Director of Public Prosecutions v Bennett

[2017] VCC 482

IN THE COUNTY COURT OF VICTORIA Revised
(Not) Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 16-01890

DIRECTOR OF PUBLIC PROSECUTIONS

v

NATHAN BENNETT

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	24 April 2017
CASE MAY BE CITED AS:	DPP v Bennett
MEDIUM NEUTRAL CITATION:	[2017] VCC 482

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms L. Andrews
For the Accused	Mr D. Ewart

HIS HONOUR:

1Nathan Perez Bennett, on indictment ending 263, you have pleaded guilty to one Charge of possess substance material, et cetera, for trafficking in a drug of dependence.  Three Charges of possession of drug of dependence and two uplifted Charges, one of manufacturing a weapon and one of committing an indictable offence whilst on bail.

2Those crimes carry maximum penalties of ten years, five or one years and two years and three months.

3On indictment ending 218, you have pleaded guilty to trafficking in a drug of dependence, which carries 15 years.  Three summary matters, two of possessing a poison, which is a fine only and I therefore just simply convict and discharge and one of a prohibitive weapon, being an imitation firearm, which carries a maximum penalty as I understand it, of two years.

4By reason of the offending on indictment ending 218, you have breached an 18 month suspended sentence, which was imposed upon you in this court on 9 August 2012.  That sentence was a duration of 18 months and included within that were the trafficking and manufacture of amphetamines.

5When His Honour sentenced you at that time he said it was  - and that again was a clandestine lab as I will refer to in a moment.  He said,

"It's been put that the clandestine lab was to be used to manufacture drugs for the use of yourself and a Mr Sarolli.  Although I have suspicions that it was more than this, in the absence of any evidence I could not be satisfied with that beyond reasonable doubt.  If I was so satisfied you would have received a lengthy gaol sentence.  However, I accept it was for the purpose for manufacturing the drugs for your personal use of you and you co-offender and have sentenced accordingly".

6Back in 2012 when that suspended sentence was imposed you were fully aware of the potential consequences of offending in this way.

7There are no exceptional circumstances and accordingly the ultimately suspended sentence will be fully restored, though of course there will be a degree of concurrency.

8You are 35 years of age.  You have some prior convictions dating back to 1999 but the bulk of the prior convictions are really the suspended sentence, which is to be restored.  In those circumstances I propose to go through the nature of the offending, in the order in which it occurred.

9You pleaded guilty at the earliest reasonably opportunity and I accept what your counsel says, that you have pleaded guilty in an endeavour to make end of all this.  Remorse is somewhat problematic, as you seem to be maintaining despite the pleas of trafficking that it was for some sort of personal use.  You must also of course get the utilitarian benefit of that plea of guilty.

10There has also been a significant delay in the bringing of all these proceedings to court.  Some of it is attributable to you not being charged for 12 months, some of it is attributable, as I understand it to you simply not turning up but in any event I take that delay into account.

11The offending which occurred back in 2010 as I understand, for which you received the suspended sentence in 2012, related to the manufacture of amphetamines.  I have indicated to you the comments that were made at that time by, His Honour.  He said that you had symptoms consistent with the diagnosis of a bipolar two disorder and amphetamine dependence and went through your previous history.

12You have had a relatively untroubled existence up until your teens.  You had a couple of relationships and you became addicted, I accept that, to amphetamine at a relatively early age.  From that point on you had a couple of relationships and you have a child, who as I understand it, you no longer see.  It has become one of this manufacturing and getting yourself into what is now very serious trouble.

13In any event His Honour imposed that sentence on 9 August 2012 for the matters that I have referred to.

14Eight months later police attended at Majors Creek Road in Orbost to execute a search warrant.  When police executed that warrant, you were there with, as I understand it, your then partner and drugs were found and a clandestine laboratory to the making of amphetamine was discovered.

15There were a number of Charges that arose out of that including, having the materials for manufacture, trafficking and a number of related summary matters.  There were also imitation firearm found and there is a charge in relation to that here.

16The main aspect of all that is that it was in some eight months or so of being given a suspended sentence and told how serious the offending was, you were apprehended doing it again.  Obviously it has taken for the reasons I have outlined, some time for that to be brought on.

17Matters proceeded until December 2015 when police were investigating you in relation to the manufacture of amphetamine on 24 February 2016.  You were living in Traralgon and a search warrant was executed.

18Again, what was found was a clandestine laboratory.  What was also found and this is concerning in these sorts of situations, was the document, which I am aware, of home workshop explosives by uncle Fester.  There was also a display book on do it yourself instructions on firearm construction.  There was a metal pill press, there was a homemade flamethrower and an improvised rifle barrel.

19They are the accoutrements of trafficking and it is trafficking to which, effectively, manufactured for trafficking that you or the process that you have pleaded guilty.

20You are fully aware of what the penalties for all this are.  I am not going to go through each and every item that was found or all the drugs of dependence or anything else.  I am just going to make the possessions totally concurrent.  You have decided to somehow or other make a career of this.  Whatever you got out of it, I have no idea but you are certainly going to be sentenced on the basis that it was some innocent personal use.

21You have pleaded to trafficking and it is for trafficking you will be sentenced.

22A significant gaol sentence is the only available option and in terms of determining what that sentence should be I turn to matters personal to you.  I have already indicated the plea of guilty, the delay, the use of utilitarian benefit and those other matters.

23Tendered on your behalf was a psychiatric report, which outlines your history and I accept that the outlining is at least relatively correct.

24You went to school until Year 10.  Did an apprenticeship for four years, you worked in power station and construction.  I am told you had your own welding business for about five years, from 2007 to 2016 and at one stage you were a boiler maker, working as a boiler makers as a welder.

25Around about 2005, 2006, as I understand it, your father died in your presence, which had a dramatic effect upon you.  I also understand that two mates passed and at that stage you seemed to have been put on antidepressants at a relatively low dose.

26You did not pursue that for long and by that stage were using amphetamines and as I said in the psychological report, you preferred to use amphetamines.

27I am told that you started to use those drugs during the course of your apprenticeship.  I am told there has been a couple of abortive attempts to give up and it seems at the age of 35, you have had something in the order of 15 years or so of just wasting your time, in many respects.

28The report indicates that as a child you were academically below average, though I notice in earlier report says that you have much higher intelligence than that would seem to indicate.  Again, it is hard to know where to go with all this.

29The report states,

"You started using illicit drugs by late teens.  Drug of choice was meth amphetamine, also used cannabis and you say that later it started making you paranoid.  You used meth amphetamines for recreational purpose and also to feel better during grief. You initially used it two to three times a week and spent around $500 week.  However, as use increased you found it difficult to manage it financially, you made the decision to self-manufacture it afterwards.  You justified this by stating he 'was not selling it but using it for himself'.  Under guidance of a friend he attempted detox and short term rehabilitation on at least two occasion but the abstinence did not last long."

30It points out, "Being absence from any drug use in prison after a period of withdrawal in early 2016".  And you have passed a letter which has been handed to me, which indicates your desire to rehabilitate and that you believe that you have turned your life around.  But you are still maintaining there is some sort of sense of injustice being charged with all these matters and receiving a significant gaol term.

31Mr Bennett, if you want to manufacture amphetamines, get in court, putting on suspended sentence and keep doing it, you are going to get sentences of a condign nature.

32The prospects of your rehabilitation are up to you.  The risk of you re-offending when you have offended so frequently in the past, has to be regarded as high.  It will seem to be dependent upon whether or not you are going to continue to use amphetamine and that is entirely in your hands.

33Accordingly, I take into account matters such as the seriousness of this here offending, the need for general and in your case specific deterrence, denunciation and appropriate punishment, together with the mitigatory matters put on your behalf.  The sentence is follows.

34On indictment 263, materials for trafficking, 30 months.

35Each of the possession Charges, three months.

36Manufacture a weapon, six months.

37Indictable offence on bail, one month.

38I direct that two months of the sentence imposed on the manufacture be served cumulatively upon 30 months and that the rest be concurrent.

39The gives a total effective sentence on the indictment of 32 months.

40On indictment 218, of trafficking.  You are sentenced to be imprisoned for 24 months on trafficking, six months on the prohibitive weapon charge.  Two months of the six is to be cumulative upon the 24, giving on that indictment a total effective sentence of 26 months.

41I think I have mentioned already the two poison charges are convicted and discharged.

42Fourteen months of that 26 months is to be served cumulatively upon the sentence imposed upon indictment number 263, which gets to a total effective sentence on the two indictments of 46 months.

43On the suspended sentence, it is wholly restored.  I direct that the charge of breach be convicted and discharged and I direct nine months of the 18 months that has been restored, be served cumulatively upon the total effective sentences on the indictments.

44That gets to a total effective sentence on all matters of 55 months.  I direct you to serve the minimum terms of three years before becoming eligible for parole and I direct that the two indictments and the suspended sentence read in combination, 431 days is to be reckoned as having been served under this overall sentence.  Insofar as s.6AAA is concerned.  In this situation any declaration would be totally meaningless and I am not prepared to do so.

45MS ANDREWS:  As Your Honour pleases.  Your Honour, forfeiture and disposal orders are sort.

46HIS HONOUR:  I've done all that.

47MS ANDREWS:  Thank you.

48HIS HONOUR:  Yes, all that's been done.  All right, yes, you can take him out, thank you.

49MS ANDREWS:  Sorry, Your Honour, my instructors indicated that there may not have been orders provided in relation to the second indictment, relating to the forfeiture of the drugs and paraphernalia.

50HIS HONOUR:  They're all agreed to anyway.

51MS ANDREWS:  Yes, Your Honour.

52HIS HONOUR:  I'll sign it now.  Hand it up now and I'll sign.

53MS ANDREWS:  Thank you, Your Honour.

54HIS HONOUR:  I thought they were all signed.  The formal orders made, hand it down.

55MS ANDREWS:  As Your Honour pleases.

56HIS HONOUR:  Disposal is made, hand it down.  All right, I'll just stand down and come back when we're ready.

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