Director of Public Prosecutions v Wynd

[2024] VCC 1723

IN THE COUNTY COURT OF VICTORIA

Revised

Not  Restricted

 Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 22-01492

DIRECTOR OF PUBLIC PROSECUTIONS

v

JARROD WYND

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JUDGE:	HER HONOUR JUDGE WILMOTH
WHERE HELD:	Melbourne
DATE OF HEARING:	18 April 2024 and 9 October 2024
DATE OF SENTENCE:	16 October 2024
CASE MAY BE CITED AS:	DPP v Wynd
MEDIUM NEUTRAL CITATION:	[2024] VCC 1723

REASONS FOR SENTENCE

-  -  -

Subject:         Criminal law - sentence     

Catchwords: Pleas of guilty to one charge of trafficking drugs, one charge of dealing with   the proceeds of crime, six charges of possessing a drug of dependence, two charges of possessing a prohibited weapon, one charge of contravening a family violence order and one charge of committing an indictable offence while on bail – mid-range seriousness similar criminal history and multiple prison terms served – delay  - very significant rehabilitative progress – unusual mitigating circumstances –deferral of sentence –protection of community – minor role for specific deterrence -  time served appropriate.    

Sentence:      71 days and 2 year CCO.  

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr M. Roper	Office of Public Prosecutions
For the Accused	Mr S. Tovey	Fayman Lawyers

HER HONOUR:

1Jarrod Michael Wynd, you have pleaded guilty to six charges of possession of a drug of dependence, one charge of trafficking in a drug of dependence and one charge of knowingly dealing with the proceeds of crime.  You have also pleaded guilty to four related summary charges.  They are two charges of possessing a prohibited weapon, namely knuckledusters in one instance and a baton in the other, contravention of a family violence order and committing an indictable offence while on bail, namely trafficking methylamphetamine.  I will be sentencing you to the time already served and a Community Correction Order in combination.

2All but one of these charges occurred on the same day, 30 March 2022, as will be clear from the summary set out in the prosecution opening.  As part of a police operation, you were observed on 18 March 2022 meeting your former partner in a park in Warrnambool and appeared to be having a confrontation with each other.  At the time she was a protected person subject to an interim family violence order and you were not permitted to be within five metres of her.  That is summary Charge 18.

3The police operation was targeting the distribution of methylamphetamine in the south western regions of Victoria.  On 30 March police executed a search warrant in the depot of a truck company set up by you in Grovedale.  You were found there and arrested in relation to breach of the interim family violence order.  Your phone was seized and two vehicles at the premises were seized. 

4You were taken into custody at Corio police station and you were found to have the following on your person. 

·Five small resealable bags of approximately two grams of methylamphetamine, with percentages of purity ranging from 82 to 86 per cent,

·one small resealable bag containing three capsules filled with oxymetholone, weighing 0.3 grams, this substance is an anabolic steroid

·and one small resealable bag containing 0.1 gram of MDMA[1]. 

[1] 3,4 methylenedioxy-N- methylamphetamine, paragraph 14, Summary of Prosecution Opening for the plea

These three substances are Charges 1, 2 and 3 on the indictment.

5Later that day a further search warrant was executed at a storage facility in Warrnambool, leased by you.  Police found there a baton, $1400 in cash, a computer hard drive and an assortment of identification and credit cards.  The baton is the subject of summary Charge 11, possessing a prohibited weapon without exemption.

6That evening police executed another search warrant at your home in Point Cook.  They found a closed circuit television hard drive and several vials of steroids hidden in the kitchen, with a total weight of 56.3 grams.  Charge 4 covers nine grams of testosterone and Charge 5 relates to 27.4 grams of Trenbolone.  Charge 6 relates to 28 grams of testosterone.

7That evening, you told police that there was an amount of methylamphetamine and cash behind the centre console in your vehicle.  The car, which was at Geelong police station, was searched.  Police pulled off the front of the centre console, which appeared to be magnetically secured, exposing a hidden compartment containing two vacuum sealed bags of methylamphetamine weighing 168 grams, with purity of 83 to 84 per cent.  That is Charge 7.

8There was also a pair of knuckledusters, which is summary Charge 4, possessing a prohibited weapon. 

9In a further hidden area of the same compartment was found cash of $8,520.  This is Charge 8, knowingly dealing with the proceeds of crime.  At this time you were on bail for other charges committed on 15 December 2021 and so you were charged with committing an indictable offence while on bail, which is summary Charge 19. 

10You chose not to continue with being interviewed and you were remanded in custody.

11You were released on bail in June 2022 after 71 days of detention and since then you have attended to your rehabilitation with significant success.

12To put that in context it is necessary to consider your background, but before doing so, I will refer to the gravity of the offending.

The gravity of the offending

13You had drugs in your possession for sale on a single day only.  It was neither sophisticated nor accompanied by possession of weapons, violence, or threats of violence.  It was consistent with your longstanding history of drug use.  The pure weight of 168 grams was significant, over three times the commercial threshold for the pure drug,  therefore, at the highest range for non-commercial quantity trafficking.  There was a relatively large sum of money found consistent with the transaction, the subject of the charge.  Your counsel, Mr Tovey, submitted on your behalf that the limited duration and extent and other relevant matters, such as your addiction being one that commenced in childhood, should place the seriousness at mid-range. 

14I agree with that.

Personal background and circumstances

15You are now aged 33 and you live in Shepparton with your partner.  You grew up as one of three children exposed to family violence perpetrated by your father and later, your stepfather, with you and your mother being the victims.  Your mother has always supported you and you get on well with your siblings.  You left school at 15 and pursued an apprenticeship, in which you excelled and by 18 you were a fully qualified diesel mechanic.  However, under the influence of older men with whom you worked, you began to use drugs while still a young teenager.

16By the age of 21, you were in a relationship and had two children.  The pressures of supporting the family while working in two jobs became overwhelming and you returned to drug use after a period of abstinence.  The need for money to buy drugs saw you turning to selling drugs and your use escalated to the point of losing your job and being arrested.

In 2014, you were charged with trafficking and despite this being your first court appearance, you were sentenced to prison for 18 months.  You were granted parole after 15 months, but following a positive urine test your parole was cancelled and you returned to prison, to serve the rest of your sentence.  By early 2016, you were back in court for typical drug-related offending and were released on a Community Correction Order, but you were still battling the addiction which had resumed on your release in mid-2015.  You continued to use drugs as self-medication.

17In mid-2017 you were sentenced in the County Court on a range of offences, including possessing weapons, to prison for four years, with a non-parole period of 28 months, having already served 415 declared days. 

18Later, in 2017, while still serving that sentence, you were convicted of other offending, including drug trafficking, and sentenced to seven months' concurrent.  Finally in late 2021, you were sentenced to 93 days of time served for possessing a weapon and contravening a Family Violence Order.  Soon after that, you committed the current offences while still battling addiction. 

19Your drug use was effectively a form of self-medication, against a background of relationship upheaval and more recentl, the health difficulties of your baby daughter, born during COVID lockdown.

20These details demonstrate that you have spent considerable time in custody over the past nine years approximately, effectively most of your adult life.  Mr Tovey submitted on your behalf that now, two and a half years later, you are a changed man from the one who committed all those offences.  Indeed, you are unrecognisable in that regard.

Efforts towards rehabilitation

21In June 2022, you began a residential drug rehabilitation program at The Cottage in Shepparton.  Through the various courses and counselling you successfully completed there over four months, you remained abstinent from drugs and alcohol and addressed issues such as anger and low self-esteem.  You left there and engaged in counselling with Maria Hutchison, who reported that you made significant changes to your lifestyle and learned to live as a responsible and respectable member of society.

22You settled permanently in Shepparton, living with your partner.  In her evidence she said you have maintained your abstinence and that you focus on work, which you are good at and on your everyday life.  She confirmed that you undertook the Men's Behaviour Change program voluntarily and that those two years have been the longest period you have spent out of prison since you were 20.

23I have also read letters from those who know you well, including people who have worked with you and employed you.  Your mother, who must know you best, wrote that she had had little faith in your ability to rehabilitate, but she now believes you have taken the necessary steps and she supports you, hoping that you will be given a chance to continue with it, rather than returning to prison.

24There are two reports from the psychologist, Ms Carla Ferrari, dated May 2021 and November 2023 and so it is possible to compare your situation and progress over two years.  The earlier report was prepared for a bail application and explained a relapse into drug use at the time of severe anxiety and difficulty managing in the community after serving the four year sentence imposed in 2017.

25Ms Ferrari observed no indication of an entrenched antisocial personality, or criminal belief system, and no attitudes condoning spousal violence.  She said your offending

“ ….is a reflection of untreated mental health issues, for which you

have not developed appropriate management skills”[2].

She added that instead, you

'… engage in maladaptive behaviours, such as substance abuse, which augments [your] risks of impulsivity, impaired decision-making and poor judgment, as well as aggressive behaviour.'[3]

[2] Report dated 19 May 2021 at para 104

[3] Letter from Maria Hutchison dated 8 December 2023

26Ms Ferrari went on to say that you have good insight into your mental health and the need for treatment.  She identified an adjustment disorder with mixed anxiety and depressed mood and considered that prison would likely weigh more heavily on you than on a person without that condition, without access to adequate treatment.

27The more recent report dated 29 November 2023 was effectively an updated report explaining the history of the stress caused when your baby was born five weeks prematurely and later contracting meningitis, with you being unable to visit the baby in hospital because of the COVID-19 lockdown.  The baby was placed in the care of her maternal grandparents and you were unable to see her after that time.  You relapsed into drug use, having remained abstinent for 10 months while on remand and on bail.  This situation prevailed when you committed the current offending and were remanded in custody until you were bailed in June 2022.

28Ms Ferrari concluded that since being abstinent from substances, your mental health symptoms have become more pronounced, as you were previously self-medicating to manage what she termed the

'… moderate degree of psychopathology, which characterises your overall personality organisation and clinical functioning.'[4]

[4] Report of Carla Ferrari dated 29 November 2023 at para 128

29In other words, she said, your emotions are no longer suppressed.  Her other related diagnostic observations led her to the view that you were still adversely affected by these conditions, but you have learned strategies other than drugs use to manage them and you are willing and motivated to address these underlying issues[5].

[5] Observations throughout report dated 29 November 2023, but particularly at paragraphs 145 and 146.

30In summary, there is no quibbling with the claim that your progress has been immense.

Sentencing issues

31Having pleaded guilty and avoided the expense and inconvenience of a trial, you are entitled to a discount on your sentence, because of this assistance to the criminal justice system.  No witnesses were required to give evidence at the committal and the case proceeded straight to trial, or as it eventuated, a plea hearing.  This process occurred when the court was still trying to conquer the backlog in cases caused by the pandemic, which adds to its value.  It can be accepted as an indication of remorse, which is also demonstrated by your well-motivated efforts at rehabilitation. 

32You made admissions to the police about the location of drugs and cash, which the police may never have found, and you are to be given credit for that, because that is relatively unusual.

33Ms Ferrari said that prison would likely weigh more heavily upon you than on others who do not experience the same mental health conditions as you, in that the prison environment could trigger impulsive disproportionate responses, exacerbating your symptoms.  This gives rise to the application of Limbs 5 and 6 only of the Verdins principles Prison, it was said, would undermine your progress with rehabilitation and might cause significant deterioration in your mental health.

34A further issue is delay, with a long period of uncertainty for you, as to the outcome of the case.  It has been hanging over your head for two and a half years, although you have used that time to great effect and have enhanced your prospects for successful rehabilitation.  Although 33 years of age is not regarded for sentencing purposes as either young or youthful, you nonetheless have a potentially long life ahead of you and it is undoubtedly in the community's best interests that you are indeed rehabilitated and your efforts are to be given very considerable credit.

35The deferral of sentence for several months in this case has provided the advantage of allowing you a further opportunity to reinforce the efforts you have made so far, an opportunity you have taken up successfully.  The possibility of a combination sentence of prison and a Community Correction Order has thus been left open.  During this time, you have continued to be tested for drug use regularly and all results have been negative.

36Your psychologist, Ms Lagogiannis, reports that you have attended 17 sessions since February 2024 and have engaged extremely well.  Before that, you had had three sessions with Ms Mattea and transferred to Ms Lagogiannis in order to take part in a further Men's Behaviour Change Program, as I understand it and to thereby be assisted with funding, which had become onerous.

37Ms Lagogiannis considers that you will benefit from long-term psychological trauma-specialised treatment, to treat your symptoms of complex post-traumatic stress disorder, depression and anxiety.  You have told her that you intend to continue with this, to address the causes of your offending behaviour.  She considers you are highly motivated to do this.

38Over the last 13 months you have attended regular sessions of Men's Behaviour Change Program provided by Relationships Australia.  You have completed an online program called Triple P Online, a positive parenting program.  Meanwhile, you have been working with the family business Onpoint Haulage, of which you are a part owner.  The business is doing well and there is ongoing work for you.  A further positive change is that your partner's children from her previous relationship are now able to visit your home when you are there, as their father has changed his attitude towards you and has come to trust you.

39Both general and specific deterrence are relevant to sentencing in this case, tempered by your successful rehabilitation so far and taking into account a deferral period of almost six months.  The need for protection of the community underlies deterrence and raises the question of how this is best served, taking into account the need for a punitive element as well.

40The prosecution submission as to sentence is  that notwithstanding your significant progress towards rehabilitation, only a head sentence with a non-parole period is appropriate, while the defence submission is for a Community Correction Order, combined with time already served, that is, 71 days.  Current sentencing practice statistics, to which I was referred, indicate some 80 per cent of persons sentenced for drug trafficking in recent years, received a term of imprisonment, with 15 per cent sentenced only to a Community Correction Order.  Commonly, the prison term was between one and two years.

41It is conceded by both parties that the mitigating factors make this case an unusual one.  Totality plays a significant role, considering that you have spent most of your adult life in custody.  In taking into account the presentence detention of 71 days, I also take into account in broad terms the four months you spent in residential accommodation and after that, the six weeks spent in transitional housing.

42The key sentencing issue in this case is general deterrence, with little role remaining for specific deterrence.  Any such need is adequately addressed by your demonstrated progress with the greatly diminished risk of reoffending.  In my view the punitive aspect of sentencing is covered in several ways, commencing with the short period in custody, followed by your voluntary commitment to residential treatment and your ongoing successful engagement in therapy for over two years.

43A Community Correction Order, in combination, will continue to impose restrictions on your freedom for some time to come and require your attendance and efforts.  By those means, the best protection is provided for the community and your punishment is addressed.  Nothing would be gained by a return to prison,  indeed, it would likely reduce the effects of your progress and prevent its continuation, as I noted earlier.

44Although the offending was serious by its very nature, the merits of this case require an unusual disposition and justified departure from sentencing for similar offending.

45Would you stand now please, Mr Wynd.

46I sentence you to the following terms of imprisonment:

For Charges 1 to 6 inclusive, I impose an aggregate sentence of two months' imprisonment. 

For each of the summary Charges 4 and 11, two months' imprisonment.

For each of the summary Charges 18 and 19, one month. 

For each of Charges 7 and 8 on the indictment, 71 days. 

All sentences are to be served concurrently.

47I also impose a Community Correction Order, which will begin today and will last for two years.  You will be under supervision, and you must perform 200 hours of unpaid community work.  The hours spent on any programs you undertake may be credited against the work hours.  You must engage in treatment programs for drug and alcohol abuse and you must be assessed for mental health treatment.

48Finally, there will be an exclusion clause, which I note is something you have requested, that will prohibit you from going to Warrnambool.  This was a condition of your bail and you have reported that you found this helpful. 

49You must not attend within the boundary of Warrnambool.  You must attend the Shepparton Corrections office by 4 pm within two working days of today, which is Friday. 

50If you had pleaded not guilty, I would have sentenced you to 12 months' imprisonment, with a non-parole period of six months.  I declare that the presentence detention of 71 days is to be reckoned as having already been served and I shall cause that to be noted on the court record.

51The prosecution seeks orders for the forfeiture and disposal of drugs and the baton and the knuckleduster and I make those orders subject to any objection.  I take it there's no objection, Mr Tovey?

52MR TOVEY:  No, there's no objection, Your Honour.

53HER HONOUR:  Yes.  I haven't got those orders right here.  Thank you.  I will sign those in a moment.  There is just - excuse me.

54MR ROPER:  Your Honour, can I just clarify, I think there should be for the drugs, the weapons and the cash, the proceeds  of crime forfeiture orders and disposal orders.

55HER HONOUR:  Yes, I have that here as well. 

56MR ROPER:  Yes.

57MR TOVEY:  May it please the court. I'll now sign these orders.

58HER HONOUR:  Yes, Mr Tovey, would you like to accompany my associate to the dock?

59MR TOVEY:  If I could, with Ms Gyles, Your Honour.

60HER HONOUR:  Just to clarify something about the CCO, Mr Wynd.  Do you understand that if you were to commit any offence which could attract a prison sentence during the duration of the CCO, that you could be breached for that and brought back to court and resentenced?

61OFFENDER:  Yes.

62HER HONOUR:  Thank you.  Anything else Mr Roper?

63MR ROPER:  Nothing further, Your Honour.

64HER HONOUR:  All right, thank you.  Mr Tovey?

65MR TOVEY:  No, Your Honour, it please and thank you.

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