Director of Public Prosecutions v Edwards

[2019] VCC 2120

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

AT MELBOURNE
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

KEITH EDWARDS

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JUDGE:	HIS HONOUR JUDGE LAURITSEN
WHERE HELD:	Melbourne
DATE OF HEARING:	12 December 2019
DATE OF SENTENCE:	13 December 2019
CASE MAY BE CITED AS:	DPP v Edwards
MEDIUM NEUTRAL CITATION:	[2019] VCC 2120

REASONS FOR SENTENCE

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr B. Nibbs	Office of Public Prosecutions
For the Accused	Mr C. Terry	Gallant Law Pty Ltd

HIS HONOUR:

Introduction

1Mr Edwards, you have pleaded guilty to a charge of possessing materials for the purpose of trafficking in a drug of dependence.  The maximum penalty for this charge is 10 years' imprisonment.

Circumstances

2During the morning of 4 April this year, members of the police force executed a search warrant at your home in Frankston North.  You were not at home.  They forced an entry into a metal shed at the side of your property.

3They searched the shed on that day and again the next.  They found many items and documents, the latter relating to the chemical, fentanyl.  What was found is set out in an Exhibit Log.  It contains 223 individual exhibits, with many exhibits referring to more than one item. 

4You bought most of the items on eBay.

5Owing to an arrest in New South Wales in October last year, you expected the police to search your home at some stage.  Despite your expectation, you did not get rid of anything. 

6At the time of these searches, you were interstate.

7On 11 April, you went to the Melbourne West police station of your own volition, where you were interviewed.  You were fulsome in your admissions and in a subsequent email that you sent to the informant.

8You were arrested on that date, charged and bailed.  At the second committal mention, you pleaded guilty to the charge.  You were committed with a plea hearing set in this court yesterday.

9Apart from the opening, the prosecutor relied upon two large books of photographs and two reports.

10The report by Dimitri Gerostamoulos, a toxicologist, explained the nature of fentanyl:

a)It is a synthetic opioid.  It is 50 to 100 times more powerful than morphine as an analgesic.

b)It has a rapid onset and is effective for between 30 to 60 minutes.

c)Its effects are the same as heroin.  It relieves pain, relaxes, gives pleasure and contentment.

11Ian Neely is a forensic officer with Victoria Police.  He analysed many of the exhibits and read those exhibits, consisting of documents.  He pointed out there are various ways of making fentanyl.  One way saw it as the end product of a three-stage process starting with a chemical known as 4-piperidone. 

12Dr Neely found evidence of two substances used in the process (magnesium and sodium borohydride) and three substances formed in the process (4-piperidone, N-phenethyl-4-piperidone, 4-anilino-Aphenethylpiperidine).  Although a washing from Exhibit 16 contained fentanyl, the prosecution do not allege it was made by you.  This was the only fentanyl found.  Judging from the analysis of what was found, you had not passed beyond the second of the three stages, that is, the stage before the making of fentanyl.  The product of that stage, 4-anilino-N-phenethylpiperidine, was found in the washings taken from 10 glass objects.

13There were many other chemicals found in containers.  Two of the documents found in your shed described how to make fentanyl.  They are Exhibits 9 and 209.  Twenty-nine of those chemicals could be used in the three-stage process to make fentanyl, which Dr Neely described.  They are identified in Dr Neely's diagram appearing on p.4 of his report.  According to his diagram, there are two different chemicals produced at the first stage.  Treated in different ways, they produce the chemical in the second stage. This chemical can be treated in two different ways to yield fentanyl.  You possessed the chemicals to create the stages from any of the routes.  In other words, you had the chemicals to make fentanyl in any of several ways.  Some of the chemicals could be used at different stages of one or other of the processes.  Certainly, the substances analysed by Dr Neely could be used to make fentanyl.  He did not analyse anything which could not be used in that process.  

14Although it is plain from the exhibit log and the photographs that you possessed a large amount equipment and chemicals, you told the police you only wanted small quantities of the chemicals, but bought large quantities pretending it was for a business.  Nevertheless, you wanted to make a lifetime supply of fentanyl.  

Personal details 

15You are now 57.  By occupation, you are a welfare worker.  However, you are currently unemployed and have been so for several years.  At present, your income comes from an income protection policy.  You have considerable debt, including a credit card and a mortgage on your home.

16You were born in Wales, being the third of three children.

17You married, Jan, in 1996 and emigrated to Australia the next year.  You have three children, aged 22 to 24.

18You and your wife divorced.  You have a good relationship with her and your children.  One of your twins lives with you.

19Although using drugs from 17, you ceased at 26 and remained abstinent for nearly 30 years.  Your attendance at meetings of Narcotics Anonymous played a decisive part in you ceasing taking drugs then.

20After coming to Australia, you worked as a drug and alcohol counsellor.  After many years at Windana, you left in 2010, having been its director of clinical services.

21In 2014, your back started to give you considerable pain.  You were prescribed Tramadol for pain relief.  You became addicted.  You 'doctor shopped' to maintain your addiction.  You then relapsed into heroin use.

22In 2015, you attempted suicide by taking an overdose of heroin.

23Your drug use led to the end of your marriage in 2015 when your wife left you.

24In 2015, you ceased your employment with the Brotherhood of St Lawrence, and you have not worked since.

25You live in your home in Frankston North with one of your children, as I said; her name is Tilley.  You have a significant mortgage and a large credit card debt.

26Apart from appearing in the local court of New South Wales at Boggabilla on
26 October 2018, you have no prior findings of guilt or convictions.  However, on that occasion, you were found guilty of possessing equipment for administering prohibited drugs and possession of a prohibited drug, and without conviction, you were placed on a conditional release order for 12 months.  The present charge, or the present conviction which will be, contravenes the conditional release. I doubt the New South Wales authorities will do anything about your contravention. Ordinarily, this charge, or at least the finding of guilt relating to it, shows your continuing disobedience of the law, but you did not use the material in your shed to make any drug or attempt to make any drug after your interception by the New South Wales police.  Even though you did not dispose of the material following your return to Melbourne, the New South Wales finding of guilt is of little importance.

27You avoid opioids now.  You are engaged in a programme, a drug programme (Buprenorphine).  However, you used methamphetamine daily until recently.  

Ms Doyle

28Karly Doyle describes herself as a clinical forensic specialist.  She is a mental health social worker by training and has clinical experience in the drug field.  Your solicitors asked her to assess you, which she did on 20 November. 

29Her report traces your life in some detail, and I will make a further mention of that report shortly.

Plea of guilty

30Your plea of guilty to the offence admits its ingredients.  One of which is your possession of various things for the purpose of trafficking in a drug of dependence.  The word 'trafficking' is variously defined but includes manufacturing a drug of dependence.  It is this definition which is relied upon in your case.

31I accept your plea of guilty was made at or near the earliest reasonable opportunity and entitles you to a very significant discount on the sentence I would have imposed if you had been found guilty after a trial.

32I accept you are remorseful for the reasons submitted by your counsel.

33I accept your evidence that you intend to make Fentanyl for your own use even though the quantity you had in mind would last you a lifetime, to use your words.

34I accept you were previously of good character and have discussed the significance, or lack of it, of your court appearance in New South Wales.

35As to the gravity of the offence:

(a) you possessed a very large amount of material, including precursor substances.  I have looked at a very large number of photographs contained in two booklets.  They depict your home, the shed and its contents.

(b) the chemicals were for use in making fentanyl.  You did not possess chemicals for other uses.

(c) you had completed the second stage of the three-stage process.  You had not made fentanyl, but you had the chemicals to do so.

(d) you made some attempt to conceal your efforts to make drugs by creating a rough partition in the shed and installing a fume cupboard.

(e) after your interception by the police in New South Wales, you took no further steps to make the drug.  You did not dispose of any equipment or chemicals.  I accept you were, to use your word, 'paralysed' by your mental state, waiting for the police to come.  You unburdened yourself when interviewed, and subsequently in the email which I have just mentioned.

(f) the purpose of trafficking was for you to make the drug Fentanyl for your personal use.  It was not for transferring the drug to another person or persons.

36I note from Ms Doyle's report that your current drug usage is due to your poor mental health and feelings of grief and bereavement over your losses in the last four years, both professional and domestic.

37I also note you have received counselling from the Frankston Drug and Alcohol Service since 21 November 2018.  You have completed 16 sessions of complex counselling. Despite you engaging well, you continued to use methamphetamine until recently. 

38Section 5(1) of the Sentencing Act 1991 sets out the purposes of sentencing. Certainly, just punishment, general and specific deterrence, denunciation and the protection of the community from you are relevant.

39Section 5(2) of the same Act sets out the matters to which I must have regard in sentencing you. Included among them is current sentencing practices.  To address that factor, your counsel drew my attention to several sentences delivered by judges of this court.  Despite him urging me to take note of them today, I found them of little assistance.

40For completeness, I note you do not rely upon any of the propositions stated in the case of R v Verdins. 

41I have received a pre-sentence report from Corrections Victoria and have had regard to its recommendations.

Sentence 

42I propose, on this charge, to convict you of the offence, to place you on a community correction order for a period of two years with the following conditions:

a)    First, that you be supervised, monitored and managed by the Secretary; 

b)    Secondly, that you perform 250 hours of unpaid community work over two years;

c)    Thirdly, that you undergo assessment and treatment (including testing) for drug abuse or dependency;

d)    And fourthly, that you undergo mental health assessment and treatment as directed.

43If you consent to the making of that order, and I would seek through you,
Mr Terry, whether your client does consent or not.

44MR TERRY:  He does consent, yes.

45HIS HONOUR:  Then in light of the suggestion made by the Corrections officer who made the report, suggested I start the order on 3 January 2020, do either of you want to make any submission in relation to that?

46MR TERRY:  No, Your Honour.

47MR NIBBS:  It is a matter for you, Your Honour.  It would not prohibit the commencement now, and he is still entitled to leave with the permission of Corrections anyway, but it does not matter either way from the prosecution.

48HIS HONOUR:  Except that I would - if I make it start on 3 January, I would require him to report to the Frankston Community Corrections Service office on the same day at 4 pm, rather than 48 hours later.  You do not see any difficult with that?

49MR TERRY:  No, Your Honour.

50MR NIBBS:  No, Your Honour.

51HIS HONOUR: Legally or otherwise? All right. All right, for the purposes of s.6AAA of the Sentencing Act 1991, in the absence of your plea of guilty and had you been found guilty after a trial, I would have sentenced you to three months' imprisonment, together with the community correction order in the same conditions and for the same period.

52MR TERRY:  As Your Honour pleases.

53HIS HONOUR:  Does the prosecution seek any forfeiture order?

54MR NIBBS:  There was a disposal order that was sought.  I cannot recall what was in the schedule for that, but there has been some discussions about hard drives.  So, if I can preface it this way, at the moment the orders being sought, it is something that we can - yes, certainly, when it comes to the chemicals and the glassware, they should be forfeited.  And at the moment, we are just waiting in terms of the hard drives because the accused would like those to be recovered because of personal photos, and we are just trying to find out from the informant if there was any concerns.

55HIS HONOUR:  Well, let us say then that I reserve the question for forfeiture, would that be simple enough?

56MR NIBBS:  That would be the best way to go, Your Honour. 

57HIS HONOUR:  And it can be re-listed before me on notice to the other side.

58MR NIBBS:  Or we can confirm between us in writing that there is no issues.

59HIS HONOUR:  Well, I will reserve the question of forfeiture then.  I will get my associate or my tipstaff to return these photographs.  They made very interesting viewing.  Must have taken a long time to take them?

60MR NIBBS:  Yes, Your Honour.  I take it that - I do not know if you pronounced it or not, your order with or without conviction?

61HIS HONOUR: Well, it is with conviction. I did not invite any submissions under s.8 of the Sentencing Act because I did not think it was ever going to be ‑ ‑ ‑

62MR TERRY:  I will not make any argument against conviction; it is appropriate, Your Honour.

63HIS HONOUR:  I think it is a very sensible move.  Actually, I did, I think, say 'with conviction'.

64MR TERRY:  I think Your Honour did say convicted and sentenced.

65MR NIBBS:  As I said, I did not know if you had said it or not, I was just clarifying.

66HIS HONOUR:  No, that is all right, perfectly right.  It is to your credit that you did say it.  My associate is having a little bit of technical trouble.  He is trying to get it resolved, presumably by someone else.  Look, I think your client can come out of the dock, Mr Terry, in view of what I am doing.  I will get my associate to show you the order.  I have made an amendment on it because it is a computer program.  I will get him to show both you, Mr Nibbs and also you, Mr Terry, before you get your client to sign them, all right?

67COUNSEL:  Yes, Your Honour.

68MR TERRY:  That is fine, Your Honour.

69HIS HONOUR:  All right, I will get my associate to get Mr Edwards to sign it.  Yes, thank you, lady and gentlemen. 

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