Director of Public Prosecutions v Weeks

[2019] VCC 1603

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-19-00784

DIRECTOR OF PUBLIC PROSECUTIONS

v

JAMIE WEEKS

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JUDGE:	HER HONOUR JUDGE GWYNN
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	3 October 2019
CASE MAY BE CITED AS:	DPP v Weeks
MEDIUM NEUTRAL CITATION:	[2019] VCC 1603

REASONS FOR SENTENCE
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Subject:Trafficking in a drug of dependence, attempt to traffick drug of dependence in not less than a commercial quantity

Catchwords:  Methylamphetamine, cannabis L, 1,4-Butanediol

Legislation Cited:  Drugs, Poisons and Controlled Substances Act 1981 Sentencing Act 1991

Cases Cited:  

Sentence:Total effective sentence three years and four months imprisonment with a non-parole period of 26 months

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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 P. Smallwood (Plea) Mr C. Tom (Sentence)	Victoria Legal Aid

HER HONOUR: 

1Jamie Thomas Weeks, you have pleaded guilty on indictment to two charges of trafficking in a drug of dependence, namely methylamphetamine and cannabis L, between the dates of 30 January 2018 and 18 July 2018.  You have also pleaded guilty to an attempt to traffick in not less than a commercial quantity of 1,4-Butanediol on a single date, that being 27 March of 2018.  The charges of trafficking in a drug of dependence carry a maximum penalty of 15 years imprisonment.  The charge of attempt to traffick in not less than a commercial quantity carries a maximum penalty of 25 years imprisonment.  These maximum penalties reflect the seriousness with which Parliament regards these offences.

2The circumstances of your offending are set out in a document entitled, 'Summary of Prosecution Opening for Plea' dated 6 May of 2019.  It represents an acceptance by you of all of the elements of the offences and the factual basis on which I am to sentence. 

3In short compass, on 27 March of 2018, the Department of Immigration and Border Protection, based at Melbourne Airport, intercepted a package which had arrived from China, address to SMG Floorboard Restorations of
31/168 Narracan Drive, Newborough, Victoria, 3826.  Your address was
3/168 Narracan Drive.

4Initial examination showed the package to contain a bottle containing crystals, suspended in liquid, which was suspected of being precursor chemicals and/or drugs of dependence.  That substance was tested and contained
24.2 kilograms gross mass of 1,4-Butanediol.  Pursuant to the Drugs, Poisons and Controlled Substances Act 1981, a commercial quantity of this substance is two kilos. Axiomatically, the amount you attempted to possess far exceeds that quantity.

5On Wednesday 23 May 2018, Victoria Police investigators seized the consignment intercepted by Border Protection.  The consignment documentation revealed that you were the appointed receiver of the consignment and contained your phone number and address.  The consignment of 1,4-Butanediol was substituted with an inert substance and repackaged. 

6On Thursday 19 July 2018, a police member posing as a parcel courier delivered the consignment ordered by you to your address of
Unit 3, 168 Narracan Drive, Newborough.  You signed a form accepting delivery of the consignment.  Police then executed a Drugs, Poisons and Controlled Substances Act 1981 search warrant at your address. A search revealed drug paraphernalia, ice pipes, zip-lock deal bags, tick sheets, a small set of scales, a quantity of cash, being $250, and a mobile phone. Additional photos downloaded from your phone depicted a further tick sheet, scales with a white substance weighing 6.7 grams and messages relating to the delivery date of the consignment.

7You were then arrested.  In an interview with police, as is your right, you chose to make 'no comment'. 

8The analysis of your phone disclosed photos, SMS and MMS messages and internet searches.  In terms of SMS messages, materials obtained from the phone included 141 SMS’s, which commenced on 30 January 2018 and the ceased on 18 July 2018, the between dates of the trafficking charge.  These messaged related to the sourcing and supply by you of drugs of dependence.  The quantities referred to in the calls were as little as half a gram and as much as 6.77 grams. 

9It is estimated that during the period of the phone messages, you sold or supplied or agreed to sell 31 grams of methylamphetamine.  Other calls made reference to cannabis but the Crown is not able to establish with certainty, the quantity agreed to be sold, or that were sold.  This reality must be construed in your favour, in the sense that I could only assess your trafficking in cannabis is at a relatively low level. 

10In terms of the charge related to trafficking in methylamphetamine, I accept the Crown concession that this, as well as the cannabis sales, appeared to be what was referred to as 'retail dealing' to friends and associates and was also at a relatively low level.  The same description cannot be used for Charge 3, attempt to traffick in not less than a commercial quantity of 1,4-Butanediol.

11Analysis of your emails show communication between you and an unknown Chinese entity in relation to the seized consignment.  Communications shows that the consignment was deliberately incorrectly labelled as Lutensol XP 100, at your request. 

12During the period 3 April 2018 to 23 April 2018, you requested information as to the location of the consignment and also organised the change of delivery address to the correct address, that being your residential premises. 

13In the lead-up to this, in late-2017, you made numerous enquiries on the internet relating to the purchase of 1,4-Butanediol from China.  On 20 June 2018, you commenced searching, tracking and tracing your consignment.  You also conducted searches in the Australia market for the drug. 

14Charge 3 is in stark contrast to Charges 1 and 2.  It was well researched and planned offending. 

15I accept that your offending is in the context of a long-standing drug addiction and that your offending was primarily to support your own drug use and that of your then-girlfriend.  Paraphernalia located by police, to which I have already referred, supports that position that you were using drugs at the relevant time. 

16I am of the view that you must have been at least partly motivated by some potential financial gain, represented by your past experience of drug trafficking and the escalation in your offending, which is apparent from the circumstances contained in Charge 3.

17You have an admitted prior criminal history.  This history includes three
driving-related offences which occurred between 2009 and 2010, whilst you were residing in Western Australia.  In Victoria there are six prior appearances which occurred between the years 2007 and 2017. 

18Relevantly, on 12 October 2007, you appeared at the Latrobe Valley Magistrates' Court in relation to charges of traffick cannabis, traffick amphetamine and deal property suspected to be the proceeds of crime.  At this time you were convicted and sentenced to six months imprisonment, to be served by way of an intensive corrections order.

19On 29 July 2014, you again appeared at the Latrobe Valley Magistrates' Court, this time in relation to charges of traffick methylamphetamine, traffick cannabis and deal with property suspected to be the proceeds of crime.  You were convicted and sentenced to six months imprisonment.  This decision was successfully appealed to the Latrobe Valley County Court, at which time the sentence was altered to one of three months imprisonment and you were also ordered to complete a community corrections order of 12 months duration, with treatment conditions.  This represented the first term of imprisonment that you were required to actually serve.

20It would appear that, undeterred, you were next required to appear at the Latrobe Valley Magistrates' Court in relation to traffick methylamphetamine, traffick cannabis and other drug-related offending on 30 August 2017.  At that time you were convicted and placed on a community corrections order for a period of 18 months.  This order also included treatment conditions.  It would appear that this community corrections order was in place at the time of the offending before me.  This is an aggravating circumstance to your offending. 

21This chronology demonstrates that, at least on two occasions, you failed to take up the opportunity offered to you to rehabilitate through such an order.  In addition, it is apparent from the brief reference to your relevant history, that you are having trouble learning lessons from the past.  You are fully aware of the impact drugs have had on your own life and that of your family, yet you continued to sell drugs whilst being cognisant of the great harm which they cause. 

22You are not to be punished for your prior history a second time, but it is relevant to the weight that needs to be given to specific deterrence, that is, putting you off further offending and protection of the community, as well as an assessment as to your prospects for rehabilitation.  In my view, your relevant prior history supports the need for weight to be given to deterring you from future offending, denunciation and to protect the community from your offending.  It also informs your level of moral culpability for this offending, given the very like nature of the offending for which you fall to be sentenced.  Whilst I accept that you were a drug user at the time, your moral culpability would appear to be relatively high, given this history. 

23The context for your resort to offending is contained in the report of Carla Lechner, clinical psychologist, dated 6 June 2019.  This report also sets out much of your personal background. 

24You are currently aged 32 years and are the youngest of three children born to your parents, Ida and Geoff.  Your parents run a local painting business.  You enjoy a close relationship with them, as well as your sister, Kim.  Your parents were present for your plea hearing and indeed you have family members present today.  Your relationship with your sister, Sandy, is somewhat estranged, largely due to your offending behaviour.

25You grew up in the Moe/Morwell area.  You say that your home life could not be better and that your parents have always tried to assist you to get the help that you need and with offers of employment.  You have failed in the past to fully appreciate or accept the help which they have offered. 

26The struggle for you commenced in Grade 3, when your weight led you to being teased and bullied.  You were later identified as having a learning disorder which, in combination, made your schooling years extremely difficult.  You were using cannabis by the age of 15 years and left school at Year 10 level.  You initially worked in your parents' business for two to three years, before spending six months in Western Australia. 

27You returned to Victoria and started using amphetamine-based drugs to help you lose weight.  You became hopelessly addicted.  You returned to work for your parents, but the situation was unmanageable, due to your drug use.  You returned to Western Australia a couple of times, where I am instructed that you were able to remain drug-free, but every time you returned to Victoria, you returned to drug use, which you associated with your desire for what was referred to as 'social currency’ and ‘popularity'.  In reality, it has blighted your life and that of those around you. 

28Ms Lechner's report was tendered to set out your background and I have taken the contents of her report into account.  I also accept that you present with stimulant use disorder in early remission, adult ADHD and sleep apnoea.  It is not suggested that any of these conditions reduce your moral culpability for your offending, or make your time in custody more burdensome. 

29Despite the genuine concerns with the chronology I have already set out which must be held for your prospects for rehabilitation, there does lie, in what I have heard, a glimmer of hope.

30You have now spent the longest time you have ever spent in custody.  This would appear to have given you both pause and cause for thought.  I am told that you are deeply ashamed by your conduct.  You have completed an ice addiction program and have obtained a billet's position in the gym.  You have lost 20 kilos, which you see as a positive way to boost your self-esteem.  You are fortunate to have had regular visits from family and you have come to appreciate, through your enforced sobriety, the true value that the support of family offers.

31Tendered on your behalf was a letter authored by your mother, in which she speaks of starting to see the 'old you' come back and that you now appear to be learning from your mistakes and taking responsibility for your actions.  Through her letter, your mother attached a letter you had written to your nieces, imploring them to maintain their education and to learn from your mistakes. 

32It would appear that you are starting to show some insight and to want a better life for yourself and for those that should matter to you. 

33You are fortunate to have the continued support of your parents and sister, who offer you accommodation and employment on your release.  It would appear that you are finally beginning to appreciate what that can mean for a different way of life.  Only time will tell.  It would appear that your prospects for rehabilitation are firmly grounded in you dealing with the issues that have contributed to your desire to use drugs and to have treatment for that drug use itself. 

34I accept that you have pleaded guilty at an early opportunity.  Whilst it was a strong Crown case, I accept that you are remorseful for your actions and that your plea has utilitarian value.  It has saved the court the time and expense of contested proceedings and witnesses having to give evidence.  You are entitled to the full benefit for your plea of guilty. 

35I have made the ancillary orders as sought for forfeiture and disposal.

36The basic purposes for which a court may impose a sentence are punishment, general and specific deterrence, rehabilitation, denunciation and protection of the community.  In sentencing you, I must have regard to a range of matters, such as the seriousness of the offending, your culpability for it, your personal circumstances and those of any victim. 

37I am also required to balance the interests of the community in denouncing criminal conduct, with the interests of the community in seeking to ensure, as far as possible, that offenders are rehabilitated and are reintegrated into society. 

38I have taken into account the relevant sentencing guidelines referred to in
s.5 of the Sentencing Act 1991, where relevant to your case. I have also taken into account current sentencing practices for the offences to which you have pleaded guilty.

39In terms of Charges 1 and 2, traffick in methylamphetamine and cannabis between 30 January 2018 and 18 July 2018, you are convicted and sentenced to 12 months imprisonment, as an aggregate. 

40For those two offences, I impose an aggregate, as I am satisfied that the offences are founded on the same facts, or form, or a part of a series of offences of a same or similar character.  In so doing, I also bear in mind the principles of both totality and proportionality between these charges and with the sentence to be imposed separately on Charge 3. 

41In relation to Charge 3, attempt to traffick in not less than a commercial quantity of 1,4-Butanediol on 27 March 2018, you are convicted and sentenced to three years and two months imprisonment.  This is the base sentence.

42I accept the submission made on your behalf, that there should be substantial concurrency between the sentence imposed on Charge 3 and the sentence imposed on Charges 1 and 2.

43Two months of the aggregate sentence imposed on Charges 1 and 2 is cumulative on the sentence imposed on Charge 3, making a total effective sentence of three years and four months imprisonment.

44I fix a period of 26 months before you are eligible for parole.  441 days are reckoned as having already been served.

45Section 6AAA of the Sentencing Act 1991 requires me to state the sentence that I would have imposed if you had not pleaded guilty to the charges. If not for your pleas of guilty, you would have been sentenced to a total effective sentence of five years and three months imprisonment, with a minimum of three years and seven months before being eligible for parole.

46Thank you. 

47MR TOM:  As Your Honour pleases. 

48HER HONOUR:  Nothing arising? 

49MR O'DOHERTY:  No, Your Honour. 

50HER HONOUR:  I will stand down temporarily then, thank you.

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