DPP v Bowden

[2016] VCC 708

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 16-00206

DIRECTOR OF PUBLIC PROSECUTIONS

v

ROBERT BOWDEN

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JUDGE:	HIS HONOUR JUDGE GUCCIARDO
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	24 May 2016
CASE MAY BE CITED AS:	DPP v Bowden
MEDIUM NEUTRAL CITATION:	[2016] VCC 708

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	Ms M. Doyle	Office of Public Prosecutions
For the Accused	Ms K. Churchill	Turnbull Lawyers

Pages 1 - 8

 

 

HIS HONOUR: 

1Robert Bowden, you have pleaded guilty to four charges.  The first relates to trafficking in a drug of dependence in not less than a commercial quantity.  That was on 3 August 2015 involving the drug of dependence 1,4-butanediol.  The second charge was trafficking in a drug of dependence on the same day, related to methylamphetamine.  The third and fourth were charges of possession of a drug of dependence, namely cannabis in Charge 3 and MDMA in Charge 4, each said to have occurred on 3 August 2015.

2You also pleaded guilty to ten related summary offences each of dealing with property suspected of being proceeds of crime, except one which was related to possession of a prohibited weapon with exemption, a knuckle duster.

3At the hearing of plea the prosecution tendered a summary of the facts relied upon and I shall not recite these details except inasmuch as they are sufficient to explain the circumstances of your offending.

4On 3 August police officers came to your residence where you had been living since May 2015 and executed a search warrant.  You were found hiding behind the rear passenger-side wheel of a red Holden ute.  Your girlfriend and another woman were found in the house; upstairs in a bedroom police found the owner. 

5You lived on the bottom level and paid rent.  In your bedroom police found two large buckets; one was half full and was next to an oil heater, contained a liquid which was slightly crystallised; the second was near the door to the garage and was about one-third full with a crystallised liquid in it.  Two other glass bottles were also located.  The substances in these containers were analysed and found to contain various amounts of 1,4-butanediol to the equivalent weight of 18.5 kilograms, some nine times the commercial quantity.

6Throughout the room police found a number of snap-lock plastic bags containing powders and crystals and the substances contained were then analysed and found to be the drug ice.  The summary contained a breakdown of each of the bags which contained varying amounts and various percentage of purity.  In total 251.6 grams containing 23.3 grams of methylamphetamine was found.  A snap-lock bag containing 13.1 grams of cannabis was also found.  One tablet at 0.02 grams of MDMA was also found. 

7The related summary offences covered a number of items of property ranging from documents to keys, racing bike, laptop, computer, rings, cash an iPad and the knuckle dusters.  When interviewed by the police, you denied any knowledge of the drugs or of the property of the proceeds of crime.  Your DNA was later found in snap-lock bags containing the drugs of dependence.

8Trafficking in a drug of dependence in a commercial quantity carries 25 years' imprisonment as a maximum.  Trafficking carries 15 years.  By these maxima, the law seeks to indicate the gravity of these offences.  The seriousness of the offending is one essentially determined by quantity and in this case your possession is the determinant factor in your trafficking.  That is possession for sale, in other words for that purpose.

9You purchased the butanediol in baulk, together with other drug associates.  Each of the four of you agreed to contribute 3,000 for a quarter share of the substance.  Butanediol is an industrial cleaner solvent which, once swallowed, metabolises into GHB in the body.  It is a relatively cheap drug, unlike ice or heroin, and during the plea I was advised that the relative values at street level under the GBL umbrella with one litre sold for between 2,200 and 3,000, consistent with the finding in DPP v Maxwell, giving values of between 10,000 and 17,000 at street value.

10At the same time you were a heavy user and I accept that, together with your own use of the substance, you stood to gain a moderate amount from its sale, which nonetheless is the very mischief which in part trafficking seeks to address irrespective of values.  I also accept that the quantity of ice contained in the various bags was relatively low, 0.22 of a gram, with the rest being ice product.

11The financial reward anticipated is relevant to the objective gravity of the offence and of course the higher the reward of such criminal conduct which inflicts such harm on the community and individuals, the higher the moral culpability of the offender.  On the balance of probabilities I accept that you stood to derive only a modest amount personally from the trafficking of the substance.  This approach is the approach which the court proved in Maxwell; obviously the greater the anticipated reward, the more powerful the deterrent message must be and the converse is also true.

12Similarly general deterrence aimed at the potential offenders involved in offences involving drugs where profits to be reaped are large will take a greater prominence in cases like yours.

13I take your plea into account.  It was offered prior to the running of a contested committal with no witnesses cross-examined.  Your plea has a utilitarian value, saving the community the costs and the inconvenience of a criminal trial.  I accept that your plea is an indication of acceptance of responsibility and of some remorse.  Although you made denials in your interview and sometime afterwards, you told the informant that being arrested was the best thing to happen to you.  A discount will be applied to your sentence because of your plea.

14I take into account your personal circumstances.  You are 33 years old.  You had a stable childhood, experiencing no trauma or abuse; however, when you were 18 the first important matter occurred in your life.  You moved to an aunt's house to care for her for a few months.  You also provided care for your eight-year-old cousin.  When your aunt died, probably due to the undue responsibility for a young man of such age, you fell into depression.

15You returned to live with your parents and, since that time, have been in a series of relationships which did not persist in time.  Your parents moved to northern New South Wales some six years ago and your brother David remains here and has visited you in gaol.

16You completed year 10 and then worked in the scaffolding and labouring industry.  Your depression effectively prevented you from ongoing long-term commitment in work and then, at 26 years, you fell from a scaffolding and suffered a back injury.  You have not worked since and have been in receipt of the Disability Support Pension. 

17From age 16 you used cannabis and tried amphetamine at 18 and then ice.  Prior to being arrested you would use two to three grams of methylamphetamine daily.  You also used 10 to 150 of GHB per day.  This is significant use. 

18The idleness subsequent upon your injury and the depression issues led to a significant weight gain, which was dealt eventually by a gastric sleeve, a radical procedure which facilitated weight loss and a break in the drug use for a period.  However, in 2015 a close friend was murdered.  You medicated yourself heavily with drugs and relapsed into significant use. 

19You have a major depressive disorder, according to Dr. Aaron Cunningham, the forensic psychologist who wrote a report for the court dated 3 May 2016.  The use of drugs to counter your depression and manage your emotional state has led to a failure in the development of prosocial strategies for managing your mood, has led to relationship breakdowns, loss of employment and loss of friends.

20There are some positive factors which Mr Cunningham identifies.  He has noted your desire not to go back to a life of drug use, preferably to move to northern New South Wales near your parents.  You have expressed also a need for drug rehabilitation and ongoing.  Mr Cunningham opines that long-term incarceration may aggravate your sense of self-worth. 

21Although it was submitted that Verdins principles were enlivened, it was said that the matters raised in O'Neil recently in the Court of Appeal apply.  Although it is more than likely that the disorder made a relapse into drug use inevitable, in my view, the aspects of Verdins which may be enlivened are only those that refer to the impact of incarceration on you.  In this sense, though I take the disorder into account, there is no principle from which an amelioration of sentence would flow in this case in the Verdins sense.

22You have relevant prior convictions and these are relevant not because you are to be punished for them again but because they speak about your prospects of rehabilitation.  In 2007 in relation to use and possess amphetamines, use cannabis, handling stolen goods and cultivate a narcotic plant, cannabis, for which you were convicted and placed on community based order for a year with conditions, you breached that order on three occasions and ultimately it was cancelled and you were fined.

23In 2013 you received a short prison sentence, which was wholly suspended, for the retention of stolen goods.  Later that year you were ordered to perform community work under another community based order.  You breached both the suspended sentence and the community based order and the sentence was wholly restored in 2014. 

24In September 2014 you were sentenced to one and a half years' imprisonment with a six-month non-parole period for possession of firearms, dealing in proceeds of crime and, more importantly, for trafficking in a drug of dependence, possession of weapons, possession of ecstasy, ice, heroin and speed.  You were released in January 2015 on parole, but in August you were charged and remanded on these charges.  You were in fact on parole during these offences, which is an aggravating factor.

25Upon your arrest parole was revoked and you have been undergoing sentence, serving out the entirety of it.  This enlivens the principles of totality in the sense that you have spent 17 months of the last 24 in custody.  In handing down my sentence today I am conscious of the effects of institutionalisation, which I want to avoid in your case, and I have reduced further your sentence because of the totality effect.

26Currently you are at Fulham and, apart from your brother, you have no other regular visitors making your reclusion somewhat isolated.  I take all of these matters into account. 

27I accept that your current intent is to move away from the old haunts and associates and if this resolve continues, with some therapy and assistance, your prospects are good although guarded.  You have a supportive and protective family with prosocial values and you have demonstrated some insight into your predicament.

28I also received an old psychological report dated November 2013 from Elizabeth Warren, a consultant forensic psychologist, and I take the matters pertaining to your history into account.  Ms Warren interestingly noted that at that time there was not a substantial history of illicit drug abuse.  Given these offences were committed only a couple of years later, it is significant that this recent descent was a real derailment from what at that time appeared to be reasonably good prospects and a relatively low risk of re-offending.

29Given due consideration to this history and to all the factors outlined, it is inevitable that, as was conceded by your counsel, a term of imprisonment must follow.  I do not intend in any way, shape or form for such a sentence to be crushing upon you and it certainly should not crush all hopes of rehabilitation.  Rather I hope to achieve a measure of just punishment, general deterrence and the denunciation of the court for criminality.  I am satisfied on the possession charges on balance of probability that they were not committed for purposes of traffic. 

30Would you please stand, please, Mr Bowden. 

31On trafficking in a drug of dependence in not less than a commercial quantity you are convicted and sentenced to two and a half years' imprisonment.  On trafficking in a drug of dependence, ice, you are convicted and sentenced to one year imprisonment.  On possession of cannabis you are convicted and sentenced to three months imprisonment.  On the possession of MDMA you are convicted and sentenced to one month imprisonment.

32On the related summary charges, Charge 15, dealing with property suspected of being proceeds of crime, you are convicted and sentenced to two months' imprisonment.  On the following charges, all of which are dealing with property suspected of being proceeds of crime, Charge 16, two months; Charge 17, six months; Charge 18, six months; Charge 19, six months; Charge 26, six months; Charge 20, three months; Charge 22, three months; Charge 23, six months; and on Charge 24 possessing of a prohibited weapon without exemption, three months.  I order one month on Charges 17, 18, 19, 23 and 26 to be cumulative on the indictment Charge 1. 

33That makes a total of 35 months.  I also order that three months on Charge 2 on the indictment be cumulative on Charge 1 and the related cumulated periods for the summary offences, making a total of 38 months.  I order a non-parole period of 22 months.

34Take a seat.

35I have signed disposal and forfeiture orders, which I will hand down, and I will have noted in the records of the court that but for your plea I would have sentenced you to four years and a half years with a non-parole period of three years.

36Are there any other matters, Ms Churchill?

37MS CHURCHILL:  No, Your Honour.

38HIS HONOUR:  I will hand down the disposal and forfeiture orders.  Is the breakdown of that sentence clear?

39MS DOYLE:  Yes, Your Honour.

40MS CHURCHILL:  Yes, Your Honour.

41HIS HONOUR:  All right.  Yes, thank you, you can remove Mr Bowden.  I have a plea in this courtroom at 10.30, so I will just stand down.

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