Director of Public Prosecutions v Ballantyne
[2022] VCC 188
•24 February 2022
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-21-01562
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ALEXANDER BALLANTYNE |
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JUDGE: | HIS HONOUR JUDGE GEORGIOU | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 19 January 2021 | |
DATE OF SENTENCE: | 24 February 2022 | |
CASE MAY BE CITED AS: | DPP v Ballantyne | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 188 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Possess substance, material, document or equipment for trafficking a drug of dependence - commit indictable offence whilst on bail – mid range level of seriousness – offending linked to drug use – admissions during police interview – early pleas of guilty – utilitarian value of pleas of guilty – extensive criminal history – guarded prospects for rehabilitation.
Legislation Cited: s71A(1) Drugs, Poisons and Controlled Substances Act 1981Bail Act 1977; s30B Bail Act 1977
Cases Cited: Worboyes v The Queen [2021] VSCA 169; Boulton and Ors v The Queen (2014) 46 VR 308
Sentence: Community Correction Order for 18 months with conditions. Pre-sentence detention 157 days.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms C. Paganis Mr P. Ironside | Office of Public Prosecutions |
| For the Accused | Mr J. Barreiro | James Dowsley & Associates |
HIS HONOUR:
1Alexander Ballantyne, you have pleaded guilty to a charge that you and Jesse Walton at Doveton in Victoria on 23 October 2020 possessed substances, materials and equipment, namely:
· assorted glassware, electrical items, bags, bottles and scientific equipment listed in Schedule A to the indictment;
· pseudoephedrine;
· hypophosphorous acid; and
· iodine;
with the intention of using those substances, materials and equipment for the purpose of trafficking in a drug of dependence, namely methylamphetamine.
2This is an offence contrary to s71A(1) of the Drugs, Poisons and Controlled Substances Act 1981 for which the maximum penalty is 10 years’ imprisonment.
3You also consented to my hearing a related summary offence of committing an indictable offence whilst on bail. You pleaded guilty to that charge which carries a maximum penalty of three months’ imprisonment or 30 penalty units pursuant to s30B of the Bail Act 1977.
Circumstances of offending
4The circumstances of your offending are set out in the Amended Summary of Prosecution Opening on Plea dated 18 January 2022 (Exhibit P1). The matters contained in the summary are not in dispute.
5You came to the attention of police as a result of intelligence gathered from telephone monitoring targeting your co-offender, Jesse Walton.
6On 24 August 2020, investigators obtained a telephone intercept warrant in relation to the mobile telephone service used by Walton. While monitoring his calls, Walton was heard to be discussing drug trafficking with others.
7Between 19 October and 22 October, while monitoring Walton’s calls and text messages, investigators learned of your involvement with him in the manufacture of methylamphetamine at your residential address in Doveton.
8On 23 October 2020, police executed a Search Warrant at your address. Walton was found in the process of manufacturing methylamphetamine within a clandestine laboratory inside a shed on your property. You were present, and were arrested as you were trying to leave the shed. You and Walton were separately transported to the Melbourne West Police Station for interview.
9Following your arrest, investigators searched the shed on the property and seized the following items:
(a) several precursor chemicals required to manufacture methylamphetamine, including 15.9 grams of hypophosphorous acid, 257 grams of iodine, 198.8 grams of ephedrine (of which 118 grams was pure) and 324.9 grams of hydriodic acid;
(b) 87.6 grams of methylamphetamine, of which 44 grams was pure;
(c) an assortment of scientific glassware and equipment, including large glass round bottom flasks, heating mantels, funnels, condensers and retort stands;
(d) various bottles and dishes containing liquid and solids;
(e) multiple snap lock bags containing a crystal substance;
(f) a snap lock bag containing two brown capsules;
(g) a Samsung mobile telephone believed to be a “cipher” phone;
(h) an Apple iPhone in a cover containing a NAB bank card in the name of Walton.
10Investigators then searched a bungalow on the premises, where they located and seized the following items:
(a) a quantity of blank ID serial cards;
(b) assorted electronic equipment, including an ID printer and an Apple MacBook Pro;
(c) a Samsung mobile telephone;
(d) two packets of balloons; and
(e) 222 grams of iodine.
11Forensic Officer, Dr Ian Neely, who analysed the various substances located at your premises, stated that methylamphetamine can be manufactured from ephedrine in combination with hypophosphorous acid and iodine. By using this method, 118 grams of ephedrine could be expected to produce approximately 88 grams of methylamphetamine.
12A search warrant was also executed at Walton’s home, where police seized further items related to trafficking and the manufacture of methylamphetamine.
13When interviewed by police, you made full admissions to knowingly allowing Walton to use your premises for the purposes of manufacturing methylamphetamine and that, in exchange, you would receive payment in the form of up to 1 ounce of methylamphetamine. You stated that you were aware of the manufacturing process and described in detail the set-up of the laboratory, including the specific scientific glassware items, the precursor chemicals, the pseudoephedrine, as well as the process being utilised to manufacture the methylamphetamine.
14You also made admissions to owning some of the glassware found in the shed. You told police that Walton had brought other laboratory-related items to the shed in the days before your arrest. You initially denied being involved in the actual cooking process. However, you later made admissions to touching certain items within the laboratory, cleaning up while the manufacture of methylamphetamine was in progress, and you stated “I can’t say that I didn’t help at all”.
15You also told police that:
· You are the only person with keys to the bungalow and shed on the property where the chemicals were located.
· You owned all the contents of a cabinet located in the shed containing glassware and jars.
· All items in the shed, except for a jacket, belonged to you including the bottle of iodine.
· You knew what Walton was doing.
· You knew the laboratory could produce a large amount of methylamphetamine.
· You knew all the required precursors were there, although you did not specifically know what they were.
· You knew how to cook methylamphetamine and had been convicted for it in the past.
· You knew a gram of Ice sold for about $300.
16During Walton’s interview, he made full admissions to manufacturing methylamphetamine, stating that everything within the shed belonged to him and that you did not have anything to do with it.
17You were remanded in custody from the date of your arrest until your release on bail on 29 March 2021. At the time of your offending, you were on bail for unrelated charges of possessing methylamphetamine and a controlled weapon.
18The matter before me resolved after the withdrawal of more serious charges prior to the scheduled committal hearing. It is accepted by the prosecution that your pleas of guilty were entered at an early stage.
19Although you appear to have made admissions more extensive than the charges to which you have pleaded guilty, it is important to state that you are to be punished only in relation to that charge and the summary charge.
20In relation to the charge of committing an indictable offence on bail, at the time the possession offence was committed, you were on bail for the unrelated charges of possessing methylamphetamine and possession of a weapon. Those offences are alleged to have occurred in 2018.
Criminal history
21You have admitted your criminal history. It is an extensive history dating back to 1999.
22In March 2001, you were sentenced at the Ringwood Magistrates Court to a
24-month Community Based Order for the offence of trafficking cannabis and possession of a drug of dependence. You breached that order and received a suspended sentence as well as a monetary penalty. You breached that suspended sentence. You have also breached other suspended sentences and court orders.23In January 2011, you were sentenced in the Melbourne County Court to 18 months’ imprisonment wholly suspended for two years for the offence of trafficking in a drug of dependence. You did not breach that order. However, you did breach another suspended sentence imposed in March 2013.
24In 2015, you were placed on a Community Correction Order for a number of driving offences including driving whilst disqualified and refusing to state your name and address. You breached that Order. Overall, you do not have a good history of complying with Court Orders.
Personal circumstances
25I turn now to your personal circumstances.
26You are 39 years of age. You grew up in Melbourne’s outer eastern suburbs. Your parents are separated but remain on good terms. Both were present at your plea hearing. Your mother works as a secretary at a secondary school. Your father is a retired civil engineer. You have a younger sister who works as an account manager. I was told that your parents and sister remain supportive of you.
27You were educated to Year 11. You attended Ferntree Gully Secondary School and later St Joseph’s College. Since completing your secondary education, you obtained a diploma in network engineering and you have worked in a variety of jobs including installing insulation, commercial painting and IT work. Your longest period of employment was three years for a mobile phone company. Your counsel suggested that “boredom” explained why you have undertaken so many different jobs.
28You have used methylamphetamine since your mid-20s. The amount you use varies but typically increased when you are out of work. You do not have any diagnosed mental health conditions, and you are not in receipt of any psychological treatment.
29At the time of your offending you were living with your father in Doveton. Your father was diagnosed with cancer and you were assisting with his care and also living with him so that he not be left alone. You were also mostly out of work because of the extended COVID-19 lockdown.
30Your counsel, Mr Barreiro, submitted that during this time you were using methylamphetamine on a regular basis, in increasing amounts. To access more of the drug for your own use, you allowed Walton to set up his laboratory in your father’s shed. I was told that you “entered the picture”, to use your counsel’s words, on 21 October, when Walton asked if he could use your father’s shed to cook methylamphetamine. You knew that he was going to manufacture for the purpose of trafficking. In essence, it was put that your offending was linked to your own use of methylamphetamine and your hope of receiving an ounce of the drug.
31You and Mr Walton had been friends over a number of years. I was told that he has previously supplied you with drugs for your own use.
32Your counsel submitted that within a day of the laboratory being set up and before any drugs were produced, police executed the search warrant at your address.
33The glassware which you owned, and was found during the search, was stored in a cabinet and was not used in the intended manufacture of the methylamphetamine.
34Following your arrest, you were remanded in custody until being granted bail in March 2021. That was not your first time in custody. You spent 157 days on remand.
35Because of the COVID-19 pandemic, your first 14 days on remand were in quarantine isolation. You spent a further 10 days in quarantine following a positive case being reported in the gaol you were at in late 2020. During your time on remand, you were able to speak to your family only on the phone and via video calls. You had no personal visits or access to programs.
36On being released on bail in March 2021, you began living with your sister, her partner and their infant daughter. Your conditions of bail included a static residential address, reporting three days per week to police, and a curfew between 9.00pm and 5.00am each day. I was told that you complied with all conditions.
37You have not worked since your release, but have been assisting with the care of your niece and helping around the house and garden. I was also told that you have been abstinent from drugs since your release. Your counsel referred to a drug course you completed in custody but despite being told that a certificate showing your completion of that course would be provided, it has not, to my knowledge.
Sentencing considerations
38I agree with the submissions of the learned prosecutor that drugs are pernicious and cause immeasurable damage to those who use them and those affected by their use. General deterrence, denunciation and just punishment are significant sentencing considerations. Those involved in offending such as yours must understand they risk stern punishment.
39Ms Paganis, who appeared on behalf of the Director of Public Prosecutions, submitted the following matters are relevant to an assessment of the nature and gravity of your offending:
(i)you were a significant facilitator in Walton’s intention to manufacture methylamphetamine, by allowing him to use your premises for that purpose;
(ii)you knew that the methylamphetamine would be sold by Walton, and you were to benefit from the manufacture with the receipt of drugs for your own use;
(iii)the amount of methylamphetamine that could have been produced was 88 grams;
(iv)the maximum penalty for the drug offence, being 10 years’ imprisonment, is indicative of the seriousness of the offence.
40I agree that each of those matters are relevant to the assessment of the seriousness of your offending and the level of your moral culpability.
41Mr Barreiro submitted that the objective gravity of your offending must also take into account the fact that you were a drug user yourself, and your motivation for being involved in the offence was “easy access to drugs”. He further relied on the fact that the amount of drug that could be manufactured was not a commercial quantity, and nor did you have knowledge as to the amounts of precursor chemicals found at your premises.
42Mr Barreiro also submitted that Walton was the driving force behind the offending, that he obtained the precursor chemicals, and brought those chemicals and equipment to the shed. Furthermore, as no drugs were produced, you did not in fact receive any benefit.
43Whilst I accept those matters, I do not accept Mr Barreiro's submission that your offending falls at the lower end of the scale of objective seriousness. You knew what you were doing and had full knowledge of Walton’s intention to manufacture and traffic the methylamphetamine produced. Your intention, as set out in the charge, was to possess those items for the purpose that they would be used in the manufacture of methylamphetamine that would ultimately be trafficked. In my opinion, your conduct falls towards the mid-range level of seriousness. In so finding, I have regard to the fact that you are charged in relation to possession of the items on a single day only, namely 23 October 2020 and that you were not the principal offender.
44Notwithstanding your own use of drugs, there is, in my opinion, little to mitigate your moral culpability. As stated, you knew why Walton wanted to use your shed, and you allowed him to do so.
45Although your counsel referred to the principle of parity with regard to your
co-offender, who has made application to have his charges dealt with in the Drug Court, I do not understand how that principle can apply. You have not made an application to have your matter dealt with in the Drug Court. I am not aware whether or not Walton has been accepted into the Drug Court, nor the charges with which he is charged, nor the sentence he will receive. I do accept, however, that your role in the charge to which you have pleaded guilty is less culpable than that of Walton. I accept, as I have said, that you are not the principal offender.46You have pleaded guilty to the charges before me and I accept they were entered, after some negotiation, at a reasonably early time. I accept the submission of your counsel that you are entitled to a significant reduction in penalty by reason of the utilitarian value of your pleas of guilty. You have spared the court and community the time and cost of a trial, and spared the need for witnesses to give evidence.
47As was stated in Worboyes v The Queen:[1]
“A plea of guilty during the pandemic ordinarily should attract a more pronounced amelioration of sentence than at another time. Although a sentencing judge need not quantify the extent of any ‘discount’, he or she must ensure that the plea of guilty results in a perceptible amelioration of sentence.”[2]
[1][2021] VSCA 169
[2] Ibid [39]
48I have also had regard to your cooperation with police and to the significant admissions you made when interviewed by police. Your pleas of guilty and cooperation are indicative of some remorse.
49Your counsel submitted that you have very good prospects of rehabilitation. Regrettably, I am not able to agree with his submission when regard is had to your lengthy criminal history. Whilst there have been periods throughout your life where you have not offended, including since being placed on bail in March 2021, those matters alone do not lead me to a conclusion that your prospects of rehabilitation are very good. In my opinion, at this time, they are best described as ‘guarded’. With the exception of the reference provided by your sister, and the support of your family, little else has been provided that would justify a different view as to your prospects.
50As stated, general deterrence and denunciation of your conduct are significant sentencing considerations. Given your significant history of criminal offending specific deterrence is also highly relevant to the sentence to be imposed. That is, the sentence imposed must also have as one of its aims, deterring you from further offending.
51I am also required to have regard to current sentencing practise for the offences to which you have pleaded guilty. To that end I have had regard to the cases set out in the Judicial College of Victoria’s Sentencing Manual in relation to the possession offence. They are of some assistance in providing an overview of the range of sentences imposed for similar offending. However, the sentence to be imposed in this case must be the product of all of the factors relevant to your conduct and your personal circumstances.
52I accept that your time on remand of 157 days was made more onerous by reason of the COVID-19 restrictions. However, I do not agree with your counsel’s submission that your time on remand is sufficient punishment for your offending.
53Mr Barreiro's alternative submission was that I place you on a Community Correction Order.
54As indicated during the plea hearing, in my opinion, a term of imprisonment in combination with a Community Correction Order is an appropriate disposition. At issue was whether I should require you to serve more time in custody beyond that which you have already served.
55Having considered all matters put to me by both counsel, I have decided that subject to your agreeing to enter a Community Correction Order, I will not require you to serve any more time in custody. Whilst I consider your prospects for rehabilitation are guarded, your rehabilitation is nevertheless an important consideration, particularly given you have been on stringent bail conditions since March 2021 without, it would seem, any breach of those conditions.
56I am, in this regard, also mindful of the Court of Appeal’s decision in Boulton and Ors v The Queen[3] that a community correction order may have a sufficiently punitive and deterrent effect - depending upon its duration and conditions.
[3] (2014) 46 VR 308
57You were assessed by a Community Corrections Officer on 20 January 2022. It is a matter of some concern that you were reluctant to engage in drug treatment, but stated you would do so, if it was a condition of the order. You have also been assessed as being a high risk of re-offending. Nevertheless you have been assessed as suitable for a community correction order.
58Mr Ballantyne, please listen carefully of the conditions of the proposed order.
59The Order will last for 18 months commencing on 24th February 2022 and ending on 23rd August 2023.
60You will be required to attend at the RINGWOOD COMMUNITY CORRECTIONAL SERVICES office within two clear working days after the commencement of this Order.
61You must not commit another offence for which you could be imprisoned during the time that the order is in force;
62You must comply with any obligation or requirement prescribed by regulation 17 of the Sentencing Regulations 2011, meaning in essence that you must not attend at a community corrections office under the influence of either drugs or alcohol;
63You must report to, and receive visits from, the Secretary (or his/her delegate);
64You must let a community corrections officer know within two clear working days of you changing your address or job;
65You must not leave Victoria without first getting permission to do so from the Secretary (or his/her delegate);
66You must obey all lawful instructions from and directions of the Secretary (or his/her delegate).
67You must perform 175 hours of unpaid community work over a period of 18 months as directed by the Regional Manager.
68If you fail to comply with this order, the Secretary to the Department of Justice (or his/her delegate) may give you a direction to perform additional hours of unpaid community work in accordance with s83AU of the Sentencing Act 1991.
69You must be under the supervision of a Community Corrections Officer for a period of 18 Month(s).
Treatment and Rehabilitation
70You must undergo assessment and treatment (including testing) for drug abuse or dependency as directed by the Regional Manager.
71You must undergo assessment and treatment (including testing) for alcohol abuse or dependency as directed by the Regional Manager.
72You must attend for review on 4th May 2022 at 09:15 AM at Melbourne County Court. That is there is a judicial monitoring condition attached to the order.
73You should also understand that if you breach the order you will be returned to the Court and may be re-sentenced on the original charges, and that may include a sentence of actual imprisonment.
74I also intend to sentence you to 157 days' imprisonment on the possession charge and 42 days' imprisonment on the summary charge which will be served concurrently with the 157 days.
75Mr Barreiro, would you like to speak to your client in relation to the community correction order conditions?
76MR BARREIRO: I might do so briefly.
77HIS HONOUR: You may approach the dock. Thank you.
78MR BARREIRO: Thank you, Your Honour. I am grateful for that time, Your Honour. My client consents to an order and he will give his consent.
79HIS HONOUR: Thank you very much, Mr Barreiro. Stand up please, Mr Ballantyne.
80Do you agree to entering the order on the terms and conditions I have stated in court?
81ACCUSED: Yes, Your Honour.
82HIS HONOUR: Do you understand that should you breach the order, you will be brought back to this court and resentenced?
83ACCUSED: I do.
84HIS HONOUR: And that sentence may include a term of imprisonment?
85ACCUSED: Yes, Your Honour.
86HIS HONOUR: All right.
Sentence
87On the charge of possession, you are convicted and sentenced to 157 days' imprisonment. You are also placed on a community correction order for a period of 18 months on the conditions that I have outlined in court just a moment ago.
88On the summary charge you are convicted and sentenced to 42 days' imprisonment. To make it absolutely clear, that term of imprisonment is to be served concurrently with the term of imprisonment imposed on the possession charge.
89Pursuant to s18 of the Sentencing Act I declare the period of pre-sentence detention to be 157 days' imprisonment.
90Pursuant to s6AAA of the Sentencing Act, had it not been for your pleas of guilty, the sentence I would otherwise have imposed is one of 24 months' imprisonment with a non-parole period of 14 months.
91I am grateful to counsel for their assistance in this matter. I will have your client sign the community correction order and given the pre-sentence detention declared, your client, as I understand it, should be free to leave the dock.
92MR BARREIRO: Thank you, Your Honour.
93HIS HONOUR: Yes. Thank you. Please adjourn the court.
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