Director of Public Prosecutions v Wood
[2024] VCC 1893
•25 November 2024
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR -23-02087
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BENJAMIN WOOD |
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| JUDGE: | HIS HONOUR JUDGE LAURITSEN |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 14 October 2024 |
| DATE OF SENTENCE: | 25 November 2024 |
| CASE MAY BE CITED AS: | DPP v Wood |
| MEDIUM NEUTRAL CITATION: | [2024] VCC 1893 |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Charges of trafficking in a drug of dependence in not less than a commercial quantity, possession of a drug of dependence, possess explosive substances and possess prohibited weapon – sentence indication accepted – plea of guilty – category 2 offence – no prior convictions – good character – high moral culpability – section 5(2H)(e) considered – good prospects of rehabilitation.
Legislation Cited: Sentencing Act 1991.
Cases Cited: R v Verdins (2007) 16 VR 269.
Sentence:Total effective sentence of 30 months’ imprisonment. Non-parole period of 18 months’ imprisonment.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr P. Pickering | Office of Public Prosecutions |
| For the Accused | Ms H. Baxter | Emma Turnbull Lawyers |
HIS HONOUR:
Introduction
1Benjamin Wood, I propose to sentence you to a total effective sentence of 30 months’ imprisonment. I will set a non-parole period of 18 months’ imprisonment. I will declare your 205 days of pre-sentence detention as time served under my sentences.
2On 29 July 2024, at your request I gave a sentence indication which you subsequently accepted. As is the practice, the plea hearing occurred on another day. On 19 August 2024 you pleaded guilty to five charges on the indictment and two related summary charges. The circumstances of your offending are set out in the ‘summary of prosecution opening for plea’ which is Exhibit A.
Circumstances
3Armed with search warrants police members searched your home and found:
(a) a jar and container containing gunpowder and a box containing a detonation fuse. The detonation fuse constitutes Charge 5. Within the jar and the box was a total of 98.01 grams of gunpowder, used for making fireworks. This constitutes Charge 4;
(b) a Samurai-style sword and a taser, which constitute the related summary Charges 4 and 5 respectively;
(c) inside a blue Esky, among other things were three bags containing cocaine with the following weights and purity: 144.1 grams of 78 per cent purity; 518.6 grams of 80 per cent purity; and 27 grams of 42 per cent purity. These circumstances constitute Charge 1, trafficking in a drug of dependence in not less than a commercial quantity;
(d) 2.1 grams of 83 to 84 per cent purity of methylamphetamine. This constitutes Charge 3, possession of a drug of dependence;
(e) Two grams of cocaine of 43 per cent purity. This constitutes Charge 2, possession of a drug of dependence.
4You were present when the police entered your home. You were arrested and later interviewed. You gave 'no comment' answers when allegations were put to you.
5You spent 205 days in custody before being bailed. The conditions of your bail included reporting to a police station once a week and residing at a particular address
Criminal history
6You have no previous convictions or findings of guilt. Until this offending you were of good character. Given the years involved, this is a mitigating factor.
Personal circumstances
7You are 45, single with no dependants. You and your younger half-sister were raised by your mother. You have never met your father.
8When you were 10, the three of you moved to Singapore where your mother practised as an occupational therapist and a university lecturer.
9When you were in Year 10, your mother was diagnosed as suffering from multiple sclerosis. Following which, the family returned to Australia. You completed your secondary education here. Unfortunately, your mother died when you were in Year 12.
10Initially, you cared for your sister, but that arrangement did not last and she went to live with a maternal uncle. You maintained regular contact with her. The need to support yourself saw the end of your education and the start of employment.
11Although you completed an apprenticeship in Singapore, in Australia you found employment in the hospitality area where you remained for more than 20 years. You worked in various roles in clubs, cafes and hotels. For most of the time you were a bar manager.
12In 2019, you entered TAFE and completed the first 12 months of a course in welding and mechanical engineering. Due to a lack of money, you could not start the second year. However, while at TAFE you met Glyn Rowell who gave you work as a welder in his business, working there between 2019 and early 2022.
13In 2020 and 2021, owing to the restrictions of the pandemic, you did not work and relied on Jobseeker payments. In 2022 you worked for a commercial furniture and design business. You ran the business’ warehouse. It was next door to where you were living.
14From when you were 18 until 2019 you used cocaine and methylamphetamine while working on Friday and Saturday nights. At some stage you started using methamphetamine. At times until your remand in custody, you used up to a gram a week. To you, this drug aided your concentration. Interestingly, you live in a granny flat at Mr Rowell’s home.
References
Klein
15Jono Klein is the owner of a company which designs and makes commercial furniture. He and you met in 2022. From the outset you and he shared an interest in technology. In you he found a perfect person to run the warehouse of his company. However, owing to your skills, the tasks extended beyond simply warehousing.
16Mr Klein was surprised at these charges. He did not consider you used drugs. He re-engaged you upon your release from prison. He found you extremely trustworthy. He describes you as compassionate, honest and caring.
17In a further letter, Mr Klein pointed out you had worked for him since your release from custody and when you are released after sentencing, he would immediately re-employ you.
Rowell
18Glyn Rowell is the owner of a business called GMR Welding. He met you in 2018 when you sought welding experience. He employed you being impressed by your enthusiasm.
19He found you a hard worker and someone who he could trust in the workplace. Both of you became good friends.
20In time, you left his employ although he continues to send you work and you and he have remained friends.
21About a year ago, you started living in his granny flat. During that time, you returned to work for Mr Klein. Mr Rowell noted waiting for the resolution of these charges has been profoundly stressful for you. He knew of your drug use. To his surprise, he believes you no longer drink alcohol.
22He considers you honest and compassionate. He recalled an event where you assisted a woman to leave railway tracks.
Wood
23Jessica Wood is your sister. In her letter, she speaks of your early difficulties following the death of your mother. She supposes your offending was due to your unquestioning loyalty.
24Your sister speaks of your change of employment after more than 20 years in hospitality. She believes this change of career, together with your earlier experiences, shows you can overcome huge challenges and you are now recovering from your childhood experiences.
25She believes you have learned a lesson from your time in custody gaining, as she puts it, 'an undeniable sense of the consequences that people pay when they step outside the law…'. She believes you would do anything to avoid returning to custody.
Discussion
26Section 5(1) of the Sentencing Act 1991 sets out the purposes of sentencing. Each purpose applies to you. Plainly, in relation to the trafficking charge, deterrence of you and others is important. Similarly, denunciation of the offence is important. It could not be otherwise given the potential damage a drug such as cocaine can inflict on users. I will deal with the issue of rehabilitation later.
Maximum penalties
27The maximum penalties for the offences are:
(a) trafficking in a drug of dependence in not less than a commercial quantity – 25 years’ imprisonment;
(b) possession a drug of dependence – 400 penalty units or five years’ imprisonment, or if satisfied of certain matters, 50 penalty units or one- year imprisonment;
(c) possess explosive substances – five years’ imprisonment;
(d) possess prohibited weapon – 240 penalty units or two years’ imprisonment.
Nature and gravity of the offending
28For a mixed quantity of cocaine, the threshold for a mixed commercial quantity is 500 grams and for a mixed large commercial quantity is 1,000 grams. You possessed 687.9 grams, which is 187.9 grams beyond the threshold where the next threshold is a little more than 300 grams away. Weight is an important factor in sentencing for these offences. The difference in the maximum penalties are themselves significant. For your offence, it is 25 years’ imprisonment, and for a large commercial quantity, life imprisonment. For a person of your age, life imprisonment is about 40 years.
29The quantities of the other drugs are modest and for use as fireworks, the quantity of gunpowder is small.
30Your moral responsibility for this offending is high.
Section 5(2H)(e)
31Trafficking in a commercial quantity of a drug of dependence is a Category 2 offence under the Sentencing Act. In giving my sentence indication, I rejected your submission that s 5(2H)(e) of the Act applied. For completeness, I will set out my reasoning as to why it is inapplicable.
32You rely upon the following circumstances. First, after this offending, there are no convictions or findings of guilt for any other matters. There are no criminal prosecutions pending. Second, your previous good character evidenced by the absence of a criminal history. Third, your long history of employment and your employment since being released from custody. Fourth, the support you received from your sister and your former employer, Mr Rowell. Fifth, your ceasing to use drugs. Sixth, the deterrent effect upon you of your period of remand.
33The ability of an offender to come within the exception in paragraph (e) is difficult. First, there must exist substantial and compelling circumstances which are exceptional and rare and which justify not making an order of detention or imprisonment. Second, one must give general deterrence and denunciation of the conduct greater importance than the other purposes of sentencing in s5(1)[1]. Third, less weight must be given to your personal circumstances than other matters such as the nature and gravity of the offending[2]. Fourth, I must pay no regard to your previous good character except the absence of previous convictions or findings of guilt[3]. Fifth, I must not pay regard to an early plea of guilty, which does not exist in your case anyway. Sixth, and important in your case, I must not have regard to your prospects of rehabilitation. Seventh, I must not have regard to parity to other sentences, which again, does not apply to you as you are the only person charged over the discoveries at your residence. Eight, in determining whether these are substantial and compelling circumstances, I must pay regard to Parliament’s intention that a sentence of imprisonment or detention would ordinarily be made and whether the cumulative impact of the circumstances of the case would justify a departure from such a sentence.
[1] S 5(2HC)(a).
[2] S 5(2HC)(b),
[3] S 5(2HC)(c)(i).
34Until these offences, you were of good character for many years, as evidenced by your lack of a criminal history, and there are no criminal proceedings pending determination. You have a long and continuous history of employment and the clear prospect of re-employment upon your release from custody. The fact you have not re-offended since your release from custody, your prospects of re-employment following release, your support from family and friends, your ceasing the use of drugs and perhaps the deterrent effect of your time in custody, are matters going to your prospects of rehabilitation, to which I must not pay regard. The deterrent effect of your time in custody may not put you on the path of rehabilitation. If not, it is a matter sitting outside the injunction against having regard to your prospects of rehabilitation.
35It is clear most of the matters you rely upon to invoke s 5(2H)(e) are those to which I must not have regard. Those remaining fall short of the test posed by the paragraph. The paragraph cannot assist you.
Guilty pleas
36You entered guilty pleas to these charges after I had given a sentence indication. In terms of timing, those pleas were not early. They were entered at the mid stage of a criminal proceeding starting with the filing of charges in the Magistrates Court and ending with the verdict of a jury.
37By pleading guilty, you forfeited the opportunity of disputing your guilt because the finding of the DNA of your co-tenant on two of the items containing cocaine and the absence of your DNA on those items. By acknowledging your guilt where the possibility existed of disputing it adds to the quality of your guilty plea on the charges involving those items.
38Guilty pleas have the practical effect of avoiding a trial by jury. Such trials can be lengthy and cumbersome. Although the virus has limited effect on trials nowadays, the pandemic has made people more aware of their health and the effect of their ill- health on others. Indirectly, the virus still affects jury trials. This reinforces the benefit of guilty pleas to the criminal justice system.
39Guilty pleas relieve the need for witnesses to give evidence, even if those witnesses include police members. Your pleas are an unqualified acknowledgment of your offending and are evidence of your remorse.
40Your pleas require a reasonable discount on the sentences I would have imposed in their absence.
Prospects of rehabilitation
41Your life became disrupted after the death of your mother and separation from your sister. Nevertheless, you completed an apprenticeship and were continuously employed for many years. You have the support of your sister and two employers who consider you their friend. What is the unexpected factor is your long-term drug addiction. Since your release from custody, you have not returned to using drugs. This is a considerable achievement. You have returned to work and are an excellent worker. Your sister says, and I accept, your time on remand has had a beneficial effect on you. That is understandable for a person who has not been imprisoned before. My sentences will reinforce that beneficial effect. I consider your prospects of rehabilitation are good.
Current sentencing practices
42I was not referred to any cases dealing with the issue of current sentencing practices, which is understandable given the many cases dealing with offence of trafficking in a commercial quantity of a drug of dependence.
Verdins
43There was no reliance upon any of the limbs set out in R v Verdins[4].
[4] (2007) 16 VR 269.
Sentence
44On Charge 1, a charge of trafficking in a commercial quantity of cocaine, I sentence you to 28 months’ imprisonment.
45On Charge 2, a charge of possessing a drug of dependence, I sentence you to one month imprisonment.
46On Charge 3, a charge of possessing a drug of dependence, I sentence you to one month imprisonment.
47On Charge 4, a charge of possessing an explosive substance, I fine you $500.
48On Charge 5, a charge of possessing an explosive substance, I sentence to seven days’ imprisonment.
49On Summary Charge 4, a charge of possessing a prohibited weapon, I fine you $500.
50On Summary Charge 5, a charge of possessing a prohibited weapon, I fine you $250.
51The sentences on Charges 2 and 3 will be served cumulatively upon themselves and upon the sentence on Charge 1, making a total effective sentence of 30 months’ imprisonment. I will set a non-parole period of 18 months’ imprisonment. I declare your 205 days of pre-sentence detention as time served under my sentences.
52I will refer the fines to Fines Victoria for collection.
Section 6AAA
53If you had not pleaded guilty but had been found guilty after a trial, I would have sentenced you to a total of 38 months’ imprisonment and set a non-parole period of 23 months’ imprisonment.
Forfeiture and disposal
54I will make the forfeiture and disposal orders in the terms sought in the draft orders.
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