Director of Public Prosecutions v Christenson

[2019] VCC 1665

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

AT SHEPPARTON
CRIMINAL JURISDICTION

CR 19-01221

DIRECTOR OF PUBLIC PROSECUTIONS

v

NEVILLE CHRISTENSON
NICHOLAS JOYCE

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Shepparton
DATE OF HEARING:	15 October 2019
DATE OF SENTENCE:	15 October 2019
CASE MAY BE CITED AS:	DPP v Christenson & Anor
MEDIUM NEUTRAL CITATION:	[2019] VCC 1665

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	Mr D. Brown	Office of Public Prosecutions
For Accused Christenson	Mr J. Lowry	Emma Turnbull Lawyers
For Accused Joyce	Ms S. Wallace	Magazis and Associates

HIS HONOUR:

1Neville Shane Christenson, you have pleaded guilty to one charge of trafficking in a drug of dependence in not less than a commercial quantity, that being GHB; one charge of trafficking in a drug of dependence, as I understand it, ice and ecstasy; and one charge of possession of a drug of dependence, which is GBL.  Those crimes carry maximum penalties of 25 years, 15 years and five years respectively.  You also pleaded guilty to one charge of proceeds of crime.  That carries a maximum penalty of two years.

2Each of you has pleaded to uplifted charges of possession of Viagra.  In these circumstances, there is a monetary penalty applicable to that and I simply convict and discharge on each.

3Insofar as the uplifted charge for you is concerned, Mr Christenson, of the proceeds of crime, it seems to me that that is inherent in all this and I will simply give you one month concurrent. 

4You are now 42 years of age.  You pleaded guilty at the earliest reasonable opportunity and whilst you made denials to police, you ultimately accepted responsibility.  That plea of guilty, I accept, is ultimately accompanied by the appropriate remorse and you must also, of course, get the utilitarian benefit of that plea of guilty. 

5You do have a prior conviction for trafficking in drugs, dating back to 2000.  That was a sentence of 14 days and I am not going to go into the details of all that.  Other than that, your history is relatively comforting for a person of 42 years of age.

6Nicholas Paul Joyce, you have pleaded guilty to once charge of trafficking in not less than a commercial quantity of a combination of drugs.  That crime carries a maximum penalty of 25 years' imprisonment.  As I have indicated, there is a summary matter, in which I am simply going to convict and discharge.

7You are 39 years of age.  You pleaded guilty as well at the earliest reasonable opportunity.  I accept that you also have expressed appropriate remorse and must get the utilitarian benefit of that plea of guilty.

8You have two prior matters, or two prior court appearances for trafficking in drugs, one back in 2002 and one in 2006.  In 2006 you were given 30 months, with a nine month minimum and you completed that. As I understand it from the Bar table, you were able to get through that parole period without incident.  That prior is now of some age, but is obviously a consideration in this sentencing process. 

9The very description of the charges, indicates that they are both matters of seriousness for each of you.  It calls for the application of general and specific deterrence, as well as denunciation and appropriate punishment. 

10In each of your situations, gaol is inevitable and indeed, each of you has now done some 456 days in custody.  It is a situation where the legislation would not permit a combined or a combination sentence and I make it clear, I would not have done so in any event, I think, on reflection. 

11Insofar as parity is concerned, as I indicated during the course of the plea,
I think that when one looks at the circumstances overall, there is no reason to really distinguish between you.  Each of you was very actively engaged in it.  It was your property, Mr Joyce, but when the arrest took place, you,
Mr Christenson, had the money.  I do not propose to go into some sort of
fact-finding that goes into minutia and I think the overall circumstances here are that you are both equally guilty and the circumstances are again, that you,
Mr Christenson, face maximum penalties of 45 years.  You, Mr Joyce, 25, so again, as I said, I indicated to counsel, I am not going to buy into that and I think the sentences can be identical for a number of reasons. 

12A summary of the offending, is that the two of you were at your house, Mr Joyce, living there in Taig Street in Kialla.  You are the registered owner of that property.  There is a significant risk that you will lose that property because of this offending.  I do take that into account in your particular situation, not because of the monetary loss of it, but because of the fact that your elderly and indeed ill parents are living there and you are concern is that they will be evicted if the property is compulsorily acquired.  I simply take that into account and that the gaol sentence that you have already undergone and will have to continue for a relatively short period of time, assuming you get parole, will be done with that at the back of your mind and indeed is an anxiety for you.

13On Monday 16 July 2018 in the early afternoon, police executed a search warrant at the address that I have mentioned.  You were at the front door,
Mr Christenson.  You were searched and you had $4,450 in your left pants' pocket.  The house was searched and in your bedroom were found four bottles containing GBL.  Again with this, what I will do is, I will simply direct that the Crown opening be annexed to these, my sentencing remarks, rather than have to go through the minutia of all this, which is what often happens, of course, in matters such as this.

14One bottle on the chest of drawers in that room was wrapped in bubble wrap and tissue paper and appeared to have been packaged for delivery.  Twenty ecstasy tablets were found in a clear zip-lock bag, which were in a drawer.  Two USBs were located and four mobile phones, along with four notebooks containing details of drug transactions.

15In your bedroom, Mr Joyce, was a zip-lock bag containing, as I understand it, ecstasy, methamphetamine.  There was a capsule containing further amphetamine and again, I do not need to have to go through all the details, a Viagra, or Sildenafil as it is correctly known, I am not going to go into.  Your bedroom also had new resealable bags, bubble wrap and zip-lock bags. 

16In the lounge room were found ecstasy tablets, two laptop computers, another three mobile phones, which had messages on them about packaging and posting drugs, handwritten notes in relation to the sale of GHB, a notebook containing notes relating to drug transactions, a wallet belonging to you,
Mr Christenson, which had $1,590 in it and glass vials, as well as a capsule of ecstasy. 

17There were various items found for the purpose of drug preparation, scales, further cash was found, 20 ecstasy tablets packaged in a similar manner to ecstasy tablets that were located in your bedroom, Mr Christenson, zip-lock bags containing methamphetamine, two magnetic stirrers in the front of the house and on the bench of the laundry, there were a number of glass containers and a clear plastic cup containing baking powder, which is used in the manufacturing process to convert GBL into GHB.  I do not propose to give a lecture on how that is done.  There has been ample discussion at the Bar table with me about that.

18Whilst searching the address, police found a hidden room and that room was disguised as a linen cupboard, where a set of shelves concealed a soundproof purpose-built room for the manufacture of drugs.  Within that room was an exhaust fan, a bar fridge, four one litre bottles of GHB GBL, five further bottles of it, a five litre plastic bottle containing the same substance, butane gas stove, fire extinguisher, numerous empty glass bottles, glass beakers and cardboard boxes.  There was also a shelving unit containing more than five litres of GHB GBL, that was in multiple containers.  There was vacuum sealing machine and a paper bag containing two vacuum sealed bags which had 665 grams of cannabis in them.  Also located was again, was viagra, for which I have already dealt with.

19On that same day, you were arrested, Mr Joyce, at Falls Creek.  You told police that you were, ‘Phil from the frying pan in.'  The removal of your ski mask turned all that around and you were placed under arrest.  Located in your possession up there were 373 grams of 1,4-Butanediol, half a pound of cannabis and $2,300 in cash.  You were formally interviewed by police on that day and essentially said that all the drugs were for personal use and you essentially, as I understand it, denied any form of trafficking. 

20Matters that were found at the house, you apparently said you knew nothing about and you did not know what your co-accused had been up to.  But in any event, you have subsequently pleaded guilty and I place no weight on the fact that the denials of trafficking occurred at the time.

21You, Mr Christenson, were interviewed later that night, on the same day and you said you had been there for about four months.  You said you used methamphet occasionally and you said you used a little bit of GHB.  You said the ecstasy tablets were to give to a friend.  You said you did not know what was in the bottles in the fridge.  You said that you had built the hidden room, including installing the sink and power points and that you built the room to be used as a butler's pantry, denied ownership of the cash in your pocket, denied ownership of the drugs in the kitchen, denied any form of trafficking.  Again, in the ultimate, you did acknowledge the trafficking and that has been borne out by the plea of guilty. 

22On 19 July, police conducted a further search and various objects were found.  There were documents found containing the evidence of drug trafficking by using Express Post mail.  Those documents contained 67 addresses across Australia, so it is quite clear that the trafficking was on a relatively wide scale, though certainly not to the level that one sometimes sees in very, very sophisticated aspects of this.

23In the end, you, Mr Christenson, have pleaded guilty to traffic a commercial quantity of a drug of dependence, GHB, that is 7,048[sic] grams.  The commercial quantity is two grams, so it is three times that.

24Charge 2, traffic a drug of dependence, that is methamphetamine and MDMA and again, that is not known as a commercial quantity.

25On Charge 3, possession of a drug of dependence, namely GBL and
1,4-Butanediol, you have been charged with possession, but it seems that there is something in the order of 12 kilograms of that, so you might have been lucky or a deal may have been very successfully carried out. 

26Summary Charge 12 is property, proceeds of crime.  I have dealt with that already.  I am just going to give a concurrent sentence for that. 

27You, Mr Joyce, have pleaded guilty on the basis of trafficking a commercial quantity.  It is an aggregate, in effect, of 12 kilos roughly of GBL and there is approaching seven kilos of GHB.  There is amphetamines, ecstasy and methyl and dexamphetamine.  Most of those were in - the last ones are in smaller quantities.  You also have 1.765 kilos of cannabis contained within that.  As
I have indicated, that is a larger form of trafficking, but I suspect in the circumstances, Mr Christenson might have been a bit lucky.

28In any event, as I have indicated, each of you in the ultimate pleaded guilty at the earliest reasonable opportunity and you have got to get the benefit of that.  I have now heard pleas from each of you and I make it clear that I do accept there is now appropriate remorse in respect of it all.  The disposal orders have been made. 

29I then turn to the aspects of it.  Firstly, I am not going to go into the relative harm of drugs, as the learned prosecutor has pointed out correctly the legislation deals with that, in terms of the weight that it applies to commercial and large commercial quantities.  The commercial quantity for the main drug here is - or are, actually, two kilograms and it is clearly well in excess of that.

30I do accept in these circumstances that the profit margins here would have been very low indeed.  It is not the same as one of those massive amphetamine ownerships or anything along those lines and I accept also that this trafficking was wound up in the use by each of you of various substances and the fact that the two of you are together and were using together, does not change the fact that you were clearly in the process of trafficking a number of different forms of drugs and you are both clearly involved.  Each of you lay claim to having constructed the hidden room, or the secret room and again, I do not need to buy into that.

31In terms of your personal matters, each of you had very succinct submissions put by counsel, which I must say have been of real help in these circumstances.  Firstly, I will deal with you, Mr Christenson.  You are 42.  Your only significant prior conviction is now approaching 20 years ago.  You were born in Shepparton.  You had obviously, when you were younger, the family was dysfunctional, however you did complete Year 12 and since then you have had a very good work record indeed. 

32You worked in hospitality, up until you were bout 28.  You then worked at Harvey Norman from 2004 until 2016 and I have made the assumption that that is where the two of you know each other from.  The last four years, you were the manager of the electrical section, working six days a week and making a very good income.  From 2017 until 2018, you were working at Total Tools in Shepparton and recently started your own online tool supply business.  That, as I understand it, has started when you were employment at Total Tools was terminated about three weeks prior to that, as I said, business starting. 

33You have two children, eight and six, to a former partner and you have been in a 13 year relationship with her. 

34Approximately four months prior to you being remanded and obviously before you shifted into the premises with your co-accused, you had separated with her, you have not seen your children since May of 2018.  Insofar as drugs and alcohol are concerned, you began using cannabis at a young age and smoked up until your late-20s.  You began using amphetamines on a daily basis in around about September 2017, or about six months before your relationship ended. 

35You had a heart attack in August of 2016 and lost your job at Harvey Norman and problems formed in you and your partner's relationship.  She was struggling with mental health as well and was drinking heavily and you were regularly abusing drugs.  Not unsurprisingly in that situation, the relationship faltered.  You moved in with your co-accused and began using GHB, as well as the amphetamines.

36Prior to your being arrested, you had made an attempt, as I understand this material, to get psychological assistance and you had been to see a Mr Mathew, a clinical psychologist as a result of a mental health referral from your GP.  At that point in time, this being, as I understand it, 14 May 2018.  You told him that you had had a rough life for the last couple of years.  You said your relationship was not great.  You had a temporary separation in 2006, but that you had worked that out.  You separated again in February of 2018, that is. 

37There was an IVO in place.  Interpersonal conflicts continued.  You had a heart attack in 2016, which had put lots of stress on your job.  You lost that job after the heart attack, which was another blow to your mental health.  You managed to get another job.  It has been explained to me by counsel, due to conflicts at work, that job had been lost sometime in around about, it would seem, April.

38So all those matters have put you in a very sad and stressed situation.  At that point in time, you were clearly not functioning particularly well and I take all that into account.  I does not give rise to the principles in Verdins, but it means that you were not, to use the vernacular, travelling well.  Then you obviously were trying to make efforts to do something about it.  In any event, you did not do much about it in the long run and you were caught with Mr Joyce in this set of circumstances.

39Obviously, prior to going to gaol, you have had a very good work record.  I am told that you have work available to you upon your release.  I am told also that you have accommodation available and the prospects of your rehabilitation, if you can stay off drugs, should be good. 

40A significant amount of material was tendered on your behalf.  There is a report from Mr McKinnon, which I have read and essentially saying that your depression, which does not give rise to Verdins, and goes through your history.  There are a number of references and there are also certificates of all the courses and the like that you had undertaken in gaol and they are all very much to your credit. 

41You have now been in a situation of a nine month period as a peer educator in the MRC and I well understand what that involves and that again, is very much to your credit, as I think I have already mentioned.  You have the intention when you do - or when you are released, to try and get contact back with your children and that is a priority which you should do everything in your power to achieve.  This is the longest you have been drug-free since you were 15 years of age.  The risk of you re-offending, if you do not use drugs, I think should be fairly low.  If you do use drugs, I think it is going to be almost inevitable.  They are all matters for you. 

42You, Mr Joyce, again, as I indicated, a lot of material.  You, as has
Mr Christenson, done a lot of courses in gaol, which is very unusual in these circumstances.  I accept that each of you has used your gaol time very wisely and endeavoured to rehabilitate yourself.  You too, as does Mr Christenson, have ongoing family support.  You too have a very good work record.  You too have accommodation and the potential of work when you get out. 

43Your history again is that you were born and brought up in Shepparton.  Again, difficulties perhaps in childhood.  You have worked since a young age.  You are in a situation where a relationship that you are in with step-children had broken up and you were not travelling well as a result of that at all. 

44You had, during the course of your life, suffered a fair amount of teasing for being overweight and that has obviously played a long-term part in your mental health.  You began using drugs again at a relatively early age, perhaps in
late-adolescence and early-adulthood, you have tried a lot of drugs, including LSD, tabs mushrooms, GHB, amphetamine and a whole raft of others.  You have never had a psychotic episode and I agree with Mr McKinnon, it is pretty surprising in all those circumstances.

45Again, much the same.  You have done all the courses in gaol.  You have done everything you can to make some sort of effort to get through all this and I take all those matters into account.  You particular situation, is that your parents and brother are in very poor health, that your step-father has, as
I understand what I am being told here, a form of terminal cancer.  You have to do the gaol knowing that that is the case and that you cannot look after them. I accept that that is hard for you.

46As I have already indicated, the consequences, which are not a mitigatory factor at all of losing the house, mean that you will be under the belief that they may well be, in the near future, evicted and homeless and you will be powerless to do anything about it.  Those matters, I accept, weigh heavily upon you in this sentencing situation.

47There are also letters from Ravenhall gaol, talking about your progress and that you have done well and as I have indicated, you have been a peer-mentor.  As I have indicated, you have done all those courses and clearly doing whatever you can.  You too suffer from depression, but it does not give rise to any of the principles in Verdins.

48So, as I said, I think in the ultimate, the circumstances weigh each other out, insofar as each of you is concerned.  Each of you is clearly intelligent.  Each of you has got the capacity to get out as if you really want to.  I also noted from the materials that have been provided and the general history of all this and
I think that what is encouraging from the point of view of a sentencing judge, is that I do not think either of you is an entrenched crook.  I think each of you has got the chance to get through this, if you show a bit of sense.

49Now that each of you has had priors for trafficking and now each of you has done a very significant gaol sentence for trafficking.  You would clearly be aware, each of you, that if you were apprehended and sentenced for something like this again, of this sort of quantity of drugs in the commercial level, the pair of you would be heading for double figures and I think you both must understand that and it is a matter for you two, not me.  Again, each of you, as I think I have already indicated, rehabilitation is up to you.  Risk of re-offending if you do not use should be low.  If either of you use, then I think it is going to be pretty high.

50I think that is about all I can really say at this point in time.  I have taken into account all the material that has been provided on behalf of each of you, but it is trafficking in a commercial quantity and there has to be a punishment which reflects just how seriously the community looks at that.  Because of, as I say,
I am satisfied that neither of you are an entrenched crook, I think that you should each be given an opportunity for parole which is significantly earlier than might otherwise have been the case. 

51Accordingly, you are sentenced as follows: 

52You, Mr Christenson, on the charges on the indictment, to an aggregate period of three years. 

53I direct you serve a minimum term of 18 months before becoming eligible for parole. 

54Section 6AAA, four and a half, with a three. 

55PSD, 456.

56You, Mr Joyce, on that one charge, three years. 

57Eighteen months minimum for the same reasons.

58Same PSD.

59Same 6AAA.

60So the end result is three years.  Minimum term of 18 months, with about 15 months of it served. 

61Are there any other orders I need to make?

62MR BROWN:  No, Your Honour.

63HIS HONOUR:  I need to tender your documents, Ms Wallace.  We forgot to do it.

64MS WALLACE:  Thank you.  If I can tender that as a bundle.

65HIS HONOUR:  Yes, they were tendered as a bundle.  The report of
Mr McKinnon and all - everything else, so they will become an exhibit.

66MS WALLACE:  Thank you, Your Honour. 

67HIS HONOUR:  Yes, I mean, the same thing with you, yes, Mr Lowry, your - they were not actually formally tendered, so we will make them all part of - that will be Exhibit C1 and J1 for Mr Joyce.

68All right, so that is all?

69MR LOWRY:  Yes, I think they ‑ ‑ ‑ 

70HIS HONOUR:  All right.

71MR BROWN:  Your Honour earlier made the disposal and forfeiture orders, so that is ‑ ‑ ‑

72HIS HONOUR:  They are done, yes.

73MR BROWN:  Yes, that was all that was sought.

74HIS HONOUR:  No one has asked for a 464.

75MR BROWN:  No.

76HIS HONOUR:  I am presuming that has been done.  On a road like that, it would be almost inevitable. 

77MR BROWN:  Yes. 

78HIS HONOUR:  There would be saliva samples, I'm sure, somewhere.  Well they are not asked, so I will not do it.

79MR BROWN:  Yes.

80HIS HONOUR:  So there is nothing else I need to do?

81MR BROWN:  No.

82HIS HONOUR:  No, all right.  Yes, all right.  10 o'clock tomorrow.

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