R v Jones
[2000] VSC 506
•15 November 2000
SUPREME COURT OF VICTORIA CRIMINAL DIVISION Not Restricted No. 1427 of 2000
THE QUEEN v. IAN GOPEL JONES ---
JUDGE:
HARPER, J.
WHERE HELD:
MELBOURNE
DATE OF SENTENCE:
15 NOVEMBER 2000
MEDIUM NEUTRAL CITATION:
[2000] VSC 506
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CATCHWORDS: Sentence – Trafficking in a drug of dependence – Suspended sentence – Bond conditional on good behaviour and not using illicit drugs and not being at or remaining at any location where illicit drugs are being trafficked.
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APPEARANCES:
Counsel Solicitors For the Crown
Mr. S. Cooper Peter Wood
Solicitor for Public Prosecutions
For the Accused Mr. J. Smallwood QC Hale & Wakeling HIS HONOUR:
1 Ian Gopel Jones, you have pleaded guilty to three counts of trafficking in a drug of dependence, namely Ecstasy. You thus join the ranks of a large number of people, some of them evil, many of them greedy, and all of them criminally irresponsible, who have broken the law relating to the supply and use of illicit drugs. You gain no plaudits from joining this particularly undistinguished band of offenders.
2 On the contrary, you have in your short life played your part in bringing temporary happiness, and it is safe to expect permanent misery, to a large number of your contemporaries. It is a shameful record with which you will have to live for a very long time.
3 There is no need for me to dwell on the destructive tendencies of drugs. All who become involved in the illicit drug trade are diminished thereby. In recognition of this Parliament has passed legislation which requires the courts to punish, deter and denounce those who traffic in drugs and to protect the community from them. Sentences should be designed so as to give effect to these purposes as well as to establish conditions within which the rehabilitation of the offender is facilitated.
4 In determining an appropriate sentence or sentences, the court is required to have regard to the nature and gravity of the offence. In the case of trafficking in drugs such as Ecstasy, this is very often accentuated by disproportionate profits and a corresponding degree of exploitation of others. You have sought to benefit in this way. You trafficked in Ecstasy over a two year period. By your own admission you sold the tablets for $50 per tablet. Yet we know from the evidence in this case that the purchase price wholesale was, in general, around $20 to $22 per tablet.
5 You told the police that you did not sell to people you do not know. I am prepared to accept that this is true. Yet such is the poverty stricken state of interpersonal relationships in the drug trade that those who count as friends are very often little more than shadows in one's life, substantial only in the sense that you can extract from them more than twice the price you paid for something they want.
6 You say you sold to your friends. One of these was Damien Couzner. You knew him as Damien, but nothing else. This seems to typify your relationships in your then private life. The point illustrated by the fact that after Couzner had been wounded you told Maria and Kane and Anne-Marie about that wounding, but when the police asked you to give them, that is the police, "surnames or phone numbers or something similar to that for those people", you said you could give phone numbers, "but I dunno surnames".
7 I mention this merely to emphasise that if one of the purposes of sentencing is to establish the conditions in which it is considered by the court that your rehabilitation may be facilitated, then one of my purposes in sentencing you this morning is to keep you out of that shadowy drug-centred world inhabited by people you cannot know except as caricatures of themselves.
8 Your counsel has emphasised your prospects of rehabilitation. You are only 22 years of age. You have no prior convictions. You have supportive parents. You have a good job and a supportive employer. I am prepared to accept that you have not used illicit drugs since September 1999. You have pleaded guilty to the charges before me today. I take all these matters into account in your favour. On the other hand, you trafficked in Ecstacy for two years including in particular on 17 September 1999. This charge relates to the transaction with Damien Couzner which included 500 tablets. You have also pleaded to trafficking on the following day when the police found 187 Ecstasy tablets in your flat.
9 These offences, as your counsel conceded, together warrant a custodial sentence. The question is whether or not that sentence should be suspended. One of the purposes for which a sentence may be imposed is to protect the community from the offender. One of the most certain and obvious means of protecting the community against those who traffic in illicit drugs, especially those who traffic over a considerable period such as two years, is to send them to gaol, perhaps for a very long time. But such measures cannot guarantee that the offender will not again engage in trafficking when he or she is released. The only certain protection is complete rehabilitation. The harsh reality is that rehabilitation is not often effected through incarceration. It is likewise true that offenders with real prospects of rehabilitation are often more likely to realise those prospects outside gaol than inside. In these circumstances the greater long-term protection of society may be better served by suspension of a sentence of imprisonment than by immediate incarceration.
10 I am prepared to accept that in your case there are real prospects of rehabilitation. It is on that basis, and that basis alone, that I have determined upon the course which I have already indicated, and to which I will return shortly.
11 It has been said that the sole criterion on which the total or partial suspension of a sentence of imprisonment is justified is the desirability of that course in all the circumstances. Here one must count amongst those circumstances the fact that Damien Couzner was sentenced to six months' imprisonment arising out of the trafficking which took place on 17 September 1999. He is older than you and had several prior convictions for drug related offences. Even so, his sentence of imprisonment was suspended.
12 It is submitted that considerations of parity strongly indicate that your sentence of imprisonment should also be suspended provided, of course, that imprisonment itself is appropriate and that the aggravate period of imprisonment does not exceed three years. But the principle of parity is only applied where the cases are like or similar; and the considerations which point to a suspended sentence for one offender do not necessarily point to the same result for another offender. This is so even when both are involved in the same criminal act and even when sentences of imprisonment are imposed in each case.
13 Here it seems to me that, despite the force of these observations in some cases, I ought in this case to consider a sentence involving a suspended sentence of imprisonment as being appropriate. This is, in part, because of the sentence imposed upon Mr Couzner. It also seems to me that your prospects of rehabilitation are such as to be much better realised outside prison than otherwise. It is for these reasons that I have taken the course I propose.
14 I am required before suspending a sentence of imprisonment to explain to you what is involved in that course. In that context I point out that if at any time during the operational period of a suspended sentence you commit whether in or outside Victoria another offence punishable by imprisonment, then you will be guilty of an offence for which you may be proceeded against summarily. That is, you will be guilty of a second offence - the offence of breaching your suspended sentence. Do you understand that you may be dealt with for that separately; and that will be a summary hearing without a jury? If at the conclusion of that summary hearing the charge of breaching a suspended sentence is proved against you, the court must, amongst other things, restore your suspended sentence so that you will serve the whole of the sentence; that is, in total. Do you understand that?
15 ACCUSED: Yes, Your Honour.
16 HIS HONOUR: Thank you. The effect, of course, is that if you do commit an offence punishable by imprisonment during the period of 32 months during which your sentence is suspended, then you will face the possibility of serving out the full 22 months which I am about to impose. Do you understand that?
17 ACCUSED: Yes, Your Honour.
18 HIS HONOUR: In my opinion, in these circumstances the appropriate sentence on Count 5 (on which Damien Couzner was also sentenced) is four months' imprisonment. On Count 8, trafficking for a period of two years, the appropriate sentence is 18 months' imprisonment. These sentences should, in my opinion, be served cumulatively rather than concurrently. The total effective sentence will, therefore, be 22 months' imprisonment.
19 I propose to make an order suspending the sentences for a period of 30 months. I had said before, 32. I correct that. I suspend them for a period of 30 months.
20 I also propose that you be released on a bond in relation to Count 6, that bond being conditional upon your undertaking to be of good behaviour for 12 months, and conditional also upon you not using illicit drugs during that period; and being further conditional upon you not being at or remaining at any location in circumstances where you have reason to believe that illicit drugs may be trafficked at that location.
21 There will be a final condition that you attend for sentencing on Count 6 if and when called upon to do so. Do you accept those conditions?
22 ACCUSED: Yes, Your Honour.
23 HIS HONOUR: A bond will be prepared accordingly and you will be asked to sign that bond in due course.
24 Mr Cooper, will be it be possible to have a bond prepared within a short time?
25 MR COOPER: I think I said at an earlier stage of the trial the Crown always stands ready. (Bond handed to His Honour.).
26 HIS HONOUR: Mr Jones, I've just been handed two copies of a proposed set of undertakings which are in accordance with the terms of the bond that I have just read out to you. I will ask you to look at them. You may look at them in the presence of Mr Smallwood and with his advice if you wish, and if you accept them I would ask you to sign them in which case I will then countersign the document. Do you understand?
27 ACCUSED: Yes, Your Honour.
(Bond signed and acknowledged.).
28 Could I finally say, Mr Jones, that although you have undertaken not to use any illicit drugs for a period of 12 months, and that's a condition of your bond, if you do use illicit drugs within the period of 30 months during which your sentence of imprisonment is suspended, then if that taking of illicit drugs amounts to a criminal offence, as it probably would, then you would be in breach of the suspended sentence and you would be liable to immediate incarceration following conviction. Do you follow?
29 ACCUSED: Yes, Your Honour.
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