Director of Public Prosecutions v Abbott
[2016] VCC 1308
•1 September 2016
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR-16-00264
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MATTHEW ABBOTT |
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| JUDGE: | HIS HONOUR JUDGE GRANT |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 14 June 2016, 22 August 2016 and 23 August 2016 |
| DATE OF SENTENCE: | 1 September 2016 |
| CASE MAY BE CITED AS: | DPP v Abbott |
| MEDIUM NEUTRAL CITATION: | [2016] VCC 1308 |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Director | Mr Duckworth | OPP |
| For the Accused | Mr B Newton | Tait Lawyers |
HIS HONOUR:
1 Matthew Abbott, you have pleaded guilty to one charge of trafficking in a drug of dependence and one charge of possession of a drug of dependence.
2 You also plead guilty to contravening a suspended sentence.
3 I commence my remarks by detailing the history of this matter.
4 On 14 March 2014, I sentenced you on two charges of possess a controlled drug contrary to s.308.1(1) of the Criminal Code, and one charge of possess substances, material, documents or equipment for trafficking in a drug of dependence contrary to s.71(a) of the Drugs, Poisons and Controlled Substances Act 1981. These offences were committed on 11 August 2011.
5 On the Commonwealth charges you were convicted and sentenced to an aggregate imprisonment term of two months. I ordered that you be released upon entering a recognisance release order in the sum of $500 to be of good behaviour for 12 months. A number of conditions were attached to that order, including conditions that you undergo assessment and treatment for drug abuse and dependency, and that you undergo mental health assessment and treatment. The Broadmeadows Office of Corrections supervised the order.
6 On the state charge you were convicted and sentenced to 12 months' imprisonment wholly suspended for two years. I explained that should you commit an offence punishable by a term of imprisonment within the two years, you would be required, in the absence of exceptional circumstances, to serve the 12-month term of imprisonment.
7 In July 2015, you moved into the Traveller’s Trax Hostel at 177 Johnston Street, Collingwood. After residing there for four weeks, you obtained employment at the hostel. You were provided with a private room in return for the work.
8 Whilst living in the room you established a clandestine laboratory to manufacture 3, 4-Methylendioxamphetamine (MDA). I accept it was not an elaborate or sophisticated operation.
9 On 16 September 2015 the police executed a search warrant on your room. Items were seized that related to drug manufacturing. Substances were located in or on some of the items seized. Six of the items contained MDA. The total quantity of "pure" MDA was approximately 16.1 grams. The trafficable quantity of MDA is 3 grams. In addition, MMDPPA was located. It is an intermediate in the manufacture of MDA from helional. Helional was also located in your room.
10 The police also seized a zip-lock bag containing 5.4 grams of cannabis. Given the quantity of cannabis located, I am satisfied that you had that drug in your possession for your own use.
11 The police also seized other items including, $260 in cash, empty capsules, zip lock bags, a mobile phone, a laptop and five hard drives.
12 You were arrested and made a no-comment interview.
13 Charge 1 on the indictment is a charge of trafficking by manufacture. It carries a maximum penalty of 15 years' imprisonment. This is a measure of its seriousness.
14 The offending is aggravated by the fact that it was committed during the operational period of a suspended sentence. In the absence of exceptional circumstances, the suspended sentence must be restored and unless otherwise ordered, must be served cumulatively upon any other sentence of imprisonment.
15 When I sentenced you in 2014, I was impressed by the major and commendable changes you had made to your life between the time of the offending in 2011 and the date of my sentence. You had completed a drug and alcohol course at Moreland Hall; been involved with Narcotics Anonymous; consulted a psychiatrist and been placed on medication; become involved in martial arts; and in January 2014 obtained full time employment with Caravan Electrical Solutions. You had insight into your past problems with drugs and the need to maintain a drug-free status. There was nothing to contradict your assertion that you had been drug free for nearly two years. It was also significant that the prosecution conceded that your offending at that time involved the manufacture of MDA in a basic and unsophisticated manner.
16 The history since March 2014 is set out in a report from Bernard Healy, Clinical Psychologist dated 5 June 2016. You substantially repeated that history when you gave evidence on the plea. You said in summary, that in December 2014 you lost your accommodation in Campbellfield and moved to shared accommodation in West Heidelberg. You acquired a motorcycle to travel to work, but that was stolen in January 2015 “rendering travel to and from work prohibitive.”[1] You were unable to secure alternative employment and your mood destabilized. You accepted synthetic cannabis from a friend because he told you it was legal and you believed it would help your mental state. You became addicted to the cannabis and you lost your accommodation. You lived on the streets for some weeks until July 2015, when you secured accommodation at Traveller’s Trax Hostel. You became a cleaner at that place. You said that most of the staff consumed cannabis and you began taking ice in your drink. You did this because life in the hostel was busy and rowdy and you were having trouble because of a lack of sleep in attending to your cleaning duties. You had a store of ecstasy, which you proceeded to purify with phenylalanine. You maintain you did this for your own use and to wean yourself off ice.
[1] See report of Bernard Healy at page 3.
17 In many respects your evidence was not credible. You said that you had stopped work in January 2015 because of the theft of your motorbike and it was too hard to get to Campbellfield. However, in January 2015 you were still subject to the recognisance release order and required to attend at Broadmeadows. You maintain that you did do that.
18 You gave evidence that the people at the Broadmeadows Office of Corrections told you that you were not subject to a suspended sentence. I do not believe that evidence. Even if it were true, I clearly explained to you in March 2014 the length of the operational period of the suspended sentence. If you had some doubt about it, you should have spoken to your solicitor.
19
You say that when your mood "destabilized" you used synthetic cannabis to help restore your mental health. You understood the substance was legal and would therefore have no adverse consequences. I find the latter assertion difficult to accept. I note that you did not seek medical assistance to help restore your mental health. After obtaining accommodation at Travellers Trax you made the conscious decision to use amphetamine. You were found in possession of MDA and cannabis. This decision-making is consistent with
Dr Carla Lechner’s assessment in March 2014 that your drug use is intimately linked to your desire to self-medicate. Notwithstanding your insight in 2014 into the problems that drug use causes you and the steps you had taken to get professional assistance in that regard, you resorted to drug use in 2015, knowing that your judgement and decision making is clouded by such usage. [2]
[2] See report of Dr Carla Lechner dated March 6 2014 at page 5.
20 You told the court that the ecstasy found in your possession was ecstasy that you had in your guitar case from the time I sentenced you in March 2014. I sentenced you on the basis that you had been drug-free for nearly two years. Why, in those circumstances, would you be holding ecstasy at the time of sentence? I do not accept your evidence on this.
21 You gave evidence that you manufactured MDA for your own use. I am not satisfied on the balance of probabilities that is the case. I am not satisfied for the following reasons: you were living in an environment where drug taking was rife; you had been given ice by other residents; you gave evidence that you hid a quantity of MDA in the rear of your amplifier because other residents came into your room; given this fact, those residents must have known of your manufacturing activity; you admitted in evidence that you did in fact supply MDA to one person; and finally, the amount of MDA located in your room was much more than the trafficable quantity for that drug.
22 Your counsel submitted that notwithstanding the serious nature of the current offending and the breach of the suspended sentence that I should deal with you by way of a combination sentence of imprisonment together with a community corrections order. He also submitted there were exceptional circumstances that applied to avoid the restoration of the suspended sentence.
23 In essence, it was submitted that I should follow such a course because of the following four matters in combination. First, the circumstances of your life after March 2014; second, the fact that you had completed 18 months of the operational period of 24 months without further offending; three, that you manufactured for your own use and finally, and most importantly, you were assaulted in prison approximately one month after you were remanded in custody on 16 September 2015.
24 The findings I have made on the first and third points undermine those submissions.
25 I am unpersuaded by the submission that you should be given credit for managing to complete 18 months of the operational period without further offending. The operational period was two years, not 18 months.
26 The fourth point is important. I accept that you were assaulted in prison and sustained injuries. Since that date you have been held in protection. These are matters that mitigate sentence. However, given the serious nature of your offending an appropriate immediate term of imprisonment must be imposed. The assault upon you in prison, and other matters in mitigation that I will mention shortly, do not operate to make a combined order an appropriate order in this case. I also note that in March 2014 you were released on a recognisance release order with conditions that would have been identical to those that could be ordered on a community corrections order. Although you successfully completed the recognisance release order without reoffending, you did re-offend within months of completing that order. The order clearly had no deterrent effect. I conclude this part of my remarks by confirming that there are no exceptional circumstances that would allow me to avoid restoring the suspended sentence.
27 I accept that in sentencing you I should recognise that your manufacturing operation was not elaborate or sophisticated, and there is no evidence of actual sales.
28 Your long history of abusing drugs, Dr Lechner’s assessment concerning your drug use and desire to self-medicate, and the breach of the suspended sentence, make me guarded about your prospects for rehabilitation.
29 Mr Abbott, your sentence will be moderated in recognition of the following matters:
30 First, you have accepted responsibility for your offending by the entry of a plea of guilty. Your plea has also saved the community the cost and expense associated with a criminal trial. You will be given appropriate credit for all these matters.
31 Second, you suffer from Post-Traumatic Stress Disorder and a major depressive illness. These conditions mean that imprisonment will be more onerous for you than it would be for someone without those conditions.
32 Third, you were assaulted in October 2015 whilst in custody. You lost one tooth and a second tooth was snapped from the gum. You required sutures for a cut lip. You suffer ongoing headaches. Because of the assault, you are fearful for your welfare, and you are serving your time in protective custody. These are matters that moderate sentence.
33 Four, this is your first sentence of imprisonment.
34 Five, the principle of totality is relevant and has been applied in determining the amount of time that should be cumulated on the restored suspended sentence.
35 On Charge 1 on the indictment, you are convicted and sentenced to two and a half years' imprisonment.
36 On Charge 2, you are convicted and fined $300.
37 On the breach of suspended sentence, I find the breach proved. I restore the term of 12 months' imprisonment. I order six months of the term be served cumulatively upon the sentence on Charge 1 on the indictment.
38 This makes a total effective sentence of three years' imprisonment. I fix a minimum term of 21 months before you will be eligible for release on parole.
39 I declare that you have served 351 days presentence detention.
40 Had you pleaded not guilty and been found guilty after trial, I would have sentenced you to a total effective imprisonment term of four and a half years with a three-year minimum.
41 I make the disposal order sought by the prosecution.
42 I make an order pursuant to s.464ZF(2) of the Crimes Act that you undergo a forensic procedure for the taking of a scraping from your mouth. I make the order because of the seriousness of the offending, your prior convictions, the order is by consent and the granting of the order is in the public interest. If you fail to cooperate with the authorities in the taking of the sample then the sample taken may be a blood sample, and the authorities may use reasonable force to obtain it. You can be seated there, thank you Mr Abbot. Is there anything else?
43 COUNSEL: I will just clarify, obviously in relation to the actual s.83AB of contravening the suspended sentence, Your Honour, you have just found that proven with no other order?
44 HIS HONOUR: No other order, just - - -
45 COUNSEL: Apart from s.83AS.
46 HIS HONOUR: Yes, so I have found it proved, and what I have done is sentenced him again on the original offence.
47 COUNSEL: Yes, I understand, thank you Your Honour.
48 HIS HONOUR: Yes, thank you. All right, the prisoner can be removed.
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