DPP v Money [2014] VCC 1207

4 Charges 1 and 2: Trafficking drug of dependence, is a level 4 matter with a maximum penalty of 15 years' imprisonment.

5 Charges 3 and 4: The Crown accept that the cocaine and the methorphan were not possessed by you for trafficking purposes and the maximum penalty for possess a drug of dependence, therefore, Level 6, five years' imprisonment or 400 penalty units or to both that penalty and imprisonment.

6 Charge 5: The maximum period of imprisonment for possess precursor chemical is, Level 8, one year imprisonment or 30 penalty units or both.

7 Summary Charges 9, 10, 11: Dealing with property suspected of being the proceeds of crime, the maximum penalty is, Level 7, two years' imprisonment or 240 penalty units.

8 Charge 14: Possess prohibited weapon without exemption or approval, the maximum penalty is, Level 7, two years' imprisonment or 240 penalty units.

9 Charge 15: Possess cartridge ammunition without licence, the maximum penalty is 40 penalty units.

10 You have admitted your criminal history. There are four court appearances spanning the period from 21 May 2007 until 16 April 2013. What is of relevance in sentencing you today is that you have a previous convictions for trafficking ecstasy, methylamphetamine, amphetamine and cannabis, dealing with property the suspected proceeds of crime, possession of an unregistered category handgun and possession of a prohibited weapon without exemption or approval.

11 In the past courts have been very generous to you. You have received a variety of dispositions including an adjourned undertaking, a partially suspended sentence and Intensive Corrections Orders. You breached the Intensive Corrections Order imposed on the 8 April 2009. On 4 March 2010, the Magistrates' Court at Frankston found the breach proved and placed you on a further Intensive Corrections Order that you were able to complete without further incident.

12 I shall now proceed to sentence you on the basis of the Crown opening that was marked as an exhibit during the plea hearing. I will briefly refer to your circumstances of offending.

13 You were apprehended by the police at the Quest Hotel, Frankston on Sunday, 26 May 2013. You had booked into a room at the Quest on the previous evening. The receptionist alerted Police when she was unable to rouse you. Police found you asleep when they entered the room and they eventually woke you up. Whilst in the room they observed a small snap lock plastic bag containing white powder near a blue cooler bag on top of a small dining table and a small glass smoking pipe on the floor beside the bed. You were arrested and upon being searched $1880 cash was found in your trouser pocket (Summary Charge 10, deal with proceeds of crime).

14 The police also seized an HTC mobile phone (Summary Charge 11, deal with proceeds of crime) and in the blue cooler bag they found two 1 litre Fiji water bottles containing clear icy looking substance, two syringes, a 250 millilitres Hydrolite bottle containing a blue liquid substance, a large quantity of snap lock bags of various sizes, a sandwich bag containing $1 coins, a black magnetic case containing a large amount of snap lock bags and a variety of ice looking shards, white powder and pills, medium sized green-coloured toolbox containing $75,773 cash in bundles grouped with rubber bands, suspected to be the proceeds of crime (Summary Charge 9, deal with proceeds of crime).

15 A search warrant was then obtained and later executed at your home where police seized further items; namely, a small plastic tub containing white crystals, snap lock bag containing white crystals, snap lock bag containing white powder, zip lock bag containing white powder, six small tablets in zip lock bags, snap lock bags containing metallic substances, three rounds of ammunition, one round of ammunition (Summary Charge 15, possess ammunition without a licence). They also found one crossbow and a crossbow bolt, three crossbow bolts and a Samurai sword (Summary Charge 14, possess prohibited weapon).

16 Formal analysis by the Victoria Police Forensic Science Centre of all the items seized from both the hotel room and your room at your home revealed the following:

• 1,4-butanediol (Charge 1, traffick drug of dependence 1,4-butanediol) total of 1919.9 grams found at hotel;

• methamphetamine (Charge 2, traffick drug of dependence, methamphetamine) a total of 112.1 grams of methamphetamine was found, of which 104.8 grams was found at the hotel;

• cocaine (Charge 4, possess drug of dependence, cocaine) a total of 2.9 grams of cocaine was found at the hotel;

• methorphan (Charge 5, possess drug of dependence, methorphan) a total of 11.2 grams was found at the hotel;

• iodine (Charge 3, possess precursor chemical, iodine) a total of 97.9 grams found at the home.

17 1,4-buranediol (1,4-B), as I will call it, is a liquid organic compound used industrially as a solvent. It is also used to manufacture a drug with euphoric effects similar to gamma hydroxybutyrate (GHB).

18 Methorphan is a cough suppressant drug which also acts as a dis-associative hallucinogen and is abused recreationally.

19 Iodine is used in the synthesis of methamphetamines and is a prescribed precursor chemical.

20 In addition to the quantities of drugs located, 18 incoming SMS messages and one sent SMS message was found on your HTC mobile phone and they all relate to drug trafficking. In addition, a Phone App entitled "You owe me one" was located on your mobile phone and there, 17 persons were listed with accompanying figures that showed drug debts to you totalling $54,245.

21 Following your arrest, you were formally interviewed during which time you admitted possession of amphetamines. You told police that you were addicted. You believed the liquid in the bottles found at the hotel contained GHB. You admitted being addicted to methylamphetamines for a period of months. Otherwise you made a "no comment" in relation to allegations of being involved in drug trafficking or possession of proceeds of crime. You gave no reason for the possession of the ammunition or the prohibited weapons at your home.

22 You now say that the offending was linked to your drug addiction, your desire to support your habit and the need to pay off a significant drug debt. (C Lechner's report May 7 2014).

23 Mr Money, all these offences are serious and they warrant stern punishment. You were responsible for the distribution of a variety of illicit drugs. You had sourced the drugs and had a supply of customers. The record of the drug debts shows that your debts were for not an insubstantial amount. The 1,4B found in your possession was just shy of a commercial quantity. I note two kilograms is a commercial quantity. You were engaging in this business for profit to fund your own drug taking. Your role can be characterised as a medium level drug dealer.

24 Given that the indictment relates to trafficking for the one day only, namely 26 May 2013, you will be sentenced on that basis only. Nonetheless, the objective circumstances surrounding your arrest, the variety of drugs that you had in your possession and the quantity of those drugs leads me to the conclusion that you were both successful and an active drug dealer. I consider that your crimes are at the higher spectrum of gravity for this sort of offending.

25 Following your arrest and the charges being laid on 26 May 2013, a filing hearing was conducted on 27 May 2013. The matter was then subjected to a committal mention and on 7 October 2013, pleas of guilty were entered. An application for summary jurisdiction was refused and the matter then proceeded by way of straight hand up brief.

26 I note you were held in custody between 26 May 2013 and 5 August 2013 and then released on bail. You were then placed on remand by this court on 23 May 2014.

27 I have had regard to the information contained in all the reports, including the somewhat dated report of Mr Symonds, the report of Ms Lechner and also the report of Dr Patel, that have been discussed during the plea hearing.

28 I note you are 28. At the time of the arrest you were unemployed. Following your release on bail, you lived with a friend. You were at that time separated from your long-term partner, Karla, and has only supervised access to your daughter, Ella.

29 You were born in Dandenong and raised in Chelsea. You have an older brother as well as two younger siblings. You were brought up in a household where discipline was described as excessively strict.

30 I note you had disrupted secondary schooling. You were asked to leave Mordialloc Secondary College in Year 9. You then attended Monterey Secondary College where you failed to adhere to the probation requirements so that you only completed one term.

31 You then had some employment in truck body building area, where you worked for six months. Thereafter you worked in a similar position with another company where you remained for nine months. You then commenced a screen printing apprenticeship and worked in that role for two years. You obtained awards in excellence and you were doing well. However, eventually you lost that job due to excessive drinking. You have had many casual jobs including concreting, fibre-glass work and brick laying.

32 You have a long term history of drug and alcohol abuse. You began consuming alcohol at age twelve and your drinking soon escalated. You also began using cannabis at around that age as well and then went on to use amphetamine and ecstasy. Your methylamphetamine use has escalated over the years and you are a heavy ice user.

33 In 2009 you were involved in a CREDIT bail program and you attended counselling for some drug and alcohol abuse. You underwent a community residential drug withdrawal program at The Bridge in approximately 2007, and following that course you remained abstinent for about seven months but you relapsed after meeting a former drug associate.

34 You were able to obtain some casual as a plasterer recently, and you were working up to 38 hours per week prior to your remand.

35 The reference from your employer, Michael McFarlane, confirmed that you had been working with him casually since 17 April 2014, and he considered you to be reliable and efficient and he expressed the view that he would employ you in the future.

36 As I stated earlier, you have had a long-term relationship with Karla and she has had her own difficulties with drug-related issues and in the past there has been some involvement with the Department of Human Services concerning your daughter's care. She is currently with her mother and it is stated that you are keen to restore your relationship with Ella and also to reconcile with Karla eventually.

37 I accept the matters put by Mr Marshall on your behalf in mitigation. You have entered an early plea of guilty to these charges and it is accepted that that was at the earliest opportunity. By your plea you have obviated the need for a trial and have spared the State the cost and inconvenience of a trial. You have thereby facilitated justice and your sentence will be discounted accordingly. I also accept that your plea indicates some remorse on your part.

38 Through your plea you now acknowledge what you did was wrong. You have expressed a desire not to reoffend and you want to regularise your life such that you can be reunited with your long-term partner and your daughter.

39 I also note that you have stated to Dr Patel in your most recent examination that you are feeling much better since you have been incarcerated and stopped using ice. You feel that it has made you face up to your actions and the need to be open with others. Having regard to all those features, I consider that your rehabilitation prospects are good provided you can remain drug-free in the future.

40 I have taken into account the reference from Jody Johanson who has known you for 12 years as a friend. She describes you as a very warm, trusting and loving father to your daughter, Ella. She also describes the regret that you express about what you have done and its impact on you and your family. She considers that you now have a more positive attitude.

41 I note that your relationship with your parents in the past has been somewhat problematic, but has now been restored and they remain supportive of you, and indeed, they are present here today showing their support.

42 I note that you are keen to resume your screen printing apprenticeship and some initial enquiries have been made in that regard. So that augurs well for the future.

43 Mr Marshall submitted to the Court that, as a consequence of the findings of Ms Lechner, that the Verdins' principles have been enlivened.

44 As was discussed in your plea hearing, it was noted that she saw you on the one occasion only on 5 May 2014. She thought you were presenting with symptoms of Major Depression and Stimulant Use Disorder in early remission and noted that a Mental Health Plan was being prepared.

45 She considered your offending is inextricably linked with your drug addiction, your desire to support your habit and to pay off a significant drug debt and recommended counselling for the future in order to assist you to maintain your goal of abstinence. She noted a concern that immediate imprisonment would lead to a further decline in your mood state. She noted you impressed as being both anxious and depressed, but that you did have the capacity to reflect on the impact that your behaviour has had on both yourself and others, but she said you are easily overwhelmed by social and emotional factors and that, taken into account with your drug use, undermines your judgment and decision-making.

46 You told her you had been abusing ice heavily at the time of the offending, that you wanted to support your habit and that you needed to repay a substantial drug debt. She was told that you had reduced your drug use and that you had been clean for about seven to 10 days prior to her appointment and therefore she considered your recovery was in its infancy stages only and she recommended future professional assistance to consolidate and build upon your abstinence from drug use.

47 She considered your rehabilitation prospects would be facilitated through involvement with treatment services, and was concerned that an immediate term of imprisonment would lead to a further deterioration in your mood state, and that the risk of suicide would need to be closely monitored.

48 As was discussed in the plea hearing, I do not consider that the Verdins' principles apply so as to reduce your moral culpability or to moderate the need for general or specific deterrence.

49 The circumstances of your offending, as has been outlined, shows that you were involved in trafficking drugs, sourcing the supply of a variety of drugs including precursor drugs, and in the selection and wide distribution of drugs. Your record keeping of the drug debts reflects an active business. Yours was a sophisticated operation and, in those circumstances, I am not satisfied that your judgement was impaired by reason of any mental impairment, namely your mood disorder or depression.

50 Following the plea hearing, the Court obtained a report from Dr Patel, a consultant psychiatrist at Victorian Institute of Forensic Mental Health. He examined you on 14 July 2014. His report in effect mirrors the findings of Ms Lechner.

51 Dr Patel's expressed opinion is that you are a young man with a clear history of substance use disorder, most significantly methamphetamines. He confirmed that you have been diagnosed with a Major Depressive episode subsequent to your remand and that you have been commenced on an anti-depressant at night with benefit.

52 He considers that your depressive disorder was precipitated by significant unresolved grief issues in relation to the death of several family members approximately two years ago and he says that you present as an emotionally fragile young man showing early signs of recovery from the Major Depressive episode but with ongoing problems with low self-worth.

53 He expressed the opinion that you are likely to experience ongoing adverse impacts on your mental health as a result of being imprisoned. He recommends ongoing support around maintaining abstinence from further substance misuse whether you are in prison or in the community.

54 Having regard to the expressed opinions of both Dr Patel and Ms Lechner I have taken into consideration those difficulties that you are currently experiencing whilst in jail and the likelihood of a further jail term impacting on your mental health and I have reduced your sentence accordingly.

55 Mr Marshall submitted that in all the circumstances that an extended Community Corrections Order was the most appropriate sentencing disposition. Mr Roper, Crown Prosecutor, submitted such a disposition would be outside the range reasonably open to the court.

56 In all the circumstances, Mr Money, I consider that a jail term is the most appropriate disposition and in sentencing you I have had regard to the seriousness of the offending, your role, the impact of the offending upon the community and the need for both general and specific deterrence, and in particular, I consider the trafficking charges are serious examples of this sort of serious offending.

57 On behalf of the community I must formally denounce your behaviour and impose punishment that is just. I have had regard to the principles of totality and also the need to avoid double punishment. Mr Roper conceded that the two trafficking charges did involve overlapping conduct and that substantial concurrency was therefore warranted in respect to those two charges. I have had regard to the principles set out in Pearce[1] and have modified the sentences in relation to those two charges to avoid double punishment. I will now announce the formal orders, so I just ask that you stand, please, Mr money.

58 The formal orders of the Court will be as follows.

59 Charge 1, this will be the base sentence, trafficking a drug of dependence, you are convicted and sentenced to three years imprisonment.

60 Charge 2, trafficking a drug of dependence, you are convicted and sentenced to two and a half years imprisonment.

61 Charge 3, possession of a drug of dependence, you are convicted and sentenced to one month imprisonment.

62 Charge 4, possession of a drug of dependence, you are convicted and sentenced to six months imprisonment.

63 Charge 5, possession of iodine, you are convicted and sentenced to three months imprisonment.

64 I make the following orders for cumulation. Twelve months of the sentence imposed on Charge 2 and 3 months of the sentence imposed on Charge 5 shall be cumulative upon each other and the sentence imposed on Charge 1. The Total effective sentence is four years and three months.

65 In respect to the summary charges, Charge 9, you will be convicted and sentenced to 12 months imprisonment.

66 Charge 10, convicted and sentenced to nine months imprisonment.

67 Charge 11, convicted and sentenced to six months imprisonment.

68 Charge 14, convicted and sentenced to nine months imprisonment.

70 I order that six months of the sentence imposed on Charge 9 and three months of the sentence imposed on Charge 14 be cumulative upon each other and the sentence imposed in respect to the Indictment. That makes a total effective sentence is five years. I fix a non-parole period of two years and six months.

71 I make a declaration pursuant to s6AAA of the Sentencing Act but for your plea of guilty I would have imposed a sentence of seven years with a minimum of four years and six months.

72 I make the Forfeiture and Disposal Orders sought.

73 I make a declaration of presentence detention. I declare presentence detention to be 145 days, and I direct that that be entered into the records of the court.

74 HER HONOUR: In relation to the ruling sought concerning the moneys found in the possession of Mr Money at the time of his arrest, a dispute arose in respect to just a portion of that cash, of the money, the $75,775. It was submitted that $26,166.65 was legitimately Mr Money's cash. I have considered all the circumstances and, having regard to all the objective features of the offending, I am only satisfied that a portion of that money can be said to be reasonably suspected to be the proceeds of crime. I am satisfied that the prosecution has discharged the relevant burden of proof, that is to the criminal standard, that there were reasonable grounds to suspect that the majority of the moneys were the proceeds of crime, but I am satisfied that $15,390.85 is not to be considered to be suspected to be the proceeds of crime. I have set out in my written ruling the reasoning for that, so I will get my Associate to copy the ruling for both parties and provide that to you. I need to hear submissions from the parties as to what form of the order should be made in order to give effect to that ruling, that $60,384.15 is property reasonably suspected of being proceeds of crime. Should I make a declaration to that effect?

75 MS HARPER: Yes, Your Honour. And that will be the amount reflected in the orders.

76 HER HONOUR: Very well. I declare that of the moneys found in Mr Money's possession at the time of his arrest on 26 May 2013, the sum of $60,384.15 is money reasonably suspected to be the proceeds of crime.

77 MS HARPER: That's of the $75,700; there's also the sum of $1880 - - -

78 HER HONOUR: That wasn't the subject of any dispute.

79 MS HARPER: No it's not, Your Honour, but in terms of the disposal order, or the forfeiture order, I understand they're listed separately and I think that's the cause of concern at the Bar table, Your Honour.

80 HER HONOUR: Can I have a look at the forfeiture order?

83 HER HONOUR: - - - so as to show $60,384.15. Yes. Have you got another one of the forfeiture orders?

84 MS HARPER: I understand it was sent through in Word format, Your Honour, so it could be amended.

85 HER HONOUR: Yes, amend that, my Associate will do that. I have amended the original and she can do that and provide that to the parties. I believe that covers everything.

87 MR MARSHALL: The only other matter, and I don't know if it is, or how the situation is, but if feasible, I'd ask that money, the other moneys, be returned to my instructing solicitor, but that may not be a matter for Your Honour, I don't think.

88 MS HARPER: The informant will deal with that, Your Honour.

89 HER HONOUR: Yes, that's not a matter for the court.

91 HER HONOUR: All right, so that deals with the matter, I will leave the Bench and my Associate will amend the schedule and the forfeiture order to reflect the declaration made this morning by me and also provide you both with a copy of the ruling and that completes the matter.

[1] [1998] HCA 57; (1998) 194 CLR 610