Director of Public Prosecutions v Doble, Samuel Frederick
[2012] VCC 1568
•4 October 2012
| IN THE COUNTY COURT OF VICTORIA | Revised |
AT MELBOURNE
CRIMINAL DIVISION
CR-12-00172
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| SAMUEL FREDERIC DOBLE |
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JUDGE: | HER HONOUR JUDGE GAYNOR | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 4 October 2012 | |
CASE MAY BE CITED AS: | DPP v Doble, Samuel Frederick | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1568 | |
REASONS FOR SENTENCE
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Catchwords:
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr Fitzgerald | |
| For the Accused | Ms L. Ristivojevic |
HER HONOUR:
1 Samuel Frederic Doble, you have pleaded guilty to one charge of possessing substance, materials, documents or equipment for trafficking in a drug of dependence; one charge of possessing precursor chemicals; one charge of possessing a drug of dependence, namely barbiturates and methorton, and one charge of being a prohibited person possessing an unregistered firearm.
2 The facts underlying your offending are as follows. On the evening of 3 May 2010 police executed a covert search warrant at a property in Mollison Street, Kyneton, comprising a factory in a yard with a dwelling unit behind it, of which you were a sub-tenant and the sole occupier and had been since about October 2009.
3 There they located an active clandestine laboratory consisting of glassware, equipment and chemicals in the unit bedroom. Police obtained samples of liquid and crystals and left. They returned to the property 11 days later on 14 May and executed a further search warrant where they found the same active clandestine laboratory in the bedroom unit that they had earlier discovered.
4 They also found more glassware and equipment in a shipping container in the property yard which you had brought on to it some time after moving into the unit. Inside the unit police found you in a bedroom, sitting at a desk in front of a laptop computer, the screen of which displayed a web page involving use of chemicals in a production of drugs. Police searched the property and found a large number of items, which are listed in the prosecution opening which is annexed to these sentencing remarks. Sufficient to say they involved liquids and glassware and documentation, all of which were ultimately found by forensic chemist, Dr Jim Pearson of the Forensic Police Services Centre to be items which could be used for the production of a drug of dependence, namely 4-methoxyamphetamine, PMA, an amphetamine based substance which is a prohibited substance pursuant to the Drugs, Poisons and Controlled Substances Act.
5 Further, you were found to be in possession of precursor chemicals, in greater than the prescribed quantity of those chemicals, and that comprises Charge 2 on the indictment. Barbiturates and Methorphan were also found in your possession, and it is agreed by the prosecution those drugs were for personal use and comprised a small quantity (Charge 3).
6 Finally, police also located a Browning make BPR 22 model 22 rimfire calibre pump action rifle in your bedroom, which was unregistered. You had been placed on a suspended sentence on 18 January 2010 and this made you a prohibited person for the purposes of the Firearms Act (Charge 4).
7 In a record of interview with police, whilst you gave a number of no comment answers to questions asked of you, you did admit that you lived alone at the premises and had been living alone there for about six months and that anything illegal at the property belonged to you. So in a limited sense I am able to find that you were cooperative with the police.
8 The matter has had a somewhat convoluted history in that there appeared to essentially have been an argument between defence and prosecution over what it was that you were actually seeking to manufacture as per Charge 1 on the indictment. Ultimately, in early 2012 that matter was resolved and it was agreed that you were seeking to manufacture the substance PMA, which is an alternative form of amphetamine, not a mainstream amphetamine, if I can put it that way, and the indictment was then settled.
9
The maximum penalties for your offending are ten years in relation to
Charge 1, that is manufacturing - possessing substances for the purposes of manufacturing or trafficking in a drug of dependence. Charge 2, possession of precursor chemicals is five years. Charge 3, possession of those drugs is twelve months' imprisonment and Charge 4, 15 years' imprisonment.
10 I now turn to your personal circumstances. You are almost 35 years of age, and grew up in difficult circumstances in Bendigo. You have a twin brother and two younger brothers and your parents, by the time you were about eight, had developed deep problems within their marriage relating to your father's use of alcohol. It appears that to some extent you were emotionally scarred by some very intense fighting between your parents. Ultimately they separated and you and two of your brothers lived with your father, who was a chemist.
11 Thereafter you attended primary school in Woodend and then commenced secondary school at the Sacred Heart College in Kyneton. Your brother, Jacob, it appears, was diagnosed with ADHD and the pair of you were then moved to an alternative school which educated in the alternative stream at Merton. Then you were sent to Girton Grammar School in Bendigo. You apparently struggled academically and completed Year 10, leaving school at about 17 and taking up an apprenticeship in refrigeration and air conditioning, which was organised by your father. Although you completed that apprenticeship, work in that area is apparently hard to find and over the years your employment has essentially been sporadic.
12 I am satisfied that to a large extent this has been contributed to by the fact that by the time you were 18 or 19 you were firmly in the grip of a drug problem, mainly comprising abuse of amphetamine and methyl-amphetamine or ice, which habit lasted until your arrest in 2010 on these matters. Your counsel informed me that you have essentially, throughout almost half your life, been a consistent user of these drugs. Partly this would seem to be explained by the fact of your own personal difficulties, relating to your emotional development.
13 I received a psychological report dated 7 January 2011 from forensic psychologist, Dr Michelle Wauchope. You were arrested for these matters on 14 May and you were held in custody on remand for 320 days and were assessed by Dr Wauchope whilst you were being held in the MRC. The report, although somewhat dated, was detailed ane helpful. Essentially Dr Wauchope gave the opinion that you were a person who had difficulties at school. Psychological testing by her did reveal a difficulty by you in taking in information. You were apparently also diagnosed with dyslexia as an adult. She said that your life “appeared to have been characterised by early loss and instability in the family with his parents' separation and to the exposure to domestic violence in the form of anger, aggression, verbal abuse and even physical abuse at times by his father, towards his mother and to his father's alleged alcoholism. This seems to have led to emotional problems and to low mood, stress and anxiety and to development of insecure attachments because of a lack of a sense of trust and security in his parents and to an impairment in his social skills and an inability to adequately form and maintain friends and relationships".
14 Your counsel informed me that you grew up rather a shy teenager who had difficulty in making friends and you were in fact introduced to the use of amphetamines and ice by a friend who, because of your own insecurities as to your ability to make friends, was particularly important to you. Essentially your continued drug use is explained by Dr Wauchope as arising because, "this would have left him vulnerable to peer pressure and to the reliance on substances to make him feel better, as he would be looking for peer acceptance and friendship and would most likely do anything to get it, and would also be looking for ways to minimise his emotional problems and substances would have been a short term release to him from his shyness, worries, problems, pressures and emotional issues. It seems that Mr Doble's subsequent addiction to these substances has led to a cycle of poor choices, friendship and relationship problems, depression, anxiety and suicidal ideation, significant substance abuse and subsequent offending behaviour with these factors only exacerbating and significantly impacting upon each other to ensure that the cycle continues".
15 I am satisfied that that is a very good explanation of the way in which you have lived your life as a continuous drug user and addict. It sounds as if it has been a fairly unhappy life. In the process you have been unable to settle into mainstream stable living. It appears that you have been dependent on and mixed with drug using peers within the Kyneton, Woodend and Bendigo community. Along the way you have also become estranged from your brothers, who your counsel said rather despise you as a no hoper drug user. It has also meant that you have been in quite some trouble as revealed by your prior criminal history. I note that in 2003 you were sentenced to a 15 month sentence with a minimum term of six months by the Bendigo County Court on charges of trafficking in a drug of dependence and for cultivating a narcotic plant. Your counsel informed me that that offending related to you being apprehended whilst in the process of diluting pseudoephedrine. That is it was a trafficking which is not dissimilar on some senses to the trafficking that has brought you before the County Court on this second occasion, that is manufacture of amphetamines.
16 Then in 2008 you were again charged and convicted, this time in the Kyneton Magistrates' Court, for trafficking in methyl-amphetamine, possessing a drug of dependence, using a drug of dependence and dealing with property which was suspected of being the proceeds of crime. You were apparently apprehended with an amount of the drug, methyl-amphetamine or ice on you, which was of a trafficable quantity. There appears to have been admissions by you as to possession and use of that drug and you also had money on you. You were sentenced to four months' imprisonment which was wholly suspended.
17 You then stayed away from court for a couple of years until 18 January 2010 when you were charged with breaching the suspended sentence because you had also committed the offences of using an unregistered motor vehicle, using false number plates and careless driving. You were involved in an accident with a cyclist and the other offences flowed from that. You were at that time ordered to serve the four months' sentence which had been suspended in 2008 but on appeal in the Bendigo County Court on 28 April 2010 were successful in having that sentence suspended again.
18 You have also pleaded guilty before me to breach of a suspended sentence, this offending occurring essentially five days after your successful appeal in the Bendigo County Court.
19 What I did note during the plea and commented upon during the plea hearing was that notwithstanding that I am satisfied that you have been a constant user of amphetamines for well over a decade, more like 14 or 15 years, you have not offended in the dishonest way that almost inevitably accompanies long term addictive lifestyles such as yours. There are no great swathes of charges comprising burglary, thefts, obtaining property by deception and the like, by which means persons usually support the illicit addiction that they are in the grip of, and this is very much, in my view, to your credit and is a significant matter in my coming to the decision as to the appropriate way to sentence you, which ultimately will be a partially suspended sentence with an active term which will comprise the 320 days you have already served by way of pre-sentence detention.
20 It is certainly accepted by the prosecution on this occasion, that is insofar as the matters before this court are concerned, that what you were manufacturing in May 2010 was for your own use. Thereafter, it appears, you have managed to cease amphetamine or drug use entirely. I am satisfied of this for two main reasons. First, when you were finally released on bail in November 2011 you attended a course with Odyssey House, which was what is called a Circuit Breaker Program, and I received a report dated 3 October 2012 authored by Keir Lata, the assistant manager of the Odyssey House Circuit Breaker, detailing your participation in that program between 6 April 2011 and 18 May 2011. Essentially the program detailed the fairly intensive therapeutic undertakings required by it and the fact that whilst you had some difficulties and were rather guarded when you first began, you became involved in the program, and as Mr Lata stated, "As Mr Doble progressed through the program his attitude has matured, motivation improved and he became a volunteer in respect of both the physical work residents are required to complete here and the intensive group and personal therapy. The changes in behaviour and attitude he displayed whilst here at Odyssey House Circuit Breaker were noticed and acknowledged by both staff and his peer group".
21 On completion of that program you then - and this was a condition of your bail - went to live with your mother at Ocean Grove. Your mother, I note, appeared to support you in court during the plea. I regard this as an extremely important step because it has removed you from the peer group on which you were so reliant and which was so much part of the vicious cycle referred to by Dr Wauchope and resulting in your continued addictive use of amphetamine and ice over the 14 or 15 year period in your life.
22 Whilst there - and I note there has been no re-offending since you did return to live with her, and that has been for a period of about 17 months there has been no offending. During that time you, since March of this year, have subjected yourself, on a very frequent basis, for urine analysis that is between March and September, sometimes several times a month, and all of those results have been negative. I am satisfied that the urine analysis you have undergone provides sufficient proof that I can be satisfied that you have, as your counsel asserted to me, stopped using drugs, and that this represents the longest time you have been off drugs since you were about 18.
23 There is no doubt the offending on 5 May 2010 was blatant offending. It appears that your barrister has gone to court before Her Honour Judge Cohen in April 2010 and pleaded a whole lot of matters on your behalf, I do not know what they were, because there is no record of them, but I rather suspect it would have included some determination by you to desist from that offending, and then within five days you were back, repeating that offending, in fact in an even more serious way. Ordinarily I would not hesitate to gaol you for a significant period of time because, in my view, that offending was simply contemptuous offending in the face of an opportunity that had been given to you by the court and which you simply did not take advantage of.
24 At the same time, however, I must acknowledge the fact that you were at that stage a very long term, actively using addict and, unfortunately, the sort of dishonest behaviour, because it is dishonest to go to court and say, I am giving up drugs, and then five days later be back manufacturing them, goes hand in hand with addiction.
25 As I have said, it is not argued by the prosecution that the laboratory discovered at your place in May 2010 was anything but fairly small, fairly unsophisticated, and it could not be said that the drugs were being used for anything other than your own use. You have clearly not, in my view, been engaging in the sort of large scale trafficking activity whereby the only way a court could respond was by absolute regard to the principles of general deterrence and denunciation.
26 My concern here has been that you have, in my view, managed to stay off drugs now for in excess of two years, almost two and a half years. This is a massive turnaround for you and is fundamental to the way in which you are now living your life. It is, I understand, your intent to remain living with your mother. In court you told me that you have no intention of returning to the Bendigo/Kyneton area, and my concern is if I sentence you to a term of imprisonment which requires you to return to gaol, the good work that you have managed will simply be undermined. I say this not out of particular sympathy for you, Mr Doble, although certainly you are to be congratulated on what you have done, but more in terms of what this means for the community. I am satisfied that all your offending has been drug related, apart from the driving incident and the courts have long recognised that if the problem underlying offending can be tackled it should be, and that it is ultimately to the greatest benefit to the community if courts can be persuaded in appropriate cases to respond in that way. I do think this is an appropriate case. I do not see from your record, notwithstanding this is the third time you have appeared before a court on trafficking drugs, that you have been any notoriously large trafficker or part of some giant ring which has brought great profit to its members and wreaked tremendous and widespread misery throughout the community. You seem to have belonged to a fairly tight cohort of drug users in the Bendigo/Kyneton area who have devoted a number of their activities to either producing drugs for themselves or to support their own habit, and the courts have long recognised that persons who commit such offending in support of their own habit are to be treated somewhat more leniently than those who, in a cynical and cold blooded exercise, exploit other addicts for their own financial gain, they themselves not being users.
27 As I have said, I am satisfied you are basically a small time trafficker who has been living a life of addiction for 14 or 15 years and finally, as a result of your arrest in May, you have taken the opportunity given to you to completely turned your life around, and I do not see that the community is in any way benefited by me sending you back to gaol, which could be, in the end, a rather hollow attempt at exercising the principles of general deterrence and denunciation of your offending.
28 I am concerned about the course I am going to take because it is going to involve the imposition of a fairly lengthy sentence which will be wholly suspended, and you are going to be very much at risk for the suspended period. You seem to be confident that you can manage this. Your mother seems to have some confidence that you can do this. It is a matter for you entirely, Mr Doble. If you keep going the way you are going you will have a fruitful and productive life. Your counsel mentioned during the plea that it appears you have, funnily enough, as a result of your illicit activity, to have discovered some sort of talent for chemistry. There is no reason why you cannot exploit this in lawful ways to give you some sort of professional path that you would enjoy and that would assist in your own self esteem and the establishment by you of a productive, stable life. It is entirely a matter for you, but I am satisfied that you have managed to stay off drugs, as I have said, for almost two and a half years now, and I am satisfied that in the circumstances, for the reasons I have stated, that I should deal with you by way of a term of imprisonment which will involve a period of suspension and an active term, reflecting the time you have already spent in gaol.
29 Another matter of relevance, in my view, is the question of delay. To a certain extent delay is almost inevitable in my experience in cases where a great deal of forensic analysis is required, and certainly that appears to have been the case here. I was informed by your counsel that you insisted that your manufacturing involved the exploration of an alternative pathway to the production of the substance, PMA, as opposed to the production of the more mainstream amphetamine, and it took some time for forensic analysis to get to a position where that assertion by you could be agreed to.
30 Delay is important, in my view, as it always is in any case, particularly because you are now in a very different position to what you were at the time you offended. The authorities have always said that where a delay has resulted in a substantial change in a person's circumstances that is a matter of mitigation insofar as a defendant is concerned, and also may be a situation where the community's best interest is not served by an over adherence to more stringent principles that would see you back in gaol.
31 So for the reasons that I have outlined I therefore sentence you as follows. Could you stand up, please? On Charge 1, possession of substances, materials, documents or equipment for trafficking in a drug of dependence, you are sentenced to two years' imprisonment. On Charge 2, possessing precursor chemicals, you are sentenced to 12 months' imprisonment. On Charge 3 you are sentenced to one months' imprisonment, and on Charge 4 you are sentenced to eight months' imprisonment.
32 The base sentence will be the sentence imposed on Charge 1, that is two years. I order that ten months of the sentence imposed on Charge 2 and two months of the sentence imposed on Charge 4 be served cumulatively to the sentence imposed on Charge 1 and all other sentences, giving a total effective sentence of three years. I order that 320 days - what does that work out to? That is 80 weeks - that cannot be right. No, beg your pardon. That is 45 weeks and 5 days.
33 MR FITZGERALD: I do not know whether Your Honour could simply order that the sentence is - he is to serve 320 days and the remainder of the sentence to be suspended for a period of time.
34 HER HONOUR: Yes. I order that 320 days of that sentence be served and that the remainder be suspended for a period of, I think, two and a half years, I think, for his - perhaps a bit long. All right. I should also add that in relation to the charge of being a prohibited person in possession of a firearm, although the firearm was located in the bedroom where your laboratory was set up, I note that it was not loaded, nor was any ammunition located. Your counsel informed me that you had purchased the firearm about 12 months before but had never bought any ammunition for it. I did not accept her explanation on your instructions, that you purchased this firearm from the father of a friend simply because you were in the country and everyone had a firearm. In my view, the presence of a firearm is very commonly the case where some sort of manufacturing or trafficking in drugs activity is occurring. It may have been some form of protection but, in my view, it is of great significance that there was no ammunition related to that firearm, and hence, in my view, it is appropriate to deal with you in the way that I have.
35 Pursuant to s.6AAA I declare that had you not pleaded guilty to these offences I would have sentenced you to a term of imprisonment of three years and ordered you serve a minimum term of 20 months.
36 I declare that the 320 days has already been served of this sentence by way of pre-sentence detention. OK, have a seat.
37 MR FITZGERALD: There are the ancillary orders, the disposal and forfeiture orders, Your Honour.
38 HER HONOUR: Yes. I also need to formally explain the consequences of breaching to Mr Doble.
39 MR FITZGERALD: Yes, and actually, Your Honour, I think there is also dealing with the breach of suspended sentence is before - - -
40 HER HONOUR: I beg your pardon. In relation to the breach of suspended sentence that sentence is fully restored and will be served concurrently with the sentence I have ordered. I need to explain to you that if you commit any offence punishable by imprisonment in the next two and a half years, all right - I was going to make it three years but I think in the circumstances two and a half years is appropriate - you will be brought back before me on breach of suspended sentence, all right. You do not have to be imprisoned in the future. You do not have to commit an offence and then go to gaol. Simply offending at all in a way, for example, that could bring about gaol, for example, driving whilst disqualified or pinching something small from a supermarket, theoretically you could be gaoled for those offences and they would all comprise a breach of this suspended sentence. You will be brought back in front of me, Mr Doble. I am perfectly happy to give people a chance. I hope I have made it very clear that the major reason why I am giving you a chance is because, in my view, the interests of the community are better served in this way, even though you are to be given credit for your efforts, but if you come back in front of me, having demonstrated that you have squandered this opportunity yet again, all right, because this will be the second time if you breach this, you will be brought back for suspended sentence breach, the legislation makes it perfectly clear that unless there are exceptional circumstances surrounding your offending I must make you serve part or all of that unexpired portion, OK. So you are at risk of serving something in the area of two years and two months if you get into trouble in the next two and a half years. Is that quite clear?
41 OFFENDER: Yes, this is crystal clear, Your Honour.
42 HER HONOUR: Crystal clear. No excuses?
43 OFFENDER: Well, no excuses now.
44 HER HONOUR: There will be no excuses either. You will be brought back in front of me. I will remember you. I will have these sentencing remarks. I will absolutely remember what I have said to you and what opportunity I have given you. So it might add to your anxiety in one way but it should help to keep you out of trouble. You have got a meat cleaver hanging over your head by a thread for the next two and a half years, OK, and it is up to you, entirely up to you how things go, all right.
45 OFFENDER: Yes, Your Honour. Thank you.
46 HER HONOUR: But again, you can go away with some - and congratulate yourself. It is only because of your own efforts in your own rehabilitation that I have even given you this opportunity so, you know, that is something you should congratulate yourself about, but it is not over yet, all right, Mr Doble, all right. So good luck.
47 OFFENDER: Thank you, Your Honour.
48 HER HONOUR: But beware, all right. I hope I never see you again as much as you hope you will never see me again, Mr Doble. Very well, you can come out of the dock. I will just sign those.
49 MS RISTIVOJEVIC: Your Honour, if I might just have the return of those drug tests.
50 HER HONOUR: Yes, I will give them back to you. Just wait one moment, please.
51 MS RISTIVOJEVIC: Thank you.
52 HER HONOUR: Yes, I reserve the right to edit the appalling grammar which inevitably accompanies my extempore sentencing. All right, that is all the materials that we needed. Was there a 464ZF?
53 MR FITZGERALD: Not in this, Your Honour. No, none of the offences are Schedule 8 offences.
54 HER HONOUR: OK, right, and here are the materials to go back, please, to you. Yes, thank you. Yes, you are excused.
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