DPP v Stewart [2021] VCC 1484 (6 October 2021)

IN THE COUNTY COURT OF VICTORIA

Revised
Not Restricted
Suitable for Publication

DIRECTOR OF PUBLIC PROSECUTIONS

v

TAYLOR STEWART

JUDGE:	HER HONOUR JUDGE HAWKINS
WHERE HELD:	Melbourne
DATE OF HEARING:	29 September 2021
DATE OF SENTENCE:	6 October 2021
CASE MAY BE CITED AS:	DPP v Stewart
MEDIUM NEUTRAL CITATION:	[2021] VCC 1484

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms A. Singh	Office of Public Prosecutions

For the Accused	Mr R. Timms	Cahills Barristers & Solicitors

2 Through your counsel you have admitted the circumstances of your offending as set out in the Summary of Prosecution Opening for Plea dated 29 September 2021.

3 At approximately 8.20 pm on 6 November 2020, a member of the public observed a greenish-bluish car driving very slowly through a red light on Mackenzie Road in Golden Square.

4 Police responded to the subsequent Triple 0 call and observed a dark-coloured Holden Commodore, registration 1DT 4PH, driving erratically. Shortly thereafter, police located the Holden Commodore stationary at a set of traffic lights with a number of cars waiting behind it. The driver, later identified as you, was observed to be unconscious with a conscious passenger, co-accused Jake O'Reilly, beside you.

5 When police removed the keys from the Commodore's ignition you regained consciousness. You were observed to be substance affected and drowsy. When you produced your driver's licence from your wallet, police observed a large amount of cash.

6 Police formed the reasonable suspicion that there were drugs of dependence in the vehicle and conducted a search. They located:

(i) Three clear plastic water bottles inside a bag containing a clear viscous liquid believed to be the drug known as GhB. The seals of the bottles were broken and secured with tape;

(iv) A denim pencil case containing small ziplock bags and two Suboxone film packets;

(vi) In a box, an Anko branded grinder with traces of white substance, 16 x Suboxone film packets and $5480 in cash; and

8 Subsequent analysis revealed that the viscous liquid in the three bottles was a drug of dependence, specifically 1,4 Butanediol, totalling 2.917 kilograms. This amount of 1,4 Butanediol is a quantity in excess of the prescribed commercial quantity for this drug, being 2 kilograms.

9 The prosecution puts Charge 1 on the basis that you trafficked the 1,4 Butanediol on a single date, insofar as it was in your possession for sale in circumstances where the drugs were found in three clear plastic water bottles, together with a syringe.

10 The green vegetable matter found in two Ziploc bags in the boot of the vehicle you were driving was analysed and found to be Cannabis L mixed with an unidentified plant material totalling 4.5 grams (Charge 2).

11 An analysis of your mobile phone showed SMS text messages at around the time of the search consistent with drug trafficking.

12 The total amount of cash seized in relation to you was $6,765.10 (Summary Charge 6). You are not charged in relation to the other items and drugs located in the car.

13 You and Mr O'Reilly were subsequently arrested and conveyed to the Bendigo police station, where you provided a predominantly “no comment” record of interview following legal advice.

14 Trafficking in a commercial quantity of a drug of dependence is an inherently serious offence, as reflected in the maximum penalty of 25 years of imprisonment.

15 The drugs forming the subject of Charge 1 constitute approximately one and a half times the commercial quantity threshold for 1,4 Butanediol.

16 You and your partner were using drugs at the time of your arrest. You estimate that the total quantity of drugs found in your vehicle would have lasted you three to four weeks. I note that there is no evidence before the Court to substantiate your addiction or level of usage; however, you were driving a 16-year-old vehicle, you did not have stable accommodation and had no other obvious trappings of wealth.

17 At the time of your arrest you, had over $6,000 in cash in your possession and you were not found with other accoutrements of trafficking such as tick sheets or scales. You accept that you possessed 1,4 Butanediol for the purpose of sale. You were clearly offending for profit, albeit to support your own addiction.

18 I accept that it is open to conclude that you were clearly trafficking to fund that addiction, rather than to otherwise profit for any sort of significant commercial gain. In the absence of any other associated trappings of wealth, I conclude that your offending is towards the lower end of this type of offence.

19 You were born in 1993 and are currently 28 years old. You were 27 at the time of this offending.

21 Your childhood was marred by family breakdown and physical and emotional trauma. You have had regular contact with your father but are estranged from your mother. You have five siblings with whom you have intermittent contact.

22 You were educated to Year 11 level and completed an apprenticeship as a boilermaker and steel fabricator. You have a fairly solid employment history. You have contact with a friend in Darwin where you have the ability to continue your trade and enter into training for underwater construction and underwater pressure pipe welding. This is work which would require you to be drug and alcohol free.

23 You have no children and were in a ‘shaky’ relationship at the time of arrest.

24 You do not have any physical or psychiatric diagnosis, but suffer from severe drug addiction. I note that there was no psychological or other material tendered to the Court in respect of this addiction.

25 You started smoking cannabis at 15 years old, and soon progressed to stronger drugs. At the time of your arrest you were said to be using up to 80 millilitres of GHB daily. You were prescribed methadone in custody and are currently receiving 35 millilitres per day.

26 The Court is told, but has not received any corroborating evidence of your enrolment in relapse prevention courses. You are also said to be on the waiting list for drug and alcohol counselling.

27 You have a prior history for dishonesty and drug-related offending, including a relevant prior for trafficking methamphetamine in 2019 for which you were fined in the Magistrates' Court at Mildura. Your criminal history is consistent with polysubstance abuse.

28 You have previously been sentenced to terms of imprisonment for theft of a motor vehicle and have other short stints of imprisonment. I note that you spent a considerable time on remand in respect of the matter dealt with in the Mildura Magistrates' Court and more will be said on that shortly.

29 Trafficking a drug of dependence in not less than a commercial quantity is a category 2 offence within the meaning of s3(1) of the Sentencing Act 1991. Therefore, the Court must impose a sentence of imprisonment unless an exception as set out in s5(2H) arises.^[1] No such exception has been submitted to apply in your case.

30 In sentencing you I must have regard to a range of matters such as the seriousness of your offending, your culpability for it and your personal circumstances. I must balance the interests of the community in denouncing criminal conduct with the interests the community clearly has in seeking to ensure as far as possible, that offenders are rehabilitated and reintegrated into society.

31 I must impose a sentence which is proportionate to the gravity of the offence, considering the circumstances. The sentence must be no more than is necessary to satisfy those various sentencing objectives.^[2]

32 The purposes for which a Court may impose a sentence include just punishment, general and specific deterrence, rehabilitation, denunciation and the protection of the community.^[3]

33 General deterrence and denunciation are important sentencing considerations in your case. Drug trafficking is a prevalent offence and causes significant social harm. The sentence I impose must seek to deter other persons in the throes of drug addiction from engaging in this type of offending conduct. It must also deter you from reoffending in a similar way upon your release. My sentence must also make clear, on behalf of the community, that drug trafficking will not be tolerated.

34 I have had regard to current sentencing practices in relation to the offences with which you are charged. In particular, I was referred to the decision of the Court of Appeal in Ellis v The Queen,^[4] in which the Court helpfully reviewed sentences imposed in cases where the appellant had been charged with trafficking in a commercial quantity of 1,4 Butanediol.

35 Their Honours’ review revealed that sentences well below four years' imprisonment might be imposed where there are no relevant prior convictions,^[5] or where there are unusual mitigating features. Otherwise, the sentences range from two and a half years to five years' imprisonment.^[6] I note that these are all pre-pandemic cases.

36 Of these cases, the only matter which involved trafficking of a similar amount of 1,4 Butanediol was that of Donaldson.^[7] Donaldson received a sentence of five years' imprisonment on this charge, but was also charged with trafficking other drugs and possessing prohibited weapons and explosives whilst on bail and a Community Corrections Order. His circumstances and offending were arguably more serious than yours.

37 You have entered your plea at an early stage on 28 July 2021, after the committal hearing was vacated to allow time for resolution.

38 As a result of your plea, you accepted responsibility for your offending and have saved valuable Court time and expense. Further, your plea has an additional mitigatory significance at a time when the County Court is facing considerable COVID-19-related backlog of trials.^[8]

39 You have served a total of 334 days on remand (not including today). The pandemic has caused you additional stress and concern, no doubt, over contracting the virus in an environment where you have little control. That is particularly so at the moment, as I note that there have been multiple outbreaks in various prisons around Victoria.

40 You have endured periods of lockdown including an initial 14-day period of isolation. Conditions in custody have been far more difficult during the pandemic with restrictions on face-to-face visits, limited access to educational programs and other significant restrictions to usual liberties.

41 Accordingly, you are entitled to a significant discount reflecting the utilitarian value of your plea of guilty, which is an actual and palpable amelioration of your sentence given all of the circumstances.

42 You are 28 years of age and you are said to be on the waiting list for various therapeutic programs whilst in custody. You have aspirations to pursue a career which requires you to be drug and alcohol free. You are well trained for such a career. However, given your long history of drug abuse, regrettably your prospects of rehabilitation are not good without significant supportive interventions. Specific deterrence is a most relevant sentencing consideration to encourage you to seek that rehabilitation for your drug abuse, and to deter you from reoffending to feed your addiction upon release.

43 Your co-accused, Mr O'Reilly, pleaded guilty to possess drug of dependence, namely methamphetamine, and commit indictable offences whilst on bail and was sentenced in the Magistrates' Court to a fine with conviction. You face the far more serious charge of trafficking in a commercial quantity and therefore issues of parity have little relevance in your case.

44 The Court must impose a sentence which is just and appropriate in all the circumstances. Your custody record reflects that you served approximately six months of ‘dead time’ between 11 December 2017 and 15 May 2018. This concerned charges of trafficking methamphetamine, possess cannabis and dishonestly offending. The Mildura Magistrates' Court convicted and sentenced you for those charges on 23 May 2019 to a fine of $1,000 plus statutory costs. It is appropriate to moderate your sentence in this case by taking into account this ‘dead time’ in accordance with the Renzella principle,^[9] and the principle of totality.

46 On Charge 1, trafficking a drug of dependence, namely 1,4 Butanediol, in a quantity not less than a commercial quantity, you are convicted and sentenced to 19 months' imprisonment. This is the base sentence.

47 On Charge 2, possessing a drug of dependence, namely Cannabis L, you are convicted and fined $500.

48 On the related summary offence, Charge 6, deal with property suspected of being the proceeds of crime, namely $6,765.10 in cash, you are convicted and sentenced to a term of three months' imprisonment. This term is to be served concurrently with the term imposed on Charge 1.

51 Pursuant to s18 of the Sentencing Act 1991, the period of 334 days of pre‑sentence detention (not including today) is hereby declared as having already been served in respect of this sentence and I order that such declaration and its details be entered into the Court record.

52 Pursuant to s6AAA of the Sentencing Act 1991, I indicate that had you not pleaded guilty and been found guilty after trial, I would have sentenced you to a term of 30 months' imprisonment with a non-parole period of 22 months.

53 Pursuant to s89A(3) of the Sentencing Act 1991, I suspend any driver's licence which you hold in the State of Victoria for a period of 12 months effective from today.

54 I direct that that order be entered into the Court records in respect of Charge 1, trafficking in a commercial quantity of 1,4 Butanediol. The reason for that, Mr Stewart, is that you were found unconscious in your car at traffic lights and were clearly drug affected at the time when you were driving a vehicle. Although, that summary charge is not before me.

56 I make the order for forfeiture to the Minister of the cash seized and the mobile phones seized as sought by the Crown.

County Court of Victoria

DPP v Stewart [2021] VCC 1484 (6 October 2021)