Director of Public Prosecutions v Young
[2024] VCC 197
•22 December 2023
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR-23-01027
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| RHYS YOUNG |
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JUDGE: | HIS HONOUR JUDGE MOGLIA |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 15 December 2023 |
DATE OF SENTENCE: | 22 December 2023 |
CASE MAY BE CITED AS: | DPP v Young |
MEDIUM NEUTRAL CITATION: | [2024] VCC 197 |
REASONS FOR SENTENCE
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Subject: Criminal Law – Sentence – Plea of Guilty.
Catchwords: Prohibited person possess firearm – trafficking a drug of dependence – possessing alprazolam – possessing testosterone – possessing steroids – possess ammunition – possess Schedule 4 poison – proceeds of crime – trafficking not sophisticated – firearm offence serious in context of trafficking – relevant priors for trafficking - high culpability – chronic drug use - moderately good prospects of rehabilitation - specific and general deterrence.
Legislation Cited: Crimes Act 1958 (Vic); Confiscation Act 1997 (Vic) Sentencing Act 1991 (Vic); Firearms Act 1996 (Vic).
Cases Cited:Brown (aka Davis) v The Queen [2020] VSCA 60; Worboyes v The Queen [2021] VSCA 169.
Sentence:total effective sentence of three years and nine months and non-parole period of two years and four months; 6AAA: five years and six months and non-parole period of three years and six months.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | M. Radzaj | Office of Public Prosecutions |
For the Accused | T. Acutt | Slink & Keating |
HIS HONOUR:
1Rhys Young, you have pleaded guilty to being a prohibited person in possession of a firearm (Charge 1); trafficking a drug of dependence (Charge 2); possessing alprazolam or Xanax (Charge 3); possessing testosterone (Charge 4); and a rolled-up charge of possessing various types of steroids (Charge 5).
2You have also pleaded guilty to summary offences of possessing ammunition without a licence (Summary Charge 2); possessing a Schedule 4 poison, namely human growth hormones (Summary Charge 12); and dealing in suspected proceeds of crime (Summary Charge 13).
Circumstances of Offending
3The agreed summary of your offending is set out in the prosecution opening dated 30 November 23. In short, at about 1.20 pm on 7 September 2022, police arrested you at a petrol station in Frankston. They executed search warrants on your vehicle and seized a number of items including the following: 13.6 grams of methamphetamine (Charge 2); $7,210 cash (Summary Charge 13); 1.38 calibre cartridge ammunition (Summary Charge 2); and a balaclava, bolt cutters, gloves and a revolver holster.
4Police took you to the Frankston police station where you declined to answer questions. You were then remanded in custody.
5Soon after your arrest police executed a search warrant at your factory at 7/70 Bardia Avenue, Seaford. You were the co‑director and secretary of a company that held a mortgage over that property.
6From here police seized various items including one 0.357 Smith & Wesson Magnum revolver (Charge 1) in an unlocked toolbox hidden behind a false wall; 13.8 grams of methamphetamine (Charge 2); 18 vials of assorted steroids including cypionate, Dianabol, drostanolone, epithalon and testosterone (Charge 5); 264 rounds of 0.357 calibre Magnum ammunition, 41 rounds of 0.320 calibre ammunition and 44 rounds of 9 millimetre Luger ammunition (all Summary Charge 2); also vials of human growth hormone (Summary Charge 12).
7At the same time other police executed warrants at your home at 12 Denman Avenue, Edithvale, where they seized about 200 full, half or partially crushed Alprazolam or Xanax tablets (Charge 3); six vials of testosterone (Charge 4); 16 vials of human growth hormone (Summary Charge 12); and $2,705 cash (Summary Charge 13).
Procedural History
8By your plea you have accepted that each of these items were in your possession. At the time you were a person prohibited from possessing a firearm due to a sentence of this court imposed on you on 27 October 2014.
9You applied for bail two days later on 8 September 2022 which was refused. You have remained in custody since then, mostly at the Melbourne Remand Centre.
10You conducted a contested committal and almost a year later after your arrest on 7 September 2023, engaged in a case conference hearing before a judge of this court. Following this, the Crown withdrew other allegations, and you resolved the matter. After delays that were no fault of yours, you pleaded guilty on 15 December 2023.
11I accept that your plea comes relatively early in the proceedings. It shows that you are willing to facilitate the course of justice. You have admitted your responsibility and you have spared the community the expense and time of running a trial. Your plea also attracts greater than usual weight because it helps ameliorate the backlog of trials caused by the COVID pandemic. I will factor this into your sentence accordingly.
Personal Circumstances
12You were born in March 1988 and you are now 35 years old. You were 34 at the time of the offending. You grew up in Victoria and were raised by your mother and father in a relatively unstable environment. Your father abused drugs and alcohol. Your stepfather, who moved-in when you were about seven, denigrated and emotionally abused you. At around age 12 or 13 you were physically mistreated by a close family member which you report as having lasting impact on you.
13At 14 you commenced living at your grandparents' and enjoyed a close and positive relationship with your grandmother. You eventually returned to live with your father and were exposed to his drug use and alcoholism. He died when you were 16 and shortly thereafter you returned to live in a caravan at the family home.
14You left school when you were 15 and with the encouragement of your step‑father entered the workforce. You have since accumulated a strong work history in labouring and construction industries. At 18, you worked in Queensland for several years as a painter and laying timber floors. Upon returning to Melbourne you started working as a labourer and then later with various crane companies.
15In 2022 you and an associate started a business. The business was never fully operational but it quickly added to our everyday stress which you confess contributed to your relapse into heavy drug use which provided a context for your offending.
16During your time in Queensland you enjoyed a positive relationship with a partner who still supports you. After returning to Melbourne however you began using ice and quickly became addicted. You then started trafficking the drug for which with other offences you were sentenced in 2013 to 12 months in gaol.
17In 2014 you were sentenced on appeal for a serious kidnapping and related offences, including possessing methamphetamine, to a term of seven years and nine months with a non-parole period of five years and three months. The judgment of the Court of Appeal reveals that the kidnapping arose out of a dispute you and others had with a small-time drug dealer. You had paid him $13,000 for two semi-automatic pistols but he had not delivered, and you suspected he had just stolen the money.
18After your release you sought support from the Judy Lazarus Transition Centre but within months following your parole you began using Xanax to help you sleep. Then with increasing stresses you soon began using different amounts of ice daily. You attempted to appear healthy and fit by taking testosterone and growth hormones and this provided a context of your offending in this case.
19Your criminal history is relevant and serious. In determining the appropriate sentence in this case, I must take into account your progress on previous orders and while you are not to be punished again for your past offending I find that it requires that I place greater weight on deterring you from future like-offending and the need to protect the community.
20Psychologist Aaron Cunningham assessed you and provided a report to the court dated 11 December 23 (Exhibit 1). He stated that your upbringing undoubtedly affected your formation, contributing to your addictive behaviors and low self-esteem which started in your teens.
21Mr Cunningham stated that the constant denigration by your stepfather meant that your self‑worth was contingent on acceptance from others. Significantly, it also contributed to your motivation to achieve. The normalization of drug use from your father meant that when life became stressful you coped by turning to ice.
22I accept Mr Cunningham's opinion that you are motivated to rehabilitate yourself and reintegrate into society. He states that your risk of reoffending is high until you address your drug problem.
23I find that your steps towards rehabilitation in the community must be appropriately managed so that you do not return to drugs if you again become overwhelmed.
24Your counsel submitted and I accept that you have made concerted efforts on remand towards your rehabilitation. You engaged in five targeted alcohol and drug sessions via teleconference with a psychologist, Karly Doyle from February to June 23 (Exhibit 2). You also actively engaged in four individual sessions with clinical psychologist, Megan Socal, that addressed your mental health and offending behaviour (Exhibit 3).
25You have remained on the waitlist for prison drug programs but have participated in other programs relating to general life skills and you have obtained work in manufacturing.
26You are taking your ADHD medication and report it as being a massive help in your overall wellbeing.
27As an indicator of your motivation you have engaged in an assessment the Australian Forensic Rehabilitation group (AFTR) who provide outpatient drug treatment programs (Exhibit 4).
28You have also confirmed the possibility of returning to work with your previous labor-hire employer (Exhibit 5).
29Your friends and family have provided character references on your behalf (Exhibit 6). Your mother, brother and sister all speak of their full support of you and reflect on your positive and energetic attitude when you have stayed away from drugs. Your former colleague, Billy Knight, expressed admiration for your diligence and motivation during your employment together. Your brother Stuart has offered you accommodation until you find a place of your own.
30It is clear that you enjoy a strong network of support from those who are aware of your drug use and your need for ongoing rehabilitation following your release.
31In a letter to the court dated 14 December 23 (Exhibit 7), you express regret and shame for what you have done but that you are proud of the achievements you have made towards rehabilitation. I accept you have a degree of insight. You identify some of the causes leading to your relapse and the need to engage with a psychologist upon your release. Your focus on the future is positive and in all the circumstances I find your prospects of rehabilitation to be moderately good.
Sentencing Considerations
32The maximum penalty for possessing a firearm as a prohibited person is 10 years' imprisonment. For trafficking it is 15 years. For the drug possession charges it is one year each.
33For the summary offence of possessing ammunition the maximum penalty is 40 penalty units, for possessing the Schedule 4 poison it is 10 penalty units and for possessing the cash suspected to be proceeds of crime it is two years.
34The possession of firearms by prohibited persons is a serious offence that must attract stern consequences. The danger such weapons can pose to others is considerable. Your possession in circumstances where you were also trafficking methamphetamine is more serious even if having the gun was only incidental to the trafficking and not directly related. I find your culpability for this offence to be high.
35I also find your culpability for the trafficking to be high. While the quantity of the drug was not very high, and I do not find that your trafficking was organised or sophisticated, you have a prior conviction for it and served time in prison for that offence in 2014.
36I do not however elevate the seriousness of your trafficking because of the firearm. You are not alleged to have used it to engage in the trafficking and you are not to be punished twice for the fact that both offences arise in the same circumstances.
37The need to deter others from such offending is great, partly due to methamphetamine trafficking being prevalent. You also need to be deterred specifically from repeating such conduct given your history. The term of imprisonment is also required to denounce your conduct and to impose just punishment in keeping with current sentencing practices.
38I propose to order a degree of concurrency between your sentences to reflect the totality of your offending and to avoid a disproportionate total sentence. You have been in custody now since 7 September 22.
39I accept that while lockdowns and other COVID related restrictions since that time have been minimal in custody, you have lived with the prospect of such things which has no doubt made time in prison more stressful.
40The prosecutor submitted that a prison term attracting a non-parole period was necessary in this case. Your counsel conceded imprisonment but that you could be released within a year of sentence on a CCO.
41While I accept you have made gains in rehabilitation and have moderate prospects of continuing down that path, by your own admission your use of ice prior to your arrest was at a very high level and your drug use has been chronic.
42In all the circumstances I am not satisfied that a release on a CCO is appropriate. I find that there is a need for intensive yet flexible monitoring and control upon your release and that this is best served by a parole type sentence.
43I have had regard to the cases referred to me by both the prosecutor and your counsel.
44I sentence you as follows:
On Charge 1, prohibited person possessing a firearm – 2 years and 9 months.
On Charge 2, trafficking methamphetamine – 2 years.
On Charge 3, 4 and 5, possessing drugs of dependence – 3 months on each.
On the summary offences of possessing ammunition and possessing growth hormones you are convicted and discharged.
On the summary offence of possessing suspected proceeds of crime – 5 months' imprisonment.
45One year of the sentence on Charge 2 for trafficking is to be served cumulatively upon the sentence on Charge 1, making a total effective sentence of 3 years and 9 months.
46I fix a non-parole period of 2 years and 4 months.
47I declare that you have served 471 days pre‑sentence detention and direct that this be reckoned as a period already served under this sentence.
48In accordance with section 6AAA of the Sentencing Act 1991 (Vic), but for your guilty plea I would have imposed 5 years and 6 months and fixed a non-parole period of 3 years and 6 months.
49I make the unopposed orders for disposal of the drugs under section 78 and for forfeiture of the money and other items seized under section 33 of the Confiscation Act 1997 (Vic).
50I also make the unopposed order for forfeiture of the firearms and ammunition under section 151 of the Firearms Act 1996 (Vic).
51The bail application, it still being listed, is refused.
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