DPP v Edmonds

[2022] VCC 1639

IN THE COUNTY COURT OF VICTORIA

AT Melbourne

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-21-02667

DIRECTOR OF PUBLIC PROSECUTIONS

v

Joshua James EDMONDS

---

JUDGE:	His Honour Judge Moglia
WHERE HELD:	Melbourne
DATE OF HEARING:	19 September 2022
DATE OF SENTENCE:	3 October 2022
CASE MAY BE CITED AS:	DPP v Edmonds
MEDIUM NEUTRAL CITATION:	[2022] VCC 1639

REASONS FOR SENTENCE

---

Subject:Criminal Law – Sentence upon plea of guilty

Catchwords:              Sentencing – trafficking in methylamphetamine – trafficking in heroin – negligently dealing with proceeds of crime – being a prohibited person in possession of an imitation firearm – handling stolen goods – possessing ammunition without a license – failing to comply with a direction to assist police – committing an indictable offence while on bail – contravening a condition of bail – moderately high quantity – general deterrence, denunciation, just punishment – relevant criminal history – offending while on bail for similar offending – specific deterrence highlighted – Worboyes utility of plea during COVID – Brown additional hardship in custody – unaddressed childhood issues and neglect – substance abuse from age 12 – diagnosis of severe poly-substance use disorder – reduced moral culpability – 20 years old at time of offending – youthful offender – positive progress made on magistrates’ court CISP bail – positive progress made in custody – rehabilitation highlighted – need for intensive treatment, close supervision and monitoring on release – missed opportunity for concurrency – totality

Legislation Cited:      Confiscation Act 1997 (Vic); Crimes Act 1958 (Vic); Sentencing Act 1991 (Vic)

Cases Cited:Brown (aka Davis) v The Queen [2020] VSCA 60; Worboyes v The Queen [2021] VSCA 169;

Sentence:Total effective sentence or term of imprisonment of 8 months plus community correction order for 12 months

---

APPEARANCES:	Counsel	Solicitors
For the DPP	E Dane	OPP
For Accused	P Bloemen	Fayman Lawyers

HIS HONOUR:

1Joshua James Edmonds, you have pleaded guilty to the following offences, all relating to the events of 26 May 2021:

(a)   trafficking in methylamphetamine (maximum penalty 15 years);

(b)   trafficking in heroin (maximum penalty 15 years);

(c)   negligently dealing with proceeds of crime, namely $13,125 (maximum penalty 5 years);

(d)   being a prohibited person in possession of an imitation firearm (maximum penalty 10 years);

(e)   handling stolen goods (maximum penalty 15 years);

(f)    possessing ammunition without a license (maximum penalty 40 penalty units);

(g)   failing to comply with a direction to assist police (maximum penalty 5 years);

(h)   committing an indictable offence while on bail (maximum penalty 3 months); and

(i)    contravening a condition of bail (maximum penalty 3 months);

2The agreed basis for your guilty pleas is set out in the summary of prosecution opening dated 7 April 2022. You are to be sentenced based on those facts, which I summarise and make findings about as follows.

3In relation to a prior instance of drug trafficking on 1 September 2020, you were granted bail on 25 November 2020 to reside with your mother, comply with various bail conditions and to engage in treatment with the Court Integrated Services Program in the Magistrates Court. One of those bail conditions was that you only possess one mobile phone and advise the informant of its number.

4In March 2021, you varied that bail, due to difficulties living with your mother, so that you could reside with your grandmother in Mount Waverley.

5

On 26 May 2021, police executed a search warrant at your grandmother’s home where they found you in the backyard. They searched you and your bedroom and they found a total of 243.3 grams of methylamphetamine

(194 grams pure; Charge 1), 6.4 grams of heroin (Charge 2), a total of $13,125 cash (Charge 3), an imitation handgun (Charge 4) and stolen drivers licenses (Charge 5) and a ledger detailing drug transactions.

6These indictable offences were committed whilst you were on bail for the 2020 matter (summary Charge 10).

7Police also found two mobile phones belonging to you, one of which you had not told police about (summary Charge 11) and cartridge ammunition (summary Charge 9). When asked to provide the PIN for the mobile phone, you refused (summary Charge 14).

8You were arrested during the search and taken into custody.

9Police questioned you about the offences, however, in accordance with your lawyer’s advice, you made no comment.

10On 16 August 2021, you pleaded guilty to the 2020 matter, including trafficking methamphetamine, trafficking heroin, possessing proceeds of crime and possessing prescription drugs. A magistrate sentenced you to 14 months imprisonment, without setting a non-parole period.

11The day after, 17 August 2021, you offered to plead guilty to the matter before this court, which offer the Crown did not accept until 15 December 2021 – the date of a contested committal proceeding. Consequently, the matter was set down for plea hearing on 28 April 2022, but adjourned to 19 September upon your request, so you could prepare plea material.

12You indicated a guilty plea at an early stage of the proceeding, which demonstrates an acceptance of responsibility for your offending, a willingness to facilitate the course of justice and your remorse. It has saved the Court and the community the time and expense of a trial. These are significant matters, especially for someone of your age and maturity.

13You also indicated your guilty plea during a time when the work of the courts was placed under increasing strain leading to lengthy delays. In this regard, your plea carries a greater utilitarian benefit and leads to an actual and palpable amelioration of sentence.[1]

[1] Worboyes v The Queen [2021] VSCA 169

14You have served your remand during the COVID-19 pandemic, which has rendered your time in custody more burdensome. You have been subjected to 23-hour lockdowns, restricted movements, reduced access to rehabilitation and vocational programs, and limited access to psychological treatment. You have had no in-person contact with your family and I will moderate your sentence for these reasons.[2]

[2] Brown (aka Davis) v The Queen [2020] VSCA 60, [48].

Personal circumstances

15Your parents separated before you were born. You were raised solely by your mother, living on or around the Mornington Peninsula. You described your childhood as chaotic and unstable, and that from age 8, even minor transgressions would get you ejected from the family home. You continued to have contact with your father, but received little guidance or support from him, given that he was occupied trying to pursue his own drug rehabilitation.

16At Berwick Secondary School, you established yourself with a friendship group of disaffected peers. You struggled with studies and had a difficult and disturbed relationship with most teachers and students. You were regularly involved in fights and faced disciplinary problems. Despite these issues, you progressed to Year 9 before leaving.

17You engaged briefly in work experience placement as a rigger and in plumbing but have never held stable paid employment due to your struggles with drug use. You have expressed a desire to undertake more training as a rigger if and when the opportunity arises.

18Your criminal history is composed primarily of drug trafficking, possession and proceeds of crime offences. Although it is relevant to the current offending before me, it is not extensive. In relation to a prior incidence of drug trafficking on 1 September 2020, you were residing with your mother at the time. On 31 August 2020, the police had you under surveillance and they followed you to an address in Frankston.  The next day on 1 September 2020, they executed a warrant at that address while you were there, searched your belongings and found a total of 162.3 grams of methylamphetamine and 75 grams of heroin.

19Prior to your arrest on 26 May last year, for the matters before this court, you participated in the CISP as a part of your Magistrates' Court bail. The CISP progress reports (Exhibit 1), state that you engaged well with your case manager, attended all your scheduled appointments, and made significant progress with your drug and alcohol counselling. I am satisfied that with appropriate support structures in place, you are capable of meaningful engagement with rehabilitation, especially in relation to your drug use.

20You have now been in custody since May last year. Being in this environment has prompted you to reflect on your past difficulties and think seriously about positive changes you wish to implement. You have been abstinent since being taken into custody and you have verified this through urine screens (Exhibit 2). You have also been placed on the methadone program at a dose of 35 mg/day to alleviate symptoms of your residual heroin withdrawal. In early August 2022, you participated in the Uniting 24hr Substance Aware Program (Exhibit 4) on issues such as emotional regulation and relapse prevention.

21Clinical and Forensic Psychologist, Patrick Newton assessed you and, in his report dated 10 September (Exhibit 5), stated that you are a young man in the early stages of recovery from a severe poly-substance use disorder. He observed that due to the unaddressed negative impact of your disturbed upbringing, you engaged in heavy use of a variety of substances from about age 12 as a way of coping, including by allowing you to fit in with peers from a dysfunctional social group. Your difficult childhood has also caused you to develop significant trust issues, which has been exacerbated in a harsh custodial environment.

22Mr Newton says that, moving forward, to manage the risk of relapse on your eventual release, a strong support system must be implemented. This includes intensive treatment, close supervision, as well as objective monitoring to ensure your compliance. Any 'non-directive' or 'self-initiated' approaches to treatment is unlikely to sustain long term rehabilitation. Efforts should also be made to support your engagement with a psychologist who has expertise in assisting survivors of childhood abuse and neglect. Most importantly, the amelioration of your drug problem would likely result in a reversal of any anti-social trends in your personality.

23I accept and adopt the opinions of Mr Newton.

24Numerous character references (Exhibit 3), attest to your positive qualities such as your willingness to learn, empathy and kindness. They described your insight and remorse, as well as your genuine desire to pursue a positive and healthy lifestyle upon your release.  They believe that with the right support and guidance in place, you will be able to re-join the community and take advantage of the options available to you.

Sentencing issues

25The objective gravity of your offending on this occasion is significant. You had been in trouble for trafficking on two previous occasions. The quantity of methylamphetamine you had for sale was moderately high, albeit you were not charged with trafficking over a lengthy period. The fact you offended whilst on bail for similar offending is very concerning and makes this case more serious.

26Your moral culpability, however, is reduced by virtue of your severe addiction which commenced when you were a teenager and not able to exercise the judgment to be expected of a mature adult. Your drug habit has been lengthy and entrenched. I accept the opinion of Mr Newton who describes it as 'compulsive, intense and severely detrimental to your adjustment' with 'clear signs of physical dependence'.

27Your age is an important factor in determining your sentence. Although, I note that you are now 22 years and beyond the impressionable teenager you were when you started to use drugs with your peers. You have spent the last 16 months or so in adult custody and now fall to be sentenced as an adult. While I will sentence you as a youthful offender whose development has been hampered by various problems, you are now of an age when you must take on the adult burden of being responsible for your own rehabilitation.

28In sentencing you, I must try to deter others from engaging in trafficking as you did and provide public denunciation for such conduct. Despite your age, these are important reasons for punishing you with imprisonment.

29Your history of offending suggests that as of May last year, you needed still to learn your lesson not to sell drugs. By imposing an imprisonment term in this case, I aim to make it absolutely clear that the consequences for doing so cannot be avoided and that such a life is not worth the trouble it will cause you.

30I have reduced your sentence substantially because you lost the chance to have some of it served at the same time as the 14 months imposed on 16 August last year. The delay in finalising the case has made your time in custody harder and no doubt contributed to your anxiety, preventing you from focusing on your rehabilitation.

31Mr Newton, whose experience and expertise in assessing young offenders is well known, speaks of your good insight, having engaged positively with treatment, such as you have been able to in the circumstances. He strongly suggests that you be monitored and supervised as you continue to build a better approach to your life, acknowledging the particular difficulties you will face as you go through the transition from gaol back into the community. He outlined your tendency when you relapse to focus on your immediate needs to avoid difficult emotions or situations, rather than on your long-term benefits.

32On the Court's request, your suitability for a community correction order was assessed and confirmed. The assessor recommends supervision, treatment and rehabilitation for drug and alcohol abuse and programs, as directed. As part of the assessment, a registered mental health practitioner also recommended you be required to engage in psychological treatment to promote wellbeing and reduce the likelihood of re-offending.

33For this reason, I am imposing conditions on your release, which you may at times resent, but that I hope you can grow to understand and accept. As Mr Newton said, this could be a significant time of change for you if you can continue to remove yourself from problematic thinking and relationships that have contributed to your trouble in the past.

34Your counsel Mr Bloemen submitted that in all the circumstances, particularly the total time you have spent in custody, you should be released soon on a sentence that combines imprisonment and a community correction order. The prosecutor Ms Dane, on behalf of the Director, agreed, as do I.

35I sentence you as follows:

(a)   On Charge 1, trafficking methylamphetamine – 6 months;

(b)   On Charge 2, trafficking heroin – 6 months;

(c)   On Charge 3, possessing proceeds of crime, negligent as to its character – 2 months;

(d)   On Charge 4, being a prohibited person in possession of an imitation firearm – 5 months;

(e)   On Charge 5, handling stolen goods – 1 month;

(f)    On summary Charge 9, possessing ammunition without a licence – I have convicted you and discharged;

(g)   On summary Charge 10, committing an indictable offence whilst on bail – 7 days;

(h)   On Charge 11, breach of a condition of bail – 7 days;

(i)    

On Charge 14, failing to comply with a direction to assist police –

3 months.

(j)    I direct that all sentences be served concurrently, save that 1 month of the sentence on Charge 2 and 1 month of the sentence on Charge 4 is to be served cumulatively upon the sentence on Charge 1.

(k)   The total effective sentence is 8 months.

(l)    I declare that you have served 209 days and direct that this be reckoned as a period already served under this sentence.

(m)     On Charges 1, 2 and 4, trafficking methamphetamine, trafficking heroin and being a prohibited person in possession of a firearm, I also impose a community correction order with conviction for 12 months with the following additional conditions:

(i)You be under supervision;

(ii)You cooperate with assessment and engage in treatment relating to alcohol and drug use;

(iii)You cooperate with assessment and engage in treatment for your mental health;

(iv)You participate in programs to reduce the risk of further offending;

(v)You may not drink alcohol or enter or remain in any bar of any licensed premises for 6 months after your release;

(vi)You comply with a curfew for 3 months, between 10 pm and 6 am unless in the company of your father, or his partner Mandy Sargeant, your mother or for work purposes; and

(vii)You must attend judicial monitoring, firstly at 3 pm on Thursday 3 November 2022.

36In accordance with s6AAA of the Sentencing Act 1991, but for your guilty plea I would have imposed 18 months and fixed a non-parole period of 12 months.

Ancillary orders

37By consent, I also make the forfeiture order, as sought, in accordance with s33 of the Confiscation Act in relation to items contained in the schedule to the application.

38Further, by consent, I make a disposal order, as sought, in accordance with s78 of the Confiscation Act in relation to items contained in the schedule to the application.