DPP v Howard, Paul Leslie [2013] VCC 70 (6 February 2013)

Last Updated: 14 March 2013

AT MELBOURNE

CRIMINAL DIVISION

Case No. CR-12-02072

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REASONS FOR SENTENCE

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Subject:

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HIS HONOUR:

Introduction

1 Paul Leslie Howard, you have pleaded guilty to two charges of importing a marketable quantity of a border controlled drug contrary to s307.2(1) of the Criminal Code (Cth), one charge of trafficking a controlled drug contrary to sub-s302.4(1) of the Criminal Code (Cth), and to a summary offence under s5AA of the Control of Weapons Act 1990, in that you did possess a prohibited weapon without exemption.

2 The maximum penalty for charges 1 and 2 is 5,000 penalty units and/or 25 years’ imprisonment. The maximum penalty for trafficking a controlled drug is 10 years’ imprisonment and/or a fine of 2,000 penalty units. The maximum penalty for the summary offence is 240 penalty units and/or 2 years’ imprisonment.

3 The circumstances of the offending emerged in the Crown opening, which was not the subject of dispute by your Counsel, and which was read in open Court.

4 Charge 1 is a rolled-up charge encompassing nine separate importations by mail of MDMA over the period 27 March 2012 to 29 June 2012.

5 Charge 2 is a rolled-up charge encompassing two separate importations by mail of cocaine over the period 1 May 2012 to 16 June 2012.

6 Charge 3 is a rolled-up charge encompassing trafficking of controlled drugs, namely cocaine, MDMA, methylamphetamine, LSD, amphetamine and cannabis, over the period 27 January 2012 to 18 July 2012.

7 The summary charge relates to you being found in possession of 35 battery-powered stun guns in the shape of mobile phones when your flat was searched by police officers on 18 July 2012.

Seriousness of the offences

8 By virtue of the maximum penalty provided by Parliament, charges 1 and 2 are inherently serious offences. The particular circumstances of an offence, however, can vary. A marketable quantity of MDMA is 0.5 of a gram. The offence was committed by the importation of nine separate packages that had a total weight of 46.9 grams of MDMA. The total weight imported was therefore about 93 times the minimum marketable quantity, and around 10 per cent of a commercial quantity, which is 0.5 of a kilogram.

9 In relation to charge 2, which involved two importations, the total pure weight of cocaine was 14.5 grams, around seven times a marketable quantity of 2 grams.

The circumstances of the offending

10 Customs officers working at gateway facilities located in Melbourne and Sydney examined, over the period 27 March 2012 to 28 June 2012, twelve mail articles addressed to you at your flat in Brunswick West. Ten of the mail articles had been sent from the Netherlands, and two had been sent from Germany. Nine of those articles were found to contain various small amounts of MDMA in both powder and tablet form, and sealed within various items such as a DVD case, piece of card, a digital thermometer, and cigarette lighters. One shipment was concealed within a small torch which consisted of a clip-seal bag containing a brown crystalline substance wrapped in aluminium foil and with a net weight of 6.8 grams, being MDMA with a purity of 72.7 per cent. Two contained cocaine.

11 You did not actually receive the intercepted imported border controlled drugs contained therein. The purity of the drugs imported varied from 47.7 per cent to 79.4 per cent.

12 Police, on 18 July 2012, searched your property, and at that stage found a number of items consistent with trafficking in the drugs listed in charge 3. These included a kitty-litter tray containing 142.9 grams of cannabis, another bag containing 425.6 grams of cannabis, some immature cannabis plants weighing 1.9 grams, a clip-seal bag containing 422.6 grams of cannabis, a clipboard with amphetamine and caffeine residue, three sets of digital scales, a box containing a large quantity of clip bags, $2,300 in cash, opened envelopes addressed to you with postal addresses from the Netherlands and Canada, as well as three computers. There was also a notebook discovered. Also located were envelopes addressed to individuals containing a small quantity of methylamphetamine within plastic clip-seal bags. Police also executed a warrant on your black BMW sedan and located a plastic bag containing five cubes of an unknown substance and an Apple iPhone. Testing on the cubes was inconclusive.

13 The total of the various substances at your premises was as follows: cannabis - 993.4 grams; dimethyltryptamine - 7 grams; cocaine - less than .1 gram; MDMA - 1.6 grams; amphetamine - 1.4 grams; methylamphetamine - 0.47 grams. In a notebook were various notes in relation to current orders including references to ‘1 g MDMA’ and ‘9 g shard’. Shard is a colloquial term for methylamphetamine.

14 Analysis of the computers seized showed that there were image files on the computers showing substances placed on pieces of paper which also included the reference ‘Shadh1 AUS’ written on it. Those were saved into a folder, and it was the Crown case that those images were for the purpose of posting on the ‘Silk Road’ website. Other drug-related material was found on the computer search. Analysis of the mobile phones contained numerous references to buying and selling of various amounts of drugs. On one phone there were 152 drug-trafficking related messages in the week prior to your arrest. The same applied to the analysis of the Apple iPhone, which had numerous references in text messages indicative of trafficking activities, including references to having drugs received from overseas available. On both handsets seized there were thousands of messages.

Use of Silk Road website

15 An analysis of your computers indicated that on 19 April 2012 you had registered on an online marketplace website known as Silk Road. This website uses a particular brand of software, known as Tor, designed to enable online anonymity by the use of encrypted routing through multiple servers. The site allows use of a virtual currency that facilitates transactions, and which cannot be traced. It was the Crown case, which I accept, that you registered this account to traffic drugs to other Silk Road users, and posts on the account indicate that you had also purchased drugs using that website. This particular site has been described as a “certifiable one-stop shop for illegal drugs”.

Further Explanation for the offending

16 The immediate circumstances were that you had been a user of cannabis and other party drugs. You were working in the security industry and had acquaintances in the music industry who were users of such drugs. You commenced using cannabis in about 2003 and over a period of about four years were using 3 to 4 grams a week, although not consistently. You then got to know your supplier and started to buy the drug in bulk, and then supplied it to other people.

17 You then started using MDMA, LSD, and cocaine, and advised some of your acquaintances that you were able to obtain cheap quantities on the Silk Road site. You then accessed the drugs from overseas and started importing one to three pills and sharing them with other friends. You sold it at cheap prices to enable you to pay for the drugs, as well as to pay your own personal bills. Around the same time, you attempted to establish an online business selling replica guitars. You invested significant funds into buying some fifteen of those guitars, but were unable to sell them or continue the business after there were threats from US-based makers of the original guitars. At that time you were renting a flat in Brunswick and your wife Mallory was only earning limited amounts of money, and the household bills were mounting up. In addition, you had had to incur significant expense in obtaining a visa for her, and it was in those circumstances that you were importing the drugs and trafficking other drugs. Your Counsel did not submit that those matters were excuses for your conduct, but provided the explanation.

Characterising the seriousness of the offence

18 The offending in charge 1 is in the lower to mid-range of seriousness. First, it involves significant multiples of the minimum marketable quantity, and involves nine separate importations. Contrary to what was put on your behalf, there is a level of sophistication, in that by the use of the internet you were able to access drugs and have them posted to Australia, albeit in your own name, in innocuous packages, after your registration. You were also able to utilise the website to assist in your importation of the drugs. While the individual consignments that made up the first charge are small, that itself allowed the importations to be achieved without detection. The Crown submitted that the offending spanned a period of three months, so that increases the seriousness of it. Yours was a determined effort. The overall quantum of the drugs imported, however, is a relevant factor, as is the fact that you imported them as a principal. Given the total quantum in charge 1, the economic benefit you hoped to achieve, while it may have involved thousands of dollars, puts it down the scales.

19 In relation to the second charge, similar principles apply. Based on the amount of drugs involved and only the two shipments, it is a lower level of seriousness. It spanned a lesser period.

20 In relation to the charge of trafficking a drug of dependence, there was no specific evidence as to the actual amount of money that you had achieved as a result of your trafficking. It appears, however, that you were a busy trafficker over a period of around six months, and the variety of drugs that were found in your possession shows you were able to provide almost a smorgasbord of drugs for people who were in contact with you. The finding of a sum of cash is indicative of significant activity. I reject the submission that the money related to the failed guitar business.

21 In relation to the summary charge of possession of a controlled weapon, I note that some of the stun guns were tested and were found to be defective. They had been purchased on eBay from China for self-protection after you were burgled. I accept your Counsel’s submission that a monetary fine is appropriate for the summary offense.

Matters in mitigation: Plea of guilty

22 On the plea your Counsel put in mitigation that you had entered an early plea of guilty. I accept that that plea has significant utilitarian value. It has saved the need for a committal, a trial, and the calling of witnesses. I give you full credit for an early plea of guilty. You have taken responsibility for your conduct, and have facilitated the course of justice.

23 Your plea is also evidence of significant remorse. Following your arrest and after your “no comment” record of interview, you did cooperate with the authorities, in that you did provide information to them as to how the Silk Road website operates, and in the use of the Tor software. In addition to that, you received two subsequent packages addressed to you after your arrest, and you forwarded them to the authorities. You also, in an email to the police on 26 October 2012, provided a phone number of your drug supplier as well as details of his registration number. That information was forwarded to Victoria Police but has not been taken further. This does not disentitle you from credit for your conduct. I give some weight to all those matters as cooperation with the authorities. I also see these matters as evidence of remorse, and they are relevant to your prospects of rehabilitation.

Further explanation for the offending

24 The explanation for your offending proffered by your Counsel is to an extent related to your relatively deprived upbringing, in that due to lack of parental affection, particularly from your father, according to a psychologist, you sought self-esteem from the approval of your peers.

Evidence of Mallory Howard

25 Your Counsel led evidence from your wife Mallory in support of evidence of remorse, to support the contents of a letter you had written to the Court as to your prospects of rehabilitation, and as to the hardship that she would experience in the event of a sentence of imprisonment. Her evidence was that since your arrest you had been a significantly changed person. She had attempted to have you desist from your activities prior to your arrest, but since that time you had in effect changed your life, and had engaged in six weeks of rehabilitation at Moreland Hall, and you are effectively now a different person, and the marriage has stabilised. You have ceased contact with drug-using peers, ceased employment where you were in contact with them, and in recent times have been working in door-to-door sales and promotion. Following your self-referral to Moreland Hall, you have now enrolled in an online counselling course which, when completed, will allow you to counsel others whose lives have gone off track by the ready availability of illegal drugs.

26 Your wife also gave evidence that she effectively relies on you as a sponsor for her spouse visa, she being a native of Connecticut in the USA. She is establishing a business in nails and beauty therapy, but it is hardly breaking even. She is at real risk of having to return to America in the event that you are sentenced to a term of imprisonment. She conceded that you and she have no dependants, and no other people are dependent on you. It was also put that a conviction might prevent you accompanying her back to the USA in the future.

Personal circumstances

27 You are now aged thirty-two. You were adopted at birth, and apparently have never known your natural parents. Your adopted parents in Western Australia were in a somewhat unstable relationship, and when you were aged about seven your mother took you to England. At that point you had a younger sister, also adopted. Your adoptive father travelled to England and brought you and your sister back to Western Australia where he worked as a butcher. According to what you told Dr Wauchope, psychologist, your father was physically abusive of you and a strict disciplinarian.

28 Your schooling was disrupted. At one stage you were sent to a foster home for about a year and a half. Subsequently you were brought back home, and, later in your school life, you were sent away to a boarding school for the final two years. You did not fit in there, but managed to complete Year 12 and worked on a farm in Western Australia for six months. You were not paid during that period, and subsequently came back to Perth, where your father insisted that you leave home.

29 You then moved into a shared house when you were aged about nineteen, and worked in a chicken factory for two years, and unsuccessfully attempted to obtain a real-estate agent’s licence. You also worked in door-to-door sales and in retail for a period of about eight months, and rose to manage a retail bedding store. You lost that job and were unemployed for about one year. In about 2003 you obtained a security licence and commenced to work for a period of about five years in pubs and clubs, and were able to combine that with your daytime job in the chicken factory.

30 In 2002 you married for a period of about two and a half years. The relationship did not work out, and the marriage ended.

31 About five years ago you met your now-wife Mallory Howard via an internet chat room, and in 2007 went to the USA to meet her parents, and you subsequently married in 2010. You returned to Australia and have sponsored her for her spouse visa. After returning from America you went to Perth, but things did not work out there, and so you then arrived in Melbourne. You then obtained your local security licence and commenced to work in hotels and other venues. It was then that you began mixing with people who were using drugs, including party drugs, and you were supplying them with drugs, as you were able to access them easily. You incurred significant expenses to obtain a visa for your spouse, and it was in late 2011 or early 2012 that you decided to go into the online business selling replica guitars imported from Japan. That was not successful, as I have noted, and you then commenced trafficking drugs.

32 Dr Wauchope has provided a helpful report looking at your personality. She has noted your early life was characterised by attachment issues and early parental loss as well as difficulties with your adoptive father. She notes that people exposed to that type of background need to look outside a family relationship to peers to obtain a sense of belonging and acceptance, and this makes them vulnerable to peer pressure. She then opines that this seems to explain why you succumbed to peer pressure when using cannabis, and it was in that context that you got into using recreational drugs. Further, supplying drugs to friends would also give you feelings of self-esteem with them. She is of the view that your consumption of substances is partly a way to manage your emotions and difficulties in life and to mask emotional pain.

33 Her opinion is that you now have insight into your offending and are remorseful for it. She is of the view that as you do not have a criminal history, nor a history of chronic substance abuse, and have now abstained from drugs since your arrest, you are likely to do well in a specialised treatment regime where you are closely monitored. She analysed your mental state and found that you are suffering from mild anxiety and depression. She notes that incarceration will exacerbate your emotional difficulties and is likely to interrupt the positive changes that you have made.

34 I have considered the opinion of Dr Wauchope and noted the likely impact of imprisonment upon you, but am unable to give it decisive weight. Given the seriousness of the offending here, whilst I have sought to exercise parsimony in any sentence upon you, I have also applied considerations of totality and proportionality. In accordance with authority, I note that you are of previous good character, but, in sentencing for these serious offences, matters personal to you carry lesser weight.

Sentencing considerations

35 Turning to the specific matters in s16A of the Crimes Act (Cth), I have already referred to the circumstances of the offences, your early plea of guilty, remorse, cooperation with the police, and lack of prior convictions, all of which I take into account.

36 As there is an overlap as to the period of offending between counts 1 and 2, and they constitute effectively a single course of conduct, I regard it as appropriate to order that the sentences are concurrent.

37 In relation to the trafficking offence, charge 3, the element of seriousness relates to the fact that it occurred over a six-month period, and it is clear from the Crown summary that you were involved in active trafficking over that period of a number of drugs. This is evidenced by the range of drugs in your possession when you were arrested, the cash seized, and the high number of messages on the mobile phones that were seized at your premises. The contents of some of the messages are set out in the Crown Opening. On the other hand, save as to the cash seized, there is no evidence of significant betterment as a result of the trafficking. Given the opinion of the psychologist that you were a drug-user at the time, there is at least an inference available that the trafficking was partially to fund your own use of the drugs, as well as to address financial problems.

38 In relation to sentencing principles, I have sought to apply the principles set out in Nguyen v R[1] at [34]. I must regard imprisonment as a sanction of last resort and apply principles of parsimony and totality. I accept the Crown submission that general deterrence is to be accorded very considerable weight. A sentence of imprisonment to be immediately served is called for. The ease of access to what is virtually an online supermarket of illegal drugs via the Silk Road website means that general deterrence is very important in relation to counts 1 and 2. It has been repeatedly noted by appellate Courts that drug importation is often difficult to accept, and thus general deterrence is important. A message must be sent to those tempted to utilise the internet to access prohibited drugs for their own use or resale, that heavy penalties will follow. General deterrence is also a salient consideration in relation to the drug-trafficking offence, particularly given the significant period over which you engaged in the conduct. Those tempted to sell illegal drugs to others must understand that the Courts will come down hard on them. Specific deterrence is also a matter to be considered, although less weight is to be accorded here, given your lack of prior convictions and what I regard as your very good prospects of rehabilitation.

39 I am unable to accord any significant weight to the impact of your sentence on your wife Mallory Howard. She has no dependents, and has sought to establish her own business. What was put on her behalf does not meet the requirement that the impact on a family member be such as to be exceptional and thus call for a moderation of a prison sentence.

40 It is always in the community interest that offenders are rehabilitated. My assessment of your prospects of rehabilitation is that they are very good. In reaching this conclusion I have considered your letter to the Court, and relied on the evidence of your spouse, Ms Howard, as well as the reference that has been supplied by a friend of yours, Mr Hickey, and the opinion of Dr Wauchope, as well as the remorse that you have evidenced and the actions that you have taken since your arrest, which evidence insight, and where you have sought to address the underlying causes of your offending. Perhaps most significantly, you have now reached the age of thirty-two, and this is the first time you have been before a Court for a criminal offence, which bodes well for your rehabilitation after you have served the least possible sentence to atone for your conduct over the early months of last year. I have taken into account your prospects of rehabilitation in fixing both a total effective sentence, and a period after which you will be eligible for parole.

41 In sentencing you, not only must I weigh considerations of just punishment, denunciation, general and specific deterrence, but also the community interest in your reintegration into society.

Sentencing range

42 The Crown submitted that an appropriate sentencing range would be a head sentence of between three and five years with a non-parole period of two to three years. Your Counsel submitted that this range was too high, and he sought a non-custodial disposition. The Crown provided a chart of some comparable trafficking cases. Your Counsel referred to a couple of cases. As both trafficking drugs and importation can occur in such a variety of circumstances as to value, quantum, role, and mode, I have not found the cases of much assistance. I have already indicated that I regard the seriousness of the offending here, particularly that involving charges 1 and 3, and to extent charge 2, whether considered individually or as a course of criminal conduct, as calling, in the interests of general deterrence and denunciation, for a sentence of imprisonment to be immediately served.

Sentence

43 On Charge 1, importing a marketable quantity of a border controlled drug, you are sentenced to two and a half years’ imprisonment.

44 On Charge 2, importing a marketable quantity of a border controlled drug, you are sentenced to one year’s imprisonment.

45 On Charge 3, trafficking in a controlled drug, you are sentenced to eighteen months’ imprisonment.

46 On the summary charge of possession of a controlled weapon you are fined $1,000.

47 I direct that the sentences on charges 1 and 2 commence on this day. I direct that the sentence on charge 3 commence six months prior to the end of the sentence on charge 1, making a total effective sentence of three years and six months’ imprisonment. I direct that you serve a minimum term of one year and nine months before you are eligible for parole.

48 I declare that you have served seven days’ pre-sentence detention.

49 Pursuant to s6AAA of the Sentencing Act 1991 I declare that had you not pleaded guilty, I would have imposed a total effective sentence of 5 years and 3 months’ imprisonment with a non-parole period of 3 years and 6 months.

50 I am required to explain the sentence to you. On Charges 1 and 2 I have sentenced you to 2 ½ years’ imprisonment respectively. Those sentences are to run together. On Charge 3 I have sentenced you to 18 months’ imprisonment. One year of that sentence is to be served after the expiry of the sentence imposed on Charge 1, making a total effective sentence of 3 ½ years.

51 After serving 21 months’ imprisonment you will be eligible to apply for parole. On the summary charge of possession of a controlled weapon, you are fined $1000. I grant you a stay of 3 months to pay the fine.

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[1] [2011] VSCA 32; (2011) 207 A Crim R 380