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[2021] VCC 1398
General information, not legal advice.
County Court of Victoria
2021-09-22
Original judgment source is linked above.
Sentence: Imprisonment for a period of 6 years with a non-parole period of 3 years and 6 months.
1 Christopher Henderson, you have pleaded guilty to four charges of trafficking in a commercial quantity of a drug of dependence, namely 1,4-Butanediol (also known as 1,4-BD) (Charges 1, 2 and 6) and Methylamphetamine (Charge 3), contrary to s 71AA(1) of the Drugs, Poisons and Controlled Substances Act 1981, which carries a maximum penalty of 25 years imprisonment on each charge, one charge of possessing counterfeit money contrary to s 9(1) of the Crimes (Currency) Act 1981 (Cth), which carries a maximum penalty of 10 years imprisonment (Charge 4) and one rolled-up charge of possession of drugs of dependence, namely Cocaine and Alprazolam, contrary to s 73(1) of the which carries a maximum penalty of 1 year imprisonment and/or 30 penalty units where the court is satisfied that the offence was not committed for any purpose relating to trafficking or 400 penalty units and/or 5 years imprisonment in any other case.
2 You have also pleaded guilty to the related summary offence of possess property suspected of being proceeds of crime contrary to s 195 of the Crimes Act 1958 which carries a maximum penalty of 2 years imprisonment (Summary Charge 9), one charge of possessing a controlled weapon contrary to s 6(1) of the Control of Weapons Act 1990, which carries a maximum penalty of 1 year imprisonment (Summary Charge 10) and one charge of possess cartridge ammunition contrary to s 124(1) of the Firearms Act 1996, which carries a maximum penalty of 40 penalty units (Summary Charge 18).
3 You have also admitted your prior Criminal Record.
4 A prosecution opening was tendered on the plea and may be summarised as follows:
5 At the time of the offending you resided at Apartment 401/8 Luton Lane, Hawthorn.
6 At approximately 4.25 am on 7 June 2019 you were observed by Police travelling west along Canterbury Road, Camberwell, in a Toyota Kluger wagon, bearing South Australian registration. Due to the erratic nature of your driving, the vehicle was intercepted by Police outside 17 Stanhope Grove, Camberwell.
7 You produced a Victorian Driver Licence. Also present in the vehicle and seated asleep and slumped forward in the front passenger seat was Cengiz Karavan.
8 Sergeant Peter Baltas requested another Police unit to attend to deliver a preliminary breath test.
9 Leading Senior Constable Russell Trent attended and observed drug paraphernalia in the vehicle and that you appeared to be drug affected. A search of you, Mr Karavan and the vehicle was conducted under the Drugs, Poisons and Controlled Substances Act 1981.
10 Police located in your pocket a purple folding knife and your mobile phone which were seized by Police. It is these facts that relate to Summary Charge 10, possess controlled weapon
11 Leading Senior Constable Trent observed a black bag with the logo 'Supreme', which was behind the seat occupied by Mr Karavan. Mr Karavan claimed possession of the bag and its contents. A search of this bag located three 250 millilitre bottles with clear viscous liquid suspected to be 1,4-BD, which were seized by Leading Senior Constable Trent . These items, which were later confirmed to be 1,4-BD, do not form part of the charges against you.
12 You and Mr Karavan were both arrested for possession of a drug of dependence. You were both cautioned and informed of your rights. A further search of the boot of the vehicle was conducted and Police located and seized a yellow box labelled 'Kirkland' containing 15 plastic bottles containing a clear viscous liquid believed to be 1,4-BD. Later analysis of the bottles revealed your DNA on each bottle.
13 Analysis of the items seized from your car determined that the substances seized were 1,4-BD. The aggregate amount of the items seized from your car was 7.74 kg. The commercial quantity of 1,4-BD is 2 kg. It is these facts that relate to Charge 1, traffick in a commercial quantity of 1,4-BD.
14 A further search of the vehicle by Police located a black carry case and approximately aggregate 80.2 g of Methylamphetamine, 40 Alprazolam tablets in a white medicine bottle and a set of digital scales. A search of the vehicle's glove box was conducted and Police located and seized $2,935 in cash which you claimed was yours. It is these facts that form part of Summary Charge 9, possess property suspected of being proceeds of crime**.**
15 Police also located in the vehicle a NSW Driver Licence in the name of Daniel Kosta, together with ANZ bank documents and Origin Energy paperwork in the name of Jonathon Hampstead.
16 You were transported to the Boroondara Police Station where you were given a full search. During the search 3 g of Methylamphetamine fell from your black boxer shorts. A search of the divisional van in which you were conveyed was conducted which located a broken zip lock bag containing 0.1 g of Methylamphetamine. It is these facts that form part of Charge 3, traffick in a commercial quantity of Methylamphetamine.
17 An application for a search warrant pursuant to s 81 of the Drugs, Poisons and Controlled Substances Act 1981 was made and granted for your residence at 401/8 Luton Lane, Hawthorn. At approximately 12.20 am on 7 June 2019, the search warrant was executed. Upon Police gaining entry to your residence, there were no persons present.
18 Police located a silver bucket containing a clear viscous liquid on the kitchen bench top. The search was immediately stopped and the Clandestine Laboratories Squad was contacted requesting the attendance of a chemist to identify the liquid. The chemist identified the liquid in the bucket as 1,4-BD, decanted it into a sealable container and it was made safe.
19 In the bathroom Police located a large white distinctive shaped plastic drum.
20 Analysis of the items seized from your apartment determined that the substances seized were 1,4-BD. The aggregate amount of the items seized from your apartment was 2.61 kg. It is these facts that relate to Charge 2, traffick in a commercial quantity of 1,4-BD.
21 In the kitchen Police also located a small safe containing a quantity of Australian Currency, later counted to be $7,800. It is these facts that form part of Summary Charge 9, possess property suspected of being proceeds of crime. Police also found a quantity of counterfeit money which gives rise to Charge 4, possess counterfeit money.
22 The search of the residence was then recommenced and located on the top of the kitchen island bench was a red 12 gauge shot gun cartridge. It is these facts that form part of Summary Charge 18, possession of ammunition.
23 Located in the top drawer of the kitchen island bench were two clear zip lock bags containing Methylamphetamine. It is these facts that form part of Charge 3, traffick in a commercial quantity of Methylamphetamine.
24 The Methylamphetamine seized from your car, apartment, underwear and the Police Divisional Van, weighed an aggregate of 76 g pure. The commercial quantity of Methylamphetamine is 50 g.
25 A further red 12 gauge shot gun cartridge was also located in the top drawer of the kitchen island bench, which forms part of Summary Charge 18, possession of ammunition.
26 A further search of the kitchen drawer below the kitchen bench revealed Commonwealth Bank, Medicare and RACV cards in various names and four New South Wales driver's licences containing your image but all containing a different name and details. Specifically, two of the licences were in the name of Jonathon Hampstead and Jayson Simpson.
27 Located in the kitchen bench drawers were details pertaining to a storage unit 0498 at National Storage, 660 Burwood Road, Hawthorn, along with the passcode to gain access to the site. With this paperwork was a key which was also seized.
28 Inside bedroom 2, Police located a Sandleford branded lock box inside a free-standing cupboard. Inside the lockbox, Police located:
29 In bedroom 1, the main bedroom, Police located in the drawer of the bed:
30 A further Search Warrant was applied for in relation to the National Storage unit numbered 0498. At approximately 3.55 pm on 7 June 2019, the Search Warrant was executed on storage unit 0498 at National Storage at
31 Inside the storage unit was a large box secured with a blue padlock, containing a further six smaller boxes inside. These boxes contained white plastic containers filled with 1,4-BD. Police seized the six boxes from storage container 0498. These plastic containers are of the same distinctive shaped container located in your bathroom.
32 Analysis of the items seized from the National Storage locker, determined that the substances seized were 1,4-BD. The aggregate amount of the items seized from the National Storage locker was 149.64 kg. Despite the actual quantity found, your plea is based on your knowledge of trafficking in a commercial quantity of that drug. It is these facts that relate to Charge 6, traffick in a commercial quantity of 1,4-BD.
33 Police made enquiries in relation to the vehicle you were driving when intercepted by Police. The vehicle is owned by Budget in Richmond who hired the vehicle on 24 May 2019 to a male purporting to be Carl Henderson. The vehicle was hired until 28 May 2019. The male produced NSW Driver Licence which stated his address to be Unit 14, 71 Faunce Street, Gosford NSW. A licence in this name and displaying a photo of you was located and seized in your home on 8 June 2019.
34 Police enquiries in relation to the hire of storage facility at National Storage revealed that the storage unit 0498 was hired by Liam Gooding on 18 April 2019. Mr Gooding paid for the storage container in cash, two months in advance and provided a Direct Debit authority.
35 The Storage Agreement entered into by Mr Gooding, nominates Jayson Simpson of U401/11 Luton Lane, Hawthorn as the 'Alternate Contact Information'. That address is similar to your address. The name 'Jayson Simson' is the name used on a false licence with your image, found in your kitchen.
36 National Storage records show that Mr Gooding did not return to National Storage to enter the storage unit. The only person having access to Unit 0498 after 18 April 2019 was you.
37 CCTV footage obtained by the Police shows that on 30 May 2019 at 4.45 pm, you attended National Storage, 660 Burwood Road, Hawthorn. You were driving a Budget rental vehicle and parked in the customer car park. You identified yourself to the National Storage staff and attended to the storage container. A National Storage employee opened the empty storage container for you. You stated you knew the hirer, Mr Gooding, and then provided your TAB and Bank Card as identification. You placed a blue combination lock on the then opened unit door.
38 You then moved six large brown boxes from the vehicle onto a trolley and moved the boxes into the storage container. You are clearly identified from the National Storage CCTV footage. No other person attended the storage container until Police members attended on 7 June 2019 with a search warrant.
39 You were interviewed by Police and made a 'no comment' Record of Interview. You were remanded in custody.
40 Trafficking in a commercial quantity of a drug of dependence is an inherently serious offence as reflected in the maximum penalty of 25 years imprisonment. While you have pleaded guilty to four charges of commercial trafficking, of those four charges undoubtedly, Charge 6 is the most serious. It involved an amount of 149.64 kilograms of 1,4-BD which is approximately 75 times the commercial quantity. While it is an amount that is also over the large commercial quantity threshold, the matter was settled on the basis that you had the requisite intent to traffick in a commercial quantity and not in a large commercial quantity. As a result, and as conceded by your counsel, Charge 6 represents trafficking in a commercial quantality of a drug of dependence at the high end.
41 Further, the evidence supporting Charge 6 demonstrates your involvement in trafficking 1,4-BD at a very organised and sophisticated level. It involved storing six large plastic containers in a commercial storage unit, each weighing approximately 25kg of 1,4-BD. An additional container of the same description found in your home is the subject of Charge 2. It is self-evident that the drug was destined to be on sold into the community.
42 Mr Gumbleton who appeared on your behalf, submitted that trafficking in 1,4 BD is able to be distinguished as the profits are generally considered to be less when compared with other drugs of dependence. As has been recognised in cases such as DPP (Cth) v Maxwell[1], the greater the anticipated reward, the more powerful the general deterrent message must be.
43 While Maxwell remains good authority, it must not be forgotten that trafficking offences in Victoria are classified by quantity and not on a harm-based classification. As noted in The Queen v Pidoto & O'Dea,[2] without a harm-based classification of drugs, it is difficult for a court to evaluate the relative harmfulness without some form of specialist expertise.[3]
44 The drug the subject of Charges 1 and 2 is also 1,4-BD where the commercial quantity threshold in relation to Charge 1 is exceeded by four times and in relation to Charge 2, by 610 grams. Charge 3 relates to trafficking Methylamphetamine in a commercial quantity, exceeding the commercial threshold by 26 grams and represents a combined total of Methylamphetamine found in various locations being your car, your apartment and your clothing.
45 While at the time of your offending you were suffering a serious drug addiction, when consideration is given to the evidence supporting the individual charges, including the summary charge of being in possession of the proceeds of crime, and the other circumstantial evidence, it is clear that you were operating a drug trafficking business for profit and your offending can only be assessed as very serious.
46 Charge 5 consists of a combination of Cocaine and Alprazolam found in your possession. The prosecution does not contend that the possession of these drugs was for the purposes of trafficking, which I accept. As such, the lower maximum penalty applies.
47 You are 35 years of age. Your mother worked as an IT consultant and then worked in the home raising you and your siblings. Your father is employed at Ports Victoria. You have two sisters who are 34 and 36 years of age and one brother who is 33 years of age.
48 Your siblings work in professional jobs and are in stable long-term relationships. You have often compared yourself to them throughout your life. You have felt pressure to reach what you perceive as their level of success.
49 You attended Our Lady of Good Counsel Primary School and completed secondary education at Xavier College. You experienced learning difficulties and were suspended and given detentions at times. As a child you were diagnosed with Attention Deficit Hyperactive Disorder (ADHD) and prescribed Ritalin. You ceased using this medication after a short time because you found it to be ineffective.
50 After graduating from secondary school you completed two years of a Bachelor of Business at Swinburne University. You also moved out of home with your long-term partner who you had been with since the age of 15.
51 You experimented with cannabis, ecstasy and cocaine whilst at university but not on a regular basis. You withdrew from study to fulfil full time employment with a cosmetics manufacturer. You were in this role, which focussed on marketing and exporting goods overseas, for four years. You then worked for six years at an advertising agency. You also volunteered as a tutor at the Sudanese Australian Integrated Learning Program (SAIL) from 2010 to 2013.
52 In 2014 you married your partner. After returning from your honeymoon you were informed that you had been made redundant. This event had a significant adverse impact on you. It also placed a strain on your marriage. It appears that losing your employment followed by the breakdown of your marriage were pivotal events impacting your mental health and your increasing drug use. You also became disconnected from some of your friends who were mutual friends of your wife.
53 You sought professional support from your GP and Psychologist, Tim Galbally who diagnosed you with Generalised Anxiety Disorder and Major Depressive Disorder. Your marriage came to an end at the end of 2015, despite attempts to preserve it through counselling and you moved back to the family home. In August and September 2016 you made attempts on your life and spent periods of time in hospital and at clinics engaging with mental health practitioners.
54 Leading up to the offending in 2019 you had refused psychiatric intervention and ceased taking anti-depressant medication. In the absence of prescribed medication or treatment for substance abuse, you were self-medicating using illicit substances. You had moved out of the family home and concealed your drug use from your family as you were ashamed of it. You were living alone for the first time in your life which further exacerbated your drug use. You were using up to two grams of Methamphetamine daily, combined with alcohol, Xanax and occasionally GHB.
55 Since your arrest you have used your time on remand productively. You have completed rehabilitative programs that were available to you including a 24-hour Ice Addiction Treatment Program, an Ice Effects Program and a Stress Management Program facilitated by Caraniche. Certificates of completion for these programs were tendered on the plea. You have also been working as a Drug and Alcohol Prison Peer Educator through Caraniche at Marngoneet Correctional Centre since June last year. In this role you have undergone training and supervision and disseminate information relating to substance use harm minimisation and treatment. A letter from Clinical Psychologist Jessica Martino who works with Caraniche was tendered on the plea. Ms Martino confirms your completion of the three programs. She also writes that you are a valuable member of the Peer Educator team and have satisfactorily completed the components of the role.
56 Whilst in custody you have also engaged in Forensicare's Mobile Forensic Mental Health Service counselling to manage your symptoms of anxiety and depression. Since being accepted to the program in October 2019, you have attended 61 individual psychology sessions with Senior Forensic and Clinical Psychologist, Dr Emily Mann. A letter from Dr Mann dated 26 August 2021 was tendered on the plea. Dr Mann speaks positively of your engagement in the psychological process, stating that you have received interventions including psychoeducation and Acceptance and Commitment therapy. Through these various psychological interventions you have managed to overcome your previous patterns of avoidance and moved towards acceptance, taking responsibility for past choices and improving future life choices. Dr Mann writes that over the course of counselling you have developed a sense of self, confidence and identity.
57 A report dated 27 August 2021 was tendered on the plea prepared by Carla Ferrari, Forensic Psychologist. Ms Ferrari provides a detailed outline of your history and the results of psychometric testing. In Ms Ferrari's opinion you suffer from ADHD, Major Depressive Disorder and Generalized and Social Anxiety disorders. Ms Ferrari confirms your drug history as described above noting that your drug use was the only way you could mask your depressive symptoms.
58 Ms Ferrari conducted a risk assessment finding that your risk of reoffending is considered to be 'low to moderate' with the main factor elevating your risk profile being your untreated psychiatric conditions.
59 You continue to have the support of your parents, siblings and a close network of friends, many of whom visited you in custody prior to the pandemic and observed the plea remotely. Over 30 character references written by your friends and family were tendered on the plea. The writers of those letters speak with a united voice; that you are a loyal and caring person who is both intelligent and capable in your profession. The writers view your offending as entirely inconsistent with the honest and respectful person they know. The writers express an understanding of your mental health issues and how they led you to a life of drugs. It is clear your family and friends are committed to continuing to support you in overcoming these issues.
60 Your sister, Sarah Henderson provided a letter and gave evidence on the plea. In evidence, Ms Henderson largely expanded on the contents of her letter providing further detail of your family history. She also gave evidence that you are a loyal and generous friend which is reflected in the number of references that have been written on your behalf. Ms Henderson noted the change she has observed in you while you have been on remand and, on behalf of the family, confirmed that you will have ongoing family support upon your release.
61 You prepared a letter which you read at the plea. Your letter confirms a number of matters that have been raised in other materials before the court including the family support you enjoyed growing up and continue to enjoy, the difficulties you have had to battle with including depression and anxiety, and the positive steps you have taken whilst in custody. While the letter does not contain any direct reference to remorse, you acknowledge that your conduct has brought shame and embarrassment to yourself and your family.
62 Mr Gumbleton, who appeared on your behalf at the plea, outlined a number of matters in mitigation. First and foremost is your plea of guilty. No contested committal took place in the Magistrates' Court and the matter was committed to this Court on 27 November 2019 by way of straight hand up brief. A number of directions hearings were heard, with the main barrier to resolution being a charge of trafficking in a large commercial quantity of a drug of dependence. The matter resolved at a case conference before me on 28 July 2021.
63 Whilst not at an early stage, your plea of guilty carries utilitarian value, as it has spared the time and expense of a jury trial. Your plea carries even greater weight in the current circumstances, where the court is burdened with delays as a result of the pandemic.[4] I therefore take your willingness to facilitate the course of justice into account in your favour.
64 Mr Gumbleton submits that you have demonstrated remorse over and above your plea of guilty. Psychologist Carla Ferrari writes in her report, that you 'expressed genuine remorse for your behaviour' and are 'ashamed and disappointed' in yourself. Mr Gumbleton also relies on a number of statements in character references from your family and friends that demonstrate you have expressed remorse. However, while some of the writers refer to you being remorseful in relation to the impact your offending has had on your 'family, friends and society', there is little evidence specifically as to your insight into the destructive impact that the trafficking of Methylamphetamine and 1,4-BD have on individuals, families and the general community.
65 Mr Gumbleton submitted that the opinion of Ms Ferrari enlivens Verdins principles 1, 3 and 4. The submission was based on the opinion that when under the influence of drugs, your underlying depression and anxiety gives rise to increased levels of impulsivity, risk taking and behavioural inhibition.
Mr Gumbleton did however concede that the link between your clinical disorders and your drug addiction is very difficult to disentangle.
66 Mr Devlin who appeared on behalf of the Director of Public Prosecutions, submitted that the evidence does not allow for the requisite link to be made in order to allow for moderation of your moral culpability or a reduction in specific and general deterrence. I agree. As is well established, there must be a realistic connection between your conditions and your offending or there must be a causal link. Those connections are, in my view, unable to be established on the evidence in this instance. Nonetheless, your conditions are relevant matters I take into account in the general sentencing calculus.
67 As to Verdins principle 5, Mr Devlin accepted that as your psychological conditions have endured while you have been in prison, Verdins principle 5 does have application in this instance, which I accept.
68 As to your prospects of rehabilitation, reliance was placed on the work you have done since being on remand. You have been engaged as a Drug and Alcohol Prison Peer Educator, you have participated in counselling with the prison psychologist for the past 18 months and you have completed a number of other courses to assist you in dealing with your drug addiction and your mental health. As acknowledged by Ms Ferrari, you will require further assistance as you reintegrate into the community and you are committed to that course. In my view if you remain on the path you are on, your prospects can be assessed as very good. As such, I accept the submission made on your behalf that a longer than usual period on parole would be of benefit to you and ultimately, to the community.
69 General deterrence is a paramount sentencing consideration in this instance. As to specific deterrence, while you have relevant prior history, in my view the significant steps you have undertaken in custody towards reform, together with the supports you will have in the community, allow for specific deterrence to be given less weight in this instance.
70 I take into account the fact that your time in custody on remand, your first time in custody, has been particularly onerous because a significant portion of it has been served during the COVID-19 pandemic. While you had visits during the first part of your remand between June 2019 and February 2020, you have, like all prisoners been subjected to lockdowns, quarantine periods and restrictions on personal visits, education and rehabilitative programs. Given the current state of the virus in the community, restrictions may remain for some time. I take these matters into account.
71 Finally, as part of taking into account the principle of totality, I am also mindful of the fact that while 748 days are able to be declared pursuant to s 18 of the Sentencing Act 1991, whilst on remand you have also served a sentence of
73 Christopher Henderson, on Charge 1, trafficking in a commercial quantity of a drug of dependence (1,4 Butanediol), you are convicted and sentenced to
2 years imprisonment. On Charge 2, trafficking in a commercial quantity of a drug of dependence (1,4 Butanediol), you are convicted and sentenced to
18 months imprisonment. On Charge 3, trafficking in a commercial quantity of a drug of dependence (Methylamphetamine), you are convicted and sentenced to 2 years imprisonment. On Charge 4, possess counterfeit money you are convicted and fined $1000. On Charge 5, the rolled-up charge of possession of a drug of dependence, you are convicted and sentenced to 2 months imprisonment. On Charge 6, trafficking in a commercial quantity of a drug of dependence (1,4 Butanediol), you are convicted and sentenced to 5 years and 6 months imprisonment.
74 On Summary Charge 9, dealing with property suspected of being the proceeds of crime, you are convicted and sentenced to 3 months imprisonment. On Summary Charges 10, possessing a controlled weapon and Summary Charge 18, possessing cartridge ammunition you are convicted and fined $500 on each charge.
75 I direct that 6 months of the sentence on Charge 3 be cumulative on the sentence imposed on Charge 6. The remaining sentences of imprisonment will be wholly concurrent, making for a total effective sentence of 6 years. I direct that you serve 3 years and 6 months before becoming eligible for parole.
76 Pursuant to s 18 of the Sentencing Act 1991, I declare that 748 days be reckoned as the period of imprisonment already served under the sentence I have imposed. That does not include today.
77 Pursuant to s 6AAA of the Sentencing Act 1991, if not for your pleas of guilty, I would have sentenced you to 7 years and 6 months imprisonment, with a non-parole period of 5 years.
[1] [2013] VSCA 50 at [34]- [35].
[4] Worboyes v The Queen [2021] VSCA 169 at [39].
DPP
Henderson [2021] VCC 1398
(2006) 14 VR 269