R v Roques
[2011] VCC 2128
•19 July 2011
| IN THE COUNTY COURT OF VICTORIA | Revised |
AT MELBOURNE
CRIMINAL DIVISION
| THE QUEEN |
| v |
| NICOLAS ROQUES |
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JUDGE: | HIS HONOUR JUDGE MURPHY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 18 July 2011 | |
DATE OF SENTENCE: | 19 July 2011 | |
CASE MAY BE CITED AS: | R v Roques | |
MEDIUM NEUTRAL CITATION: | [2011] VCC 2128 | |
REASONS FOR SENTENCE
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Catchwords: Criminal law – sentencing – large commercial quantity of MDMA – trafficking by possession – adult offender – role in offending – not a principal – good prospects of rehabilitation
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr D. Cain (plea) Ms M. Doyle (sentence) | Office of Public Prosecutions |
| For the Accused | Mr T. Wraight (plea) Mr C. Doyle (sentence) | Galbally & O’Bryan |
HIS HONOUR:
1 Nicolas Roques, you have pleaded guilty to one count of trafficking a drug of dependence in a quantity not less than a large commercial quantity. The drug of dependence was MDMA. The maximum penalty is life imprisonment and a fine of 5000 penalty units.
2 You have also pleaded guilty to an uplifted summary count of driving in a manner dangerous, maximum penalty 240 penalty units or two years' imprisonment or both.
3 The circumstances of the offences were set out in the Crown opening, Exhibit A, which I incorporate by reference.
Circumstances of the offence
4 In brief summary, around 5.50 p.m. on 8 January 2009 the police intercepted a vehicle on the Princes Freeway at Laverton. The car was on the side of the road and the police noticed a male in the driver's seat. At the time that the police activated their lights, the car took off into the emergency lane at a high speed. You were the driver at the time. Traffic was heavy and you eluded the police. The driving offence is constituted by you taking off and, in the heavy traffic in the emergency lane, eluding the police.
5 A short distance later you exited the freeway and the police could not follow you due to the heavy traffic.
6 Shortly thereafter the police located the car in Altona Meadows and only the passenger, a Ms Caldwell, your then girlfriend, was in the car. You had been seen nearby and were found located hiding behind a fence. Police found $260 in your wallet and then a search found a black shopping bag hidden nearby. Police looked inside the bag and found a large quantity of pink tablets. The tablets were in ten snaplock bags and they were believed by the police to be ecstasy tablets. They were counted and found to be 10,043 tablets in total and they weighed in at 2777 grams, just under 2.8 kilograms, with a purity of 20 per cent.
7 A large commercial quantity of a mix of the drug and other material is 1 kilogram. The value of the tablets, depending on how they were sold, is between $100,000 and $350,000.
Seriousness of the offence
8 It is first necessary to make a finding as to the seriousness of the offending here. By your plea, you have admitted that there was a real or significant risk that the drugs which were found in your possession for trafficking were more than a kilogram, a large commercial quantity. In fact, you were in possession of nearly 2.8 kilograms. Further, the 10,000‑odd tablets were 20 per cent purity and packed in convenient packages of 1000 tablets.
9 As the learned prosecutor put it, it is the amount of drugs, nearly 2.8 times a large commercial quantity, which evidences the seriousness of the offence here. In considering the seriousness of the offence here, it is often helpful to consider where your offending fits into the drug hierarchy. This is particularly relevant as the stated purpose of this particular legislative provision, carrying with it life imprisonment, the highest sentence in the criminal calendar, was, according to the second‑reading speech, designed to deal with the “Mr Bigs” of the drug world.
10 The Crown did not dispute that there were none of the usual accoutrements of drug trafficking here: enrichment, phone records, surveillance or DNA on the drugs. The case was put by the Crown as trafficking by possession on a single day, the single day being 8 January 2009.
11 Your counsel put that you were a courier of the bag of drugs between two unnamed operatives in the drug trade. The basis for this submission was an assertion from the Bar table that you had been offered the opportunity to make some money by a person involved in the motor trade and requested to deliver the drugs to another person in the western suburbs for a payment of $500. The $260 in your wallet was part payment and that has been forfeited to the Crown.
12 Your counsel put it that how the drugs were found, and the lack of indicia of actual sales, led to the conclusion you were acting as a courier. You told Mr Newton, psychologist, that you were just to be the driver. The Crown submitted that absent further evidence, the Court could not conclude that you were acting as a courier.
Assessment
13 In the absence of further evidence, I am unable to reach an affirmative finding to the relevant standard that you were in fact a courier. Assertion from the Bar table as to the role and proposed reward is just not sufficient.
14 On the other hand, I am comfortably satisfied that you were not a Mr Big or a principal in a drug trafficking business. The circumstances of the discovery supports this. You and your then girlfriend were on your way home from a short holiday. You had the dog and clothes with you when you were intercepted. Your personal circumstances, which I will return to in a moment, also support the conclusion that a person without prior drug convictions and who has to date been a successfully employed tradesman is less likely to launch into large scale drug trafficking as a principal just to address short term financial problems.
15 I conclude by characterising the criminality as being prepared to act as some form of agent or instrument for a drug principal on a single day in transporting an amount of readily saleable and valuable drugs in an amount substantially over the threshold of a large commercial quantity of MDMA.
Criminal record
16 You were aged 28 at the time of this offending. You admitted a criminal record going back to just before you turned 20, mainly involving dishonesty and driving offences. The most serious matter was an appeal from the Magistrates' Court before this Court on 9 October 2002 where, on counts of theft of a motor car and handle or receive stolen goods, a three months sentence of imprisonment was imposed and it was suspended for a period of 12 months. You have other prior convictions for theft type offences, going equipped to steal, an attempted theft and theft of a motor vehicle.
17 You also have convictions for intentionally causing injury on 18 November 2005 where you were fined $2000 with conviction, another conviction on 19 March 2003 of attempted theft from a motor vehicle where you were fined $500 and, on 20 September 2007, on driving whilst suspended, two counts, you were sentenced to two months' imprisonment wholly suspended for a period of 12 months.
18 Your prior record was explained by your counsel as being referable to involvement in bad company in your earlier days and involving vehicles. I accept that your prior record has only limited relevance. However, you do not come before the Court with an unblemished record.
Subjective considerations
19 You were aged 28 at the time of this offending and are now 30. You come from an intact family and your parents were in Court to support you. You have a younger sister who was in Court and has presented a supporting reference.
20 Your counsel tendered a report from Mr Patrick Newton, psychologist, and he gave evidence. Some of your personal background is detailed in that report and I incorporate that by reference.
21 Mr Newton administered various tests and examined you and concluded that, consequent upon you losing your job shortly prior to this offending, you were suffering from an acute stress reaction, and this had a mild to moderate impact on your capacity to reason about the consequences of your actions. It clouded your judgment.
22 Mr Wraight, your counsel, did not submit that this lessened your moral culpability, but submitted that this provided an explanation as to how you fell into this offending.
23 Mr Newton's report and evidence was that subsequent to the offences, you have developed an adjustment disorder with depressed mood and are now being treated with antidepressants. This is a psychological condition that is reactive to these proceedings and is superimposed on the earlier condition. Your counsel submitted that I should accept Mr Newton's evidence that imprisonment will weigh more heavily on you than on others without such a condition. I accept that submission and have given it some weight.
24 Mr Newton concludes,
"From a psychological perspective, Mr Roques may need this for continued treatment for his depressive symptoms. As noted above, it is almost certain that he would experience a deterioration in his mood if he were placed in custody and he would be prone to relatively intense mood disturbance over the course of any prison term. Not only will he require particularly close monitoring following any placement in custody, but he's also likely to require episodic specialist care from time to time to address temporary exacerbations in his mood. Such factors would render his experience of incarceration somewhat more onerous than that of other prisoners. More generally, there are few, if any, other criminogenic factors in Mr Roques' case. He does not abuse drugs, has good work skills, is able to form and maintain mature relationships and is of at least average intelligence. In ordinary circumstances, these factors would provide an optimistic prognosis in his case. In the current circumstances, however, it is acknowledged that Mr Roques will almost certainly face an immediate term of imprisonment so that the otherwise optimistic outlook must be tempered."
25 Mr Newton was also relied on by Mr Wraight in supporting the submission that you had developed remorse for your offending. He distinguished this from self pity and was of the view that it would develop and deepen.
26 Mr Newton was an impressive and frank witness and I have given his opinion considerable weight in my ultimate analysis of the competing issues in this matter.
Matters in mitigation
27 You have pleaded guilty. Your plea to the serious offence was entered at the door of the Court but you had earlier indicated that you would plead guilty to the lesser charge of trafficking a commercial quantity. I regard the plea as significant on a number of bases. While it was late, as Mr Wraight indicated, you always indicated an intention to admit possession of a commercial quantity.
28 Next, the plea has avoided a relatively short trial. You are entitled to the benefit of facilitating the course of justice. Your plea is also evidence of remorse, which is an important consideration in sentencing and in considering your prospects of rehabilitation. Your sister also notes in her reference that you have expressed remorse to her and I have taken that into account.
29 You have some criminal record, as I have indicated, and it is of minor relevance. Significantly, it does not contain any prior drug related offences. This is a consideration. However, in sentencing you for this serious offence, the Court of Appeal has noted on numerous occasions that prior good character and lack of prior convictions carries lesser weight in these serious offences.
30 You have tendered three significant character references as well as the reference from your sister. Those indicate that you have a good reputation for hard work and that this conduct is very much out of character. The reference from your former employer, Mr Christie, is very poignant on this matter. He said,
"When my business took a turn for the worse, I unfortunately had to let Nicolas go, along with many others. When I heard of what happened, I kind of blamed myself for if I was still able to have him employed, receiving a regular income, this whole event may not have taken place. I know Nicolas is a good man. He has achieved some great goals, has some valuable assets under his belt which he accumulated from working hard whilst with me. Nicholas's work ethic is impeccable. I wish I had a few more employees as driven and switched on as him. I might still have the business that I once had to employ him again. I believe Nicolas has made a very bad error of judgment, but we all make mistakes when we are desperate."
31 You also have good family support which bodes well for you transition back into society after a period of imprisonment. You have a very good work history. This is set out in Mr Newton's report and in the references. You are of average intelligence, have completed your VCE and are a qualified electrician. You have also been studying to further your career by undertaking a building and construction TAFE course. Your prospects for rehabilitation back into the law abiding community are good.
32 Underlying your offending was your desire to protect your investment in your house which you were building. For a 28 year old to be in that position is testament to your work ethic and does suggest that your lapse into crime is out of character. It follows from this that considerations of specific deterrence are to be accorded lesser weight in sentencing.
33 In considering your prospects of rehabilitation, the fact that drug use was not a consideration in the offending is relevant and supports your good prospects and the conclusion that this conduct was out of character.
34 Also relevant to your prospects of rehabilitation is that in the two and a half years since the offending, you have continued in the workforce as a contractor electrician earning between $1000 and $1500 per week. You are now in a position where you have a substantial mortgage on your home which you must seek to somehow or other maintain while in prison. You have shown by your past record that you are in a position to put this event behind you after you have served your time in prison.
Purposes of sentencing
35 The basic purposes for which a court may impose a sentence are punishment, deterrence ‑ both specific and general, rehabilitation, denunciation and protection of the community. In sentencing, I must have regard to a range of factors such as the seriousness of the offence, your culpability for it, your personal circumstances and those of the victim, if any. I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that, as far as possible, offenders are rehabilitated and reintegrated into society.
36 The Court of Appeal of this State has said on many occasions that considerations of general deterrence are salient when dealing with drug offences. This is an economic crime and the community has, through the maximum penalty, indicated its attitude. Denunciation is also important. You are aged 30 and you cannot call on the immaturity of youth.
37 In the case of DPP v McInnes [2009] VSCA 144, the court said at [34]:
"It is, however, both necessary and appropriate for sentencing judges to take into account as a general sentencing consideration - that drugs of dependence represent a significant social evil. They damage lives, families and society as a whole. Traffickers in drugs prey upon the young, the weak and the vulnerable. The high maximum penalties fixed by Parliament reflect the community's abhorrence of this pernicious trade and a determination to punish severely those who benefit from it."
38 I am required to have regard in sentencing you to the maximum penalty which, as I have said, is the highest in the criminal calendar. It is a yardstick by which to consider any sentence. I am also to have regard to the circumstances of the offending, and I have previously referred to them.
39 The Crown submitted that this offence should be seen as in the mid range of offending, given the quantity of drugs involved, 2.8 times the large commercial quantity. I would categorise the offence as in the lower mid range. The offence of trafficking a large commercial quantity can span a wide range of offending, depending on the purity of the drugs and the duration of the criminality and the quantum of the drugs.
40 Your counsel tendered a number of cases involving the same drug and submitted that they provide some assistance in fixing a sentence. Those cases were McGuinnes [2009] VSCA 144, Pollard [2010] VSCA 272, Harrington [2010] VSCA 249 and Duncan [2006] VSCA 239 and [2010] VSCA 92. He submitted that those cases support his submission for a sentence substantially lower than the Crown range.
41 Mr Cain, the learned Crown prosecutor, submitted that the appropriate sentence here was in a range of seven to eight years with a non‑parole period of five to six years. He had obtained that range from reference to the relevant Sentencing Snapshot, No 102.
42 Each case must be considered on its merits and its own particular factual circumstances. In that sense, the cases referred to on the plea and the Sentencing Snapshot are of limited utility. Here, the quantum of the drugs is a significant factor, but it must also be considered in the light of fact that, unlike many trafficking cases, there was no sustained criminality. While subjective factors are usually to be accorded lesser weight, in this case I regard your prior good work record and your very good prospects for rehabilitation as significant matters. I have also taken into account that you will find imprisonment more onerous due to your psychological condition.
43 I have had particular regard to your prior good character and work record and prospects of rehabilitation in fixing a slightly longer than usual period where you will be eligible for parole. I fix the non‑parole period as appropriate having regard to the purposes for which this sentence is imposed.
44 I have acceded to your counsel's submission to make the driving offence sentence concurrent with the drug offence. The driving offence was part of the interception and part of the overall course of criminality associated with the trafficking. It was, of course, unacceptable conduct.
45 Considerations of totality are an additional factor that I have taken into account in determining to make the sentence concurrent.
46 I sentence you as follows:
· On count 1 you are sentenced to be imprisoned for six years.
· On count 2 you are sentenced to be imprisoned for one month.
· I direct that those sentences be served concurrently.
· I direct that you serve a period of three years and three months before being eligible for parole.
· I declare presentence detention of seven days.
· On the driving offence, I order that all licences you hold be cancelled and you are disqualified from driving for a period of two years.
47 Pursuant to s.6AAA of the Sentencing Act, I declare that had you not pleaded guilty, I would have imposed a sentence of eight years' imprisonment with a non‑parole period of five years and three months.
48 I have made the forfeiture orders sought by the Crown and I have previously made the other retention and disposal orders that the Crown has sought.
49 Are there any other matters, Madam Prosecutor?
50 MS DOYLE: Your Honour, just in relation to the presentence detention, I have discussed this with my learned friend and we think as a precaution it should be seven days declared, given the initial period of custody. It was from 8 January 09 to 13 January 09.
51 HIS HONOUR: All right, seven days excluding this day today.
52 MS DOYLE: That's right, Your Honour.
53 HIS HONOUR: I thank counsel for their assistance.
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