DPP v Richardson [2016] VCC 2014 (21 December 2016)

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IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised

Not Restricted

Suitable for Publication

DIRECTOR OF PUBLIC PROSECUTIONS

v

JAMES MICHAEL RICHARDSON

JUDGE:	HIS HONOUR JUDGE RYAN
WHERE HELD:	Melbourne
DATE OF HEARING:	8 December 2016
DATE OF SENTENCE:	21 December 2016
CASE MAY BE CITED AS:	DPP v Richardson
MEDIUM NEUTRAL CITATION:	[2016] VCC 2014

Catchwords: Trafficking drug of dependence ( 1,4-butanediol); Attempt to possess

drug of dependence; Trafficking drug of dependence (methylamphetamine); possess catridge ammunition; commit indictable offence whilst on bail; possess property suspected of being the proceeds of crime

Sentence: Total effective sentence: Four years and eight months’ imprisonment. Non-parole period: Three years’ imprisonment.

APPEARANCES:	Counsel	Solicitors
For the DPP	Mr A. Albert	Solicitor for Office of Public Prosecutions

For the Accused	Mr M. Stanton	Stary Norton Halphen

(i) Charge 1, trafficking in a drug of dependence, namely 1,4butanediol, in a quantity that was not less than the commercial quantity applicable to that drug of dependence;

(ii) Charge 2, attempting to have in your possession a drug of dependence, namely 1,4butanediol; and

(iii) Charge 18, possess property suspected of being the proceeds of crime, being $119,482.

4 The maximum penalty for trafficking in a drug of dependence in a commercial quantity is 25 years’ imprisonment; the maximum penalty for attempting to possess a drug of dependence is two years’ imprisonment; and the maximum penalty for trafficking in a drug of dependence is 15 years’ imprisonment.

Charge 10, possess cartridge ammunition, is 40 penalty units; for Charge 11, commit an indictable offence whilst on bail, three months’ imprisonment or 30 penalty units; and in respect of possess property suspected of being the proceeds of crime, two years’ imprisonment.

6 Tendered as Exhibit A on the plea and read aloud in court, was the summary of prosecution opening on plea. 1,4butanediol is a prescribed drug of dependence, except if it is used for a lawful industrial purpose and not for human consumption. A commercial quantity of the drug is two kilograms of mixture. There is no large commercial quantity prescribed under the Drugs, Poisons and Controlled Substances Act 1981 for the substance. The substance is lawfully used as an industrial solvent and in some circumstances, in the manufacture of plastics. It is a clear, odourless liquid. When ingested into the human body, it is metabolised into gamma-hydroxybutyric acid or GHB. It is not a prohibited import, however, it is subject to border monitoring and Customs inspection.

7 You were arrested in November 2014 and interviewed by police in respect to importation of 1,4butanediol and released without charge. However, on 19 March 2015, you were arrested in respect of other offences and police took the opportunity of putting an undercover operative in the cells with you at the Narre Warren Police Station. The basis of Charge 1 on the indictment is three sales of the drug to that undercover police operative. On 19 March 2015, the undercover operative bought 20 grams of the substance from you for $50. On 25 March 2015, he purchased one kilogram of the substance for $1,000. At that time, you told the undercover operative that you were able to supply him with 100 litres of the substance if he wanted it. The last transaction occurred on 3 April 2015 when you sold three kilograms of the substance to the undercover operative for $3,000 and during the course of that transaction, you said you “move a heap of stuff”. It is these transactions alone that found

8 On 7 April 2015, police arrested you and you were found in possession of 100 grams of the substance. A warrant was executed at your home address and police found 7.8 kilograms of the substance in a ten litre plastic water vessel. As well, police found assorted bank and importation documents relating to the substance.

9 The facts that found Charge 2 are that on 26 March 2015, and again on 15 April 2015, Australian Customs and Border Protection Services intercepted international cargo addressed to your home. The cargo was 1,4butanediol. It was described as diethyl malonate. You had engaged the services of Professional Freight Services at Tullamarine to assist with the Customs clearance and the payment of duty in respect to that cargo. The first cargo consisted of 14 44gallon drums of the substance that weighed a total of 3,212 kilograms. The second cargo consisted of two 44gallon drums containing 458 kilograms of the substance.

10 The facts that found Charge 3 can be simply stated, during the transaction of 25 March 2015, you told the undercover operative that you could supply

methylamphetamine if he wanted it. Following the final purchase of the substance that founds Charge 1, you trafficked 1.7 grams of

self-storage unit on the day of your arrest, where seven shotgun cartridges were found.

12 As to Charge 11, on 19 March, you were charged by police with threat to inflict serious injury, which was alleged to have occurred on 14 February 2015 and you were arrested and released on bail. The charges on the indictment were committed whilst you were on bail and this is an aggravating circumstance of your offending.

13 As to summary Charge 18, the police investigators analysed your three bank accounts for a period of approximately five months leading up to your arrest. Whilst you had no legitimate source of income during that time, you received in excess of $236,000 into those accounts and at the time of your arrest, the balance in your accounts was $119,482. As well, at the time of committing the instant offences, you were serving a sentence of six months’ imprisonment by way of a drug treatment order for the offences of possession of a drug of dependence, methylamphetamine; commit an indictable offence whilst on bail; and contravene a condition of your bail. This is an additional aggravating circumstance of your offending.

14 In respect to your prior criminal record, you have 35 findings of guilt or convictions from four court appearances. More relevantly, 33 of these convictions arise out of three court appearances since 2014. You have been convicted in respect to drug, firearms, dishonesty and driving offences, as well as offences under the Bail Act. As at the date of your plea, you had spent 611 days in custody, of which, I was told, 488 days count as pre-sentence detention in respect of the instant offending.

15 Whilst in custody, you have been assaulted and the time that you have spent in custody since 30 June 2015 because of your alleged involvement in the riots at the Metropolitan Remand Centre, you have been kept in what was described as solitary confinement. You have been charged in respect to the riots and your committal hearing is listed in February next year.

16 Tendered as Exhibit 1 was a folder containing your counsel’s submissions; a report from Jeffrey Cummins, psychologist, dated 6 December 2016; together with a letter from Dr Mahalingam, dated 29 May 2013; a number of urine analyses reports; a sentence/remand report from Corrections Victoria in respect of you; a report in respect to your Drug Court management, as well as various authorities. In addition, tendered as Exhibit 2, was a reference from Mr Bruce Beveridge, who was called to give evidence on your plea.

17 You are 32 years of age. Your parents separated when you were aged 15 when your father moved out of the family home, where your mother continues to reside. You had left the family home to live with a family friend some 18 months or so earlier when you were 13 or 14 years of age. Your mother works in hospital administration, whilst your father, who is ten years her senior, is a retired engineer and mechanic.

18 You completed Year 10 at high school and thereafter obtained a Diploma in Multimedia Design. However, this qualification was obtained after you had deferred a Diploma in Information Technology because of your dependency on a range of drugs. You entered the workforce at age 17 and remained working in the information technology/computer industry area until you ceased work at the age of 28, again as a result of your dependency on a range of drugs. Thereafter you had sporadic work, working as a cleaner, specifically as a cleaner of computers.

19 In 2013 you were involved in a serious motorcycle accident that required you to be surgically treated for a fractured pelvis and injuries to your left wrist and thumb. You initially spent several weeks at the Alfred Trauma Centre and thereafter, spent five months or so undergoing rehabilitation at Springvale.

20 You have a long history of substance abuse. Between the ages of 12 and approximately 18, you were a heavy and even a daily smoker of cannabis, which eventually caused you to become paranoid and you ceased smoking cannabis when you were aged somewhere between 20 and 21 years. Additionally, between the ages of 18 and 22, you were a heavy consumer of alcohol. After that time, you experimented with ecstasy and were a regular user of amphetamine. From about the age of 26, you were introduced to

methylamphetamine and very quickly became a daily abuser of that drug and at that time, you commenced to use the drug GHB and commenced to use the substance, the subject of Charges 1 and 2 on the indictment, as a substitute for that drug.

21 Mr Cummins notes that you were treated for ADHD, as well as anxiety and depression, as an adolescent. Further, in 2002, when you were aged about 20 years, you were diagnosed by Mr Mahalingam as having bipolar disorder, which was secondary to marijuana and amphetamine abuse. You were prescribed the drug Epilim. You are presently medicated with anti-depressant Escitalopram, as well as Effexor and since your time in prison, your daily dosage of Effexor has increased from 75 milligrams to 300 milligrams.

22 Mr Stanton of Counsel, who appeared on your behalf, rightly acknowledged that your offending was serious. However, he submitted that your offending was, “Unlikely to return a massive profit which can be gained from trafficking in other drugs like methylamphetamine, cocaine or heroin” and that the weight of the substance that founded Charge 1 was not large, being about twice the commercial quantity. He further submitted that your offending was naïve, in that the paper trail of your importations of the substance was in your name and your business was registered at your home address.

23 However, it must be borne in mind that the substance imported by you is not prohibited if used for an industrial purpose and that is what you purported to do. Your error of judgment appears to be in the quantities that you imported which, to my mind, inform the issue of your intention in respect to the substance and this in turn informs your prospects for rehabilitation, which in light of your criminal history and your long history of poly-substance abuse, I regard as bleak.

24 You have pleaded guilty and are entitled to the benefits that flow to you from that plea, being its utilitarian value and that it is some evidence of your remorse. However, your plea came late in proceedings, well after committal, although you had made earlier offers that were unacceptable to the Crown.

25 Mr Stanton emphasised the conditions in which you have been confined since June of 2015. They are the most restrictive I have encountered and I factor the time that you have been confined under that regime into account when arriving at an appropriate sentence in your circumstances. However, it is a matter for the prison authorities how you are confined. You are on remand for serious prison offences. Further, I cannot speculate about whether those conditions will continue once you have been sentenced. That will be a matter for the prison authorities when you are classified by them, on the basis that you are a prisoner undergoing sentence.

26 Having said that, your mental health has deteriorated as a consequence of your strict confinement and I will take that into account when arriving at sentence.

I accept, if you continue to be strictly confined, the deterioration in your mental state will continue.

27 Mr Stanton submitted that your state of mental health means that a sentence will weigh more heavily on you than it would on a person in normal health and further, that there is a serious risk of imprisonment having a significant adverse effect on your mental health, in support of a submission that these factors should mitigate your sentence. This submission is dependent on you remaining strictly confined, which is a matter of conjecture.

28 On release from prison, you will work and reside with Mr Bruce Beveridge, who gave evidence on the plea. Mr Beveridge swore that he has known you since 2003 or 2004 when you became neighbours. He described you, at that time, as being a decent young man. Over the years he has given you work as

a labourer and he said that you proved to be a good worker. He attributed your present state to the breakdown of your relationship with your then partner and your motor cycle accident which adversely affected you and his view, contributed to a relapse in the use of illicit substances.

29 While I accept Mr Beveridge’s evidence, it is beyond dispute that your abuse of drugs of one kind or another has been a constant in your life since your teens.

30 You had spent 611 days in prison as at the date of your plea, of which 494 days were presentence detention. Mr Stanton submitted that the principle of totality must operate to mitigate your sentence.

31 Mr Stanton submitted that a term of imprisonment, combined with a community corrections order, with treatment conditions, was the appropriate sentence in all the circumstances. I had you assessed for such an order. The assessment report stated that you have not been successful in your past community corrections order, or when given an opportunity of a drug treatment order. You were assessed as a medium risk of re-offending. I am of the view that in all the circumstances, the only appropriate sentence is one of imprisonment that requires me to fix a non-parole period.

32 Drug trafficking is a serious offence. It strikes at the very fibre of our society. It calls for condign punishment. You trafficked twice the commercial quantity of the substance 1,4-butanediol and you attempted to possess over 1,800 times that amount of the substance. General deterrence, denunciation and just punishment must be the principal purposes for sentencing you. However, I take into account your time in custody and the conditions under which you have been confined for most of that time and the deleterious effect that this has had upon your mental health, as well as the delay in this matter that is not attributable to you.

34 By these sentences, I must denounce your conduct. I must punish you and deter you and others from committing crimes of the same or similar kind. I must look to your rehabilitation. Taking into account the circumstances of your offending and their effects, your circumstances and antecedence and endeavouring to produce sentences which reflect and promote the purposes of sentencing in a manner appropriate to you, I sentence you as follows:

42 I order that six months of the sentence imposed on Charge 2 on the indictment, together with two months of the sentence imposed on the related summary offence, Charge 18, be served cumulatively upon one another and upon the sentence imposed on Charge 1.

43 This results in a total effective sentence of four years and eight months and I fix the period of three years’ imprisonment as the period of imprisonment that you must serve before you will become eligible for parole.

45 Pursuant to s.6AAA of the Sentencing Act 1991, I declare that but for your plea of guilty, I would have sentenced you to seven years’ imprisonment with a

51 MR ALBERT: Yes, Your Honour. Could I just add, in terms of Your Honour's sentencing reasons, because we had to re-look at the figures.

53 MR ALBERT: As at 8 December, the PSD at that point was 488 days, rather than 494.

57 MR ALBERT: Your Honour mentioned that for the offence of trafficking methylamphetamine, Charge 3, Your Honour said 1.5 grams, it is 1.7 grams. It is probably written down as 1.7 grams in Your Honour's notes, but Your Honour did say 1.5, but being pedantic, but nevertheless, there it is.

58 HIS HONOUR: Well, if I said 1.5 grams it is because I cannot read, because written in my written reasons is 1.7 grams.

60 HIS HONOUR: In the settled or revised reasons, those amendments will be made.

County Court of Victoria

DPP v Richardson [2016] VCC 2014 (21 December 2016)