Director of Public Prosecutions v Weightman

[2020] VCC 905

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 18-01540

DIRECTOR OF PUBLIC PROSECUTIONS

v

NATHAN WEIGHTMAN

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Melbourne
DATE OF HEARING:	17 June 2020
DATE OF SENTENCE:	18 June 2020
CASE MAY BE CITED AS:	DPP v Weightman
MEDIUM NEUTRAL CITATION:	[2020] VCC 905

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr P. Bourke	Office of Public Prosecution
For the Accused	Mr C. Pearson	Adrian Paull Criminal Lawyers

HIS HONOUR: 

1Nathan Weightman, you have pleaded guilty to two charges of trafficking, one charge of possessing a tablet press and one uplifted summary matter of proceeds of crime.

2Those crimes carry maximum penalties of 15 years, five years and two years respectively.

3You are now very close to 24 years of age.  At the time of the offending, you were aged between 20 and 21.  Clearly, you were still a young offender at the time and remain so.

4Your plea of guilty came at a relatively late stage but you certainly get the benefit of it.  I accept that there is now before me some evidence of remorse based upon that plea and you must also of course get the utilitarian benefit of that plea.  Very importantly, in your situation, there are no prior convictions of any description and I am told and accept that you have nothing subsequent and no matters other than a summary matter pending.

5In this situation, there has been now a delay, and I use that in a neutral sense, of slightly in excess of two and a half years since the offending and arrest occurred.  As Callaway JA said in The Queen v MWH:

'It is the effects of delay that are important for sentencing.  As in R v Law, the prisoner's age at the time of sentencing may mean that he is less likely to re-offend.  His health or life expectancy may make service of a sentence of imprisonment more onerous or unusual.  There may be considerations of fairness, especially where the delay is attributable to the prosecution, [I interpolate that is not the case here] or there has been a significant period of uncertainty or curtailment of liberty after the offences came to light.  There may be practical considerations that require a marked degree of leniency to be extended.  The foregoing is by no means an exhaustive list and it omits the most important potential effect of delay, namely rehabilitation.  The person standing for sentence may have been rehabilitated in one or more ways.  He may have given up a form of substance abuse that contributed to the offending.  He may have reordered his life.  He may have changed morally so that, quite apart from being older, he would not be likely to re-offend.  He may have suffered genuine remorse in the sense of repentance, not just sorrow at being caught and fear of punishment.  So far as possible, a lengthy process of rehabilitation should not be halted or endangered by the sentence imposed.'

6In this situation, quite a degree of the delay has been brought about by your persistence in a plea of not guilty, though you are perfectly entitled to do that.  There were apparently some charges at least of a summary nature dropped before the proceedings and your situation is such that it would appear that your rehabilitation over that two and a half year period of time has been effective and I of course take that into account.

7Further, in your particular situation, when you were ultimately bailed after 14 days in custody, I regard that as specific deterrence in itself, you were under strict bail conditions.  For approximately six months, you were reporting daily and ever since then, you have been reporting twice weekly.  That in a sense is a curtailment of your liberty and certainly a curtailment of what you were able to do.  You also have been in that whole two and a half years, as I understand it, on a curfew.  That is you were unable to leave home between 9 o'clock at night and 6 o'clock in the morning.  They are significant matters, in my view, in this overall situation.

8I am told from the Bar table and I accept that you were using drugs at the time and this offending was part of a lifestyle.  Whether that be so, I am not too sure but I am satisfied of what your counsel tells me that you no longer have a drug problem and you do not have an alcohol problem.

9The summary of the offending is that you, your Uncle Ian and Mr Peter Moore and a Mr Ashley Nutt were all charged in relation to a drug operation. 

10In October 2017, police executed search warrants at premises where you lived with Mr Moore and premises where your uncle, Ian Weightman lived.  They located a large quantity of methorphan, MDMA pills and powder and drug paraphernalia associated with trafficking.  Mr Moore participated in an interview with police on 20 October 2017 where he provided information about involving himself, you and Mr Ian Weightman in the trafficking of methorphan and the purchase of methamphetamine on 19 October 2019 and I will have more to say about that in a moment.

11Insofar as these charges are concerned, in or about June 2017, you were involved in the purchase of a pill press.  You and Mr Moore transported the press to your uncle's house in Darling Street in Redan.  You, your uncle and Mr Moore opened the container and took the pill press out but did not use it on that occasion. 

12Between June 2017 and 20 October 2017, you, Mr Moore and Mr Weightman carried on a drug trafficking business manufacturing methorphan and some with low levels of MDMA.  The operation was based at your uncle Ian Weightman's house and used the pill press.

13In particular, on one occasion in about June 2017, you and your uncle were using the pill press when Mr Moore attended the premises.  You pressed pink para containing methorphan into pills stamped with a Transformer emblem with the use of the pill press.  In conjunction with Mr Moore, they were to be sold in night clubs in the Ballarat area, as I understand it.

14On another occasion, you went to your uncle's residence to use the pill press.  Mr Moore went to help you as your uncle was not at home.  It was on the lounge room table and again, tablets to a large extent, to the order of some 2,000 were manufactured.

15On another occasion yet again, you apparently returned home from your uncle's with a vacuum sealed bag marked 2,000 containing 2,000 yellow coloured pills containing methorphan and stamped with a Homer Simpson emblem.

16Clearly, over that period of time, a very significant number of pills were manufactured by you and your uncle for the purpose of selling for profit and Mr Moore was involved in all that in terms of trafficking and in the distribution.  The pills themselves are not expensive and the amount you made will depend on the volume of how much had been in fact manufactured.  No one, it would appear to me, is quite sure about what that was, other than it was a significant amount over a significant period of time.

17On 19 October 2017, you, Mr Moore and Mr Nutt travelled in your Volkswagen to purchase methamphetamine.  You did so and bought approximately 25 to 30 grams of methamphetamine and taken back to Ballarat.  Some of that methamphetamine was smoked.  You denied that you did.  The rest was being stored in Mr Moore's room.

18When police executed the search warrant they found, as I indicated, significant matters related to trafficking.  They also found three sums of money, one of $400, one of $950 and one of $1,975 and they are the subject of a charge of proceeds of crime.

19In this situation, the Crown opening remains on the court file so I do not think I need to go through all the various accoutrements that were found.  The search warrant at your uncle's premises found drugs and found the press and when you were actually interviewed, you gave a no comment record of interview.

20The offending has to be regarded as serious.  It is over an extended period of time and this is a situation where it is clear that you were very much involved in it.  You were certainly aware of the potential consequences of all this.  As I understand it, two of your uncles have in fact been incarcerated previously for having pill presses and trafficking.  Accordingly, I have no doubt that you were aware of the potential consequences at least of what could have occurred.  You were involved in the initial purchase of the press, you were involved in the distribution through Mr Moore and clearly had a significant amount of money when the raids took place.

21It calls for the application of general and specific deterrence, in the normal course of events, denunciation and appropriate punishment.  All of the
co-accused have been dealt with.  Mr Nutt was only charged with the trip to get the methamphetamine and received a bond in the Magistrates' Court.  I do not regard his sentence as being of significance in this set of circumstances.  His Honour Judge Gamble, when sentencing other co-accused thought he had been dealt with very leniently and I think His Honour might have been right.

22In any event, one co-accused, Mr Moore, was sentenced a couple of years ago and received a total of 10 months YTC.  He was charged with two traffickings.  In his situation, he was 19 to 20 at the time the offending took place and he was only nine months younger than you.  He also had no prior convictions.  His trafficking was over a longer period of time but that was based entirely, as I understand it, on his own admissions.  In a situation where he gave an undertaking to give evidence against you, and as I understand it, your uncle, and indeed was cross-examined at a committal hearing.

23He, in his situation, did not have the length of delay before his sentencing that you have undergone whether voluntarily or not.

24Your uncle, Mr Weightman, received a sentence of two years and six months with a minimum term of 22 months.  He was 59 years of age and very importantly in his particular situation, he had been gaoled for this sort of thing before.  He was no stranger to making pills and having a pill press and his set of circumstances are very different to yours and to Mr Moore's.

25I understand he also gave an undertaking to give evidence against you and obviously that was taken into account.  His version of events was dealt with by the judge who sentenced him and I do not propose to buy into revisiting all that.  I find a number of his assertions in this particular situation very hard to believe but the fact of the matter is that I need to be careful here.  You are to be sentenced for a serious example of trafficking over an extended period of time where you knew what you were doing and were an instigator and directly involved in it.

26Insofar as parity is concerned, it is my view that you are clearly closer to
Mr Moore than to Mr Weightman, but inevitably, a sentence of imprisonment must be imposed.  The other two had, to a certain extent, Verdins principles.  You do not have that.  Mr Moore had done 19 days on remand.  You in fact have already done 14.

27I then turn to matters personal to you and this can be done in fairly short compass bearing in mind what you are being sentenced for.  It is not a situation where you have any capacity to rely on the principles in Verdins.  You have no psychological difficulties of any real significance.  You, I am reliably informed from the Bar table, do not anymore use drugs and do not abuse alcohol.  In fact, according to what I am being told, you are effectively rehabilitated.

28Submissions were made on your behalf and references were filed and I take those into account.  It was put in those submissions is you did not fully appreciate the seriousness of the criminal lifestyle that you were involved in.  As I indicated during the course of the plea, you must have been totally aware what the potential consequences of all this were.  I am not buying into what the relationship was with your uncle other than pretty ordinary behaviour on his part to suddenly turn around and give an undertaking against you at the last minute  As I say, I am not buying into family dynamics of all this might be but I do not accept that you did not understand that what you were doing was serious.

29As I have said, you are almost 24 years age.  You were born in Ballarat. 
At the age of three, your family moved to Mildura.  Your father has always held a licence to train trotting horses.  As you grew up, your mother worked in a recreation caravan park in Mildura and you have a half-brother, Mr Nutt, who I have already referred to.

30You grew up in Mildura, being schooled to mid-Year 11 level.  You left school in order to assist your father in his training business.  There is independent material supporting that.  You started driving at the trots in your final year at school and you have held a driver's licence since you were 16 years of age. 
It was taken off you for a period of time after these charges were laid but you were able to appeal and have it reinstated.

31Around about the age of 18, you moved back to Ballarat with your parents.  Your mother no longer works but your father still works, as I understand it, as a trots trainer.

32Since leaving school, you have always been employed.  You have been employed by your father, then as a driver in your own right.  You became a successful driver, I am told, having up to eight drives per race meeting.  When driving, you can make about $65 for every drive together with State money and whatever gratuities owners and trainers may give you.

33At the time that this offending took place, you were working in that way and I accept what your counsel says that you do have a good work ethic and have worked since the time you left school.  Up until the sentencing process, you have been working on a full-time casual basis with a food distributor in Ballarat. You have been working in the warehouse.

34You now live, and have been for some time, with your aunty in Smythes Creek and as I indicated already. You had the reporting conditions and you have been under a curfew.  You instructed your counsel, and again I have got no reason to doubt that subsequent to all of this, you have lived a relatively quiet life and stayed out of trouble.  I am very aware that you are still very young man.  I am very aware that you have not offended since and I am very aware that you have no prior convictions.

35The situation is of course, as I have said, this of sufficient seriousness, particularly when I look at the concepts of parity that a custodial sentence has to be imposed.  You do have good family support and I accept that.  You do have a good work ethic.  You have a home to go to when you are released and hopefully, if I am being told the truth, you have rehabilitated.  That means your risk of offending should be low but again that is a matter for the future.

36Mr Moore, as part of his sentencing process, as the judge noted was young appearance and would be vulnerable in custody and I think that is the situation with yourself as well.  I accept that in custody for you will be a frightening experience over an extended period of time.  Unfortunately, that is the price you pay for trafficking in drugs in the way in which you did.

37Insofar as COVID-19 is concerned, I accept that as I understand at the present time, gaols are in 12 hour lockdown.  That may or may not persist.  What I do take very much into account is that when you do go into custody today, you will be put in 14 day isolation.  For the foreseeable future, there will be no personal visits and for a young offender in your situation, that is a very important matter.  As I understand it, despite what people tell us, the programs have virtually ground to a halt in gaol and you will have difficulty in terms of having any employment.  It is also a situation where I accept that there is a fear, statistically it seems to be not borne out, that you are an enclosed environment and if you were to contract the virus, you have got effectively nowhere to go.

38Your counsel's original submissions were for a community corrections order.  In my view that, as a single disposition, would just be appealable error. 
The secondary position was a custodial sentence with a community corrections order to follow.  Having discussed the matter with counsel, it is my view that in your situation where there is no psychological problems, there is no alcohol or drug problems and I am told that you have rehabilitated, I can see no benefit to be gained from a CCO and a think I will simply leave it as a matter for the Parole Board.

39What I am going to do in your particular situation is give a minimum term which will be shorter than would otherwise be the case.  I do that because of your age and because of your vulnerability and I will leave it to the Parole Board to determine whether your rehabilitation is genuine or not.  I think you should be given that opportunity bearing in mind, as I said, particularly your age.

40The 14 days, as I think I have already indicated, that you have already undergone will be declared and I accept that that in itself will act as a specific deterrent.  I am always very reluctant to return to somebody to custody, particularly somebody as young as yourself but unfortunately, in these circumstances, the offending is such a serious nature and there is simply no other option and that sentence must be an appropriate one in all the circumstances.

41Accordingly, on Charge 1, four months.  On Charge 2, 14 months.  On Charge 3, one month.  On the summary matter, one month concurrent.

42I direct that one month of the sentence imposed on Charge 1 and one month sentence imposed on Charge 3 be served cumulatively on the sentence imposed on Charge 2, giving a total effective sentence of 16 months.  I direct that you serve a minimum term of eight months before becoming eligible for parole.

43I direct that 14 days be reckoned as having been served under this sentence.

44I state that pursuant to s.6AAA, I say that but for your plea of guilty, you would have been sentenced to be imprisoned for a period of two years with a minimum term of 15 months.

45Any other orders I have to make, gentlemen?

46MS PEARSON:  I think Your Honour made the orders that were being sought by the prosecution.

47HIS HONOUR:  I made them the other day.  All right, no other orders,
Mr Bourke?

48MS PEARSON:  No other orders.

49MR BOURKE:  No, Your Honour, I am sorry.  I missed the non-parole period completely, Your Honour, I am sorry.

50HIS HONOUR:  Non-parole period of eight months.  The 6AAA was two with 15 months.

51MR BOURKE:  Thank you, sir.

52HIS HONOUR:  Yes.  All right.  Thanks for that.  you can go now, thank you.

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