for your work.  You said that Ms Wyss was frightened that the large amount of drugs she had in her house would attract unwanted attention, and that she had experienced and feared repeats of

run-throughs and people trying to rob her with violence.  She seemed to have stored the drugs out in a bungalow. 

6Thus, it was arranged that she would store the drugs at your house in the milk containers and in your pants pockets.  This was predominantly done by her when she moved to your place.  Once you discovered the drug had been brought to your house to be hidden, you and Ms Wyss did weigh the drugs, and you did assist her to understand accurately how many grams made up an ounce and thus, how many made up a quarter ounce, as she had some ignorance about these matters.  You also photographed some of the drugs, and sent it to associates, to encourage purchases or perhaps as you said, to big note yourself.

7You were using methylamphetamines at the time that you were associating with Ms Wyss.  This is not a complete summary of the record of interview.  But it is enough to understand the prosecution case against you is derived from all the evidence but most particularly, it is derived from the record of interview that you gave.

8The prosecution case was put as follows.  I quote from the summary at prosecution opening at paragraph 30,

'The case against you is put on the basis that you were involved with the co-accused in a joint criminal enterprise.  The co-accused was the principal, the vast majority of methylamphetamines was found at his address after he told police that there was over 500 grams of ice at his home.  In addition, on his own admission, he assisted Wyss to weigh the methylamphetamine and once you discovered that it was now in his cupboard, and his jeans at Parer Street, he acquiesced to its continuing presence at his residence until the time when he had second thoughts while in the Morwell cells, and alerted police to its presence.  In addition, he took photographs of some of the drugs and circulated them to potential purchasers'.

9

You pleaded guilty to trafficking in methylamphetamines in not less than the commercial quantity.  The thresholds are 250 grams of mixed powder or

50 grams of pure.  As noted, this was 725.95 grams mixed, at 80 to 85 per cent pure.  That is well beyond the commercial quantity thresholds.  I will say more of the quantities shortly. 

10As to the second charge, you told police that it was Ms Wyss' cannabis, but you had it stored at your premises, was in your premises and thus possessed by you, and it was possess for the purposes of sales.  You pleaded guilty to trafficking in cannabis.

11Early on in the prosecution of you, that is, at a committal mention in the Magistrates' Court, you indicated your willingness to give evidence against the co-accused.  During your plea, heard on 16 September 2020, you swore that the contents of your record of interview were true and correct.  You then gave an undertaking to give evidence for the prosecution in proceedings, include the trial of Ms Wyss.  You swore that you understood the consequences of not giving evidence in accordance with your undertaking.  Again, I will say more of your undertaking to give evidence in due course.

12As to the gravity of your offending, it first must be noted that trafficking a commercial quantity of methylamphetamines is a very serious crime, as can be seen - clearly seen in the long maximum term of 25 years' imprisonment that Parliament has fixed.  More recently, Parliament has made clear that the offence is a category 2 offence, requiring imprisonment be imposed unless certain criteria can be established.

13On that matter, it is agreed that by reason of your undertaking to give evidence against Ms Wyss, you do satisfy the first of those criteria as set out in s.5(2H) sub-paragraph A of the Sentencing Act.  Of course, the maximum term and the fact that it is a category 2 matter is one important guidepost in sentencing.  Another important aspect of determining the gravity of your offending is the quantities involved and the circumstances of the trafficking operation.

14

In Gregory (a pseudonym) v R[1] the Court of Appeal outlined some important features, that if present alone or more importantly in combination, would justify a sentence of imprisonment into double figures.  Those features were,

1) whether the quantity involved approaches the large commercial quantity threshold, 2) whether the particular accused was in charge of the trafficking business, 3) whether the business was conducted for a substantial period of time, 4) whether the offender pleaded guilty, and 5) whether the offender had relevant prior criminal convictions.

[1]Gregory [2017] VSCA 151

15Thus, the important considerations were about the quantities, the role of an accused, the length of time of the trafficking in operation, and some matters personal to an accused such as the plea and the presence of relevant priors.  Before examining whether and how those matters fall for assessment in your particular circumstances, it is to be noted that in Lytras v R 2020 VSCA 150 published on 15 June 2020, JJ Priest and Weinberg described those matters identified in Gregory as being, 'Of paramount importance' in considering objective gravity of a particular offence.

16Also, in effect, Lytras added that from the facts and circumstances of Gregory, violence and intimidation of trafficking in operation would be a significant aggravating feature.  Also, in Lytras by reference to a matter of a Court of Appeal decision in Condo[2], it was reemphasised that all aspects in the accused's personal circumstances, as well as the offending behaviour must be considered in adherence with individualised sentencing, as was explained by the High Court in Delgleish[3]. 

[2]Condo [2019] VSCA 181

[3]Delgliesh [2016] VSCA 148

17In your case, as to the quantity, it is significant at three times the commercial quantity, and while it falls short of a large commercial quantity threshold, it does approach it for that amount.  As to your role, you were not the primary offender and not in any sense in charge of the business.  This is a very important matter.

18

Turning to the period of time of operating the business, it is brief being

1 December to 9 December, just over a week when the drugs were brought to your place by the co-accused for the reasons outlined.  There are not examples of regular substantial sales over a lengthy period of time, such as was the case in the matter mentioned of Condo and his co-accused Brizzi[4], by way of contrasting example.  It is a brief period, and few offers for sale were made.  It is trafficking by reason of possession for sales.

[4]Brizzi [2020] VCC 204

19The other factors involve your decision to plead guilty to trafficking in a commercial quantity; this was always offered and crystallised once the prosecution no longer persisted with charging you with trafficking in a large commercial quantity.  It is by reason of that and the operation of the High Court decision in Cameron[5], to be described as an early plea.

[5]Cameron (2002) 209 CLR 339

20

You do have a lengthy criminal history but only two priors for trafficking; both of heroin, both in 2000.  In July of that year, you were sentenced to a 12 month community-based order and later in December of 2000, you received an eight month sentence, four months of which was suspended for two years.  You did breach that suspended sentence, but the other four months was not re-instated.  Thus, the priors for trafficking are now old, 18 years ago when you were

24 years old and were punished in the Magistrates' Court in the ways that I have just set out.

21Those offences are by far less serious than the ones you face now.  You stated in your record of interview that the amount of drugs involved here was more than you had ever seen, and that you are not someone involved in such large quantities, until the co-accused bought the amount of drugs to your premises.  There is no violence, intimidation, or concerning aspects of the trafficking business.  It was a short-lived operation and did not involve significant actual sales, or movement of the drugs from the source to potential consumer.

22Just on the other aspect of your prior criminal history.  It is troubling.  Your drug addiction has led to many court appearances and penalties, up to terms of imprisonment for mainly dishonesty offences.  This was the pattern in Queensland when you moved there for a period as well as in Victoria, both before and after you went to Queensland.  I will say a little more of that shortly.

23All that is said taken from the decisions in Gregory[6] and Lytras[7], it must not be forgotten just how serious and destructive methylamphetamines is.  Some of my remarks in sentencing Condo were endorsed by the Court of Appeal.  I said in that sentence the following,

'Ice is a scourge throughout Victoria.  Ice contributes to crime and not just crimes of dishonesty as users seek money to purchase this drug, but also to violent crime.  That is, violent drug-fuelled crimes in homes, in streets, and on the roads.  The courts regularly confront crimes committed by offenders, where the explanation put forward is that the offender is addicted to ice.  This drug is a corrosive force in our community.  Courts must play an important role in dealing with this social problem by imposing stern deterrent sentences to those entrepreneurial drug traffickers that seek to profit from the misery this addictive drug causes.’

[6]Gregory (a pseudonym) [2017] VSCA 151

[7]Lytras [2020] VSCA 150

24I went on,

'Plainly, the primary sentencing purposes are denunciation and deterrence, especially to anyone who may be tempted by the lure of profits to peddle drugs.  What sentences must make clear is that offending of this kind will be dealt with by the imposition of stern punishment involving years of imprisonment'.

25However, what has to be factored into what ordinarily would be years and years of imprisonment are the following.  First, without your cooperation and confession to the presence of the drugs at your house, your crime may never have been discovered.  On its own, this matter contributes very significantly in mitigation of penalty.  However, it adds also the second matter, and that is you have given an undertaking to give evidence against your co-accused.

26It is well-established that encouragement is to be given to offenders to assist in the prosecution of co-offenders.  What is sought is truthful complete and consistent cooperation from the telling of events to investigating police officers, all the way to giving evidence on a trial.  In your case, your information is considerable such that without your assistance, the extent of the co-accused's criminality would not have been exposed or even been capable of prosecution.  It is not a requirement that your assistance in fact, is effective in the prosecution of in this case Ms Wyss.

27You may not be required to give evidence.  She may plead guilty.  That is a matter in the hands of Wyss and her lawyers, as to whether she goes to trial.  Encouragement by a discounted sentence is determined by whether your information could significantly assist the authorities.  There is in your case, no debate between the parties that your information substantially assists the prosecution.   The prosecution's submissions on sentencing is precisely in those terms.

28Thus, the criteria set out in s.5(2H)(a)[8] is established, allowing for a sentence other than immediate imprisonment.  Whether such a sentence is imposed requires consideration of all factors.  What is clear is that your cooperation and assistance warrants significant mitigation of penalty.

[8] Sentencing Act 1991

29Added to these enduring mitigatory matters of the early plea of guilty and your cooperation, is that your plea of guilty comes at a time when jury trials are suspended due to the COVID-19 pandemic.  This adds to the mitigatory weight of your plea of guilty.

30

As to your personal circumstances, you are now 44.  I read the detailed

medico-legal psychological report of Ms Pokavilorilo.  In the end, your counsel submitted that the key matters to be determined from your background and the psychologist report was your deprived upbringing; as you grew up, both your parents were alcoholics, though your father was not really involved in your life.

31However, your mother's partners were volatile, violent, and alcoholic.  You witnessed severe and frequent violence perpetrated on your mother.  You, yourself endured violence, severe poverty, neglect, and instability.  Your minimal education was interrupted by frequent moves due to family dysfunction and chaos.

32You gained some stability at age 18 when you moved to Queensland and you worked with your then partner's family as a concreter it seems for about six years.  But as I said, you were still committing crimes and being sentenced in Queensland including up to terms of imprisonment.

33Your relationship with your ex-partner broke down and you returned to Melbourne around aged 24.  You took up again drugs more heavily, that is, heroin and amphetamines and you quickly deteriorated into addiction, crime, and imprisonment at regular intervals, and established that as a pattern and cycle.  Your mental health has been effected by all these aspects of your upbringing and your years beyond that.  You have suffered anxiety and depression, especially after your breakdown of the relationship with your partner, who is the mother of your son.

34Ultimately, your counsel adjusted his submissions to the effect that your psychological problems informs the court as to who you were and that prison is already harder because of the COVID-19 pandemic, is the more onerous because of your depression and anxiety.  That said, you are doing what you can in prison, to do drug rehabilitation courses and that is to be encouraged. 

35You were assessed by the psychologist as genuinely wanting to reform your lifestyle, and importantly to put drugs behind you.  That is easier said than done, and you have faltered often after coming out of prison before.  However, the time that you had spent on remand, now a significant period of 662 days, has had a substantial positive impact in the sense of your detoxification and abstinence.  You have expressed remorse and wish you were not involved with the co-accused.  You now have or have had for some time a good relationship with your mother since you gave up drinking.  She will provide important support on your release.

36All these aspects give some confidence that you can reform, but with your history, your prospects are still guarded.  Each day you spend in prison is more onerous than others, given your cooperation with authorities and your undertaking.  Being in prison in those circumstances adds to the other mitigatory matters that I have mentioned.

37Your counsel submitted that the inevitable gaol term was already met by your time on remand, now 662 days, or nearly one year and 10 months.  He submitted that this term or a short additional term, and then a community corrections order would meet all sentencing purposes, given the mitigatory matters that I have spoken of.  I do note that you have had community corrections orders in the recent past and have not been able to satisfactorily manage them.

38The prosecution recognised that the circumstances were such as to warrant significant reduction in sentence than would ordinarily be imposed.  But the submission was that there should nonetheless result in a sentence involving a head sentence and a non-parole period.  In my view, this very serious crime involving such a significant amount of methylamphetamines that requires that you remain in prison longer than you have been on remand.

39The sentence that I will very shortly announce is significantly less because of your cooperation and undertaking.  It allows for the potential of release on parole with lengthy supervision.  In my view that is appropriate, and a community corrections order is not appropriate.

40

There are good reasons in my view, for a longer period on parole to be achieved or to be available after you have spent the minimum

non-parole period in custody, which in itself will be much shorter than ordinarily would be the case.  There are no fixed figures and, percentages do not assist a great deal.  However, you will be supervision for or the potential for supervision on parole for an extended period of time.

41I make clear that the head sentence that I impose, it too has been substantially discounted for all the reasons that I have outlined.  As was made clear in Gregory, Condo, and Lytras, a substantial sentence of imprisonment is expected for trafficking in commercial quantities of drugs.  However, that will not be imposed upon you, for all the reasons that I have outlined.

42In the scheme of things, the second charge of trafficking in cannabis is not such that extra gaol by cumulation is required.  The summary offence of possession of $180 as being the proceeds of crime is in my view of no moment.  Doing the best I can, I impose the following sentence.

43For trafficking in a commercial quantity of amphetamines, you are sentenced to four years and nine months' imprisonment.

44For trafficking in cannabis, you are sentenced to six months' imprisonment.  As I indicated, those sentences will run concurrently.

45In respect of the summary offence relating to the $180, this is proven and discharged.

46That gives a total effective sentence of four years and nine months, and I fix a minimum non-parole period of two years and four months, before you are eligible for release.

47Had you pleaded not guilty to these offences, and thus many aspects in mitigation would be put to one side, I would have imposed a sentence of nine years with a minimum term of seven years.

48

Is there anything further required in respect of this matter, Mr O'Doherty. 

I imagine all forfeitures and the like have to be put on hold, while we await the outcome of Ms Wyss' case.

49MR O'DOHERTY:  Yes, Your Honour.

50HIS HONOUR:  Thank you. 

51MR McGLONE:  Just the PSD, Your Honour.

52

HIS HONOUR:  I said it about three times and did not do it.  Thank you,

Mr McGlone.

53

You have already spent 662 days in custody.  This figure has not been reckoned.  I now declare that it is part of the sentence that I have imposed. 

I will ensure that the declaration is entered into the records of the court so that the prison authorities are left in no doubt that you have already done 662 days.

54My concern in respect of the trial of Wyss, what I propose to do is make an order, subject to what the parties say to deal with that.  No one has brought it up, I do not think.  But in my view, there should be no publication of this sentence until such time as the matter of Sharon Wyss is resolved by jury verdict or by plea of guilty.

55MR McGLONE:  I do not oppose that, Your Honour.

56HIS HONOUR:  Well, Mr O'Doherty, do you want to protect the charges the Director is bringing against - although I suppose it is really you that has asked for it.

57MR O'DOHERTY:  It is clearly desirable that that matter be - well, now that you have raised it, be put on until after the Wyss trial concluded.

58HIS HONOUR:  All right, well under the Open Courts Act which half of the - put the media on notice, none of that has sadly happened.  But if that is the case, that will cause particular difficulties.  If they bring argument for as to redacting a name, I will hear that.  But at the present time, the best way forward is to disallow or prohibit publication of this sentence until the trial of Sharon Wyss is resolved by jury verdict or plead guilty.

59MR McGLONE:  As Your Honour pleases.

60MR O'DOHERTY:  As Your Honour pleases.

61HIS HONOUR:  Thank you.  Anything further?

62MR O'DOHERTY:  No, Your Honour.

63HIS HONOUR:  Thank you for your considerable assistance.  I will allow you, Mr McGlone, to have time to talk to your client, to discuss with my associate or my tipstaff, to have a discussion with your client.

64MR McGLONE:  Yes, thank you.

65HIS HONOUR:  And they will take it up.  Thank you.

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