Director of Public Prosecutions v Butler

[2019] VCC 2244

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-18-01906

DIRECTOR OF PUBLIC PROSECUTIONS

v

BENJAMIN BUTLER

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JUDGE:	HER HONOUR JUDGE QUIN
WHERE HELD:	Melbourne
DATE OF HEARING:	19 September 2019
DATE OF SENTENCE:	18 December 2019
CASE MAY BE CITED AS:	DPP v Butler
MEDIUM NEUTRAL CITATION:	[2019] VCC 2244

REASONS FOR SENTENCE
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Subject: Resist an emergency worker on duty, possess a drug of dependence, prohibited person possess firearm, prohibited person possess imitation forearm, possession of precursor chemical, possess substance, equipment or material for trafficking, handle stolen goods, possess cartridge ammunition without licence or permit, without approval store unauthorised explosive
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms D. Hogan	OPP
For the Accused	Mr A. Maloney	Dribbin & Brown

HER HONOUR:

1Benjamin Butler, you have pleaded guilty to one charge of resisting an emergency worker on duty, one charge of possessing a drug of dependence, one charge of prohibited person possessing a firearm, one charge of prohibited person possessing an imitation firearm, one charge of possession of precursor chemical, one charge of possession of a substance, equipment or material for trafficking and one charge of handling stolen goods.

2You have also agreed to have me deal with and pleaded guilty to one charge of possession of cartridge ammunition without a licence or permit and one charge of without approval, storing unauthorised explosives.  These are both related summary offences.

3The maximum penalties in respect of these matters are as follows:

·   Resist an emergency worker on duty, five years.

·   Possession of a drug of dependence, one year, for a non-trafficking purpose.

·   Being a prohibited person possessing a firearm, being a prohibited person possessing an imitation firearm and possession of substances, equipment and material for the purpose of trafficking in a drug of dependence, 10 years' imprisonment.

·   Possessing a precursor chemical, six years' imprisonment.

·   Handling stolen goods, 15 years' imprisonment.

·   Possessing a cartridge or ammunition without a licence or a permit,
40 penalty units.

·   Without approval storing unauthorised explosives, 100 penalty units.

4The full details of your offending is set out in the summary of prosecution opening, Exhibit A, dated 18 April 2019 and can be summarised as follows.

5On 14 July 2017, the Critical Incident Response Team members or police forced entry into your Rosebud house and you were there with three others.  You confronted police with a glass bottle in hand.  You were instructed to drop the bottle but did not comply.  You were then sprayed and subdued with capsicum spray.  After some resistance, you were held down and your hands were held behind your back.  That is the conduct constituting Charge 1.

6You were handcuffed and searched by police who located a clip-sealed bag containing cannabis in your pocket.  Another clip-seal bag and three other paper bags containing cannabis were also found at the house.  The total weight of cannabis found was 257.1 grams.  That is Charge 2.

7Police also located glassware and chemicals in the lounge area of the house.  Specialist drug police then attended and located assorted glassware, goggles, Bunsen burners, handwritten instructions and chemical substances, such as iodine phosphorous and pseudoephedrine.

8They also located lithium that had been removed from batteries, which is the method used in manufacturing drugs of dependence.  Some of the labelled bottles contained chemicals were marked with numerals.  The chemicals appeared to be the property of a school.

9Also located was a glass bulb filled with cannabis suspended above a large glass flask, filled with a liquid substance containing tetrahydrocannabinol.  The total mixed substance weighed 398.6 grams.

10Police located the following items in various areas of the house:  A Sterling single barrel sawn-off shotgun that had an empty cartridge in the barrel.  That is Charge 3.  A black coloured imitation pistol.  That is Charge 4.  Those were both in the lounge room.  An unlocked safe was located.  That contained ammunition which is listed in Exhibit A.  That is Summary Charge 7, as well as two fire crackers and seven flares.  That is Summary Charge 8.

11You were arrested and gave a 'no comment' record of interview.  Police later discovered the chemicals located at your place had been stolen during two burglaries from the Science Building at Dromana Secondary School in 2016.  These items are detailed in Schedule B of the indictment.  That is Charge 7.

12Additionally, your fingerprints were identified on some of the drug-related documents and numerous pieces of glassware and plastic bottles found in the search.  Items were analysed by a forensic officer, who opined the substances, equipment and material referred to in Schedule A of the indictment would be sufficient for the manufacturer of methylamphetamine provided that pseudoephedrine and/or ephedrine was available.  That is Charge 6.

13Another substance was analysed and found to contain mercury.  The total quantity of the substance including the mercury was 44.6 grams.  That is Charge 5.

14In respect of your personal circumstances, I received reports from Mr Warren Simmons, psychologist, dated 20 December 2018 and from Ms Laura Scott, clinical neuropsychologist dated 23 April 2019.  I take this material into account.

15You are currently aged 37.  You grew up in Richmond, Dromana and Rosebud.  Your parents separated when you were aged 13.  Your parents are both deceased.  Your mother died in 1999 and your father died in 2015 at the age of 86 from a significant haemorrhage.  The impact of you discovering your father in that state has been significant on you.  You also have two older brothers and a sister who are all deceased.

16You grew up in an environment where domestic violence perpetrated by your father on your mother, but also you and your siblings.  You indicated that you were closer to your father than your mother, though it was your father who set the rules and was strict.  Your father also had a long criminal history involving dishonesty and burglary offences.  When your parents separated, you remained with your father.

17You went to school in both Dromana and Rosebud, unsuccessfully attempting to complete Year 11.  You had difficulties settling at school and were involved in drugs.  You then commenced an apprenticeship as an automotive mechanic, but did not complete it as your employer discovered your amphetamine use.

18You commenced using cannabis at 13 and that continued up until the end of last year.  At 14, you began using amphetamines, developing a half gram daily habit. 

19You were diagnosed as a young adult with attention deficit hyperactivity disorder in about 2004.  You were prescribed dexamphetamine and managed to reduce your amphetamine use. 

20In 2013 after a car accident, you were commenced on methadone for pain relief.  You are currently on 140 milligrams a day, though you sometimes replace that with heroin.  

21You have used GHB on several occasions since your father died and also used cocaine and ecstasy.

22You have had two partners.  Your first relationship lasted two and a half years, though broke down and several restraining orders were taken out against you.  In about 2012, you have a relationship with a girl to whom you sold drugs.  You have lived on your own since that relationship broke down a couple of years ago.

23You were in reasonable physical health until a car accident in 2012, when you were alcohol affected drag racing and hit a tree at 160 kilometres an hour.  You injured your coccyx and were unconscious.  You were later diagnosed with an acquired brain injury which has required treatment.

24In the months prior to this offence, you were assaulted in the head area and admitted to hospital with concussion, though you left without proper treatment.

25You were on a number of different medications, though most of these were ceased when you were placed in custody for these matters.  You suffered six or seven seizures whilst you were in custody due to cessation of the medication.  I was informed that you were then placed on Valium, 5 milligrams, three times a day as well as .5 milligram of clonazepam.

26Mr Simmons noted that you have experienced difficulties with sleep and have problems with your memory and concentration, as well and lowered energy and motivation.  You admitted to suicidal thoughts, but denied any intent or plans and complained of a lower mood.  You also reported longstanding issues with social anxiety and experiencing many intrusive memories relating to violence from your father.

27Mr Simmons was of the view that you described symptoms of hyper arousal and some hyper vigilance suggestive of post-traumatic stress disorder and recommended a neuropsychological assessment given your acquired brain injury.

28Mr Simmons opined,

'While you have a history of some offending, these have been primarily drug related.  There is no clear evidence of you having significant anti-social personality traits and many of your difficulties appear to be more related to substance use and psychiatric condition rather than other matters.'

29Ms Scott, neuropsychologist, conducted various tests in the course of her assessment.  She opined that overall, you present with a severely reduced level of intellectual function with your full scale IQ score placing you in the lowest one percentile of the general population.  This is accompanied by difficulties with you undertaking basic everyday tasks.

30Although Ms Scott could not determine the relative contribution of all the relevant factors, she viewed that your cognitive functioning had been severely diminished by a combination of factors, some of which were present in early childhood, probable foetal or alcohol syndrome disorder and ADHD, as well as others that have occurred in later life - head injuries, substance abuse and hypoxia.

31Ms Scott denotes that you obtained a full IQ score of 65.  She opined that that would fulfil the diagnostic criteria for an intellectual disability.  Her summation of your cognitive deficit is that you present with extremely severe impairment in speed of information processing, response inhibition and all aspects of memory function.

32Mild to moderate impairments are seen in your working memory, higher order, attentional skills and most domains of executive function.  Intact function is seen in basic attention span, language and verbal abilities, with some isolated areas of intact executive function.  

33She notes that these impairments should be seen against the backdrop of extremely severe psychological distress and a behavioural profile including preservation and disinhibition.

34As a result of these impairments, she expected that you have and will continue to experience many difficulties in everyday life.  These are listed on pp.14 and 15 of her report.

35Further, Ms Scott notes that these impairments would have been present at the time of this offending and would have been exacerbated by acute intoxication, psychological distress and psychosocial stressors, including limited social support and recent bereavement related to your father's death. 

36Ms Scott considered the impact of your impairments on your offending.  That your severely diminished level of cognitive function means you are slightly disorientated much of the time, that you struggle to follow a basic conversation and are easily distracted, and your memory is poor.  She thought that those features left you highly vulnerable to manipulation and deceit.  Your ADHD and ABI results in difficulties with planning, organisation, inhibition and abstract reasoning, impulsive behaviour and lack of emotional regulation.

37Ms Scott linked this to your offending, particularly in response to being unable to appreciate the consequences of your actions with drug-related materials and firearms, and also the lack of impulse control when confronted by police.

38It was submitted that given you cognitive and mental health conditions, the principles enunciated in Verdins, namely Limbs 1 to 4 were enlivened.  In your case, that there exists a realistic connection between you cognitive deficits and your offending as well as the impact on your abilities to make calm or rational choices or to think clearly at the time of the offence.

39It was submitted although general deterrence remained relevant, that it should be moderated because of your IQ and severe cognitive deficit.  Additionally, it was submitted that both experts comment on the likelihood that you will experience custody more onerously by virtue of your cognitive mental health issues and you risk further deterioration in your mental health if incarcerated.

40You have complied with strict bail conditions since you were granted bail on
8 December 2017, including to report daily and not to associate with others who were involved in this offending.  You have completed with all lawful conditions of the Court Integrated Services Program or CISP.  You have now reported for 524 days.  You have not been charged with any further offending during the period of bail.

41There has been a significant delay between the commission of the offence date, 14 July 2017, and the plea and sentence date.  You have demonstrated since being released on bail on 8 December 2017 your ability to begin rehabilitation and remain free from any similar offending in the community.

42You do have a number of prior convictions, primarily for dishonesty, driving and drug-related use and possession offences.  I note that your previous offending was not particularly serious.  You have received dispositions ranging from fines to community correction orders to terms of imprisonment in March 2013.  The CCO imposed in 2012 was contravened in 2013, then confirmed and successfully completed.  That 2013 CCO was limited to community work and was completed without contravention.

43I take into account that you have pleaded guilty to this offending and that it was in an early stage in proceedings.  No witnesses were cross-examined.

44Further, there is a substantial and significant utilitarian benefit to your early plea.  You have saved the community the cost and time of a trial.

45As to remorse, I note Ms Scott's remarks that on her assessment, you denied responsibility for having bought the items in question into your house and as such, you did not demonstrate any remorse for your behaviour.  You also did not demonstrate any insight into the risks to yourself or others of having these items in your home.  This was, however, in her opinion, in keeping with your very low level of cognitive function, particularly your impairments in abstract reasoning, planning and self-monitoring.

46Your counsel submitted all sentencing considerations could be served with the imposition of a combination sentence of imprisonment and a community correction order, such that you should not be required to serve any more time in custody.

47It was submitted on your behalf and I accept that your serious mental health issues, cognitive deficits and history point to the need for you to be supported in the community.  The ability of a community correction order to be both punitive and therefore meeting the relevant sentencing aims, as well as creating a framework for further rehabilitation can be considered an appropriate disposition.

48It was submitted that a Justice Plan could be part of the CCO conditions.  However, I received a letter dated 25 November 2019 from Kath Ballard, manager, Forensic Disability Statewide Access Service, which reads in part,

'Based on the information presented, the FDSAS established that you did not meet the criteria for an intellectual disability as defined under the Disability Act 2006.'

49The neuropsychological report completed by Ms Laura Scott has indicated that while you present with significant deficits in intellectual function, it is not likely these deficits were present during your developmental period.  Consequently, you do not qualify for a plan of available services.

50The experts have strongly encouraged you to apply for a package of care via the NDIS.  This would assist you in accessing case management support as well as mental and allied health supports.  You will require substantial assistance in making such an application and could be referred to a local brain injury support service to assist you with this.

51Whether, given the most recent assessment of Ms Ballard, you are eligible is a matter not known to me.  However, it is apparent that you need to establish a support network.  It is anticipated that you would benefit from case management and supervision.  Clinical psychology referral was also recommended to assist in managing issues of grief and bereavement, trauma and anxiety.  Drug and alcohol counselling was also recommended for relapse prevention support.

52The prosecution submitted that all sentencing purposes could be served by the imposition of a combination sentence and community correction order.  I had you assessed this morning as to your suitability for a community correction order and received a favourable assessment.  It is clear that the author of the report has some hesitation in your recommendation.  However, I think that it is fair to say that her assessment is consistent with that of the other two professionals in relation to your capacity to be able to comply.

53I do recognise that you have previously successfully completed a community correction order and also I recognise the commitment that you have already shown in respect of compliance with your bail, particularly the CISP period of it.

54What I propose to do is to impose a community correction order in respect of Charges 1, 2, 4, 5, 6 and 7.  In respect of Charge 4, you are convicted and sentenced.  Can someone please tell me the PSD?

55ASSOCIATE:  One hundred and forty-eight days, Your Honour.

56HER HONOUR:  Hundred and forty-eight days.  All right, in respect of
Charge 4, you are convicted and sentenced to a term of imprisonment of three months and in respect of the summary offences, you are convicted and fined, in respect of possessing a cartridge with ammunition without licence or permit, you are convicted and fined $100.  Without approval storing unauthorised explosives, you are convicted and discharged.

57The community correction order will be for a period of three years.  You will be required to do 150 hours community work as part of that.  The other conditions will be as recommended by the author of the community correction assessment report.  That is, condition regarding treatment and rehabilitation for drug and alcohol, treatment and rehabilitation for mental health, treatment and rehabilitation in respect of programs to reduce the chance of you reoffending, a supervision condition and also judicial monitoring.

58What I will have, Mr Butler, is for you to come back before me in approximately three months' time and that really is for the purpose of me ensuring that things are going to plan.  Do you understand that?

59OFFENDER:  Yes.

60HER HONOUR:  All right, you can take a seat.  Thank you.

61MS HOGAN:  May I just raise one matter, Your Honour?

62HER HONOUR:  Yes, sure.

63MS HOGAN:  I think during your sentence you referred to the
Charge 4 for three months' imprisonment.

64HER HONOUR:  Yes.

65MS HOGAN:  Was it perhaps Charge 3?  Charge 3 was not referred to under the CCO.

66HER HONOUR:  I am sorry, it was Charge 3.  It was possessing the firearm.

67MS HOGAN:  Yes, that is Charge 3.  Thank you.

68HER HONOUR: Sorry. I also declare 148 days of pre-sentence detention and I should also indicate pursuant to s.6AAA of the Sentencing Act, if you had not pleaded guilty to this matter, I would have imposed a sentence of 18 months' imprisonment with a non-parole period of eight months.  Is there anything else I need to ‑ ‑ ‑

69MS HOGAN:  The ancillary orders, Your Honour.  In respect, the disposal and forfeiture orders were ‑ ‑ ‑ 

70ASSOCIATE:  I have those here.

71HER HONOUR:  Yes, I will just sign those now.  I have already signed them?  All right.  Is there anything else.

72MS HOGAN:  As Your Honour pleases.

73HER HONOUR:  Thank you.

74MS HOGAN:  Thank, Your Honour.

75ASSOCIATE:  The judicial monitoring date.

76HER HONOUR:  Yes.

77ASSOCIATE:  18 March.

78HER HONOUR:  Sure.

79ASSOCIATE:  At ‑ ‑ ‑

80HER HONOUR:  10 o'clock.

81ASSOCIATE:  Treatment hours to be ‑ ‑ ‑

82HER HONOUR:  Yes.

83MR MALONEY:  Does Your Honour intend all treatment hours to be able to (indistinct) or did Your Honour want to set a cap on that provision?

84HER HONOUR:  Fifty off of them.

85MR MALONEY:  Thank you very much.

86HER HONOUR:  Thank you.  If you want to go and explain that order to your client, Mr Maloney.

87MR MALONEY:  Thank, Your Honour.

88ASSOCIATE:  Is this your signature?  Thank you, I will make some copies.

89MR MALONEY:  Thank, Your Honour.

90HER HONOUR:  Thank you.

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