Director of Public Prosecutions v Whelan
[2023] VCC 1265
•10 March 2023
| IN THE COUNTY COURT OF VICTORIA | Revised Suitable for Publication | |
AT Melbourne
CRIMINAL JURISDICTION
CR 22-01932
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| NATHAN WHELAN |
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JUDGE: | HIS HONOUR JUDGE CHETTLE | |
WHERE HELD: | Melbourne sitting in Latrobe Valley | |
DATE OF HEARING: | 8 March 2023 | |
DATE OF SENTENCE: | 10 March 2023 | |
CASE MAY BE CITED AS: | DPP v Whelan | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1265 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW SENTENCE
Catchwords: Sentencing – Traffick commercial quantity of a drug of dependence., possession of a drug of dependence, commit indictable offence whilst on bail.
Legislation Cited: 6AAA Sentencing Act 1991
Cases Cited: DPP v Maxwell 2013 VSCA 50
Sentence Imprisonment, total effective sentence 3 years and 10 months imprisonment. Non-parole period 2 years and 6 months. Forfeiture and disposal orders.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr D. White | Ms Z. Gough Office of Public Prosecutions |
| For the Accused | Mr C. Brydon | Mr. J. Bruzzichessi, Chester Metcalfe. |
HIS HONOUR:
1Nathan James Whelan, you have pleaded guilty to one charge of trafficking in not less than a commercial quantity of a drug of dependence, namely 1,4-Butanediol. You also pleaded guilty to one charge of possession of drug of dependence, namely, MDMA.
2In addition to those charges, you pleaded guilty to one summary offence of committing an indictable offence whilst on bail. The facts of your offending are set out in Exhibit A, the prosecution plea summary and I was informed by your counsel that I can treat that document as an agreed statement of fact. I incorporate that document into these reasons for sentence, and I sentence you on the basis of the facts set out therein.
3Very briefly stated, you were arrested and charged by police with drug and false licence offences on 17 June 2022. You were released on bail. Your phone was seized and subsequently examined. That examination identified possible drug trafficking messages relating to 1,4-Butanediol.
4On 21 June 2022, police observed eight boxes delivered by Australia Post to the property across the road from your premises. You approached that property and told the owner that the boxes were yours and that your partner had 'stuffed up the delivery address'. The boxes were addressed to the name you had created a false licence for and arrested for on 17 June.
5
When you carried the boxes towards your home, you were arrested by police. A search warrant was executed on your home and a Ziplock bag containing approximately 1 gram of MDMA was seized from your bedroom. The boxes you had taken possession of contained 7.9 kilograms of 1,4-Butanediol in 16 small bottles. You lied to police about the bottles and your contacts about
1,4-Butanediol and in phone messages when interviewed.
6The 7.9 kilograms of 1,4-Butanediol is nearly four times the commercial quantity of that drug. The commercial quantity is 2 kilograms. You indicated an intention to plead guilty at committal mention on 22 October 2022.
7You have admitted a lengthy and relevant prior criminal history. In 2008, you were sentenced to a community-based order for various offences including cultivating cannabis. In 2012, you were sentenced to two months' imprisonment wholly suspended for trafficking in a drug of dependence. In 2019, you were sentenced to 39 days' imprisonment and 18 months' Community Corrections Order for trafficking methylamphetamine.
8On 22 February 2020, you were imprisoned for three months for offences which included committing an indictable offence whilst on bail, cultivating cannabis and possessing GHB.
9You have numerous other dishonesty and road traffic prior convictions.
10Charge 1, represents serious criminal conduct. The Court of Appeal has made it clear that commercial level drug trafficking calls for significant terms of imprisonment. The maximum penalty of 25 years imprisonment set by parliament, indicates how seriously your offending is viewed. However, the authorities also recognise that a court should take into account any anticipated financial reward when assessing the gravity of a commercial trafficking offence. There is no definitive evidence as to the value of the 7.9 kilograms of 1,4-Butanediol you purchased.
11There is some evidence of you discussing purchasing 20 litres for $1,900, or $US1,850. I have sentenced many people for trafficking in 1,4-Butanediol and clearly understand that the profits to be made from the sale of 1,4-Butanediol are small when contrasted to the sale of other drugs of dependence.
12In the DPP v Maxwell 2013 VSCA 50, the Court of Appeal said at paragraphs 20 and 21,
'The sentencing range being quantity-based, the scale of importation will always be a very significant factor in sentencing. Ordinarily, the larger the quantity import the more serious will be the offence, all other things being equal. Since then, importations can involve many multiples of a commercial quantity of the drug in question. It is quite correct to say that an importation which involves only one or two multiples is at the bottom end of the quantity of scale. But there's another important factor in the present case. The low financial return likely to be derived from the sale of GBL.
'In addition to the weight of the drug involved, imported, or trafficked, the financial reward received or anticipated by the offender is relevant to the objective gravity of the offence. Other things being equal, an importation which is undertaken because it will bring, or is expected to bring a large financial reward to the offender, will be more serious than one where the expected reward is small or non-existent. The underlying proposition is, the greater the anticipated reward for criminal conduct such as this which includes such harm on the community, the higher the offender's moral culpability'.
13Those statements of principle will have equal and are relevant to the trafficking in a commercial quantity of a drug of dependence.
14I accept that your offending lies at the lower end of offences of trafficking in a commercial quantity of drug of dependence. However, the offence is a category 2 offence, the court must impose a term of imprisonment and not a term of imprisonment combined with a Community Corrections Order, unless you fall within a number of exceptions set out in the Sentencing Act, none of which apply in your case. Your counsel properly conceded that a term of imprisonment must be imposed in your case.
15Turning to your personal circumstances.
16Your personal history is set out in the submissions of your counsel, Exhibit 1 and the psychological report of Laura Fleming, Exhibit 2.
17You are now 33 years of age, and you were 32 at the time you offended. You grew up in Essendon, unfortunately for you your father was a violent alcoholic who physically abused your mother. When you were 14 years of age your father beat your mother to death in front of you. Your father was psychotic and dealt with under the Crimes (Mental Impairment and Unfitness to be Tried) Act.
18
You were then placed with your mother's brother in Brunswick. You were substantially traumatised by your mother's death and saw you struggling in school, and you left school in Year 8 level. You were formally diagnosed with
Post-Traumatic Stress Disorder at the age of 18.
19
You have two children from an eight-year relationship and, although separated, you regularly see your children and ex-partner. You have worked for some periods of time. At the age of 18, you commenced an apprenticeship in diesel mechanics. You ceased that after three years because apparently of drug abuse issues.
You had casual work as a traffic controller before subsisting on unemployment benefits over recent years.
20
You developed serious drug issues subsequent to your mother's death. You used cannabis at 14 years of age. At 15 you started using amphetamine and then methylamphetamine. At the time of your offending, you claimed to be using
three and a half grams of methylamphetamine a day. You have also been using GHB over the past years. Your trafficking was to provide you with the funds you needed to supply yourself with drugs.
21Ms Fleming in Exhibit 2 reports that you have clinically significant PTSD symptoms, and you were a high risk of drug-related harm at the time of your offending. She reports that you have a high risk of recidivism, and you need targeted drug treatment. Ms Fleming opines that imprisonment would likely weigh more heavily on you because of your PTSD symptoms, as you will be unlikely to receive specific treatment for that condition, whilst you are in custody.
22Your prospects for rehabilitation are entirely dependent on you abstaining from the use of drugs. Your history demonstrates that you have been unable to do so in the past. You claim to be drug free in custody and the drug screens that you have provided, now Exhibit 3, confirm your drug free status. Your future depends on you maintaining that status. If you go back to drug abuse, you will end up back in prison. The support you have from your sister, your uncle and your ex-partner and children may promote your rehabilitation.
23I take into account in your favour the matters urged by your counsel. Firstly, your pleas of guilty. Those were early pleas and demonstrated your acceptance of responsibility and some remorse for your conduct. You are entitled to a reduction in sentence to reflect those pleas of guilty. You have spared the court and the community the time and expense of a criminal trial. The value of those pleas, the utilitarian value is increased because of the greater benefit they have in the time of COVID-19, which has severely hampered our legal system.
24Secondly, I take into account your troubled background in a relatively limited way. The horror you witnessed as a child, underlies your drug abuse issues but cannot be said to be directly relevant to your commercial drug trafficking. I accept that your PTSD symptoms will make your time in custody more onerous than it would for someone without your issues and I take that into account in your favour.
25Finally, I take into account your attention to deal with your drug abuse issues and your current drug free status. As I said before they are central to your prospects for rehabilitation. Principles of general deterrence are paramount in commercial drug trafficking cases. Your criminal history demonstrates that specific deterrence is also relevant in your case. I need to protect the community, denounce your conduct and promote your rehabilitation where possible. Clearly, nothing other than a term of imprisonment is appropriate, as I said your counsel properly conceded.
26Finally, I have had regard to current sentencing practices for offences similar to yours. On all charges you are convicted.
27On Charge 1, trafficking in not less than a commercial quantity of 1,4-Butanediol, you are sentenced to be imprisoned for three years and nine months.
28
On Charge 2, possession of MDMA I sentence you to be imprisoned for
seven days.
29
On the Summary Charge of committing an indictable offence whilst on bail,
I sentence you to imprisoned for one month. I order that the sentence on the Summary Charge be served cumulatively on the sentence imposed on Charge 1, the base charge.
30
That is a total effective term of imprisonment of three years and ten months' and
I order that you serve two years and six months before being eligible for parole.
31I declare that 262 days not including today of the sentence I have just imposed, have been served by way of pre-sentence detention.
32
Pursuant to s6AAA of the Sentencing Act, I indicate that but for your pleas of guilty, I would have imposed an effective term of imprisonment of six years with a
non-parole period of four years. I make the disposal orders sought by the prosecution.
33Are there any other orders required, Mr White?
34MR WHITE: No there aren't thank you, Your Honour.
35HIS HONOUR: Mr Brydon?
36MR BRYDON: No, Your Honour.
37HIS HONOUR: All right. Thank you I'll terminate the link, they're the sentences of record.
38MR WHITE: As Your Honour pleases.
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