Director of Public Prosecutions v Hamment
[2019] VCC 1120
•17 July 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised (Not) Restricted Suitable for Publication |
CR-18-01142
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| RAYMOND HAMMENT |
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JUDGE: | HER HONOUR JUDGE HAMPEL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 8 July 2019 | |
DATE OF SENTENCE: | 17 July 2019 | |
CASE MAY BE CITED AS: | DPP v Hamment | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1120 | |
REASONS FOR SENTENCE
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Subject:
Catchwords: sentence – possession of precursor chemical – relatively small quantity – connection with co-offender manufacturing methamphetamine – old prior conviction for conspiracy to manufacture a drug of addiction – offender now 70 – offence free for over 25 years – imprisonment not warranted – substantial fine.
Legislation Cited:
Cases Cited:
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr A. Albert | Office of Public Prosecutions |
| For the Accused | Mr S. Langslow | Michael J. Gleeson & Associates |
HER HONOUR:
1 Raymond Hamment, on 17 April 2017, police executed a search warrant at your home. A bottle containing 205ml of acetic anhydride was found in a void under a metal car ramp in front of a shed.
2 Acetic anhydride is a prescribed precursor chemical. Possession of more than 100ml is an offence, punishable by up to five years imprisonment or a fine of up to 600 penalty units. This quantity of 205ml is just a little over double of the quantity that makes it a prescribed precursor chemical.
3 The search warrant that was executed on 17 April 2017 came about as a result of an investigation into suspected manufacture of methamphetamine by you and your co-accused, Peter Thurlow. Telephone intercepts and listening devices installed in each of your homes had been monitoring your activities. The intercepted conversations revealed participation by you and Thurlow in chemical processes connected with the production of methamphetamine. The two of you spoke together about chemicals and substances commonly used in the manufacture of methamphetamine, the equipment commonly used in the process and the process of manufacture itself.
4 Specifically in relation to acetic anhydride, the listening device installed at Thurlow’s address revealed this conversation between you and Thurlow:
Thurlow: 'It might – I said it might be in need of some acetic acid probably. Why?'
Hamment: 'Acetic anhydride?'
Thurlow: 'No, the acetic acid'.
Later, Hamment: 'If we get some more acetic acid, we'll be right. You know, and – and acetic anhydride. This one.'
Thurlow: 'Can we buy it though? The anhydride or anything like?'
Hamment: 'Not that I know of at the moment'.
5 On 16 April 2017, the day before the execution of the warrant, the listening device installed at your home revealed that you, along with two associates, were using electronic equipment to search for listening devices at your address. You located the listening device and removed it. It was as a result of that, that search warrants were executed the following day.
6 On the day of the execution of the warrants, you were arrested and interviewed. You made a no comment interview. Some months later you were reinterviewed. You specifically denied, on the second occasion, having anything to do with manufacturing methamphetamine. You said you had never spoken about or manufactured any drugs with Thurlow. When specific conversations from the listening devices, where you and Thurlow had spoken about the chemical processes, were put to you, you said you could not recall those conversations and knew nothing about the chemical processes involved in the production of methamphetamine. You said you could not remember ever talking about acetic anhydride and did not know what it was used for. It is clear from the listening device intercepts that are contained in the prosecution summary and from your plea of guilty, that was clearly false.
7 You were charged with possession of substances and/or equipment for trafficking in a drug of dependence and possession of acetic anhydride, a precursor chemical. Following a contested committal, which ran over two days in mid-2018, you entered pleas of not guilty to both charges. On 8 July 2019, the day your trial was listed to commence, so that is two years after the execution of the warrants and the finding by you the day before that of the listening device, I was told that plea discussions were underway in respect of your co-accused, Thurlow. I understand that later or shortly after that, you made an offer to plead guilty to the charge of possession of acetic anhydride, the prescribed precursor chemical. That offer was accepted and as a result of the plea negotiations, the other charge of possession of items related to the manufacture or trafficking in drugs of dependence was not proceeded with. That is, your offer to plead to the possession of the precursor chemical resolved the other charge outstanding against you as well.
8 Your plea of guilty, although last-minute, is one that you are entitled to have taken into account on your behalf. It clearly has utilitarian value, in that it facilitates the course of justice. Although the plea of guilty to the charge was accepted by the Crown in satisfaction of both charges originally on the indictment, this is not a case where you had earlier offered to plead guilty to the charge and had had that offer rejected. You do not get the benefit, therefore, of any earlier stage at which the plea of guilty was made, other than the date that the trial was due to start.
9 Although the time and cost of trial has been spared and you are clearly entitled to the benefit of that, until the morning the trial was due to commence, your position had been that all elements and all issues in the trial were contested. The prosecution had to prepare for a trial on the basis that it was required to be put to strict proof in relation to all matters, including your association with Thurlow and the nature of it, the finding of the acetic anhydride at your property and, indeed, all items found during the execution of the warrants at your property and Thurlow's.
10 I take your plea of guilty to be a realistic assessment of the strength of the prosecution case against you in respect of this charge of possession of the precursor chemical.
11 As acknowledged by Mr Langslow, the listening device material and the reference to the finding of substances and equipment for the purposes of manufacture and trafficking in methamphetamine at Thurlow’s property, are relevant to show that you knew that acetic anhydride could be used in the manufacture of methamphetamine. It is clear from the material contained in the prosecution opening and confirmed by the discussions I have had both with Mr Albert and Mr Langslow that it not simply a theoretical discussion that you had about acetic anhydride. It occurred in the context of detailed discussions about the process of manufacturing methamphetamine, in a setting where equipment, chemicals and other substances required for the manufacture of methamphetamine were present and discussions indicated at times that manufacturing processes were being undertaken or had recently been undertaken.
12 It is clear therefore, that subject to considerations personal to you, deterrence, both general and specific, denunciation and just punishment, are relevant factors to take into account and all must be given weight.
13 Turning to matters personal to you. You are now 70 years of age, old enough one would have thought, not to be engaging in this sort of activity still. You have been in a stable relationship for the last 29 years. You have two children in their late teens from that relationship. Your partner works full-time, and from the sound of it, very hard. Your daughter is in training as a disability advocate and your son is undergoing his apprenticeship. From what Mr Langslow tells me, it means they are getting the post-secondary educational opportunities that you, because of disadvantage and poverty in your childhood, did not have.
14 You have worked throughout your life but you are now in receipt of an age pension and you have some health issues. You are currently awaiting two surgical procedures in the private health system. One, I understand, for a hernia, the other for internal check-ups, shall I say. You have also suffered gastro-oesophageal reflux disease for some time. None of these conditions appear to have impeded you in the activities that give rise to the charge to which you have pleaded guilty and nor does it appear that any of these medical conditions that you currently suffer from, or are about to undergo procedures for, have prevented you from otherwise engaging happily in lawful activities of daily life. I note that they include driving your son, who is not yet old enough to get his own license, to and from work, so that he can continue with his apprenticeship.
15 You have a number of previous convictions, the earliest in 1966, when you were only 18. Although a number of previous convictions listed on your criminal history have not been admitted by you, there are some, between 1966 and the early 1970s, so that is in your late teens and early 20s, where you were dealt with for minor offences, as I have characterised them, some of dishonesty, some relating to driving matters.
16 There was then from your early 20s until your early 30s, a break in your offending. In your early 30s again, there were court appearances, again relating to dishonesty and driving offences. They can properly be discounted or set aside as being minor, unrelated to this offending and historic, and sit in contrast to the way you have lived your life in more recent years.
17 The most serious and most significant conviction for these purposes, occurred in 1987 when you were, on my count, 38 or 39 years of age. I am told that it had taken some years for that charge to find its way through the court system. You were in fact 32 at the time the offences were committed and you were charged but 38 or 39 by the time you were convicted in the Supreme Court of conspiracy to manufacture a drug of addiction. You were sentenced to be imprisoned for a period of six years and six months. A non-parole period of four years was fixed and you were released from custody after serving your sentence on 30 June 1989.
18 Since then you have only been before courts on two occasions in 1992 and 1994. That is not long after your release from gaol. One was for unlawful possession, a minor dishonesty offence, consistent with the patterns in your past, and one for possession of amphetamine, your first for that, and maybe consistent with the circumstances that gave rise to the charge of conspiracy to manufacture a drug of addiction, for which you were convicted in the Supreme Court. So I regard the only prior conviction which is relevant to this charge is that of conspiracy to manufacture a drug of addiction.
19 Serious as that is, it is equally significant, in my view, that from the age of about 44 until the age of 70, that is for roughly the last 26 years, you have not been convicted of any other offence. And the period that you have been offence free, , has run in parallel with your stable relationship with your partner and the birth of your two now late teenage children. Testimonials from your partner, and from other people with whom the two of you have associated in the course of your relationship or with whom you have had contact since your release from prison, speak well of you in the way you have lived your life in the last 25 or more years, in relation to your commitment to your partner and your children, to your work history, and to your participation, in a lawful way, in your broader community. I take all of those matters into account in your favour.
20 It appears that you have maintained good relationships with previous partners and children born from previous relationships as well. Again, that counts in your favour. All of that speaks of being a different person to the young man you were, and even the man you were coming into your 40s, at the time that you were sentenced in the Supreme Court.
21 Having regard though to previous convictions, old as they are, I was not as impressed by the testimonials which asserted that you had always been of good character. You clearly were not, but you have changed and are entitled to have taken it into account the last nearly 30 years of better life, as counting much more heavily in your favour than the years before then.
22 One would hope, that at the age of 70, having been offence free for so long, you would have known better than to have involved yourself in the commission of a criminal offence relating to the manufacture of methamphetamine. I am using that term in a broad sense. What I mean by that is, by virtue of your possession of that precursor chemical in the context which I have described, that it is clear that you were in possession of it in circumstances of knowing about the manufacture of methamphetamine, the process for that and association with others involved in that. However, I am aware, acutely aware, that the sentence that I must impose on you is for possession of that precursor chemical of that quantity, not for manufacture of methamphetamine or for possession of items and chemicals for the purpose of manufacture or trafficking in methamphetamine.
23 In all the circumstances, I agree, as I have indicated, that the appropriate penalty is a monetary one. It will hurt you financially, and I mean I hope it hurts you, and not your partner or your children. The offence is not one that, in my view, is of sufficient gravity to warrant a term of imprisonment. In your circumstances a community correction order is also not warranted. If you do not know how to change your ways now, a CCO is not going to assist you and you do not seem to me to be a person in need of the supervision that Corrections imposes. I therefore propose to impose a fine. It will be, in your circumstances, quite a substantial one and it will mean you will have to consider seriously how you pay for that, whether you enter into an instalment program, or whether you decide to apply to convert that to unpaid community work, in order to pay it off. But given your history, given the significant previous conviction, it is a monetary penalty that must reflect, in my view, the seriousness of the offending and in that sense, hurt. Could you now please stand.
24 On the charge of possession of a precursor chemical, to which you have pleaded guilty, you are convicted and you are fined an amount of $8,000. I need not, given the amount of fine, make a declaration pursuant to s 6AAA of the Sentencing Act. I also make the disposal order sought in respect of all items which are still in existence and are listed on the schedule to that disposal order. There is an automatic stay, I think, of one month on that fine, and it will be up to you after that to make contact with Fines Victoria and to make whatever arrangements you want to in relation to the payment of that fine. Mr Langslow and his instructing solicitor will no doubt be able to provide you with further advice and assistance in relation to that.
25 HER HONOUR: Any further orders required to be made?
26 MR ALBERT: No further order, just one correction of date in Your Honour's sentence. The interview where he did answer questions was on the 18th July not the 18th of April.
27 HER HONOUR: All right, thank you. Thank you for that correction, it's not material in terms of the outcome but I'll correct that when the sentence is transcribed. Thank you, you are free to leave the dock Mr Hamment. I'll stand down briefly.
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