Director of Public Prosecutions v Edwards

[2020] VCC 1749

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 20-01000

DIRECTOR OF PUBLIC PROSECUTIONS

v

KEITH EDWARDS

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JUDGE:	HIS HONOUR JUDGE CARMODY
WHERE HELD:	Melbourne
DATE OF HEARING:	4 November 2020
DATE OF SENTENCE:	4 November 2020
CASE MAY BE CITED AS:	DPP v Edwards
MEDIUM NEUTRAL CITATION:	[2020] VCC 1749

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW - Sentence       

Catchwords:  Possess substance, material, documents or equipment for trafficking a drug of dependence – possess precursor chemicals – possess a drug of dependence

Legislation Cited:  Drugs, Poisons and Controlled Substances Act1981
Cases Cited:  Djemal v Crown [2020] VSCA 25
Sentence:  Total effective sentence of 12 months imprisonment.   

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr P. Raimondo	Director of Public Prosecutions
For the Accused	Mr C. Terry	Gallant Law

HIS HONOUR:

1Keith Edwards, on 4 November 2020 at the County Court in Melbourne, you pleaded guilty to the following charges on Indictment No. L10210898:

Charge 1, possess substance, material, documents or equipment for trafficking a drug of dependence.  This charge has a maximum penalty of 10 years' imprisonment;

Charge 2, possess precursor chemicals. This charge has a maximum penalty of five years' imprisonment; and

Charge 3, possess a drug of dependence, amphetamine. This charge has a maximum penalty of one year imprisonment.

Circumstances of offending

2On Monday, 27 January 2020, at about 9 am police officers attended together with Clandestine Laboratory Squad officers and executed a search warrant pursuant to the Drugs, Poisons and Controlled Substances Act1981, at your home in Frankston North.  You were outside your home at the time and the police gained entry to the premises.  You then directed police to the laundry in your house.

3The police commenced a search of the laundry and you walked out the front door of your home.  Police observed you were leaving your home and then lost sight of you all together.  They conducted a search for you, and you were located hiding behind a motor vehicle which was parked in a driveway of a house in Bursaria Crescent in Frankston North which was some 500 metres from your home.  You were arrested and then returned to your home address.

4The police continued the search at your premises.  They located numerous boxes containing assorted chemical glassware including beakers, flasks, funnels and condensers.  They also located multipurpose chemicals such as caustic soda and acetone.  In your bedroom, the police located documents relating to drug extraction processes.  All of these items can be used in the manufacture of illicit drugs and they were the basis of Charge 1 on the indictment.

5Also, during the search of your premises, the police located various precursor chemicals.  They located benzaldehyde, methylamine hydrochloride, iodine and sodium.  These precursor chemicals were in quantities greater than the prescribed quantities for such chemicals and that is the basis of Charge 2.

Precursor chemical	Prescribed Quantity	Quantity located
Benzaldehyde	50 grams	4055.2 grams
Methylamine Hydrochloride	50 grams	1045.9 grams
Iodine	25 grams	246.0 grams
Sodium	25 grams	153.6 grams

6Benzaldehyde can be used in the manufacture of P2P which can be used in the manufacture of methylamphetamine.  There was no P2P located at your premises.

7In your locked bedroom, the police also located 1.5 grams of amphetamine and that was the basis for Charge 3.  Also in your bedroom, the police located a laptop computer and several mobile phones.  You were arrested and taken to the City West Police Station to be formally interviewed.

8In the course of the record of interview with police, you admitted to purchasing the solvents and glassware located at the home from various websites including eBay and Alibaba.  You stated that your knowledge comes from Google and that there were documents about drug things in your bedroom and you researched things.

9When asked what you were going to do with the glassware you purchased, you said, 'Well, I'm gonna go to gaol for doing something I haven't done so I might as well do it but whenever I've got anything, I just hid it away, I never touched it.  I was addicted to buying stuff and just kept buying stuff.'

10You admitted that you knew the chemicals and glassware could be used in the drug manufacturing.  You knew that methylamine can be used to make methylamphetamine and that you were not surprised it is a scheduled precursor chemical.

11The exhibits that the police seized were subsequently tested for fingerprints and your fingerprints were detected on them.

12On 27 January 2020, the day of your arrest, you were remanded in custody.  You were granted bail on 29 June 2020.  You have served 155 days
pre-sentence detention in respect of these charges.  You have a relevant prior criminal history, in particular, relating to Charge 1.  At the time of these offences, you were serving a two-year Community Corrections Order (“CCO”) imposed on 13 December 2019 for possessing a substance for trafficking in a drug of dependence.

13You have a prior court appearance at Boggabilla Local Court on 26 October 2018, for possession equipment for the administering of prohibited drugs and possessing a prohibited drug.  You were released on that occasion without conviction on a 12-month conditional release order.

14At the time of this offending, as previously stated, on 13 December 2019, you had pleaded guilty to one charge of possess substance material, documents or equipment for trafficking a drug of dependence and you were placed on a two-year community corrections order to commence on 3 January 2020.  The circumstances of that matter was that you had purchased glassware chemicals and other equipment to manufacture fentanyl.

15There is only a pause in time of seven weeks between the imposition of the CCO and the commission of these offences.

Your personal circumstances

16At the time of your offending, you were 57 years old. You are now 58 years old. You were born in Wales and brought up in the northern seaside town of Rhyl. You are the third child of four children in your family. Your father worked as a plumber and your mother had part-time factory employment after the heavier years of childbearing and raising were completed by her. 

17You describe your family as old fashion working class people to the forensic psychologist, Karly Doyle, who has prepared a report which is Exhibit 2 on this plea. You told Ms. Doyle ‘you were scared of your father’, because he would threaten to send you to the local boys’ home. Your father died in 2016. Your mother and threes siblings continued to live in the United Kingdom.

18You left school at the age of 15 after your truancy finally caught up with you.  You did commence an auto mechanics apprenticeship that ceased after two years.  Your escalating drug addiction made you an unreliable worker and your employment was effectively terminated.

19Between the ages of 17 and 26 years old, your drug addiction took over your life.  Cannabis and heroin were your drugs of choice.  You attended Narcotics Anonymous and managed to get yourself off the drug merry-go-round at the age of 26.  You remained drug-free for approximately 30 years.

20In 1992, you graduated with a Bachelor of Arts from Greenwich University in London.  You married Jan in 1996 and moved to her native country, Australia, in 1997.  In 2002, you graduated with a Diploma of Social Science from Swinburne University.  You studied for a Diploma of Psychology at Swinburne University between 2007 and 2011.

21Since being in Australia, you have worked as a drug and alcohol counsellor.  You have been on the Board of Victorian Drug and Alcohol Association which is the peak body in that field.  Up to 2010, you were employed as a Director of Clinical Services for Windana.  Between 2010 and 2015, you worked in aged care as a case manager for the Brotherhood of St Laurence.

22You relapsed into opioid addiction and attempted suicide in 2015.  Your drug addiction contributed to the end of your marriage with Jan in late 2015.  Your marriage has resulted in three children.  Your oldest daughter is 24 and you have twins, one boy and one girl, aged 22.  Since October 2019, your youngest daughter and her partner have lived with you at your home.  I note that the twin son is here today in court to support you.

23In December 2019, you were placed on a CCO for two years for similar offending to these matters.  On the day of your arrest on 27 January 2020, you were remanded in custody.  You remained in custody for 155 days before being bailed to appear on these matters with a residential condition to remain at Odyssey House.  You resided at Odyssey House for a further 105 days on a full-time basis.  You were discharged from Odyssey House on 16 October 2020 according to the report from Odyssey House, which is Exhibit 3.

24The report from Odyssey House dated 30 October 2020 states you are prescribed 24 milligrams of a depot injection of Buvidal and referred to Dr Weiss, a general practitioner, for follow up and support.

25In summary, 40 years of your life to date have been dominated by drug dependence.  In your personal dependence from ages 17 to 26 years old and from 2015 to the present and approximately 30 years in between as an alcohol and drug counsellor helping other people with exactly the same problem you now have.

26On two separate occasions aged 26 and 58, you have shown great will and resilience to subdue your drug addiction.  These facts bode well for your rehabilitation.  Some days you must wake up in the morning and say, 'I'm just too old to be doing this stuff'.

Sentencing considerations

27The basic purpose for which a court may impose a sentence are just punishment, deterrence both specific and general, rehabilitation and denunciation of your actions and the protection of the community.

28In sentencing you, I must have regard to a range of factors such as the seriousness of your offending, your culpability for it and your personal circumstances.  I am also required to balance the interests of the community in denouncing your criminal conduct with the interests of the community in seeking to ensure as far as possible that you as an offender are rehabilitated and reintegrated into society.

29I am also required to take into account current sentencing practices in fixing your sentence.  That enquiry is directed particularly but not exhaustively to the kinds of sentences imposed in comparable cases and the statistics for those sentences at the time.  I have considered the statistics and the current sentencing practices mindful that each case must be considered in the light of its own particular circumstances and many of the cases would be distinguishable from your case as indeed they are from one another.

30The prosecutor submitted that a term of imprisonment to serve immediately is the only appropriate sentence.  He relied upon the authority of Djemal v Crown [2020] VSCA 25 as similar to the current offences that you face and your personal circumstances to submit that imprisonment is the appropriate and proper sentence.

31On this issue, your counsel, Mr Terry, submitted that the time served already, that is 155 days of pre-sentence detention combined with a community corrections order would be an appropriate sentence.  He submitted that in arriving at that sentence, that it would be appropriate to take into account in the general sense the time that you have spent in residence at Odyssey House of 105 days and that would reinforce the submission.

32You have pleaded guilty to these charges.  Your plea of guilty was indicated at an early stage.  Your plea does have the utilitarian value of allowing for the orderly and effective administration of justice.  There is a certainty of outcome and a resolution of the substantive issues raised by your offending.  Your plea also allows for the preservation of court and police resources to deal with other matters and your plea vindicates the public confidence in the legal process set up to protect the community.

33Your plea also is a clear acknowledgement by you that you accept responsibility for your criminal behaviour on this occasion.  Your plea also recognises you are willing to facilitate the course of justice in the community.  I accept that your plea of guilty to these charges indicates and demonstrates some remorse on your part.

34I also accept that the plea of guilty in the circumstances of the COVID-19 pandemic has substantial utilitarian value.  I note that the practical management of a jury trial is yet to be resolved in this State.  You have not sought to delay the finalisation of this prosecution by conducting a trial on an unknown and future date.

35In addition, it is relevant to take into account the impact of the lockdown restrictions that have been imposed as a result of the COVID-19 pandemic that will be applicable to you and indeed all prisoners of the State of Victoria for an uncertain time in the future.  As a result of those restrictions, you have not had the opportunity for contact visits from your children, there is also the risk of you having to spend more time in a cell than otherwise would ordinarily be the case for ordinary prison time.

36These further restrictions will make your time in custody more onerous than ordinary prison conditions.  Your imprisonment and the COVID-19 restrictions also mean that you have limited opportunity to participate in courses during your imprisonment which will limit in part your rehabilitation in the early stages of your sentence.

37You have a relevant criminal history in respect of drug offending and
drug-related offending.  I refer to these matters in your personal circumstances and will not repeat them here.

38Your criminal history is to be considered when assessing the appropriate sentence and in particular specific deterrence and is also relevant in the assessment of your prospects of rehabilitation.

39The objective seriousness of your offending on this occasion is indicated by the following matters:

1.the maximum penalty for Charge 1 on the indictment is 10 years' imprisonment;

2.the offending occurred during the currency of a CCO which was imposed for similar drug offending;

3.the vastness of the items, the scientific glassware and the quantity of the chemicals and the information on drug extraction processes found at your premises;

4.there was no evidence found of actual manufacture of P2P located at the premises.  As I have said before the P2P is used in the manufacture of methylamphetamine; and

5.you clearly knew your activity was criminal and on a best-case scenario for you, you retained these items even after the imposition of a CCO.  Nevertheless, you had obtained them whilst on bail for the previous offending.

40I assess your prospects of rehabilitation as fair.  You have successfully controlled your drug problem from the ages of 26 until 2015, when as a result of some injury to your back, you were prescribed opioid medication which, as I understand the submission, triggered your relapse into drug addiction.

41More recently you have completed treatment at Odyssey House with a positive report on discharge on 16 October 2020.  You have the ongoing support of your youngest daughter and her partner who reside in your home.  As I noted before, you obviously have the support of your son who is here in court today with you.

42The return of the drug demon into your life in your advanced years after approximately 30 years of abstinence is a clear concern in the assessment of your rehabilitation prospects.  Your counsel urged a combination sentence of imprisonment followed by a CCO to reinforce your rehabilitation progress to date.  The term of imprisonment your counsel was referring to was of course the 155 days of pre-sentence detention.

43I am mindful of the provisions of the Sentencing Act and in particular s.5(4C) which directs a sentencing court to consider whether a community corrections order can achieve the purposes for which this sentence is to be imposed.  I have reviewed the case of Bolton in considering if a community corrections order would be appropriate in your case.  I have decided the imposition of a CCO in your case would not be appropriate.  You committed these offences whilst on a CCO.  The seriousness of the offending calls for a term of imprisonment.

44In fixing your final sentence, I have had regard to and taken into account that you have spent three months in residential rehabilitation at Odyssey House after you were released on bail in June 2020.  I’ve also taken into account that your term of imprisonment in total will be served in two parts, that is the pre-sentence detention of 155 days and the balance of the sentence to be imposed this day.

45Whilst the sentence is one sentence, it has involved two separate occasions of being placed in custody rather than a single event of incarceration.  The second incarceration will occur under the strict COVID-19 protocols and I take these matters into account when fixing your total sentence.

46You have good family support from your children.  You also have worked for some 30 years as a social worker helping less fortunate people through drug and alcohol addiction.  These matters leave some room for optimism in your life upon release from prison.

47I have decided that in respect of Charges 1 and 2, that they arise from the same offending circumstances and can be appropriately dealt with by a total sentence to reflect your culpability for the offending and the objective seriousness of that offending.  In other words, both of these sentences are to be served concurrently.

48The sentencing principles of general and specific deterrence, just punishment, denunciation of your actions and the protection of the community call for a term of imprisonment as the appropriate sentence for these offences.

49Would you stand please?

50In respect of Charge 1, you are convicted and sentenced to 12 months' imprisonment.  That is the base sentence.

51In respect of Charge 2, you are convicted and sentenced to 12 months.  That is to be served concurrently with the sentence in Charge 1.

52In respect of Charge 3, you are convicted and fined $500.

53That is a total effective sentence of 12 months' imprisonment.

54I declare that you have served 155 days pre-sentence detention in respect of that sentence.

55In respect of s.6AAA of the Sentencing Act, but for your plea of guilty, I would have sentenced you to 18 months' imprisonment and I propose to sign the disposal order which has been sent to the court.

56Is there anything else?

57MR RAIMONDO:  No, Your Honour.

58HIS HONOUR:  Yes.  Mr Terry.

59MR TERRY:  I just want to check, Your Honour, the provisions requiring the imposition of a non-parole period.

60HIS HONOUR:  Yes.  I do not have under 12 months and under ‑ ‑ ‑

61MR TERRY:  Between ‑ ‑ ‑

62HIS HONOUR:  ‑ ‑ ‑ or do under two years.

63MR TERRY:  Yes, I thought that was the case.

64HIS HONOUR:  Yes.

65MR TERRY:  As long as Your Honour's - thank you.  I have not turned to my mind to that in some time so ‑ ‑ ‑

66HIS HONOUR:  Yes.

67MR TERRY:  ‑ ‑ ‑ that is the only issue I wanted to raise.

68HIS HONOUR:  No, no, and thank you.  It is always good to double check, Mr Terry.

69So, Mr Edwards, it is a straight sentence of 12 months.  It is up to you to maintain your ongoing rehabilitation, get out and get home to the kids, go back to your good life.  Good luck.

70OFFENDER:  Thank you.

71HIS HONOUR:  Thank you.  You can remove the prisoner.  You can remove the prisoner.  Yes.

72Mr Raimondo, thank you very much for your assistance in this matter.

73MR RAIMONDO:  If Your Honour please.

74HIS HONOUR:  And, Mr Terry, thank you very much for your assistance as well but in particular in the preparation of sending those submissions through when you did.  I am very grateful to you.  It is always of great assistance to me.  Thank you.

75MR TERRY:  Thank You, Your Honour.

76HIS HONOUR:  Mr Edwards Junior, maintain your contact with your father whilst in gaol.  It is difficult but you must make every effort to do so.  That will be the best help you can give him.

77MR EDWARDS:  Of course.  Thank you.

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