DPP v Donaldson
[2016] VCC 1692
•25 October 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-16-01573
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| TROY HENRY DONALDSON |
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JUDGE: | HER HONOUR JUDGE HOGAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 6 October 2016 | |
DATE OF SENTENCE: | 25 October 2016 | |
CASE MAY BE CITED AS: | DPP v Donaldson | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 1692 | |
REASONS FOR SENTENCE
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Subject: 1 charge of trafficking commercial quantity (GHB), 2 charges of trafficking (ice and ecstasy), 7 charges of possessing drugs of dependence and summary charges: 3 charges of possessing a prohibited weapon, 1 charge of possessing explosives (fireworks), 1 charge of dealing with property suspected of being the proceeds of crime, 3 charges of committing an indictable offence whilst on bail – early pleas of guilty – prior convictions for trafficking and possession of drugs of dependence – total effective sentence 8 years with a non-parole period of 4 years
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr T Hoare | Solicitor for Office Public Prosecutions |
| For the Accused | Ms S Parsons | Doogue O’Brien George Solicitors |
HER HONOUR:
1 Troy Henry Donaldson, you have pleaded guilty to the following indictable offences: one charge of trafficking in a commercial quantity of 1,4-Butanediol, which carries a maximum penalty of 25 years' imprisonment; two charges of trafficking in methylamphetamine and MDMA (ecstasy), respectively, each of which carries a maximum penalty of 15 years' imprisonment; and seven charges of possessing a drug of dependence: cocaine, LSD, cannabis, Clonazepam, Alprazolam, Diazepam and testosterone, respectively. Each of these seven charges carries a maximum penalty of 5 years' imprisonment.
2 In addition, you have consented to seven summary charges being transferred to the County Court from the Magistrates’ Court and have pleaded guilty to those charges. They are as follows: three charges of possessing a prohibited weapon: a crossbow, Samurai sword and a knuckle knife, respectively, each of which carries a maximum penalty of 2 years' imprisonment; one charge of possessing explosives, namely, fireworks, which carries a maximum penalty of 100 penalty units; one charge of dealing with property suspected of being the proceeds of crime, namely $3,420 cash, which carries a maximum penalty of 2 years' imprisonment; and three charges of committing an indictable offence whilst on bail, namely, trafficking, possessing a drug of dependence and possessing prohibited weapons, respectively. Each of these three charges carries a maximum penalty of 3 months' imprisonment.
3 Your offending conduct is detailed in the Amended Summary of Prosecution Opening which was tendered as Exhibit A at the plea hearing.
4 Between November 2015 and April 2016, police conducted a number of operations into a well-organised drug syndicate. They used telephone intercepts, covert operatives, tracking devices, listening devices and physical surveillance. Police identified and charged 15 members of the syndicate, which was headed by one James Mobasheri. You mainly used an instant messaging application, “Wickr”, to place your drug orders with Mobasheri. This application enables the sender to set a time after which the message will disappear, so that there will be no trace of it. You also spoke in coded conversations about drugs with Mobasheri.
5 Charge 1, trafficking in a drug of dependence in a commercial quantity, namely, 1,4-Butanediol, or GHB, comprised you ordering 2 litres of this drug from Mobasheri by telephone on 21 February 2016. This was apparently delivered to your address by Mobasheri on 22 February 2016.
6 Charge 2, trafficking in a drug of dependence, namely methylamphetamine, comprised quantities of 112 grams on 22 February and 140 grams on 24 February 2016, a total of 252 grams, which were the subject of coded conversations between you and Mobasheri on these dates.
7 Charge 3, trafficking in a drug of dependence, MDMA (ecstasy), comprised you being found in possession of 9 grams of this drug when police executed a search warrant at your house on 10 March 2016.
8 Charges 4 to 10, possession of various drugs, also relate to drugs which were found by police at your house when they executed the search warrant on 10 March 2016. They located 0.2 grams of cocaine (Charge 4), two tablets of LSD (Charge 5), 18.6 grams of cannabis (Charge 6), 0.2 grams, or one tablet, of Clonazepam (Charge 7), less than 0.5 grams of Alprazolam (Charge 8), 2 grams of Diazepam (Charge 9) and 19.2 grams of testosterone (Charge 10).
9 When police executed the search warrant, they observed you coming out of the toilet, after having attempted to flush a quantity of drugs down it. Apart from the drugs which are the subject of the indictable charges, police also located weapons, scales, mobile phones and documents relating to drug trafficking. The documents included one headed “Troy’s profits”, which sets out what you pay for various quantities of drugs and what you sell them for. The sale price was generally over three times the amount for which you would purchase the drug.
10 You were arrested on 10 March 2015 and made a “no comment” record of interview, as is your legal entitlement. However, following a committal mention on 12 September 2016, the matter resolved into a plea of guilty by you to the subject charges. The Court was told that, thus far, you are the only one of the 15 people in the drug syndicate to have pleaded guilty to indictable charges in this Court. Ten others are to conduct a committal hearing next year and the remaining four made applications for their charges to be dealt with summarily in the Magistrates’ Court. Of those four, two persons, Georgia McDonald and Bear Hackenberger, were sentenced to a Community Correction Order and a fine, respectively. Each of those people had no prior convictions and clearly faced much less serious charges than you. It was not submitted that parity should apply in sentencing you.
11 You are presently aged twenty-nine years, having been born on 5 May 1987. You come before the Court with a number of prior convictions.
12 In Southport Magistrates’ Court in Queensland, you appeared on 30 June 2004 for possessing dangerous drugs and, without conviction, you were ordered to pay a fine. In that same Court you appeared on 16 April 2012 for possessing dangerous drugs and utensils or pipes, for which you were convicted and ordered to pay a fine of $900. You appeared again in that same Court on 10 October 2014 on charges of possession of dangerous drugs, unlawful possession of weapons, possession of explosives without authority, possession of property suspected of having been used in connection with the commission of a drug offence and unlawful possession of restricted drugs and other relevant substances. On all nine charges, no conviction was recorded, and you were placed on probation for a period of 12 months. At Proserpine Magistrates’ Court in Queensland on 23 January 2015, you were charged with contravening a direction or requirement and convicted and fined $500.
13 On 5 November 2015, you appeared at Melbourne Magistrates’ Court charged with trafficking methylamphetamine (119.3 grams) and dealing with property suspected of being the proceeds of crime ($3,915). You were convicted and sentenced to an aggregate term of imprisonment of 6 months, with 192 days in custody reckoned as a time already served, together with a Community Correction Order of 18 months. The order included a condition of judicial monitoring, which required you to return to the Melbourne Magistrates’ Court on 10 February 2016. You failed to attend on that date and a warrant for your arrest was executed and you were bailed to attend at Melbourne Magistrates’ Court on a later date.
14 It is an aggravating feature of the offending for which I must sentence you that you have breached the Community Correction Order upon which you were placed on 5 November 2015, as well as breaching the bail upon which you had been placed following your failure to appear on 10 February 2016.
15 In a plea on your behalf by Ms Parsons, the Court was told that you were born in Queensland and grew up on the Gold Coast as the youngest of three siblings. You completed school to Year 10 level and then undertook an apprenticeship in commercial plumbing and worked in that area for approximately 10 years. In 2007, you met a woman who became your partner until the relationship ended in either 2012 or 2013. You have two daughters from this relationship, who are respectively aged seven and eight years.
16 Ms Parsons told the Court that the split up with your partner was an acrimonious one. She was using illegal drugs and had started another relationship. The Department of Human Services became involved and you suddenly found yourself as the primary carer for the two children. Ms Parsons stated that your former partner ended up serving a sentence of imprisonment for armed robbery relating to her drug use. She stated that you had found it stressful suddenly being a sole parent and you struggled to keep up your full time work. You started using illicit drugs in order to cope with the stress and, ultimately, your reason for trafficking in drugs was claimed to be in order to support your two children.
17 You clearly had a history of having used drugs for which you had come before the Southport Magistrates’ Court in June 2004 and April 2012. So, I find it difficult to accept that you only started to use drugs after the split up of your relationship. Ms Parsons stated that, at the time of separating from your partner, you lived on the Gold Coast, where you had a close relationship with your mother and siblings and, also, with your biological father, who presumably was separated from your mother, but also lived in Queensland at that time. It is difficult to understand why, if you found being a single parent stressful, you would have moved from the Gold Coast to Airlie Beach, where you had no family support whatsoever and where you claim to have started using illicit drugs in order to cope. It was suggested at the plea hearing that your mother had been diagnosed with cancer at some point and, for this reason, was unable to assist you. However, the date of diagnosis was extremely unclear and, this morning, I have been told that in fact she was not diagnosed with cancer but, rather, suffers emphysema.
18 Ms Parsons stated that the offences of trafficking in methylamphetamine and dealing with property suspected of being the proceeds of crime, for which you were sentenced in the Melbourne Magistrates’ Court on 5 November 2015, had been committed on or about 17 November 2014. She stated that you had left your two daughters with your mother and came for “a holiday weekend” to Melbourne, which you had not previously visited. Whilst on that holiday weekend, you were arrested at the hotel where you were staying and found to be in possession of 119.3 grams of methylamphetamine and $3,915 cash suspected of being the proceeds of crime. How you, as a young man who had never been in Melbourne, suddenly found yourself in these serious criminal circumstances on your “holiday weekend” was never satisfactorily explained to the Court. It would appear to be an astonishingly irresponsible thing to have done, given that you had the sole care of your two young daughters, who had already lost the care of their mother, at that stage.
19 You were remanded in custody on those earlier charges from 18 November 2014 until you were granted bail in May 2015, presumably so that you could look after your daughters. Your bail had conditions that you engage in the CISP program and your two daughters came back into your care whilst you were on bail. It appears that, when you were sentenced for this offending on 5 November 2015, you were given time served plus a Community Correction Order. Your daughters continued to live with you until you were arrested on 10 March 2016 for the offending for which I must sentence you. It would appear that the seven months of community funding for your rehabilitation whilst undergoing the CISP program was wasted and your unfortunate children were left, again, without a parent who was supposed to be looking after them.
20 I consider that the material which has been put to the Court on your behalf, namely, that you began using drugs in the context of an acrimonious break up of your relationship and the stress of caring for two young daughters, is simplistic in the extreme. It is mind boggling that a father of two young children, who had earned his living from a trade as a commercial plumber for over a decade, would somehow think it appropriate to support his children by drug trafficking. It does not bear thinking about if every single parent in Australia were to decide to supplement his or her Centrelink benefits by engaging in drug trafficking. It is plain that your drug use did not simply come out of the blue, but nor is there any evidence that you were addicted or experienced traumatic withdrawal symptoms when remanded in custody. Rather, you appear to have decided that this was an easy way to earn a living. The drug syndicate, of which you formed a part, operated in a sophisticated way, as is evident from your use of the “Wickr” messaging application. Moreover, recorded conversations with Mobasheri demonstrate that you had a familiarity with the code language of drug trafficking. Further, the document headed “Troy’s profits” demonstrates the profit which you apparently stood to make through the evil of drug trafficking. Whilst there is no evidence of enrichment, it is plain that you were engaged in this pernicious trade for callous financial gain at the expense of people who were unhappily dependent upon or abusing illicit drugs.
21 In the circumstances, in sentencing you, this Court must denounce your conduct and emphasis must be placed on general deterrence, so that people who are minded to engage in this trade, which causes so much damage to our community, will know that they will meet with just punishment. Given that you have a prior conviction for trafficking, as well as convictions for possessing property suspected of being the proceeds of crime, and also unlawful possession of weapons, there must be emphasis, also, upon specific deterrence. Your counsel made absolutely no mention of why you were in possession of such nasty weapons as a crossbow, a Samurai sword and a knuckle knife. Unhappily, such weapons are commonly found in association with the nefarious conduct of drug traffickers.
22 In your favour, you must be given credit for your early plea of guilty, which demonstrates a preparedness to facilitate the course of justice, even though there is no evidence that you are truly remorseful for what you have done, as distinct from being sorry for your plight and what you have done to your children, who are now living back with their mother, who has been released from gaol. There is no evidence that you have reflected about the detriment that your conduct causes to our community. Illicit drugs take an enormous toll on those who become addicted to them. They often cease to be capable of functioning in any meaningful sense either in study or employment, their relationships with family and friends fracture, very frequently drug use is associated with the commission of other crimes and there is a huge burden which it places on our hospital and medical services, rehabilitation services, law enforcement agencies, the courts and correctional facilities. Illicit drugs are a scourge on our society and conduct such as that committed by you and others in this sophisticated syndicate must be punished. Save for being satisfied that Mr Mobasheri was the head of the syndicate, there is no evidence which places you anywhere in a particular hierarchy. The evidence shows that you purchased drugs from him and sold them onto others. There is no evidence that you followed his directions or undertook deliveries for him or assisted him in any way.
23 In sentencing you, I take into account that your trafficking conduct on the charges for which I must sentence you occurred over a relatively short period of time, two days in February 2016 on Charge 1 and between two dates less than three weeks apart on Charge 2. Charge 3 and the remaining charges of possession were all committed on a single date, namely, the date of the execution of the search warrant at your house.
24 Ms Parsons stated that you have not used drugs whilst in custody and have periodically undertaken urine screens which have been negative for illicit drug use. This morning, a document has been tendered showing that, since being taken into custody at the Metropolitan Remand Centre, you have undergone urinanalysis on seven occasions between 15 February 2015 and 15 October 2016 (Exhibit “1”), each of which have given a negative result for the presence of illicit drugs. It is to your credit that you have apparently been remaining abstinent from drug abuse, as it is unhappily the fact that unscrupulous persons do trade in illicit drugs despite the best efforts of correctional facilities.
25 Ms Parsons also stated that you had been held at the Metropolitan Remand Centre for a period of six months during which you endured 22 or 23 hours of lockdown. She claimed that this was so because of the riots, notwithstanding that you had been remanded in custody after they had occurred. I am told this morning, that it was, in fact, 10 days, but I accept that this is very onerous incarceration and take that factor into account in sentencing you. You are now allowed out of your cell for the usual period of time and Ms Parsons stated that you are undertaking work as a billet, giving out meals and cleaning. It is to your credit that you are using your time usefully in this way.
26 As I have said, in sentencing you, you are entitled to a significant and tangible discount for facilitating the course of justice. Also, the utilitarian value of your pleas of guilty are substantial, given that a trial on all of these charges may well have been a long and complex one, particularly as there are so many other offenders involved. In addition, in sentencing you, I take into account the principle of totality, particularly as the offences have been committed over a limited period, although they do involve quite a variety of different drugs:
- Charge 1 involves 1,4-Butanediol in a commercial quantity, albeit that the 2 litres apparently equates exactly with 2 kilograms, which is the definition of a commercial quantity for this drug. Thus, it is at the lowest end of the scale for a commercial quantity and the trafficking occurred on two days only. However, the maximum penalty of 25 years' imprisonment for this offence is an indicator of its seriousness.
- In relation to Charge 2, trafficking in methylamphetamine, the total amount trafficked on 22 February was some 37 times the traffickable quantity of 3 grams and on 10 March 2016, was some 47 times the traffickable quantity. Hence, this is a serious example of a trafficking simpliciter charge.
- Charge 3, trafficking in MDMA, involved three times the traffickable quantity and is towards the lower range of offending on one day only.
27 Would you stand up, please.
28 On Charge 1, trafficking in a commercial quantity of 1,4-Butanediol, you are convicted and sentenced to be imprisoned for a period of 5 years.
29 On one charge of trafficking in methylamphetamine, you are convicted and sentenced to be imprisoned for a period of 3 ½ years.
30 On Charge 3, trafficking in MDMA, you are convicted and sentenced to be imprisoned for a period of 15 months.
31 On Charge 4, possession of cocaine, you are convicted and sentenced to be imprisoned for a period 3 months.
32 On Charge 5, possession of LSD, you are convicted and sentenced to be imprisoned for a period of 3 months.
33 On Charge 6, possession of cannabis, you are convicted and sentenced to be imprisoned for a period of 6 months.
34 On Charge 7, possession of Clonazepam, you are convicted and sentenced to be imprisoned for a period of 3 months.
35 On Charge 8, possession of Alprazolam, you are convicted and sentenced to be imprisoned for a period of 3 months.
36 On Charge 9, possession of Diazepam, you are convicted and sentenced to be imprisoned for a period of 3 months.
37 On Charge 10, possession of testosterone, you are convicted and sentenced to be imprisoned for a period of 6 months.
38 On the summary charges, you are sentenced as follows:
39 On Charge 13, possession of a prohibited weapon (a crossbow), you are convicted and sentenced to be imprisoned for a period of 6 months.
40 On Charge 14, possession of a prohibited weapon (a Samurai sword), you are convicted and sentenced to be imprisoned for a period of 6 months.
41 On Charge 15, possession of a prohibited weapon (a knuckle knife), you are convicted and sentenced to be imprisoned for a period of 6 months.
42 On Charge 16, possession of explosives (fireworks) you are convicted and fined the sum of $200.
43 On Charge 17, dealing with property the proceeds of crime ($3,420 cash), you are convicted and sentenced to be imprisoned for a period of 3 months.
44 On Charge 18, committing an indictable offence on bail (namely, trafficking in a drug of dependence), you are convicted and sentenced to be imprisoned for a period of 1 month.
45 On Charge 19, committing an indictable offence while on bail (possessing a drug of dependence), you are convicted and sentenced to be imprisoned for a period of 1 month.
46 On Charge 20, committing an indictable offence while on bail (possessing a prohibited weapon), you are convicted and sentenced to be imprisoned for a period of 1 month.
47 The base sentence is that of 5 years imposed on Charge 1, trafficking in a commercial quantity of 1,4-Butanediol. I direct that two years of the sentence imposed on Charge 2, five months of the sentence imposed on Charge 3 and one month on each of the sentences imposed on Charges 4, 5, 6, 10, summary Charge 13, summary Charge 17 and summary Charge 18, be served cumulatively upon the sentence imposed on Charge 1 and upon each other. Save for such cumulation, all sentences are to be served concurrently.
48 The total effective sentence is 8 years’ imprisonment.
49 I consider that the facts that you have had a reasonably good work history over a period of a decade, that you apparently have a supportive family and that you have a genuine desire to reconnect with your children, are matters which, in combination with your pleas of guilty, bode well for reasonable prospects of rehabilitation. Accordingly, I propose to set a shorter than usual non-parole period. Thus, I direct that you serve a period of 4 years’ imprisonment before becoming eligible for parole.
50 I declare a period of 229 days’ pre-sentence detention to be time reckoned as already served under the sentence imposed this day.
51 Pursuant to s6AAA, I state that had it not been for your pleas of guilty, the total effective sentence imposed would have been a period of 12 years with a non-parole period of 9 years.
52 Pursuant to s464ZF(2) of the Crimes Act 1958, I order that you undergo a forensic procedure for the taking of a scraping from the mouth in accordance with Sub-Division 30A of Part 3 of the Crimes Act 1958 until a sample of sufficient standard is obtained for placement on the database. I consider that this order is justified by reason of the seriousness of the circumstances of your offending. Mr Donaldson, you need to understand that if you do not co-operate with the taking of a swab of saliva from inside your cheek, then the police are entitled to use reasonable force to enable that procedure to be conducted.
53 As you have been convicted of Charge 1, trafficking in a commercial quantity of a drug of dependence, I order pursuant to s33(1) of the Confiscation Act 1997, that the property referred to in the schedule of this order be forfeited to the Minister, namely $3,420 cash.
54 In the light of that same conviction and being satisfied that the property referred to in the schedule of this order is other property of negligible value that was used or was intended to be used in or in connection with the commission of the offence, or was derived or realised directly or indirectly from the commission of the offence, I order pursuant to s78(1) of the Confiscation Act 1997, that such property be forfeited to the State and I further direct that it be placed in the custody of the Chief Commissioner of Police and be held by him until 28 days from this date or the conclusion of any appeal proceedings where it may be tested and/or analysed and then destroyed.
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