Director of Public Prosecutions v Hart

[2015] VCC 278

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 13-01248

DIRECTOR OF PUBLIC PROSECUTIONS

v

ANDREW HART

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JUDGE:	HER HONOUR JUDGE HAMPEL
WHERE HELD:	Melbourne
DATE OF HEARING:	10 March 2015 – Trial 11 March 2015 – Plea
DATE OF SENTENCE:	11 March 2015
CASE MAY BE CITED AS:	DPP v Hart
MEDIUM NEUTRAL CITATION:	[2015] VCC 278

REASONS FOR SENTENCE
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Cases Cited:
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms F. Holmes	OPP
For the Offender	Mr M. Phillips	VLA

HER HONOUR: 

1Andrew Hart, you have pleaded guilty to one charge of possession of a precursor, methylamine.  Methylamine is a precursor chemical able to be used in the manufacture of drugs of dependence, including methamphetamine and MDMA.  The maximum penalty for this charge is five years' imprisonment. 

2Your plea of guilty came after you had been arraigned and pleaded not guilty to a more serious charge, one of possession of items for the purpose of manufacture of a drug of dependence.  That is a more serious charge which carries double the maximum term of imprisonment of ten years.

3The circumstances of the offence to which you pleaded guilty and for which I must sentence you can be briefly stated.

4In early 2013 you were enrolled as a student at Victoria University.  You had been undertaking an undergraduate degree in psychological studies and had been accepted into another undergraduate degree in biotechnology and chemistry, which it would appear you were intending to commence at the start of the 2013 academic year.  Whilst undertaking your psychological studies course you had been living in university accommodation at VU, and had remained there over the academic break.

5On the day to which the charge relates, namely 16 January 2013, university authorities had noticed a strong chemical smell coming from your room.  Investigations were undertaken as a result of that and the police were called.  The following day you made contact with the police and surrendered yourself into their custody. 

6You admitted to them in the course of your first conversation with them under caution that you had approximately 250 grams of methylamine in your possession on the previous day of 16 January.  You told them that you had then dumped it but were, although prepared to drive or be driven around by the police in order to find it, unable to locate the dumpster where you said you had deposited it.  It is those circumstances that form the basis of the charge and of your plea of guilty to this charge.

7You come therefore to be sentenced for possession of that precursor.  I make no finding as to your intent in relation to the possession of the precursor chemical.  I can make no finding adverse to you that you were intending to manufacture a drug of dependence, nor can I make any finding on the balance of probabilities in your favour that you were interested solely in the pursuit of the manufacture of methylamine for its own sake.

8You come before the court as a 38-year-old man.  For the past six to eight years you have been enrolled in various courses at Victoria University, although it is not clear on the academic documents that were provided to me whether you have completed any of those.

9Significantly, since you have been charged, a little over two years since then, you have been permitted to remain enrolled at the university and to undertake the biotechnology and chemistry course that you had been accepted for at the time of these events that led to your charge.

10You lost your university accommodation.  That is a matter I refer to because although not relevant to the sentencing facts for the fact of possession of the precursor, evidence to be led on your trial on the more serious charge of possession of items for the purpose of manufacturing a drug of dependence, and evidence admitted to be correct by you, was that in your room in university accommodation found after the strong chemical smell was noticed on the 16 January 2013, was a large quantity of scientific equipment, chemicals, traces of substances including methylamine and manuals on the manufacture of drugs of dependence, particularly methamphetamine.

11It would appear to be that, as a result of the possession of those items in your room and the circumstances in which they were found, you lost your right to live in university accommodation, but it appears to have had no effect on your right to enrol in, remain enrolled in and participate in your bachelor of biotechnology and chemistry course.

12There are very good reasons why possession of precursor chemicals or drugs is a criminal offence.  The potential for the use of precursors to make drugs of dependence and the harm that drugs of dependence, particularly methamphetamine or ice, cause in the community is well known.

13It is to be hoped that you and others who are tempted to engage in like activity of seeking to produce or to possess precursor chemicals will appreciate the gravity of the conduct, its significance in the criminal law system and the effect on somebody charged with such an offence and awaiting disposition of the offence or final resolution of the offence for some time, will deter them from engaging in like activity.

14You have not been charged with any further offences of any sort since being charged with this offence and you have continued to undertake university studies.

15That I consider be relevant to the deterrent effect on you of being charged.  It seems that has been enough of a lesson for you to not try in engage in like activity again.

16You are, I am told, a man of high IQ, sufficient to qualify for membership of MENSA.  It would appear that you have never held regular vocational employment, although you have worked in a variety of occupations in order to help support yourself through either self-directed courses of study or university directed courses of study.

17In your early 20s it would appear you had a history of heroin use and you have one previous conviction relating to your heroin habit.  You successfully completed the sentence imposed on you for that, which involved participation at a drug rehabilitation program and have no subsequent convictions for any  self-use drug related activity.

18You have, I am told, in the past had a history of substance abuse, alcohol, illicit drugs, and perhaps abuse of prescription drugs, but none of that is or has been, I am told, a problem in your life for a considerable time.

19About five years ago you were diagnosed, I was told, with ADHD and have been taking prescribed Ritalin, which has had some positive benefits in assisting you but has still a tendency to make it difficult for you to sit still or to concentrate for protracted periods.  It does not though appear to have interfered with your capacity to engage in university study and to sustain it.

20You have had a past history of relationships, although none for about six years on what I am told.  In the past you have fathered two children, they are both under 13, and from what I am told you have no continuing relationship with either of them or their mothers, although you hold some hope of being able to re-establish relationships with the children in the future.

21All these matters indicate that the need to impose a punishment that has a significant element of specific deterrence is not great.  As I have said, your history indicates there has been no other criminal activity since, or criminal charges since being charged with this, and you have maintained your enrolment and pursuit of your studies.  The need for general deterrence I think can be met by a combination of the fact that you have been charged, the fact that you have to face the consequences of that, your plea of guilty to the charge and the penalty that I am going to impose.

22I consider in the circumstances your prospects for rehabilitation are rightly to be regarded as good because of that sustained history of study since being charged and the history of study before then.  I consider the needs of denunciation can again be dealt with by the circumstances relating to the charge, the plea of guilty and the penalty I am going to impose.

23It was put to me by the Crown that all sentencing options were open.  It was put to me by Mr Phillips on your behalf that either an adjourned undertaking or a fine was appropriate.  I consider in the circumstances that an adjourned undertaking is insufficient to reflect the gravity of the charge itself, the circumstances of the offending and the fact that you have on two previous occasions when before the court for criminal charges been given the opportunities of having a non-conviction result recorded against you.  Therefore I consider that a fine rather an adjourned undertaking is appropriate.  

24I also consider that it is appropriate on this occasion to record a conviction.  You have had those two previous opportunities of non-conviction results and unfortunately they have not deterred you entirely from committing further offences.

25I also take into account in coming to that view that you are a mature person; you are 38 years of age and you were 36 at the time of offending.  Although the possibility of adverse consequences for you either in university enrolment or potential future employment were floated, there is simply no evidence before me to elevate that beyond a hypothesis or a speculation.

26I take into account both in deciding that it is appropriate to record a conviction and in deciding that a fine rather than a more serious penalty, and a fine rather than the less serious penalty of an adjourned undertaking, your plea of guilty.  As I indicated yesterday after I had ruled on the pre-trial matters, it seemed to me that it was helpful to reconsider whether a plea of guilty to some appropriate charge was open, and I indicated then the benefits that flowed from the entry of a plea of guilty to an appropriate charge, namely that it carried with it an acknowledgement of responsibility and had the utilitarian benefits of saving the time and the costs of a trial.  Although this would have been a relatively short trial, nonetheless, a trial is something that takes a considerable amount of court and public time and resources and you are entitled to a benefit in the reduction in the sentence that I would have otherwise imposed by reason of your guilty plea and your guilty plea to a charge that is a lesser one than the one on which you were presented for trial.

27Could you please stand.  On the charge of possession of a precursor chemical to which you pleaded guilty you are convicted and fined an amount of $750.  

28I declare that but for you plea of guilty I would of imposed a fine of $1,500.  

29There is an automatic stay of one month on the payment of that fine, Mr Hart, but I have the power to either grant a further extension of time now or to direct that that fine be paid by way of instalments.  If you do not wish at this stage to apply for an extension or to apply for an instalment plan then you can at any time during that automatic stay of one month apply to the registry of this court for further time to pay or for entry into an instalment program.

30I should advise you that this court follows up unpaid fines well and promptly, so if you do not seek a further stay at this stage or an instalment program but wish to do so later, you should apply to the registry of the court for that before the one month period is up.  If you wish to apply for a further stay, or for an instalment program, again, if you have difficulty meeting the timeframe imposed then again you should be in contact with the court registry in advance of the expiry time so that you can negotiate an extension with them rather than have the added anxiety of something else hanging over your head, and difficulty relating to that.  

31Mr Phillips do you want to speak to your client as to whether he wants to seek a further stay than that month and an instalment?

32MR PHILLIPS:  Your Honour, I have instructions and I would seek a stay of three months if Your Honour would be minded to grant that.

33HER HONOUR:  I will grant a stay of three months in relation to payment of the fine.  Are there any ancillary orders, Ms Holmes?

34MS HOLMES:  No, there aren't, Your Honour.

35HER HONOUR:  Are there any further orders that are required to be made?

36MS HOLMES:  No, Your Honour.

37HER HONOUR:  The orders I pronounce reflect what I am required to do.  I've done the 6AAA declaration.

38MS HOLMES:  6AAA, we're not seeking the 464ZF and as I understand it for whatever reason, the items have already been destroyed, so it must have been an authority in those circumstances.

39HER HONOUR:  All right, and of course the substance itself, the subject of the plea was never found so they can't ‑ ‑ ‑

40MS HOLMES:  Or it disappeared.

41HER HONOUR:  - - -that's right.  Hopefully disposed of safely somewhere.  I thank you, no further orders from your perspective Mr Phillips?

42MR PHILLIPS: No, thank you Your Honour.

43HER HONOUR:  All right, thank you. Mr Hart. I hope this is the last time you are before a court I hope you can conclude your studies, get your degree and find yourself your gainful employment and that you will not be before a court again

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