Director of Public Prosecutions v Abbott
[2014] VCC 409
•14 March 2014
| IN THE COUNTY COURT OF VICTORIA | Revised Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MATTHEW ABBOTT |
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JUDGE: | HIS HONOUR JUDGE GRANT | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 14 March 2014 | |
CASE MAY BE CITED AS: | DPP v. Abbott | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 409 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms J. Hortel | CDPP |
| For the Offender | Mr M. Phillips (For Plea) Mr S. Payne (For Sentence) | Victoria Legal Aid |
HIS HONOUR:
1 Matthew Abbott, you have pleaded guilty to 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.
2 The maximum penalty for the offence of possess controlled drug is two years' imprisonment and/or a fine of 400 penalty units. The maximum penalty on charge 3 is ten years' imprisonment and/or a fine of up to 1,200 penalty units.
3 I have heard a summary of the offending and I do not intend to repeat that summary. It will be attached to these remarks as Exhibit A. The outline of defence submissions will also be attached to these remarks as Exhibit 1.
4 Mr Abbott, in manufacturing the drug MDA you engaged in offending that would normally attract an immediate term of imprisonment. In this case I have decided to follow a different course. I will make orders that allow you to continue your rehabilitation within the community. I do so for the following reasons.
5 First, you were at the time of the offending a long‑term drug user. It is accepted by the prosecution that you manufactured MDA for your own use and not for sale or distribution. This is significant. I am also satisfied that the manufacturing was not sophisticated.
6 Secondly, you were detected on 11 August 2011. There has been no further offending since that date. In addition, you have made major and commendable changes to your life. You have completed a drug and alcohol program at Moreland Hall and had some involvement with Narcotics Anonymous. You have consulted a psychiatrist and had a period on prescribed medication for bipolar disorder. You have become heavily involved in the discipline of Wing Chun kung fu and qualified as an instructor. In January 2014 you obtained full‑time employment with Caravan Electrical Solutions. You have been drug‑free for nearly two years.
7 Thirdly, you have pleaded guilty to the offences. You will be given credit for that. I am satisfied that you are remorseful.
8 Fourthly, you have a limited criminal history.
9 Finally, you suffer from bipolar disorder and any sentence of imprisonment would be more onerous for you than it would be for a person of normal health.
10 Mr Abbott, these factors in combination have persuaded me to make an order that enables you to remain in the community and continue your positive rehabilitation.
11 Initially, I thought I could achieve this objective by a combination of Community Corrections order on the Commonwealth offences and a suspended sentence on the State offences. Section 44 of the Sentencing Act does not permit me to make such an order. In these circumstances, I have determined to achieve the same result through slightly different means.
12 On charges 1 and 2, you will be convicted and sentenced to an aggregate imprisonment term of two months. I order that you be released forthwith upon entering into a recognisance release order in the sum of $500 to be of good behaviour for the next 12 months.
13 The following conditions will be attached to the recognisance release order:
14 1. That you be under the supervision of the Deputy Commissioner, Community Correctional Services, or his or her nominee for the next 12 months.
15 2. That you report to the Broadmeadows Community Corrections Service before 4 p.m. today.
16 3. That you undergo assessment and treatment including testing for alcohol abuse or dependency and drug abuse and dependency as directed by the regional manager.
17 4. That you undergo mental health assessment and treatment including, but not limited to, mental health, psychological and psychiatric treatment as directed by the regional manager.
18 5. That you notify an officer at the specified Community Corrections Centre of any change of address or employment within two clear working days of the change.
19 6. That you do not leave Victoria without the permission of an officer from the specified Community Corrections Centre.
20 7. That you obey all lawful instructions and directions of Community Corrections officers.
21 If you breach this order in any way during the next 12 months, you will be brought back to court and the order may be revoked or cancelled. In such a case, you will forfeit $500 and face the prospect of two months' imprisonment.
22 On charge 3, you will be convicted and sentenced to 12 months' imprisonment wholly suspended for two years.
23 If you commit an offence punishable by a term of imprisonment within the next two years, you will be required, in the absence of exceptional circumstances, to serve the 12 months' imprisonment.
24 Mr Abbott, the law says that I should indicate to you what would have happened if you had pleaded not guilty and been found guilty after a trial. As you will appreciate, this is somewhat of an artificial exercise.
25 Had you been found guilty after trial, it is most likely that I would have made an order that required you, among other things, to serve an immediate term of 12 months' imprisonment.
26 Mr Abbott, do you understand what has happened?
27 OFFENDER: Yes.
28 HIS HONOUR: Do you have any questions?
29 OFFENDER: The $500, do I have to pay that immediately?
30 HIS HONOUR: No, you do not pay that money. The $500 is an amount of money that you would have to pay if you breach the order. So in simple terms, you are on an order that, if you comply with it, will have no adverse consequence to you. But if you breach the order by not complying with the conditions or by committing a further offence, then you would pay the $500, you would come back to court and you are at risk on the first two charges of two months' imprisonment. In relation to charge 3, it is what we call a wholly suspended sentence. If you remain out of trouble for the next two years, you will not go to gaol. If you commit an offence punishable by imprisonment, so that could be theft, assault or a drug matter, those sorts of offences, then if you are found guilty of those offences you run the risk of having to serve the 12 month gaol term. Indeed, it is most likely you would serve the 12 month gaol term. It could only be avoided if there were exceptional circumstances.
31 OFFENDER: And I'm not to leave the State?
32 HIS HONOUR: No, as far as the recognisance release order is concerned, you may be able to leave the State if you have the permission of the Community Corrections Service.
33 We will get you to sign copies of the recognisance release order now, and then you will be free to go obviously.
34 Any were there other matters?
35 COUNSEL: No, Your Honour.
36 HIS HONOUR: As I understand it, you have got an appointment at Broadmeadows today?
37 OFFENDER: Yes.
38 HIS HONOUR: So you are going to attend before four o'clock today.
39 OFFENDER: Yes. I've taken three days off work and they're really starting to get a bit antsy about it.
40 HIS HONOUR: I understand that, yes. We are just going to amend the order because normally we allow someone two working days to attend. So the way we drafted the order was that you attend before 4 p.m. on 18 March. I will change that to 4 p.m. today, so as long as you get out there today you will have complied with that condition.
41 OFFENDER: That's no problem, I'll go straight after this.
42 HIS HONOUR: Yes, thank you.
43 MS HORTEL: Your Honour, I just note that Mr Abbott attended Community Corrections to be assessed for a CCO suitability yesterday. I don't have a copy of that report.
44 HIS HONOUR: We will give you a copy. That report is available to both of you.
45 MS HORTEL: Thank you, Your Honour.
46 HIS HONOUR: It goes without saying that the report indicated that Mr Abbott was suitable for the order.
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Exhibit A:
IN THE COUNTY COURT IN VICTORIA
AT MELBOURNE
IN ITS CRIMINAL JURISDICTION
THE QUEEN
-v-
MATTHEW ABBOTT
PLEA SUMMARY
INDICTMENT
The Indictment contains the following 3 charges:
Possess controlled drug, contrary to subsection 308.1(1) of the Criminal Code (Cth), namely 0.0008 grams of pure Lysergic Acid Diethylamide (LSD);
Possess controlled drug, contrary to subsection 308.1(1) of the Criminal Code (Cth), namely 4.8 grams pure Methylenedioxyamphetamine (MDA);
Possess substance, material, documents or equipment for trafficking in a drug of dependence contrary to subsection 71A of the Drugs, Poisons and Controlled Substances Act 1981 (Vic).
PENALTY
The maximum penalty for the offence of possess controlled drug, contrary to subsection 308.1(1) of the Criminal Code (Cth) charge is 2 years imprisonment and/or 400 penalty units[1].
[1] $44,000 as at date of offending: see s 4AA(1) Crimes Act 1914 (Cth).
The maximum penalty for the offence of possess substance, material, documents or equipment for trafficking in a drug of dependence contrary to subsection 71A of the Drugs, Poisons and Controlled Substances Act 1981 (Vic) is 10 years imprisonment and/or a fine of up to 1,200 penalty units[2].
[2] $146,568 as at 2011-2012 financial year.
QUANTITY
At the time of the offending, LSD and MDA were controlled drugs pursuant to section 314.1(1) of the Criminal Code (Cth). A trafficable quantity of LSD was 0.002 grams and a marketable quantity of MDA was 0.5 grams.
SUMMARY
In summary, the offender was operating a clandestine drug laboratory in a shed on his parents’ premises, where he was residing. Equipment and instructions for the manufacture of MDA were located in the shed along with 13.4 grams of pure MDA which was found within liquids in glass bottles and flasks in the shed. It is conceded that there was no evidence of any intention by the offender to sell the manufactured MDA located in the shed.
The offender was also found with 0.0008 grams of LSD and 4.8 grams of MDA in his possession. It is conceded that the LSD and MDA were for personal consumption only.
FACTS
On 11 August 2011, in the course of a police investigation into the activities of Peter ABBOTT, the father of the offender, and another man LAI, a section 3E search warrant was executed at the home of the offender’s parents at 735 Blackwood-Trentham Rd, Newbury, Victoria.
CHARGE 1 Possess controlled drug LSD (308.1 Criminal Code (Cth))
During the search of the house, the offender’s bedroom was searched at which time police located a glass jar inside a guitar case on the right side of a bed in the offender’s bedroom. The jar contained, among other things, a clip seal bag containing a piece of blue coloured paper with 29 small squares containing LSD. Later analysis revealed the net weight of pure LSD to be 0.0008 grams.
CHARGE 2 Possess controlled drug (308.1 Criminal Code (Cth))
Inside the same jar, police also located two clear plastic bags containing brown powder. One plastic bag contained 4.6g of mixed powder with a concentration of 67.6% MDA (item 2/1) and the other plastic bag contained 2.9g of mixed powder with a concentration of 60% MDA (item 2/2). The total amount of pure MDA found within these items was 4.8 grams.
CHARGE 3 Trafficking in a drug of dependence (s.71AC Drugs, Poisons & Controlled Substances Act 1981 (Vic))
During the search of the offender’s bedroom, police also located items used in the manufacture of MDA,[3] including pressure gauges, a vacuum pump, hoses and broken glassware. In addition, files containing specific directions on the manufacture of MDA were found on a computer in the bedroom. Several files were also located that gave instructions and information for various chemical reactions, syntheses, licensing for certain chemicals, as well as a bulletin summarising thresholds for trafficable quantities of major illicit substances in each jurisdiction of Australia. A movie file and some jpg files were also located that portrayed chemical processes and techniques utilised in the chemical reactions required to manufacture MDA from helional.
[3] Traffick includes manufacture pursuant to s.70 DPCS Act.
During the search, the offender gave police a key to a padlock that secured a shed located towards the front of the property. Within the shed were many items that had been used, and were ready for use, in the process of manufacturing MDA including scientific glassware, magnetic stirrers, hotplates, stirring bars, an electronic stirrer motor, electronic scales, submersible pumps, plastic tubing, filter papers (both used and unused), stands, clamps, buckets, trays, pots and bottles containing solids and liquids.
A number of factory-labelled chemical containers were also located throughout the shed. Amongst them were nitromethane, pyrrolidine, bleach, sodium hypochlorite, sulphuric acid, hydrochloric acid, acetic acid, methylated spirits and caustic soda. These chemicals, and others found and seized, are used in the manufacture of MDA. Over 101 items were seized from the shed for subsequent forensic analysis. Many of the items seized contained MDA and other substances and chemicals used for its production. Traces of MDA were found on stirrers and equipment. Liquids found within glass bottles and flasks contained MDA of various purities. Methanol washes of funnels and other equipment contained MDA. A total of 13.4 grams of pure MDA was detected.[4] The offender’s fingerprints were located on an electronic balance and a container found within the shed.
[4] A summary of those findings is contained within Appendix A to a statement made by Dr Sonia Gaye.
Investigations conducted on the offender’s mobile phone revealed images of scientific glassware and demonstrated his use of email account [email protected] and the eBay account name Matthew Abbott, username: Matthew.j.abbott. 81 purchases made between 12 November 2009 and 25 May 2011 through the eBay account name ‘Matthew Abbott’ were of chemistry equipment and related items.
The offender was subsequently arrested and provided a ‘no comment’ record of interview.
DAYS IN CUSTODY
The offender was not remanded in custody following his arrest and accordingly has not served any days in custody.
HISTORY OF PROCEEDINGS
The offender was committed to stand trial on 31 July 2012 and the matter was listed for a trial commencing on 4 March 2013. On 1 March 2013, the trial was adjourned to 11 November 2013. The offender pleaded guilty to the 3 charges on 8 November 2013.
PRIOR CONVICTIONS
The offender has prior convictions as outlined in the Criminal Record.
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