Director of Public Prosecutions v Dukic
[2016] VCC 1661
•10 November 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-15-02131
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ZORAN DUKIC |
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JUDGE: | HER HONOUR JUDGE HOGAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 11 & 12 October 2016 | |
DATE OF SENTENCE: | 10 November 2016 | |
CASE MAY BE CITED AS: | DPP v Dukic | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 1661 | |
REASONS FOR SENTENCE
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Subject:I charge of possessing materials, substances and equipment for trafficking, 2 charges of trafficking, 1 summary charge of possessing a prohibited weapon and 1 summary charge of unlawful possession of cartridge ammunition. TES 3 years imprisonment with NPP of 2 years.
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr M Regan | Solicitor for the Office of Public Prosecutions |
| For the Accused | Ms N Kaddesche | Emma Turnbull Lawyers |
HER HONOUR:
1 Zoran Dukic, you have pleaded guilty to one charge of possession of materials, substances and equipment for the purpose of trafficking in a drug of dependence. This charge carries a maximum penalty of 10 years’ imprisonment. You have also pleaded guilty to one charge of trafficking in a drug of dependence, namely 1,4-Butaneidol and one charge of trafficking in a drug of dependence, namely methylamphetamine. Each of the trafficking charges carries a maximum penalty of 15 years’ imprisonment.
2 In addition, you have consented to the transfer of two summary charges from the Magistrates’ Court and have pleaded guilty to them. Summary Charge 7, possession of a prohibited weapon, carries a maximum penalty of two years’ imprisonment or 240 penalty units. Summary Charge 8, possession of cartridge ammunition without authorisation, carries a maximum penalty of 40 penalty units.
3 Your offending is summarised in the amended Prosecution Opening (Exhibit “A”). However, it should be noted that, in the course of the plea hearing, Mr Regan, for the prosecution, did elaborate upon and clarify various aspects of the opening.
4 The offending relates to police executing a search warrant on 25 February 2015 at your residential address at Unit 1/22 Pentland Drive, Narre Warren. There they discovered a quantity of equipment and substances associated with illicit drug manufacture.
5 The factual basis for Charge 1 includes you having possession of scientific glassware, equipment, solvents and chemicals that would be suitable for the manufacture of controlled substances, including methylamphetamine. The chemicals included hypophosphorous acid (75 millilitres) and acetic anhydride (63 millilitres), both of which are agreed by the parties to be precursor chemicals which can be used for manufacturing methylamphetamine. In the kitchen, back yard and garage of your premises, police seized a total of 140 exhibits. The prosecution contended that the general set up of containers, glassware, hot plates, filtration set up and the liquid and solid residues, were all evidence that your goal or intention was to manufacture illicit drugs in the future. Amongst other things seized, was a clear plastic sack containing Dimethylsulfone, also known as Methylsulfonylmethane, which is a dietary supplement which can also be used as a cutting agent for illicit drugs.
6 The factual basis of Charge 2 was the presence of 4.1 kilograms of a greenish, cloudy liquid in a white plastic tub on the dining room floor of your residence. This was found to contain the drug 1,4-Butaneidol. This is an industrial solvent used for a variety of legitimate purposes, including the manufacture of plastics, as a cleaning agent or an adhesive but, if used as a drug of dependence, it is rapidly metabolised in the liver to form gamma-hydroxybutyric acid (GHB), which is sold on the illicit drug market. The commercial quantity of this drug is 2 kilograms. However, the prosecution conceded that it was unable to prove beyond reasonable doubt that you knew that there was a significant or real chance that the quantity was 2 kilograms or greater. Thus, it is agreed between the prosecution and the defence, that you knowingly possessed an amount of less than the commercial quantity, 2 kilograms, for the purposes of sale in the future.
7 In addition, police investigations revealed that your mobile phone had a number of messages, most of which were in the Bosnian or Serbian language, however, six of them in English had evidentiary value as context evidence of trafficking. In particular, on 31 October 2014, 26 June 2014 and 22 August 2014, messages referred to getting “a bottle” or “gina”, said to be a reference to 1,4-Butaneidol.
8 The factual basis of Charge 3, trafficking in methylamphetamine is as follows: 13 of the 140 exhibits removed from your residential address contained liquids, residues and finished product. Of the thirteen, there were six which contained methylamphetamine in varying purities: there were three amounts on the kitchen bench next to hot plates which comprised 0.6 grams in a mixture (with 42 per cent purity), 11.7 grams in a mixture (with 19 per cent purity) and 1 gram in a mixture (with 60 per cent purity). In the lounge room, on a coffee table, there was 0.4 grams in a mixture (with 86 per cent purity) and in the drawer of the coffee table, there was 18.3 grams in a mixture (with 90 per cent purity). Finally, in the bedroom, on a massage table, there was 26.4 grams in a mixture (with 0.6 per cent purity). The total of all six amounts was 58.04 grams. The traffickable quantity of methylamphetamine in a mixture is 3 grams.[1]
[1]Drugs, Poisons and Controlled Substances Act 1981, Schedule 11, Part 3, Column 3
9 In relation to Charge 3, the prosecution relied upon context evidence, of there being trace amounts or waste-type methylamphetamine, which were in a non-viable form (and, hence, not the subject of any charge) in seven locations in the dining room, kitchen and garage.
10 When investigating officers searched the unit, they also discovered a TW-10 electrical current emitting device (commonly known as a “Taser”) found on a table in the lounge room. This is the basis of Summary Charge 7. Also in the lounge room, police located twenty-six cartridges for a 12-gauge shotgun, as well as one .380 calibre rimless brass hand gun cartridge. This ammunition forms the basis of Summary Charge 8.
11 You were arrested and interviewed by police on 25 February 2015. You initially claimed that your residential address was other than 1/22 Pentland Drive, Narre Warren, but soon indicated that you had been living at that unit for up to seven months. However, you falsely claimed that the unit was rented by your girlfriend, Hasnija Porcic, to whom you gave half the money for the rent. This version of events is at odds with Ms Porcic’s statements to police that the unit belonged to your niece’s husband and you had rented it not long before she started staying there in June 2014, and that you paid the rent of about $320 per week. It is also at odds with the statement to police by the owner, Mr Adrian Grgas, who stated that he agreed to lease the unit to you and, on 20 June 2014, you had signed a lease agreement for 12 months, with rental of $1,200 per month, which you always paid in cash.
12 You denied, in your record of interview, that you had been engaged in “cooking drugs” and claimed that you used the gas fittings to heat up oil, caustic soda and hydrochloric acid in order to clean grills and filters which you would transport from your son’s pizza shop to your home twice per week, normally on Monday or Friday. You claimed that “a Greek bloke” called “Tashi” would come and pick up “the cleaning product” every second week, but he did not pay you anything for it.
13 You admitted that you had used “ice” in the unit and would buy it in 3.5 gram amounts, which would last you for three or four weeks, but claimed you had “never heard of 14B” (a reference to 1,4-Butaneidol), and claimed that the scientific glassware had been left at the unit by “one Indian guy who lived there”.
14 You are presently aged 51 years, having been born on 1 April 1965. You have a criminal history which goes back to 1994, when you were convicted and fined at Frankston Magistrates’ Court for possessing Heroin, unlawful possession and selling liquor without a licence. In 1999 at Melbourne Magistrates’ Court, you were convicted of trafficking in Heroin and sentenced to 6 months’ imprisonment, wholly suspended for a period of 18 months. On 19 September 2006, at Dandenong Magistrates Court, you were convicted of recklessly causing injury and fined. On 14 December 2007, at Melbourne Magistrates’ Court you were convicted of intentionally causing injury, breaching an Intervention Order and possessing amphetamine and sentenced to be imprisoned for a period of 180 days, of which 62 days was to be served and the balance was to be suspended for a period of 18 months. The Court noted, at that time, that you had drug and anger-management issues. At the Melbourne County Court on 23 April 2008, you were convicted of false imprisonment, for which you were sentenced to 6 months’ imprisonment to be wholly suspended for 2 years, and, also, convicted of intentionally causing injury, for which you were ordered to undertake a Community-Based Order for a period of 2 years, with, amongst other things, conditions for treatment for drug abuse and medical, psychological or psychiatric assessment, as well as a direction to undergo programs to reduce re-offending. At the Melbourne County Court on 5 May 2010, you were convicted of two charges of false imprisonment, stalking another person, intentionally causing injury, common law assault and two charges of breaching an Intervention Order, for which you were sentenced to a total effective sentence of 5 years’ imprisonment, with a non-parole period of three-years-and-eight months. On 29 June 2010, you were found to be in breach of the suspended sentence imposed for false imprisonment back in 2008, and that sentence of 6 months was restored. You were also found to be in breach of the Community-Based Order for intentionally causing injury, which had been ordered on 23 April 2008. That Order was cancelled and you were ordered to serve a term of imprisonment of 3 months concurrently.
15 You were ultimately released from custody on parole on 22 October 2012 and completed your parole period on 12 December 2013. The offending for which I must sentence you was committed some 14 months later.
16 In a plea on your behalf, Ms Kaddesche stated that you were born in Serbia, the youngest of five children. You were educated in Serbia to Year 8 level and arrived in Australia with your family in 1981, aged fifteen or sixteen years. You married at the age of eighteen years and have three adult sons by your wife, Vera, whom you divorced in 2004. You then commenced a relationship with a woman called Betty, who is apparently the victim of matters of domestic violence in your criminal history. That relationship ended in 2007 and you have a daughter, aged eleven years, from it. You have not seen your daughter since she was aged approximately two years.
17 At the time of this offending, you were in a relationship with Hasnija Porcic, to whom I have previously referred. According to her statements to police and SMS messages sent to you, she had becoming increasingly disenchanted with you and your friends using ice and the “stinky chemicals” which you had at the unit at Pentland Drive, where she used to stay overnight two or three times per week. Ms Kaddeche relied on paragraph 4 of Ms Porcic’s statement to police made on 4 August 2016 that you and she “kept fighting over the fact that (you were) using ice”. Ms Kaddeche submitted that you were immersed in a “drug milieu” with other associates and, asked the Court to note that police had executed search warrants, not only at the Pentland Drive unit, but, also, at another address. She urged the Court to accept that you had a habit of using 1 to 1½ grams of ice per day and that your offending conduct was to support that habit.
18 I accept (and, indeed, the prosecution concede), that you were a user of ice, and that other ice users attended the Pentland Drive unit. Indeed, there appear to be 3 ice pipes on the coffee table of the lounge, which was photographed by police.[2] However, I am not satisfied on the balance of probabilities that your habit was as great as 1 to 1½ grams of ice per day. In particular, you told police in your record of interview that you would buy, at the most, 3 ½ grams or an eight ball, and that would last you for three or four weeks.[3] This would amount to usage of approximately 1 gram per week, not 1 gram per day. You claimed that you had been using for two years but were cutting down and trying to stop and at the time of the interview, you stated, “but definitely I know I don’t use much now, you know I want to stop completely”.[4] Also, your claim that you were manufacturing cleaning fluid and cleaning the grills from your son’s pizza shop suggests that you were capable of working, which is inconsistent with being in the grip of a debilitating addiction. Moreover, I am not satisfied on the balance of probabilities that your offending conduct was part of a joint enterprise with other associates. The prosecution case was not put on that basis and there was no material put on the plea to satisfy me that that was the basis of your offending.
[2]Photo 10 of Photo Book No. 1, Exhibit B
[3]Answers to Questions 441 – 445
[4]Answer to Question 455
19 After arriving in Australia you had undertaken an apprenticeship in painting between 1982 and 1989. In 1989, you opened up your own business known as Z & V Painting which you operated until 2005. In 2005, you and your then new partner, Betty, opened up a store called Betty Boo, but this was later sold by her.
20 As previously mentioned, you claimed in your record of interview, that you were making cleaning chemicals comprising methanol, caustic soda hydrochloric acid which could be used to clean grills. You claimed that you would go to your son’s pizza shop and get the grill from there and bring it to your house two times in a week in order to clean it.[5] You claimed that a person called “Bill” had come a couple of times to help you make the cleaning product and another “Greek bloke comes and picks it up” but he does not pay you for it.[6]
[5]Page 42 – 42 of record of interview
[6]Page 47 – 49 of record of interview
21 You may well have been making some cleaning fluid, but I am not satisfied on the balance of probabilities that this was your predominant occupation or means of earning a living. No evidence, at all, was produced on the plea as any sales of cleaning fluid. Nor was your son called to say that you were cleaning the grill from his pizza shop as you stated. No evidence was called from “Bill” or “the Greek bloke”. Ms Porcic, in her statements to police, stated that she first met you in early 2014 when she worked at your son’s pizza shop. You had been working there, on the grill cooking. However, you were not working at the date of the police execution of the search warrant in February 2015 and had not had a job since the previous year (2014) when you ceased working for your son.[7] She stated that you had been making drugs, but she did not know what drugs. She told police that you were using chemicals to make what you called your “water” and one of the chemicals to which you would refer was either 14B or 141B.[8] She stated that she saw a whole lot of little bottles in the spare room and if you were to sell your “water” you would sell it in those bottles.[9]
[7]Statement of Hasnija Porcic dated 25 February 2015, paragraph 15
[8](ibid) paragraphs 6 and 13 and statement made 4 August 2016, paragraph 11
[9]Statement of Hasnija Porcic dated 4 August 2016, paragraph 14
22 Tendered as Exhibit “2” by your counsel, were various text messages sent by Ms Porcic to yourself. Amongst these was one dated 21 February 2015 which read as follows: “It was the last thing for me when you said you extended there for another three months and when I saw how messy the house was. You told me that you were clean and that we would all be together in one house. Little by little this was biting me. Drugs are not my life, I want you and the children together, and I don’t want to see drugs. Alright, I understand that you are doing this for us to have money, but fuck money if you will not be with me in the end. You can see it yourself what it is already doing to you. I have always told you that I want a normal life.”
23 Looking at the photographs which were tendered, there is no doubt that you were living in a squalid residential scene, which had all the hallmarks, not only of ice usage, but, also, of a drug laboratory. Although police are unable to prove that one of the burners in the garage was not used for making illicit drugs, the clear interpretation of Ms Porcic’s message to you is that you were involved in your offending behaviour “for us to have money”. No explanation was proffered on the plea for why you had a large bag of dietary supplement, which can be used as a cutting agent for ice, on the floor in your dining/kitchen area.[10] Your plea of guilty to Charge 1 acknowledges your responsibility for the host of cooking utensils and burners comprising charge 1.[11] However, save for your claim that you were making cleaning fluid (which, at its highest, I find to be only part of the cooking activity at the unit), no satisfactory explanation for all the equipment has been provided to the Court. No explanation for the non-viable residue of methylamphetamine has been provided. Your claim that some of the scientific glassware had been left by a former tenant of the unit is unsubstantiated.
[10]Photos 25, 27, 28 and 29 of Photo Book No.1, Exhibit B
[11]I leave aside the cooker in the garage which the prosecution conceded could not be proven beyond reasonable doubt to have been used for making illicit drugs.
24 You did not seek to refute the evidence of the landlord, Mr Grgas that “from the start of 2015, (you) became a bit strange when (he) would ask to come by and check on the house. (You) stopped answering (his) phone calls, and seemed to be avoiding (him) when (he) was requesting to come and check the unit”.[12] I am satisfied beyond reasonable doubt that you did pay the rent on the unit. There is no explanation as to how you managed to do so or how you funded Ms Porcic’s son on a trip to Singapore or how you managed to give her money for food or other household items (all matters with which you took no issue at the plea hearing). I cannot be satisfied on the balance of probabilities as to what, if any, money you earned from your alleged production of cleaning fluid. In the circumstances, although you were a user of ice, there is no evidence that you were engaged in this offending solely to support an uncontrolled drug habit. It seems that you had not worked for some time and Ms Kaddeche stated that probably, you had last filed a personal tax return in 2012, which dated back to work done in 2006. Essentially you had worked casually for people doing painting and also, “helping out at your son’s pizza restaurant”. Although there is no evidence of enrichment, there is also no evidence of how you earned your living other than the activity which was taking place at Pentland Drive.
[12]Statement of Adrian Grgas, dated 5 Mar 2016
25 I find that you were less than full and frank in your answers to police concerning multiple matters in your record of interview. For example, you claimed that the unit was rented in Ms Porcic’s name, but that you were not sure whether it was rented with a real estate agent or not and that you gave her half the rent. It is clear that you rented it from Mr Grgas, who was your niece’s husband, and you paid the rent. You denied knowing what 14B was and played dumb when asked by police whether you knew anything about drugs which had been found at your house by responding “What drugs?”. When it was put to you that ice had been found there, you minimised your involvement by stating “I've got a little bit on the table there”, when, in fact, you had over 19 times the traffickable quantity of ice throughout the house (a total of 58.04 grams) in varying quantities and with variable percentages of purity. In effect, you lied to police about the essential matters comprising the factual basis of each of the charges to which you have pleaded guilty. By this offending and your past criminal behaviour, Mr Dukic, you have shown yourself to be a person of bad character.
26 On the date upon which your matters were listed for trial, they resolved into pleas of guilty to the three charges. They were late pleas of guilty, however, on the trial indictment you had been charged with more a serious offence of trafficking in a commercial quantity of 1,4‑Butanediol, as well as an additional offence of possessing a precursor chemical. Mr Regan made it plain that it had been necessary for him, as the prosecutor, to have a number of discussions with forensic scientists about the substances involved and how they might be used in support of the prosecution case. Also, a quantity of SMS messages in the Bosnian/Serbian language needed to be translated. As Mr Regan put it, the case required “a lot of dismantling” in relation to the facts because of your claim that you had been making cleaning fluid. This necessitated refinement of the scientific evidence in relation to both the chemicals and the equipment. The end result was that the extent to which the prosecution could prove certain matters beyond reasonable doubt did not become apparent until shortly before the matter was listed for trial. Hence, although your pleas of guilty were entered late in time, it is not fair to characterise them as a resolution only at the commencement of the trial. It was conceded by the prosecution, that in all the circumstances, your pleas of guilty had utilitarian benefit, particularly as the trial was listed with an estimate of five days, and, indeed, counsel indicated it may have taken some 10 days.
27 Ms Kaddeche submitted that your pleas were remorseful. She urged that the mere fact of you having pleaded guilty was indicative of remorse. I am not satisfied of remorse on your part. As was stated by the Court of Appeal: “It seems regularly to be assumed by defence counsel that the sentencing judge will simply accept that, because a plea of guilty has been entered, the fact of remorse is established. That assumption is unsound.
A distinction must be drawn between the anguish of being caught and punished, on the one hand, and – on the other – the determination to change one’s behaviour and, to the extent possible, make amends. The first is not remorse at all. The second is.” The Court went on to state “that a person wishing to rely on remorse as a mitigating factor needs to satisfy the court that there is genuine penitence and contrition and a desire to atone.” The Court further stated “Sentencing judges should approach with caution assertions that the plea itself is a sufficient basis for a conclusion that remorse if present, warranting a discount over and above that which is to be granted on the basis of utility.”[13]
[13]Barbaro v The Queen; Zirilli v The Queen [2012] VSCA 288, paragraph 35, 36, 38 and 40
28 The fact of the matter is, Mr Dukic, that had the prosecution succeeded in proving its case on the original charges of trafficking in a commercial quantity of 1,4-Butanediol, you would have been convicted of a very grave offence which carries a maximum penalty of 25 years' imprisonment. You did a cost-benefit analysis and pleaded guilty to the lesser charges. Whilst there is no doubt that you should be given the benefit of the utilitarian value of such pleas of guilty, there is simply no evidence of contrition on your part to indicate remorse. There is no indication by you of an appreciation of the harm which could have resulted had drugs manufactured or sold by you in the future found their way into the community. Nor is there any indication that you suffer regret or shame for the potential deleterious effects upon other members of the community should that have occurred.
29 Ms Kaddeche urged that the Court should note that, whilst in custody, you had undergone urine screens and no illicit drugs were detected. No evidence of such screens was produced to the Court. Nor was there any evidence that you were affected by drugs when taken into custody by police or that you suffered withdrawal from drugs whilst in custody. There was no evidence from a medical practitioner or psychologist assessing you as having a substance dependency disorder severe or otherwise. As I have previously stated, although I am satisfied that you were an ice user, I do not accept, as your counsel submitted, that you suffered a severe addiction to ice and “could not get out of it”.
30 The SMS messages comprising Exhibit “2” include one in sub-paragraph (e) sent by yourself to another person on 22 January 2015 stating, “Ask your mate if he has a cold one for sale for myself”. This may well have been a request for methylamphetamine for personal use, but it establishes no more than what the prosecution concede, namely, that you were a user of ice.
31 On all the material before the Court, I am not satisfied that yours is a case of a hopeless, helpless addict who was cutting a deal he had purchased for himself in order to feed his habit. The evidence satisfies me beyond reasonable doubt that your illicit activities at the unit preoccupied you, albeit that there is no material which enables me to conclude what, if anything, you had made in the past or, indeed were likely to make in the future from such activities. Indeed, it is important to bear in mind that you are to be sentenced on all three charges on one date only, namely, 25 February 2015.
32 Ms Kaddeche submitted that you had not been given the opportunity of significant rehabilitative sentences in the past and urged that the Court consider a sentence which combined a term of imprisonment and a Community Correction Order. It is not true to say that you have not been afforded opportunities for rehabilitation in the past in that, on 23 April 2008, you had been given a Community-Based Order for a period of two years with conditions that you undertake treatment for drug addiction or submit to medical, psychological or psychiatric treatment and also undertake assessment for programs to reduce reoffending. Although the offending for which that disposition was given did not involve drug offences, it was plain from the Court record that the Court considered you to have been a drug user, as indeed was the case when you appeared before Melbourne Magistrates’ Court on 14 December 2007. Moreover, by your age (49 at the date of offending), one might have hoped that you could take a reasonable step by yourself towards your own rehabilitation. In this regard, Ms Kaddeche asserted that, whilst on remand, you had endured periods of onerous lockdown in your cell following the riots at MRC in the middle of last year and, also, that whilst on remand you had been limited in the courses to which you had access. No evidence of the alleged hardships was produced to the court. Not was any evidence given that you had used your time in custody productively by working as a billet or undertaking any rehabilitative or educational courses that may have been available to you.
33 Ms Kaddeche submitted that your prospects of rehabilitation are good “with the appropriate supports in place”. I must say that I find no particular reason to support that your prospects of rehabilitation are good. You maintain that your reason for offending was to support a severe drug addiction and, as I have said, although I accept that you were a user of methylamphetamine, as apparently were a number of people with whom you associated, I have not accepted the extent of your usage or addiction or that it was the sole purpose for your offending. You were a qualified painter who had the capacity to work and you had the benefit of a supportive relationship with Ms Porcic. You also had a son who owned a pizza shop where you had previously worked as a cook on the grill. There has been no evidence called concerning your character or particular problems or strengths or weaknesses. There has been no opinion from a psychologist or psychiatrist that you suffer a Substance Abuse Disorder or any other psychological or psychiatric condition.
34 Not one mention was made during the plea hearing by your counsel of why you had possession of a Taser device and multiple rounds of ammunition. It is always cause for concern where unexplained weapons or ammunition are possessed in conjunction with drug offences. Although it is some time ago, you do have prior convictions for possessing amphetamine in December 2007, trafficking in heroin in 1999 and possessing heroin in 1994. Notwithstanding that in 2007 the Magistrates’ Court noted that you were interested in dealing with your drug issue and in 2008 you were given a Community-Based Order with treatment conditions, you have still reoffended. In particular, notwithstanding a relatively lengthy sentence of imprisonment imposed in 2010, the parole period of which expired in December 2013 (albeit for violent offending, rather than for drug offending perse), you reoffended only 14 months later. It would appear that you have had an association with drugs on and off over a couple of decades and, in all the circumstances, I am guarded as to your prospects of rehabilitation. Nevertheless, you are entitled to a tangible discount on the sentence which, otherwise, would have been imposed because you have saved the State the time and cost of a trial and, by your pleas of guilty, have facilitated the course of justice.
35 In sentencing for these offences, the Court must denounce your conduct and place emphasis upon general deterrence, just punishment and protection of the community. Although you are to be sentenced on each charge relating to the date upon which police executed the search warrant, the contextual material indicates that you had a familiarity with drugs and drug transactions and the picture, overall, is of criminal activity involving some degree of planning in that the photographs show your residential dwelling to be overtaken by drug-related activity. In saying this, I make it clear that the prosecution has acknowledged that it cannot prove beyond reasonable doubt that either the 1,4-Butanediol or any of the methylamphetamine seized by police were actually manufactured at your unit.
36 It is trite to say that drugs are a scourge on our society. Your offending on all three charges had the capacity to contribute to the human misery of those who use illicit drugs. Illegal drugs of dependence take a toll upon our community, at large, by destroying relationships within families and between friends. They impair the capacity of drug users to work and function properly. They contribute to more criminal behaviour by those who become addicted to them and place a burden on our medical, hospital, law enforcement and correctional facilities. For these reasons, a strong message must go out to the community that others, like you, who are prepared to engage in this offending conduct, will be appropriately punished. The charge of trafficking in 1,4-Butanediol involves a visibly significant amount of green liquid in a white bucket.[14] In fact, it is double the commercial quantity of 2 kilograms. I must sentence you on the basis that you did not know or believe that there was a significant or real chance that the quantity was in excess of 2 kilograms. Nevertheless, I regard this offending as being a relatively serious example of a trafficking simpliciter charge. Charge 3, trafficking in methylamphetamine, involved over 19 times the traffickable quantity of methylamphetamine in a variety of states of purity. You have pleaded guilty to possessing both the 1,4-Butanediol and the methylamphetamine with the intention of selling them in the future. The gravity of each of these charges is that the drugs, in the future, may well have found their way out of your unit and into the community, had it not been for the intervention of police.
[14]Photographs 107 and 108 of Booklet 1A of Exhibit “B”
37 In all of the circumstances, the only appropriate sentence is a term of imprisonment of which there must be an immediate custodial component. Your counsel has urged that the Court should give you a disposition consisting of a term of imprisonment with a Community Corrections Order. This would necessitate a term of imprisonment of under two years. It is my view that such a sentence would not adequately reflect the overall seriousness of your offending. I disagree with your counsel’s characterisation of this offending as being akin to a course of conduct. Charges 1, 2 and 3 are three discrete offences albeit committed on the same date. Nevertheless, I am mindful of the principle of totality and consider that some cumulation will ensure a sentence which is just and an adequate indicator of your total criminality. It can only be hoped that, as you have successfully completed a parole period in the past, that you will utilise the parole period which I intend to impose to try to steer yourself towards a lawful life.
38 On Charge 1, possessing a substance, material and equipment for the purpose of trafficking in a drug of dependence, you are convicted and sentenced to be imprisoned for a period of 18 months.
39 On Charge 2, trafficking in a drug of dependence, namely, 1,4-Butanediol, you are convicted and sentenced to be imprisoned for a period of 24 months.
40 On Charge 3, trafficking in a drug of dependence, namely, methylamphetamine, you are convicted and sentenced to be imprisoned for a period of 10 months.
41 On the Summary Charge 7, possessing a prohibited weapon, namely a Taser TW-10 device, you are convicted and sentenced to be imprisoned for a period of 6 months.
42 On Summary Charge 8, possessing cartridge ammunition without a lawful excuse, you are convicted and sentenced to pay a fine of $500.
43 The base sentence is that of 24 months imposed on Charge 2. I order that 6 months of the sentence imposed on Charge 1, 5 months of the sentence imposed on Charge 3 and 1 month of the sentence imposed on Summary Charge 7 be served cumulatively upon the sentence imposed on Charge 2 and upon each other. The total effective sentence is thus 3 years' imprisonment. I direct that you serve a period of 2 years before becoming eligible for parole.
44 I declare a period of 624 days pre-sentence detention to be time reckoned as already served under the sentences imposed this day.
45 Pursuant to s6AAA of the Sentencing Act, I state that, had it not been for your pleas of guilty, the total effective sentence imposed would have been 5 years imprisonment with a non-parole period of 3 years.
46 As you have been convicted of a number of Schedule 1 offences, namely, trafficking in a drug of dependence and possessing equipment and materials for the purposes of trafficking and upon being satisfied that the property referred to in the Schedule is an instrument, device or substance that was used, or was intended to be used, in, or in connection with, the commission of the offence or was derived or realised, directly or indirectly, by you or another person, from the commission of the offence, I order pursuant to s78(1) of the Confiscation Act 1997 the forfeiture to the State of the property referred to in the Schedule and I further direct that it be placed in the custody of the Chief Commissioner of Police and be held by him until 28 days from this date or the conclusion of any appeal proceedings where it may be tested and/or analysed and then destroyed. The Schedule comprises 168 items, a number which include multiple items.
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