DPP v Rheinberger
[2014] VCC 1152
•21 July 2014
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
CR-14-00695
Indictment No. D1126654
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BRETT RHEINBERGER |
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JUDGE: | HIS HONOUR JUDGE TINNEY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | Plea : 16 July 2014 | |
DATE OF SENTENCE: | 21 July 2014 | |
CASE MAY BE CITED AS: | DPP v Rheinberger | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1152 | |
REASONS FOR SENTENCE
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Catchwords: Trafficking in drug of dependence commercial quantity and non commercial quantity.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr Ballek | Office of Public Prosecutions |
| For the Accused | Mr Saunders | Stephen Andrianakis and Associates |
HIS HONOUR:
1 Brett Rheinberger you have pleaded guilty to one charge of trafficking in a commercial quantity of a drug of dependence and one charge of trafficking in a non-commercial quantity. Additionally, you pleaded guilty to one uplifted summary matter being a charge of use of a drug of dependence. The commercial quantity trafficking charge carries a 25 year maximum term of imprisonment. The trafficking charge carries a 15 year maximum and the use charge a one year maximum term.
2 You have admitted a relevant criminal history. You have 4 prior convictions for trafficking. These two charges of trafficking for which I must pass sentence each occurred in the currency of an Intensive Corrections Order imposed for offences including one of trafficking. In addition you were on bail at the time of these offences for yet another charge of trafficking that had occurred previously in 2012 and that has been dealt with since at this Court in September 2013. That is not a prior conviction given that the new offending occurred prior to your being dealt with for that matter. When regard is had to that matter I will now be sentencing you for your 6th and 7th charge of trafficking.
Facts
3 The details of your offending are set out in Exhibit A, the written summary of prosecution opening dated 30 April 2014.Your counsel Mr Saunders told me that this is an agreed statement and accordingly I incorporate it into these reasons for sentence. That summary has been marked as an exhibit and will be available for inspection on the Court file. For that reason, I see no need to fully restate the facts. Very briefly though, on 18 April 2013,the manager of some apartments in St Kilda was alerted to some suspicious behaviour by a group of people in one of the apartments. He checked the room, found apparent chemicals and notified the police. They attended. You came back to the apartments at one point, saw the police cars and decamped. A search of the room disclosed the presence of the equivalent of about 9.4KG of a drug of dependence 1,4 Butanediol at a purity of about 80 to 90%. Your counsel told me that it is a drug which has a close relationship to GHB and in fact in the police interview, you said you intended to sell it as such. The commercial quantity is 2 KG mixed. The next day the manager saw you again in the vicinity. Police attended and you were standing next to a car. You fled and were arrested following a foot chase. The search of the car located a number of deal bags containing 111 grams of substance containing methamphetamine. Analysis showed a purity of about 80% hence a pure weight of about 88 grams. You made full admissions when interviewed by police as Paragraph 11 makes clear. The summary offence of use of a drug is founded on your admissions upon interview. You pleaded guilty on the day of a contested committal on 17 April 2014 before any witnesses were actually called and the matter came straight hand up to this court where you successfully adjourned the first listing on 7 May.
Victim impact
4 There is no victim impact material given the nature of the charges.
Submissions In mitigation
5 Mr Saunders, who appeared for you, raised a number of matters in mitigation relying primarily upon:
· Your guilty plea, your level of co-operation with police and the relatively early stage at which your guilty plea was entered;
· He argued that that you had some realistic prospects of rehabilitation despite your age, despite this offending occurring whilst on bail and whilst on an ICO and despite your criminal history.
· You had been in custody continuously since the 19 April 2013 and it was argued this was something of a circuit breaker. You were drug free in custody, which represented a very lengthy period in your life. You had at long last accepted that there was a need for treatment as you could now see your father’s predictions of your one day waking up and seeing that your life had passed you by as being a correct prediction. There was, it was argued, a developing insight.
· Mr Saunders relied upon evidence and a report from Ms Lechner as well as an older report from Mr Ball as containing relevant personal details of your background including the suggested link between your addiction and your offending. He specifically disavowed any reliance on any of the principles from the case of Verdins v R;
· He argued that the unmistakeable context of this offending was your own addiction to drugs and that this was mitigatory:
· He conceded the seriousness of the offending and the relevance of general deterrence, specific deterrence and denunciation. He argued that in the circumstances of your addiction having a strong role to play in the offending, that regard still should be paid to your rehabilitation and though an immediate term was inevitable, that a longer period on parole would serve your rehabilitative needs as well as the community’s best interests.
· He argued that regard should be paid to the principle of totality given that you have been continuously in custody since 19 April 2013 and that you had lost the possibility of parole in relation to the sentence imposed by Judge Wischusen in September 2013. That sentence of 15 months had a non-parole period of 9 months. You were not released on parole. You were in custody in relation to these charges as well. Ultimately you have served the entirety of that 15 month sentence.
Crown Submissions
Mr Ballek, on behalf of the Director of Public Prosecutions, submitted that this was serious offending. Whilst accepting that there was a link between your addiction and the offending, he pointed to matters of distinction in this case when compared to the cases raised on the plea. Predominantly the scale of the trafficking and the seriousness of the chronology of offending and your prior criminal history. I interpose that one could add to that the family history you have had, an excellent one in comparison to many of those in the cases to which I was referred. It was argued that the mitigatory effect should not be significant. The offending occurred whilst on an ICO and whilst on bail and it was argued that specific deterrence, general deterrence, denunciation and protection of the community would loom large in the sentencing process.
Background
I have no reason not to accept the personal family background placed before me. It is contained in the report of Ms Lechner as well as in the report of Mr Ball. I see no need to set it out in full in my reasons as I accept that personal background. What is clear is that unlike so many who sit where you sit, unlike so many who seek to pray in aid the mitigatory effect of addiction, you have had a loving and supportive family and a relatively privileged background. You have been quite a high achiever, at school, beyond school as well as on the sporting field and in business. Your family have not deserted you when they might have. No family dysfunction ushered in your foray into drugs. Though you had some early use of cannabis, your addiction developed when you were a mature adult and despite that mature choice, and it was a choice made by you, your parents continued to strive to assist you when drugs took their toll. What is clear is that your involvement in and addiction to drugs has marred your life for very many years now. It is equally clear that you have not come even close to taking the steps required to deal with the addiction. You pulled out of some inpatient treatment in 2006. You were sick of it. You did not engage with the counsellor on the ICO in 2011 or 2012 as you didn’t think he was in a position to ask about your personal life. Your mother died in 2011, an event which hit you very hard indeed. Yet again your father is exposed to the experience of coming to Court to support you. What a tragedy for him, and for you. He has no control over it. You do. You speak very perceptively to Mr Ball of the toll endured by your father. You are now aged 42 years of age born in 1972. Your life is passing you by.
Criminal History
You have admitted a criminal history. It is highly relevant to my task as your counsel correctly concedes. You are 42 years of age and have now committed a number of serious offences over many years. You have received terms of imprisonment. You have 4 prior convictions for trafficking in drugs. As I said in one of the introductory paragraphs, these offences for which I must pass sentence occurred whilst you were on an ICO, an order which itself had been earlier breached by you. In addition as I have said, Judge Wischusen dealt with you in September 2013 for trafficking in methyl amphetamine, possession of that same drug, and possessing a prohibited weapon and dealing with property suspected of being the proceeds of crime. The trafficking related to manufacture of the drug in March 2012. Given the date at which that was dealt with by Judge Wischusen, it is not a prior conviction. However, to flesh out the chronology, that act of trafficking occurred in March 2012 whilst you were on the original ICO for your fourth conviction for trafficking. You were breached for non-compliance, you were given the second chance on the ICO and then committed the two charges that I have to sentence you for. The sentencing remarks of Judge Wischusen are marked on this plea as Exhibit C. You were bailed in June 2012. It follows that the offending for which I must pass sentence occurred not only on the ICO but also in the currency of the bail granted for trafficking in drugs, your fifth such event. So as a matter of record I will be passing sentence for your sixth and seventh offences of trafficking though the fifth is not a prior conviction. This chronology of offending must play a significant role in the judgements I make as to the need for community protection, the risk of re-offence, the actual prospects of rehabilitation and the need for specific deterrence. The need for specific deterrence could hardly be clearer. You have exhausted any legitimate claim for any great leniency from the Courts. Past court outcomes have not deterred you from offending. Nor Court orders designed to assist you nor bail. Not even your near arrest on 18 April 2013 deterred you from possessing for sale the very next day a sizeable quantity of methylamphetamine. You cannot point to youthful exuberance or misjudgement. You knew what you were doing. I do not accept the suggestion made otherwise by Ms Lechner though I don’t doubt that there would be some impact on your judgment and decision making courtesy of drug use. You knew the stakes and the risks. I have no doubt about that at all. I will try again to deter you from this serious offending.
Psychological reports
I take into account the report and evidence of Ms Lechner and the report of
Mr Ball. Your counsel very specifically and directly disavowed any reliance upon any material in those reports as enlivening any of the principles from the case of Verdins v R. I asked him and he could not have been more explicit. I do not doubt the correctness of that submission. He relied upon the reports (and evidence) as containing your background and part of that background is said to be the link between your addiction and the offending and the purchase that drug addiction had over your life. You are an intelligent man. Highly intelligent it would seem. You have support from your father. You had been significantly distressed by the death of your mother in December 2011. I will deal shortly with the suggestion of the addiction being mitigatory but I have no doubt at all that you were engaged in taking what you would have known were calculated risks in conducting this evil trade. I am satisfied of that beyond reasonable doubt. I accept that your addiction had a drive and probably a strong role to play in your offending but you still had choices. You chose to not exercise them, for instance getting the treatment you so clearly needed. You after all were on an ICO at the time. Treatment was accessible.
Guilty Plea
6 You have pleaded guilty. It was not at the earliest stage but it was still a relatively early plea. You were cooperative with the police. There was a contested committal listed. That puzzled me given the admissions but I was told by your counsel that there was some live issue about the conduct of the interview and presumably the admissibility of your own words. However, the committal did not proceed. The matter settled on the day. So whilst it is not the earliest plea, it is still a relatively early plea. You will be given the appropriate discounts for your guilty plea and it being entered at a relatively early stage. There is a strong utilitarian benefit in pleading guilty. Witnesses have been spared the experience of giving evidence. The community has been spared the time, the cost and the effort of a contested hearing. You have in these ways facilitated the course of justice. I will pass a lesser penalty because of your guilty plea and the early stage it was entered. I also take into account in a mitigatory manner your level of cooperation displayed in your police interview. The use charge is founded on your admissions and you did make very full admissions to the trafficking in the drugs.
Remorse
7 Mr Saunders did not argue forcefully in favour of the presence of remorse suggesting that it was not common in a setting such as this where there was no direct victim and a strong focus on, and addiction to drugs. He argued that there was a developing insight. It is difficult to accept that you are remorseful. You have pleaded guilty, it is true, but how many times can you traffic in drugs and propose after the event a feeling of contrition. I have no doubt you are sorry you have been caught. You are sorry your life is in such a mess and that you have yet again caused grief to your father. You are genuinely sorry for that. Sorry for the financial and emotional impact upon your father’s life. I have no doubt you are deeply sorry that your life is passing you by and that your mother died without you redeeming yourself in her eyes. I am not downplaying the significance of any of these matters. Reading your descriptions of your life to Mr Ball and Ms Lechner is very sad indeed. But as to genuine contrition or remorse for the offending, I see no evidence of it. That is not a matter in aggravation. I make that plain.
Drug addiction
8 I accept that the offending occurred whilst you were addicted to drugs. In that sense your drug use was part of the context of your offending. Regrettably though, that is very often the context.
9 I was referred to cases of Lacey 2007 VSCA 196 and Koumis 2008 VSCA 84. I have absolutely no difficulty at all in accepting that you were heavily addicted to drugs at the time of this offending and that at least in part the trafficking was to fund your own addiction. In that sense your position can be readily contrasted with a non-user trafficking, someone in it purely for greed. Your drug addiction, though, is not in my view a substantial mitigatory matter here given your background, the age and circumstances at which your addiction developed, the nature of these crimes, your criminal history and limited steps taken to rehabilitate over such a lengthy period of time. Clearly it is relevant because it is the context in which you have committed these crimes. I will treat it as more than pure background or context. I am prepared to give it some mitigatory weight. It is just a matter of the extent of the weight to be given to it and that is where I take issue with your counsel’s submissions if I take him as suggesting it is a significant mitigatory matter. Your descent or foray into these crimes was likely a secondary consequence of a level of need provoked by your own addiction to drugs. If, and it is a very big if, if you could only successfully treat your addiction, then I think you could yet live a useful and contributing life. However your assurances in this regard have to be seen in light of your age and the criminal chronology. You may well have a genuine wish to break the addiction, I think you do, but you have given very little cause for any optimism in this regard over the last decade. You told the police you have been selling “ice” for 15 years.
None the less, I am prepared to find that your addiction to drugs leads to a reduction in your moral culpability for this offending. This may be overly generous given the chronology and discussion of the relevance of addiction in the more recent case of Hoang 2013 VSCA 287. As the Court of Appeal said in Hoang
##F:I#“Somebody who has had the continued opportunities to reform such as the appellant has had cannot in my view reasonably expect to have a reduction in sentence on account of addiction” see para 28.
10 However I accept that your conduct was to a degree at least driven by your addiction. I see no evidence of a glamorous or flashy lifestyle or extravagant purchases though you are a fair way removed from a desperate street level seller dealing in single deals. I don’t doubt that you had the pressures of your addiction. Physical and financial pressures. Every addict would. I doubt that when you first took drugs that you could ever have contemplated falling so heavily into the grip of addiction that you would be reduced into committing crimes as serious as the two you committed or for that matter, those in your past criminal history. The life that has unfolded over the last 15 years would be scarcely believable to the high achieving young man from such a decent family. A young man with such promise. You look with a sense of dismay at peers from those times. Not dismay for their state but yours. They are married with families and have careers. You have nothing. You are all too awake to the deficiencies in your life but have been without the resolve to improve your lot.
So I am prepared to accept that there is some reduction in your moral culpability but against that you are an intelligent man. You have done very little over the years in any meaningful endeavour to address your addiction and you are a long way removed from the position of the accused in the cases to which I was referred, being R v Lacey and R v Koumis and others. No dysfunctional background propelling you into self-medication by drugs at an early age. No low intellect. You are mature and intelligent. No disabilities. No harsh family dysfunction. You have had many opportunities extended to you and you have not taken them.
Rehabilitation
11 As will be plain from my recent remarks, It is hard not to be guarded as to your prospects of rehabilitation. Your history before the Courts is a disturbing one. This offending occurred whilst on an ICO for related offending and whilst on bail for related offending. Courts have tried to deter you in the past. Courts have also tried to lead you away from offending by provision of treatment. You have not meaningfully engaged. You have chanced your arm yet again in committing what you must have known were serious offences. It is impossible to ignore the long term issues you have had with a number of drugs of dependence over very many years. You have been imprisoned before. That has not deterred you. Nor has an ICO. Nor bail. Nor even a second chance on the ICO which most don’t get.
12 You still have people prepared to stand by you. Your father is one such person. That is a big positive. I am told you have been drug free for a long period with something of a developing insight into your offending and a determination to succeed upon your ultimate release. A determination to actually get some meaningful treatment for your addiction. You clearly need to address your substance use. You will not have any measure of useful life without taking some strong steps. Your life is slipping past you Mr Rheinberger. I am certainly not prepared to find that you have no prospects of rehabilitation. But I think that your prospects are relatively poor unless and until you can seriously and successfully grapple with your drug addiction. The test lies ahead for you as it has before. You have taken very little by way of meaningful steps in the past but that is not to say that you are not open to change. I won’t write you off but can only be quite guarded at this point.
13 You are not revelling in these crimes. There is a depressing and sad tone to your description of your life in the police interview and upon your discussion with the psychologists. Your father has noticed a change. You are ‘down at mouth’. If you continue to use drugs, there is no hope for your breaking the cycle of offending, apprehension and imprisonment. However you may yet break free of this cycle and I sense that you want to. I pay regard to that as a real positive. It is never too late Mr Rheinberger. Don’t give up. You need to take every opportunity over the period of the sentence that lies ahead to maximise your chances upon release. Whether you can succeed or not, well you will determine that, but I certainly don’t wish to snuff out all hope.
Current sentencing practice
I take into account, as I must, current sentencing practices. I have looked at two sentencing snapshots being snapshot number 129 of 2012 dealing with non-commercial trafficking and No.130 of August 2012 dealing with commercial quantity trafficking. I have looked at cases in the JCV manual dealing with commercial quantity sentencing outcomes (33.13.3.1 and 3) as well as cases with non-commercial quantity (33.13.4.1 and 4). I have looked also at a case of Baensch 2010 VSCA 191 and a table of cases for non-commercial trafficking set out in that decision.
Now statistical material has clear limitations. No amount of looking at statistics or other sentencing outcomes can ever provide the answer to the correct exercise of my sentencing discretion in this case. Each case is different. So too every offender. Your offending has some aggravating factors committed as it was whilst on an ICO and on bail. Your criminal history is of course highly relevant.
Offence Gravity
I must pay regard to the gravity of the offence before the court. This was serious offending. It was not the lowest level street trafficking. Though accepting as I do a link between your offending and the addiction, it is not the complete explanation here. This was trafficking at a commercial quantity level with the 1,4 Butanediol. Well over 4 times the commercial quantity of such a drug with your dealing in litre quantities for $1000 a litre. You had a mixed weight quantity of 111 grams of methyl amphetamine at very high purity and you told police that you would sell at 3.5 grams for $1200. At those figures and assuming no dilution of the quantity, it would furnish over 30 such transactions and with a return of funds to you of over $35,000. That is not to suggest a ‘return’ as in profit as you suggest that the “Ice” was obtained on credit by you. I don’t know where the truth lies there. It doesn’t really matter. This was your business. There is no one suspended above you in any hierarchy. What I do know is that this conduct was a way removed from very low level street dealing where tiny amounts might be scraped together, tiny cash margins pooled by an addict to provide a single use for themselves. You were booking an apartment for the night, it would seem at the rate of $170 and driving to the apartment. Some street level addicts would sell their mother for that amount of money and the ability to convert it into a drug to pump into their body. You were renting an apartment and using it to prepare the drug, subject of Charge 1.
The face of our society has forever been changed by the influx of drugs. They do irreparable harm. You are, as Judge Wischusen said in his reasons for sentence, a “glaring example of the damage it (drugs) can do”.
Sentencing considerations
14 I have taken into account all of the submissions made and exhibits tendered before me. There are a variety of matters which must be taken into account by the Court. I must take into account the maximum penalty. I must pay regard to current sentencing practices. I must consider also your prospects of rehabilitation. I don’t ignore them but I don’t rate them particularly favourably. However on that score it is inescapable given the criminal history and the chronology and the nature of this offending that the weight to be given to rehabilitation must surrender some ground to other purposes of sentencing including the need for specific and general deterrence and community protection. You must be punished for your crime, justly and proportionately. This court must denounce your conduct.
15 I must consider the protection of the community. That is a relevant consideration here. You just keep trafficking in drugs. You must be deterred. You must be dissuaded from ever committing such crimes as these again. That is clearly a highly relevant consideration here given your past offending, the nature of these crimes and the fact that they occurred whilst on an ICO and on bail. This Court must also seek to deter others who are minded to commit this type of serious offending. The community no longer has, if it ever did, any tolerance towards trafficking in drugs. To quote the Court of Appeal “The statements in this Court and elsewhere about the community’s abhorrence of the scourge of drug trafficking are too numerous to mention” see Baensch .
16 Those who traffic are always taking a calculated risk. You were, yet again. The Court must send a loud and clear message to likeminded potential offenders that those who traffic in commercial quantities of drugs risk the loss of tangible portions of their lives. That purpose, known as general deterrence, is a highly relevant purpose of sentencing. The Courts must make plain that such conduct as yours will not be tolerated and will be punished with strong penalties. The Court of Appeal in the same case (Baensch) went on to say the following words:
17 ##F:I#“The sentencing of repeat offenders attracts the principles laid down by the High Court in Veen v R. Someone, who despite custodial sentences on two occasions for the same offending , engages in further offending of an organised nature, might be thought to exhibit an inability to appreciate that this is unlawful behaviour which carries heavy penalties. In our view the sentencing Judge was entitled to regard as very significant factors the issues of specific deterrence and the protection of the community against people like the appellant who would engage in this evil trade”
18 I add that I have no doubt at all that you appreciated both the fact of the unlawfulness of your conduct as well as the seriousness of it.
Totality
You have been continuously in custody since your arrest on these matters on 19 April 2013. Your bail on the earlier clandestine laboratory trafficking matter was revoked on 3 June 2013 and in September 2013 when passing sentence, Judge Wischusen made a section 18 declaration of 203 days for PSD back to the 3 June 2013 date. Thereafter you have continued to serve the entirety of that sentence which lapsed on 30 May 2014. You could not be considered for parole given the remand setting in relation to the matters for which I must pass sentence. So in terms of strict s.18 pre-sentence detention for these matters, it is the 45 days between 19 April 2013 and 3 June 2013 and the 51 days from the lapse of that sentence on 31 May 2014 to date. However I must pay regard to the whole period in considerations of the application of the totality principle. Quite aside from that, your custodial liability has been doubly warranted for a significant period of time and you were deprived of the ability to be released on parole no doubt as a result of the matters for which I must pass sentence. So I take into account in a broad way the entire period and more directly still that six months which you served beyond the non-parole period as an additional custodial liability directly linked to your being held on the matters for which I must pass sentence and for which there cannot be any s.18 allowance. See Wheldon.
I also pay regard to totality of sentence in considering the extent of cumulation imposed as between individual sentences imposed by this Court. The offences were occurring only a day apart but they are quite discrete offences pertaining to different drugs. Given the time frame though and the need to pay regard to the totality of sentence, I will order a significant measure of concurrency. I pay regard to the overall criminality and I have taken a last look at the overall effect of the sentences shortly to be pronounced to guard against a crushing outcome.
Sentence
19 Sending a person to prison is always a matter of last resort for any Court. There is obviously no other option here as your counsel correctly concedes. Your crimes are just too serious.
Disposal
Application is made for a disposal of the drugs and equipment. That order is not opposed and I pronounce it:
Pronounce
Upon convicting you of an automatic forfeiture offence, namely trafficking in a drug of dependence in a commercial quantity, and trafficking in a drug of dependence, and upon being satisfied that the property referred to in the schedule is an instrument, device, or property that is described by the regulations and that was used or intended to be used in or in connection with the commission of the offence by you, the Court orders that pursuant to s.78 of the Confiscation Act 1997 the forfeiture to the state of the property referred to in the schedule, and I further direct it be placed in to 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, analysed and then destroyed.
Would you stand up please?
20 On Charge 1, trafficking in a commercial quantity, I convict and sentence you to 54 months or 4 ½ years' imprisonment. That is the base sentence.
21 On Charge 2 trafficking, this is in a non-commercial quantity, I convict and sentence you to 33 months or 2 years and 9 months imprisonment.
22 On the summary offence of use of drug, I convict and sentence you to 7 days imprisonment.
Cumulation
23 I direct that 9 months of the sentence imposed on Charge 2 is to be served cumulatively upon the base sentence. The other sentence of 7 days imposed today is to be served concurrently with the base sentence and that partly concurrent sentence.
Total effective sentence
24 What this produces is a total effective sentence of 63 months or 5 years and 3 months' imprisonment.
Non parole Period
25 I fix a period of 32 months or 2 years and 8 months during which you will not be eligible for release on parole.
Section 18
You have spent 96 days in custody by way of pre-sentence detention. I declare that this period of 96 days has already been served pursuant to these sentences and order that this declaration be entered in the records of the Court.
6AAA
26 Had you been found guilty having run a contested hearing before a jury I would have sentenced you to a term of 8 years' imprisonment. I would have fixed a non-parole period of 5 years and 9 months. That statement made pursuant to s.6AAA is to be noted in the records of the Court.
27 Are there any other matters? That completes the matter then. Thank you for your assistance, Mr Rheinberger can be removed, thanks.
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