DPP v Thurlow [2019] VCC 2217

4 At your property on that day police located a large amount of substances and equipment, most of it in the house itself, but some of it in an outbuilding and a shed. Among the items located were scientific equipment including funnels, pipettes, measuring cylinders, condensers and thermometers. Much of the equipment contained traces of various prohibited and prescribed substances, including phenyl-2-propanone ("P2P"), methylamphetamine, mercury, acetic anhydride and mercuric chloride.

5 Mercury is used to produce mercuric chloride and both of those substances are prescribed precursor chemicals. In combination with P2P, methylamine and aluminium, mercuric chloride can be used in the manufacture of methylamphetamine.

6 Police executed a further search warrant at your home on 18 July 2017 and similar observations were made then of items present including a condenser which police asked you about specifically when interviewed. You said that it had been there on the day of the execution of the earlier search warrant. In any event, the charge of possession of substances and equipment for the purpose of trafficking in a drug of dependence is one that is based on the findings in the execution of the search warrants on 17 April and 18 July 2017.

7 It is the combination of the possession of the glassware, equipment and other paraphernalia used in the production of methylamphetamine, the presence of the precursor chemicals, the traces of methylamphetamine on the equipment and the intercepted conversations with Mr Hamment that provide the evidentiary foundation for Charge 1, possession of substances and equipment for the purposes of trafficking in a drug of dependence, to which you have pleaded guilty.

8 On the first execution of the warrant, a small quantity of methylamphetamine (.8g) was found in a Pyrex container in your kitchen refrigerator and it is that that constitutes Charge 2, possession of methylamphetamine.

9 In the course of the plea, it was not contested that that was yield from a manufacturing process from the use of the equipment.

10 On the day the warrants were executed in April 2017, you were arrested and interviewed. You were arrested and re-interviewed after the execution of the second warrant on 18 July. On the first occasion, you denied allegations that you and Hamment had been involved in manufacturing drugs at either your property or his. You said that his presence at your property was in order to help you out with cleaning up the property. You said the condensers were for distilling alcohol and you said that you were unaware that mercury was an illegal precursor substance.

11 At the second interview on 18 July, you similarly denied knowledge and involvement in the process of manufacturing of methylamphetamine or possession of substances and equipment for the purpose of manufacturing and trafficking in methylamphetamine. At one stage in the second interview, you said that 'blow-ins', whose identity you did not know, would stay in a shed on the property, impliedly suggesting that they could have been responsible for using the equipment to make drugs. Later, you implied your partner's father was responsible for the presence of the P2P and the methylamphetamine. You said the condensers were used by your partner to produce 'essential oils' and that the mercuric chloride that had been found was used as an insecticide and to treat mange in dogs. You maintained your denials that you and Hamment were involved in manufacturing drugs.

12 By your guilty pleas, these explanations and denials of knowledge are clearly acknowledged to be false.

13 There has been considerable delay in the finalisation of these charges. You were initially charged back in 2017 with trafficking and other drug possession charges, as well as these two, to which you have now pleaded guilty. Before committal, in early 2018, you offered to plead guilty to the two charges that you have now pleaded guilty to before me, that is possession of substances and equipment for the purpose of trafficking, in satisfaction of the trafficking and other drug possession charges. That offer was rejected.

14 The committal proceeded as a contested committal and you were discharged on the charge of trafficking.[1] It was not until the morning that your trial was due to commence in July this year, two years after you were charged, that it would appear your original offer was revived, made again and accepted.

15 Your pleas of guilty, therefore, to these two charges are matters that you are entitled to have taken into account on your behalf. They clearly have utilitarian value. They facilitate the course of justice and have avoided the time and cost of a trial.

16 It was not suggested, not surprisingly in light of the materials generally before me, that your plea of guilty was any evidence of remorse, but it was certainly a pragmatic acceptance of the strength of the case in respect of those charges against you. Although you did offer to plead guilty to the major charge before committal, from the discussions in the course of the plea, I am satisfied that you then made a strategic decision after committal to contest all charges and not revive the offer to plead guilty to these charges until the trial was due to commence. In those circumstances, I do treat it as a court door offer, as one, although made at an early stage, not pursued and therefore I do not consider you are entitled to the benefit of an early plea of guilty. I note that in the defence response filed by you, that you have put in issue knowledge and intent in respect of the charge of possession of substances and equipment for trafficking purposes.

17 The maximum penalty for possession of substances and equipment for the purpose of trafficking in a drug of dependence is 10 years' imprisonment. The maximum penalty for possession of a small quantity of a drug of dependence, if not for personal use, is 5 years. If for personal use, the onus being on you to establish that, the maximum penalty is 1 year. On enquiry, possession for personal use was expressly disavowed but given the small quantity of methylamphetamine found in that container in the refrigerator, the penalty I will impose is in effect a token one for that.

18 You have a significant relevant criminal history. You have twice been sentenced in this court for trafficking in drugs of dependence, including methylamphetamine, and once in the Magistrates' Court for trafficking in drugs of dependence. I was provided with the reasons for sentence for the most recent of your trafficking charges for this court. On that occasion, the then-Chief Judge Rozenes sentenced you as the head of an operation involved in a continuing enterprise involving the manufacture of methamphetamine at clandestine laboratories. You were not only the head but you were, on the evidence before his Honour, the cook. You were re-sentenced on appeal at the same time for a summary charge of possession of methylamphetamine.

19 Those sentences were imposed in 2011 in respect of activities that were detected and activities which were committed in early 2009. In 2011 you were sentenced to a total effective sentence of four years and three months imprisonment with a non-parole period of three years being fixed.

20 The Chief Judge summarised your prior criminal history at the time he sentenced you in 2011 in these terms. He said you admitted 61 prior convictions arising from 27 court appearances. Your last two convictions were for drug trafficking offences in 2003 and 2006 when you were sentenced to be imprisoned for three years with a non-parole period of 18 months on the first occasion and nine months imprisonment on the second occasion. The maximum penalty for each charge was 15 years' imprisonment.

21 An appeal against a conviction and sentence recorded at the Ringwood Magistrates' Court on 29 May 2009 for possession of methylamphetamine was heard contemporaneously with the plea on the two charges of trafficking. You abandoned the conviction appeal and proceeded only with an appeal against the sentence imposed. The maximum for that was two years' imprisonment. He went on to say:

On my calculation, you would have been released from prison for the 2006 prior conviction only a matter of weeks before the commission of the trafficking offences and it was only a matter of months after you were released on bail for the trafficking offences that you committed the summary possession offence.

22 Since the 2011 sentence, you have been before the Magistrates' Court on two separate occasions for charges of possession of cannabis and you have five earlier convictions for possession of cannabis from a long way back, between 1981 and 1994, and one for cultivation of cannabis in 1993.

23 There are numerous other, non-drug related offences running alongside these drug convictions. Save to say that the other non-drug conviction evidence a general disregard for the law, they have, in my view, little relevance for sentencing for these offences.

24 Since being charged with these offences, you have faced further charges. I was not told what they were, but sentencing in this matter was delayed from July, when you entered your pleas of guilty, at your request to allow those other matters to be resolved. Initially it was thought that, as they were indictable matters, you would ultimately be committed on some charges to this court and there was a request, to which I acceded, to defer sentencing so that, in the event you were committed in respect of the other charges, you could have the choice if you wished of having all matters dealt with at the same time in the sentencing hearing. Ultimately the later matters that you were charged with resolved by the entering of pleas of guilty to summary charges and the withdrawal of charges that otherwise would have sent you to this court. You were sentenced in November of this year to a term of imprisonment of three months in respect of those subsequent charges.

25 What follows from this recital is that there is no evidence to suggest that, as you age, now being 57 years old, you have taken steps to change your life, to move away from activity related to the manufacture of, trafficking in or involvement in activities related to the manufacture and trafficking of methylamphetamine.

26 In 2011, your prospects for rehabilitation were described by your own counsel as guarded. Given your continued criminal activity since then, they must be now characterised as poor. Clearly, specific deterrence must play a significant role in sentencing, as well as general deterrence, denunciation and just punishment.

27 Drugs are pernicious and they cause immeasurable damage to those who use them and those affected by their use and their behaviour. Those who seek to profit from the misery caused by drug use and profit from feeding peoples' use, must understand they will face stern punishment. I know you have been told that before. Those who do so repeatedly, as you have done, must understand that when they take the gamble to continue to engage in that activity and they get caught, they are going to be dealt with accordingly.

28 You have had advantages in your life. Unfortunately you have not sought to profit from them by lawful activity, or use them as an incentive to turn your back on drug-related activity.

29 As I have noted, you are now 57. You grew up in the eastern suburbs of Melbourne as one of eight siblings. I was told your father was a university lecturer and mechanical engineer, your mother a homemaker. It would appear that you completed school without difficulty. His Honour Chief Judge Rozenes, on the materials that were provided to him, described you as a star student. Upon leaving school, you started work as a glassblower and then learned a trade as a fitter and turner, then as a toolmaker and contract welder. You set up and owned your own engineering business for a period of 20 years, doing work for major clients such as BHP Billiton and the National Tennis Centre. It is clear you had the capacity, the intelligence and the ability to support yourself well from lawful activity if you chose to do so.

30 You have been able to maintain long term relationships with partners. Unfortunately those relationships do not appear to have deterred you from offending.

31 It was not suggested in the plea before me that you were a methylamphetamine user yourself and the only inference therefore is that your activities, for which I come to sentence you, that is in respect of Charge 1, were profit-related.

32 Your co-accused, Hamment, pleaded guilty to a single charge of possession of a precursor chemical. That too was a negotiated resolution at the court door and I fined him a substantial amount. On your plea it was put that parity considerations dictated that, having regard to the amount of time you had spent in custody before being sentenced, you should not serve any further time than that attributable to pre-sentence detention and that any outstanding punitive element could be dealt with, as it was for Hamment, by way of substantial fine.

33 Parity considerations simply do not apply here. Possession of a precursor chemical carries a maximum sentence of five years and the quantity was relatively small, about double the minimum to make it a prescribed amount. By contrast, possession of the substances and items found in your possession for purposes related to trafficking carries a maximum term of imprisonment of 10 years. You have more and more recent prior convictions for the same conduct. Mr Hamment had showed some evidence of changing his ways. It was a long time since his most recent previous conviction. You have shown no evidence of changing your ways.

34 Although you were on bail for these charges, you were remanded in custody when you were charged with the later matters. You did not apply for your bail in respect of these matters to be revoked until you entered your guilty plea on the day the trial was due to commence in July. Of the 273 days that you spent in pre-sentence detention in relation to the later matters, 90 days was then counted as pre-sentence detention against the three month sentence that you were then ordered to serve. You have remained in custody since then because, at your request, bail was revoked in July when you entered your plea to these charges.

35 That left 183 days of pre-sentence detention that you had spent in relation to the other matters which was not consumed by the sentence ultimately passed in the Magistrates' Court. It was put that, in accordance with the decision in Renzella,[2] I should take that 183 days into account in a general sense in imposing this sentence. I disagree. It is clear from what I was told by

Mr Langton in the course of the plea that you had made a conscious tactical choice for reasons of your own and which I was not told about, not to apply to have your bail for these matters revoked when you were remanded in respect of the later charges. Given your history, I am satisfied that you were well aware that you could do so and what the effect of that would be in terms of sentencing for this. I do not therefore propose to reduce the sentence in respect of these matters by taking into account, in a general way, the 183 days that you spent in pre-sentence detention in respect of the other matters which were not then consumed by the sentence imposed.

36 There is little that can mitigate the sentence to be imposed upon you, other than by reference to the objective seriousness of the offending having regard to your criminal history and the matters that I have identified. You have made your choices and you must live with the consequences.

38 On the two charges to which you have pleaded guilty, you are convicted. On Charge 1, you are sentenced to be imprisoned for a period of three years.

39 On Charge 2, you are sentenced to be imprisoned for a period of one month.

40 That makes a total effective sentence of three years and I fix the period of two years as the time that you must serve before being eligible for parole. I declare that you have spent 164 days in pre-sentence detention attributable to these charges and direct that that be counted and reckoned as part of the sentence already served.

41 I declare pursuant to s 6AAA of the Sentencing Act that, but for your pleas of guilty, I would have imposed a total effective sentence of three years and six months and I would have fixed a non-parole period of two years and six months. I make the disposal and forfeiture orders sought.

[1] This passage has been corrected to reflect the prosecution's clarification after sentencing that it did not pursue the trafficking charge in this court.

[2] (1997) 2 VR 88.