R v Maher
[2016] VCC 618
•16 May 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised (Not) Restricted Suitable for Publication |
Case No. CR-15-01024
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
PETER JOSEPH MAHER
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JUDGE: | HIS HONOUR JUDGE PUNSHON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 16 May 2016 | |
DATE OF SENTENCE: | 16 May 2016 | |
CASE MAY BE CITED AS: | R v Maher | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 618 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr J.J. Jassar | OPP Victoria |
| For the Accused | Mr L.R.C. Gwynn | Lethbridges |
HIS HONOUR:
1 Peter Joseph Maher, you have pleaded guilty to three charges of possession of drugs of dependence, namely heroin, methylamphetamine and cannabis. You have also pleaded guilty to a single summary charge of possession of prohibited weapons, namely a can of pepper spray and a bowie knife.
2 Mr Jassar, on behalf of the prosecution, opened the circumstances of the offending by reading from a written ‘Summary of Prosecution Opening’, which was tendered.
3 In short, you directed police to the presence of drugs at your home and in your car when they executed a warrant on your premises on New Year’s Eve 2014.
4 Cash was found in your house ($650) and in your car in a bum bag along with three foils of heroin ($515). The total quantity of heroin was just over six grams at about 20 percent purity; the total quantity of methylamphetamine was just under six grams, most of which was 90 percent pure. The total quantity of cannabis was 135.7 grams. Digital scales were also found as were small deal bags.
5 It was agreed that the maximum prison sentence for each charge of possession of drugs was five years' imprisonment. The prosecutor emphasised the high purity of the methylamphetamine.
6 You did not comment when interviewed by police, however, you had been cooperative in pointing out the location of the drugs.
7 After arrest you were originally charged with more serious offending and your trial was to begin today. Only the charges to which you have pleaded guilty have proceeded. You spent 78 days in prison before being bailed.
8 Mr Gwynn, who appeared for you, tendered an ‘Outline of Submissions on Behalf of the Defendant’, along with an old letter confirming that you have worked in earthmoving and ran a successful excavations business for some years. A number of drug screens taken in February and March this year were also tendered.
9 Your counsel submitted that considerable weight should be given to your pleas of guilty, despite the fact that they may be thought to have come late because they came after the resolution of charges against you, and the decision not to pursue to trial more serious matters. A summary charge was also withdrawn. I accept this submission.
10 Your counsel also emphasised that a significant period has passed since your arrest, during which you have not been charged with any further offending. He also relied upon the stress upon you of the pending matters that were not pursued. He relied upon the clean drug screens to support his submission that you have ceased using drugs. Mr Gwynn argued that the 78 days spent in prison have had a deterrent impact and noted that you have complied with bail conditions after your release. I accept these matters are important.
11 I also accept that the charges I am dealing with could have been, and usually are, dealt with in the Magistrates Court.
12 The possession was on a single day.
13 You instructed your counsel that the drugs had been obtained by you for use at a New Year’s Eve Party, some to be consumed by you and some to be distributed to friends.
14 You have a limited criminal history, although you have been imprisoned albeit a very long time ago for a different type of offending, namely assault.
15 Your counsel detailed your personal history. You are now aged 66 and have been married for 40 years. You and your wife, who attended court to support you, have two grown up children. Your marriage was in difficulty some years ago and you have a six-year-old child, with whom you have contact, born of another brief relationship.
16 You left school remarkably early, at age 12, and have worked commendably hard. You formed your own businesses in 1984 and 1993, when you bought your former partner out. The latter business was highly successful before ultimately being liquidated in 1999 due to the collapse of one of your main clients. This loss caused you to become seriously depressed and you retired from your life’s work in the excavation industry at age 50. You then went into business with your wife, running a solarium and beauty business. You have been on the pension since you turned 65 shortly before the current offending.
17 Mr Gwynn submitted I should impose a fine for the summary charge. I agree and you will be convicted and fined $250 on that charge.
18 Mr Gwynn conceded prison was open on the drug charges but submitted that the term should be modest and less than the time spent in pre-sentence detention. Mr Jassar said penalty was a matter for the court but certainly did not suggest that any term of imprisonment imposed should require a return to prison.
19 Mr Gwynn cautioned me against simply imposing a sentence of 78 days imprisonment because it conveniently equated to time served. In my view, although the matters relied upon by Mr Gwynn should lead to a sentence that does not require your return to prison, I think the period already served is reasonably modest, albeit sufficient to meet the sentencing objectives.
20 Most of your criminal history is well in the past, however you were fined for drug related offending in August 2012, a little over two years before the current offending. The quantities of drugs found at your premises are relatively modest however, you possessed three different drugs of dependence and it was agreed that you could not discharge the onus in s.73(1)(b) of the Drugs, Poisons and Controlled Substances Act 1981, and thereby attract the lower penalty of one year's imprisonment and 30 penalty units, as opposed to five years' imprisonment and 400 penalty units. The drugs were located along with sums of money, albeit relatively modest sums, together with scales and deal bags. Of course you cannot be treated as if you were guilty of trafficking.
21 I intend to impose an aggregate penalty of 78 days' imprisonment on the three charges of possession of drugs of dependence. You will be convicted on each charge.
22 You have served 78 days in prison already and I declare that this is to be reckoned as time already served on the sentence I have imposed. Accordingly, you will be subject to no further penalty.
23 You did not consent but did not oppose me making an order for the taking of a forensic sample. Mr Jassar emphasised the purity of the methylamphetamine and your convictions in 2012 and submitted I should make the order. I agree with him. I will make the order and note the reasons in the order. A police officer may use reasonable force to obtain the sample which will be by way of buccal swab.
24 Had you not pleaded guilty I expect I would have sentenced you to about five months imprisonment.
25 Anything that needs correcting, Mr Gwynn?
26 MR GWYNN: No, Your Honour. Can we just have one moment? Thank you, Your Honour.
27 HIS HONOUR: Anything, Mr Jassar, that you can identify?
28 MR JASSAR: No, sir. There's a disposal order and a forfeiture order involved, sir.
29 HIS HONOUR: I should have mentioned that, the disposal order and the forfeiture orders were agreed to be made by consent and I have already signed them.
30 MR JASSAR: Thank you, sir.
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