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[2021] VCC 1493
General information, not legal advice.
County Court of Victoria
2021-10-06
Original judgment source is linked above.
Sentence: Convicted and sentenced to Total Effective Sentence of 3 years' and 3 months' imprisonment with a non-parole period of 15 months' imprisonment - Fine $200.00 Summary Charge 9 - 77 days' pre-sentence declared as having already been served - s.6AAA Sentencing Act 1991 declaration days - Ancillary order Disposal and Forfeiture
1 Rodney Craig Hawker, you have pleaded guilty to two charges of trafficking in a drug of dependence and one charge of possessing a drug of dependence.
2 The maximum penalty for Charges 1 and 2 on the indictment is 15 years' imprisonment and, as I am satisfied on the balance of probabilities that your possession of the 1,4‑Butanediol was not for a purpose related to trafficking, the maximum penalty for this offence is one year's imprisonment.
3 You have also pleaded guilty to the following summary offences which have been uplifted to this court:
4 Charge 8, possess proceeds of crime, that is suspected of being proceeds of crime, being $3,870. That offence has a maximum penalty of two years' imprisonment or 240 penalty units.
5 Charge 9, unlicensed driving, which has a maximum penalty of three months' imprisonment or 25 penalty units.
6 Charge 11, possess controlled weapon, which was a Regent baseball bat, and that has a maximum penalty of one year's imprisonment or 120 penalty units.
7 In sentencing you I must take into account the maximum penalties as these reflect the seriousness with which Parliament regards each of the offences.
8 You were 39 years at the time of the offending and you are now aged 43.
9 I was told that at about 1.27 am on 23 May 2017 police intercepted a BMW coupe which you were driving near the intersection of the Melba Highway and Yarra Glen Bypass. When police conducted a vehicle check the mobile data terminal indicated that the car was registered to a Hamid Sadri, who was the holder of a surrendered learner's permit and had moved interstate.
10 The front-seat passenger was a Brianna Kate Rosse. When police asked to see your licence and conduct a breath test you appeared to be very nervous. You were sweating and shaking. You then gave your details to police.
11 When police asked you where you had been that night, you said that you had been 'Staying in Kinglake for a few days and were on (your) way home'. Police then conducted checks confirming that you had a cancelled licence.
12 Police returned to the BMW and had a further conversation with you and observed that you were sweating even more and had started to shake uncontrollably.
13 Police established that Ms Rosse had used syringes in her bag. Both officers could see empty syringe wrappers in the vehicle and formed the view that there may be drugs in the vehicle.
14 Police then asked you to get out of the car. As you got out of the car, one of the police officers observed a bulge in your right pocket and asked you to empty your pocket. When you did this, a small container with clear liquid in it was produced. Police formed the view that this was GHB. You said it was 'shampoo from (your) trip away'.
15 You were then placed under arrest and police searched the car.
16 In the front driver's side door holder of the car, $3,870 cash and a large snap-lock bag with a white crystal substance inside were found. When asked whether the money was yours, you confirmed that it was and claimed that you had 'earnt it working as a tiler'. When asked what you could tell police about the white crystal substance you replied, 'No comment'.
17 In the boot of the car police found a blue-and-white freezer shopping bag labelled 'Micro chemist'. Inside that bag were:
(a) a sealed bag containing a brown powder substance;
(b) one Zip lock bag with 52 mottled pink pills labelled 'My mix';
(c) one Zip lock bag containing 827 mottled pink tablets labelled 'End ones mix threw'; and
(d) a clear plastic container sealed with a white lid and grey duct tape containing 16,466 mottled pink tablets labelled '16,500'.
18 When asked about each of these items you replied, 'No comment'.
19 In the boot, the police also found a Regent baseball bat beside the blue-and-white bag. This gives rise to the summary charge of possess a controlled weapon.
20 A small green container containing liquid was found in the glove compartment of the car and a small container of white powder was found in a black bag on the back seat.
21 You and Ms Rosse were taken to the police station. You were interviewed and charged. You made no comment answers in your interview.
22 Once the interview was completed you were processed before being placed in a holding cell. During that processing a small Zip lock bag containing white crystal substance was located in your underwear.
24 Subsequently Ms Rosse, who was placed on bail, was discharged at the committal hearing.
25 I was told that police have been unable to establish the rightful owner of the car that you were driving, having ascertained that the person to whom it had been registered said he had sold it to another person who had passed away and the transfer papers had been apparently lost.
26 The substances located by the police were analysed and found to be drugs of dependence[1].
27 The basis for each of the charges on the indictment is as follows.
Charge 1, trafficking in a drug of dependence namely diacetylmorphine (heroin).
28 This relates to the substances located in the boot of the vehicle. Specifically:
29 The total weight of pure heroin found was 207.4 grams.
30 The agreed factual basis for the plea to this charge is as follows:
Charge 2, trafficking in a drug of dependence namely methylamphetamine
31 The basis for Charge 2 relates to methylamphetamine found in the front driver's side door of the car:
32 The total weight of pure methylamphetamine found was 15.8 grams and this was in your possession for sale.
Charge 3, possession of a drug of dependence namely 1,4‑Butanediol
33 The basis for Charge 3 relates to drugs found on you and in the vehicle. Specifically:
34 The total weight of the substance found was 26.2 grams.
35 Mr Hawker, your offending is serious and calls for a punishment which is just in all of the relevant circumstances. Your conduct must be firmly denounced.
36 Insofar as Charge 1 is concerned, the quantity of the drug was substantial, but I make it clear that I sentence you on the basis of trafficking simpliciter and your state of mind, in keeping with the accepted basis for your plea. Nonetheless, your role was an important one in helping with the distribution of the drug, the nature and quantity of which was apparently of no concern to you. Although you were not aware as to the nature of the drugs you were transporting, nor their quantity, you were prepared to transport them just the same, knowing that they were to be on-sold by another. I was told that you were prepared to do so in order to curry favour with your methamphetamine supplier in circumstances where you sold and used that drug yourself. Therefore, your motivation was for personal gain, financially and to help support your own drug habit. I also note that you were apparently trusted by your supplier to deliver the drugs. Whilst it is true that you were not leading a lavish lifestyle, nor were you living from hand to mouth in order to feed your own habit, you had a significant sum of money in the car which was at your disposal. In all of the relevant circumstances, I find that your moral culpability is high.
37 In assessing the objective seriousness of your offending insofar as Charge 1 is concerned, I have also factored in the low level of purity of heroin in each of the tablets.
38 Insofar as Charge 2 is concerned, you were in possession of the methamphetamine to sell to others, factoring in that you were addicted to the drug yourself. Again I find that your moral culpability in respect of Charge 2 is high but not as high as it would have been if you had not been addicted to the drug yourself and selling for pure profit. In assessing the objective seriousness of this this offending, I have taken into account the quantity of the drug in your possession for sale, which was not nearly as significant as that for Charge 1; however, your role was a more significant one, as you were the one who was going to sell the drug. Also the purity of methamphetamine was high.
39 In respect of Charges 1 and 2, I have also borne in mind the threshold quantity for trafficable quantity.
40 In relation to Charge 3 there is some evidence in the materials that you were also using GHB at the relevant time, so I have given you the benefit of the lower maximum penalty in circumstances where you apparently confused GHB with 1,4‑Butanediol. I am satisfied on the balance of probabilities that you were in possession of that substance for personal use rather than any purpose related to trafficking.
41 Strong weight must attach to punishment, general deterrence and denunciation in this case. Drugs are a scourge on our society and those who are involved in their distribution at any level are prepared to perpetuate this. A strong message must be sent to those in our community who are tempted to behave as you have that such conduct will not be tolerated.
42 You have a fairly limited criminal history: you have no prior convictions in relation to drug offences, although you do have a prior matter for failing an oral fluid test. Your criminal history comprises family violence and driving offences in the main, therefore your criminal history is of limited relevance to the matters now before me. You have not been sentenced to a period of imprisonment in respect of any matters, which I have also factored in.
43 Whilst none of your prior matters are of the same nature as the offending before me, they do reflect a preparedness on your part to behave unlawfully on previous occasions. Having said this, I have taken into account also that your criminal history is not too relevant to the offending before me, as I have already said.
44 I allow for a fairly substantial discount for your pleas of guilty in circumstances where you were always prepared to plead guilty to Charges 2 and 3, but it was not until a late stage, just before the matter going to trial in this court, that you were prepared to accept any wrongdoing insofar as the drugs in the boot were concerned. Having said this, you had been facing a more serious charge than trafficking simpliciter and it was only when new counsel became involved that such an offer was made on your behalf. In taking the course that you have, although you did not save witnesses the time and trouble of giving evidence at the committal hearing nor the community the expense of such proceedings, this ought be seen in the context of you facing a more serious charge at that time. You have saved witnesses the time and trouble of giving evidence at trial and you have saved the community the time and expense of a trial. I make an extra allowance for your pleading guilty during the COVID‑19 pandemic as you have helped reduce the backlog of trials in the court and you have been prepared to face the consequences of your actions knowing that gaol will be a harsher experience as at this time .
45 I am prepared to find that you have some remorse for what you have done, although this is a work in progress in my view, as is your level of insight into the seriousness of your offending. I make these finding in view of the fact that you were not prepared to acknowledge any wrongdoing until late in the piece for the drugs in the boot of your car, albeit that there was a change in legal representation which may have contributed to your change in stance. On the other hand, you have expressed regret for what you have done to your friend Mr Hunt, who wrote a most supportive character reference for you. You do have good insight into the connection between your drug-taking and committing offences; however, I am not so sure that you appreciate how your offending had the impact to damage the lives of others.
46 I was told that at the time of your offending you were effectively homeless, living out of the car or staying at a motel from time to time. You were using methamphetamine every day, which apparently cost $500 a day. The woman who you were with was also addicted to drugs and it appears that you were mixing with a number of people from the drug world.
47 I take into account your background. I was told that your childhood was marred significantly by your older brother, who was violent towards you and one of your younger siblings. Somehow his abusive acts went under the radar as far as your parents were concerned in that you were too afraid to tell them what he was up to. He terrorised you during a good deal of your formative years.
48 Your parents had constant arguments and your father was violent towards your mother and one of your siblings. The atmosphere at home was often tense.
49 Your parents separated when you were 21. You blamed yourself for this, as you blurted out that your father had been having an affair.
50 You left school after one month of Year 11, then commenced a butcher's apprenticeship and then a roof tiling apprenticeship, each of which you failed to finish.
51 You worked in the abattoirs for 10 years and then commenced a plumbing apprenticeship; it was at this stage that you met your now ex-wife. You ran your own business for 18 months; however, as your relationship deteriorated so did your mental health and your business collapsed. You did not work for several years following this due to your poor mental health and drug use.
52 You told Ms Ferrari, psychologist, that you have worked as a sub-contractor for two different companies; however, for the past nine months or so you had been working casually, then full time in an aquarium, which was owned by a long-standing friend of yours. Your employer gave a glowing character reference in support of your work ethic and assistance. You plan to return to plumbing once this case is finalised and you are able to do so.
53 I understand that you had started using methamphetamine recreationally a number of years ago, but that when your marriage ended and your business collapsed you spiralled into addiction. You were able to abstain from drug use for about 12 months after you were released from remand, but you frankly admit to struggling once again with drug use. Having said this, I was told today that you had been able to abstain from drugs from the time of the original plea hearing until today, which is to your credit, and I have received a drug screen which supports that as at the time that it was taken you were negative or showing a negative result in relation to illicit substances.
54 You were in a relationship with your former wife for 10 years, but it ended 11 years ago after the birth of your son. Your wife developed post-natal depression which negatively impacted on your relationship.
55 You have a positive relationship with your son and I was told that you see him regularly.
56 Unfortunately your current relationship is with another methamphetamine user, which has not been conducive to your rehabilitation. You seem to recognise this, as you told Ms Ferrari, psychologist, but you have remained in that relationship.
57 I have considered the report of Ms Ferrari, psychologist, which indicates that you have no impairment of mental functioning which impacted in any relevant way on your offending; however, she said that you presented:
'With a history of social anxiety disorder (SAD), which appears to have its origin in childhood and major depressive disorder (MDD), likely to have developed in response to [your] social phobia, but also from the abuse that [you] endured throughout [your] childhood and adolescence by [your] eldest brother. [She said that you] had experienced further episodes of depression since [your] marriage breakdown [and she] inferred that [you] subsequently developed a stimulant use disorder to self-medicate [your] untreated symptoms'.
58 She assessed your risk of reoffending as being moderate, noting that you had a number of protective factors such as your parents, your sister, ex-wife and son.
59 In sentencing you I allow for the fact that any time in gaol will be harder for you than for someone without these diagnoses and that this would be your first sentence of imprisonment and also there will be the additional harshness which will be caused due to the various restrictions from time to time because of the COVID-19 pandemic and the restrictions imposed in gaol.
60 I am prepared to allow for the significant delay in this matter even though a good measure of this appears to have been due to you contesting any wrongdoing in respect of the drugs in the boot. In the period of about four years since the offending you have shown an ability to remain crime-free, although you have been using methamphetamine from time to time since then in your struggles with the drug and of course use of that drug is illegal. Having said that, as I have said, you have provided a clean drug screen and you have shown that drugs have not been your system as at that time of that drug screen, being 28 September. I am told, as I have already said, that you have not used drugs since the plea hearing in this matter.
61 Therefore overall you have made some efforts towards rehabilitation. Also you have had the anxiety of having these matters hanging over your head for a substantial period.
62 I was told that the 77 days on remand were a salutary experience for you and had caused you to reflect on your wrongdoing and the way that you wished to live your life.
63 I was also told that you completed the CISP program. I have read the CISP report confirming this. Although the report does not reflect a perfect engagement on your part, it does show that you did engage rather well. Indeed after three sessions of complex counselling no further sessions of this kind were recommended, as you were so highly motivated and confident in respect of your ability to cease drug use. However, you have had an ongoing struggle with addiction to methamphetamine which you still wish to address and have been trying to address, but as at the plea hearing date at least you have been unable to do this successfully. It is yet to be seen whether your more recent efforts will result in abstaining from the drug on a more permanent basis.
64 I was told that you were hopeful of being able to be dealt with through our drug court; however, this was precluded because of the date of your offending, which is regrettable in some ways. However, the fact of the matter is that you appear before and I must address the matters appropriately.
65 You have had some counselling in respect of drug abuse, but this has been fairly minimal overall. I was told that COVID-19 lockdowns had somewhat hampered you in this regard, but I must say that your resolve to do something about your drug addiction would have been better evidenced had you done more in this regard until fairly recently, from what I can gather.
66 In all of the relevant circumstances I assess your prospects of rehabilitation as fair. I give moderate weight to specific deterrence and protection of the community. As I have said, I must give strong weight to general deterrence, denunciation and punishment.
67 In sentencing you I have had regard to current sentencing practice insofar as I can and bearing in mind that this is but one consideration and not a controlling one.
68 Your Counsel submitted that a community corrections order in combination with 77 days' imprisonment, being time served, was within range and was appropriate in your case.
69 The learned prosecutor at the plea hearing submitted that nothing short of a gaol term with a non-parole period was appropriate.
70 Having considered your matters carefully and the weight that I must attach to all relevant sentencing considerations, I am afraid that your offending is too serious to justify anything short of a period of imprisonment with a non-parole period, but I have done what I can to ensure that there is a substantial gap between the head sentence and non-parole period and that this will see you eligible for parole at an appropriate time in view of all relevant sentencing considerations in your case. Of course it is not up to me as to whether you will be released on parole at that stage, but I have imposed a minimum that I think is appropriate in all of the circumstances so that that aspect can be considered sooner rather than later.
72 You are convicted of all the charges both on the indictment and the summary charges.
73 I make the disposal order and forfeiture orders which are sought by the Crown and which are not opposed by you. I will not make an order against your driving licence, but I want you to ensure that you obtain your licence before getting into a car when you are released from gaol.
74 You are sentenced to the following periods of imprisonment, save for Summary Charge 9, which will be a fine:
79 Summary Charge 9, $200 will be the fine and I will grant a stay of six months.
81 I direct that three months of the sentence on Charge 2 be served cumulatively with the sentence on Charge 1 but that otherwise all sentences are to be served concurrently with one another. This produces a total effective sentence of three years, three months' imprisonment. You are to serve 15 months before becoming eligible for parole.
82 I declare that you have already served 77 days by way of pre‑sentence detention which will be deducted from your sentence.
83 If not for your pleas of guilty I would have sentenced you to a total effective sentence of five years' imprisonment with a non-parole period of three years.
85 Madam Prosecutor, is there anything arising from those sentencing remarks?
86 MS ROODENBURG: No, Your Honour, there's not. Thank you.
88 MR RATTRAY: Would Your Honour potentially reconsider the stay with respect to the fine? Given my client's circumstances, if Your Honour doesn't grant a stay he can convert that immediately. In my submission that would be more beneficial.
90 MR RATTRAY: No stay, Your Honour. So Your Honour simply imposes a fine.
93 HER HONOUR: Well, I'll vacate that aspect of my sentencing remarks.
94 MR RATTRAY: Thank you, Your Honour. I'm obliged.
95 HER HONOUR: And no stay will be granted. All right, yes, thank you. Is there anything further?
98 HER HONOUR: Mr Rattray, did you want to have a brief word with your client while I stay on the Bench?
99 MR RATTRAY: I'm told that I can attend downstairs and do a non-contact visit, so I'll take the custody staff up on that.
100 HER HONOUR: All right. Yes, thank you. Yes, please remove him. Yes, thank you. We'll now adjourn.
[1] Depositions p61 Certificate of Analyst by Megan BISH dated 30/11/2017
DPP
Hawker [2021] VCC 1493