Director of Public Prosecutions v Helebrant
[2022] VCC 1340
•15 August 2022
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-22-00153
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| STEPHEN MATTHEW HELEBRANT |
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JUDGE: | HER HONOUR JUDGE BLAIR | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 27 July 2022 | |
DATE OF SENTENCE: | 15 August 2022 | |
CASE MAY BE CITED AS: | DPP v Helebrant | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1340 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Sentence; Trafficking in a Drug of Dependence; Cultivation of a Narcotic Plant, Possession of Substance, Material, Documents or Equipment for Trafficking in a Drug of Dependence; Possession of Precursor Chemical; No Financial Component; No Sophistication; Attention Deficit Hyperactive Disorder; Verdins; Plea of Guilty; Remorse; Excellent Prospects for Rehabilitation
Legislation Cited: Drugs, Poisons and Controlled Substances Act 1981 (Vic); Sentencing Act 1991 (Vic)
Cases Cited:R v Pham [2015] 256 CLR 550; Djemal v The Queen [2020] VSCA 25; R v Verdins & Ors [2007] VSCA 102; Worboyes v The Queen [2021] VSCA 169
Sentence: Community Corrections Order for a period of 3 years
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms C. Paganis | Sophie Coulson |
| For the Accused | Mr B. Johnston | Kate Da Costa |
HER HONOUR:
1Stephen Matthew Helebrant you have pleaded guilty to the following charges.
· One rolled up charge of trafficking in a drug of dependence, contrary to s71AC(1) of the Drugs, Poisons and Controlled Substances Act 1981 (Vic)[1] which has a maximum penalty of 15 years' imprisonment.
· One charge of cultivation of a narcotic plant, contrary to s72B again of the Drugs Act[2] which has a maximum penalty of one year imprisonment or
20 penalty units or both.· One charge of
possession of substance, material, documents or equipment for trafficking in a drug of dependence, contrary to s71A(1) again of the
Drugs Act[3]which has a maximum penalty of 10 years' imprisonment.
· One rolled up charge of possession of precursor chemical, contrary to s71D, again of the Drugs Act[4] which has a maximum penalty of five years' imprisonment or 600 penalty units or both.
[4]Ibid at s71D.
[1]Drugs, Poisons and Controlled Substances Act 1981 (Vic) s71AC(1).
[2]Ibid at s72B.
[3]Ibid at s71A(1).
Circumstances of the offending
2The factual basis of your offending is contained in a summary of prosecution opening for plea. This document was tendered and marked Exhibit A on the plea and I do not propose to recite the document in full now rather I will just summarise the circumstances of your offending.
3In June 2021, Victoria Police commenced operation HAWKEYE-2021 in response to an Australian Border Force detection of glassware and mimosa extract powder being sent to your address in Pascoe Vale.
4Mimosa extract powder can be used in the manufacture of a drug of dependence, dimethyltryptamine (DMT).
5On 12 August 2021, members of the Clandestine Laboratory Squad of Victoria Police executed a search warrant at your home in Pascoe Vale. Police discovered a clandestine laboratory in your garage. The internal access door to the garage had a 'Do Not Disturb' sign affixed to the front and a large gravity fed bolt attached to the inside.
6From inside your house, garage and back veranda, police seized 195 exhibits which included chemicals and a large amount of glassware and equipment that could be used in the manufacture of a drug of dependence. Most of the items were in the garage. Amongst the exhibits seized were condensers, round bottom flasks, magnetic stirrer/heating mantles, separating funnels, splash heads, a rotary evaporator, a submersible pump, a cooling circulator, various solvents, sodium nitrite, hydrochloric acid, sodium hydroxide, fumaric acid, calcium chloride and sodium bicarbonate. Your possession of these substances, material and equipment is what gives rise to Charge 3.
7Inside your garage was also a single cannabis plant being cultivated hydroponically within a pop-up tent. This plant weighed 138.1 grams. Your possession of this plant gives rise to Charge 2, cultivation of a narcotic plant.
8The items seized from your home were analysed by an expert retained by the prosecution and were found to have contained each of the following drugs of dependence, amphetamine, butanediol, dimethyltryptamine, which is the DMT, mescaline, MDMA, methylenedioxyphenyl, propanone, methylamphetamine, tetrahydrocannabinol, and cannabis L, mixed with unidentifiable plant material.
9There were traffickable quantities of DMT, 2.8 grams, tetrahydrocannabinol (THC), 89.4 grams and MDMA, mixed quantity 111.4 grams that were found.
10Chemical analysis of items seized also found the following precursor chemicals: ammonia (including ammonium chloride), formaldehyde, iodine, amino-butanoic acid, mercuric chloride, palladium (including palladium chloride), and benzoquinone. Each of these precursor chemicals was found in quantities above the prescribed quantity. And your possession of these substances gives rise to Charge 4, possession of precursor chemicals.
11It was the expert opinion of Ian Neely, a Forensic Officer employed at the Victorian Police Forensic Services Centre, that the exhibits seized from your home were sufficient for the manufacture of MDMA provided that safrole (which was present, but not usable), dimethylformamide (which was not found) and aluminium (which was not found) were available.
12It was also Mr Neely’s opinion that the exhibits seized from your home including plant material, mimosa extract powder were sufficient to be able to isolate, or manufacture, DMT.
13A traffickable quantity of THC was found to be contained within a solid substance following chemical analysis. The solid substance was located within a metal tin seized from within a cupboard in your garage. It is the prosecution case that you manufactured this THC using the items you had available.
14It is the manufacture of these substances, or the ability to do so, that gives rise to Charge 1, trafficking in a drug of dependence.
15Forensic analysis was conducted on the items seized. Your fingerprints were found on numerous pieces of glassware and equipment and your DNA was located on the inner surface of a 3M full face respirator.
16Further investigation revealed that you made purchases of mimosa root extract and numerous pieces of glassware and equipment from international suppliers as early as February of 2020. You used your own name and the name 'Steve Reagal' when placing these orders.
17
On 26 September 2020, you purchased precursor chemical, palladium chloride, from a supplier in Poland. It was delivered to your address under the name Activtrak Distributors. On the same day, you ordered fumaric acid (used in the process of extracting DMT) from a supplier in Poland, addressed to
'Matt Brunswick' againusing your home address.
18In April 2021, you ordered three separate deliveries of mimosa root bark powder/extract powder from a supplier based in Singapore. Each order was delivered to you at your home address under the name Activtrak Distributors.
19Australian Securities and Investments Commission (ASIC) records reveal that the business name Activtrak Distributors was registered to you between 4 November 2004 and 5 November 2007.
20You were arrested and interviewed on 12 August 2021. Although you largely exercised your right to silence you did make some admissions, including that your wife was not allowed in the garage, the internal door to the garage is locked so that it cannot be opened from outside the garage and you had the only set of keys to the garage.
Nature and gravity of the offending
21In determining the gravity of your offending, I have had regard to the maximum penalties that are set out above for each of the offences. The maximum penalty of an offence is the yardstick set by Parliament and the starting point when considering objective seriousness. For offences involving the trafficking, cultivation and possession of drugs the quantity of substance involved is often the primary statutory factor used to determine seriousness. However, the courts have held that it would be a mistake to attribute chief importance to quantity without considering other relevant factors. The quantity of drugs and equipment involved may be significant factors, but they are not the sole variables affecting sentence[5]. An example of this was demonstrated at the plea by the tender of a photograph of Exhibit 66 which was the 111 grams of MDMA located at your premises. On the face of it this appears to be a significant quantity, however, what was depicted was a bag of dirty powder like substance. Consistent with your instructions, this was not in a usable form. The purity level of the substance was very low at 6 per cent, and it was well under what would be considered a commercial quantity. Further, there is nothing to contradict your instructions, that your intention was to synthesise the material and extract the MDMA for your own use.
[5]R v Pham [2015] 256 CLR 550, 35-36.
22Other factors that are commonly considered in assessing the gravity of offending include the offender’s role in the offending, any financial gain or motive, the size and sophistication of the operation, the duration of the offending and any planning and premeditation.
23In your case although you are the sole offender and so are entirely responsible for the offending, there is no evidence of any distribution, financial gain and no commercial component. Your counsel submitted that your motive for offending was to manufacture drugs, primarily DMT and MDMA, to supply your own addiction. In support of these instructions Mr Johnston pointed to the fact that there were no indicia ordinarily associated with trafficking. For instance, there were no scales, no deal bags, no tick lists, no phone records or surveillance material evidencing trafficking and no witnesses who could be produced to say they had purchased drugs from you. In these circumstances, I accept that you did not distribute drugs and there was never an intention on your part to distribute or profit from anything that you produced.
24In terms of scale and sophistication, whilst it is apparent that there was scale to your offending, there was no sophistication. This is apparent both by perusal of the photographs of your garage and the prosecution evidence that many of the ingredients required for the manufacture of illicit substances were missing.
25The prosecutor Ms Paganis submitted, that although you are to be sentenced for trafficking and possession of equipment on one day only, there is a greater context to your offending. I accept this submission. You did not amass this equipment and ingredients found overnight. To this end the fact that you had been purchasing glassware, equipment and mimosa root extract as early as February 2020 demonstrates a degree of planning and premeditation for what you were doing, that is manufacturing for your own use. As a result, your offending can be distinguished from the vast majority of similar offending dealt with by this court and that considered by the Court of Appeal in Djemal v the Queen [2020] VSCA 25[6].
[6]Djemal v The Queen [2020] VSCA 25
26I accept the submission of your counsel Mr Johnston that you were both the offender and the victim in this case.
Personal history
27You are now a 38 year old man. You are the first born child of your family, and have two younger sisters. You grew up alongside them, with your parents in Werribee. Your home life was a largely happy one. You had, and still have, healthy and supportive relationships with your mother and both of your sisters. Your relationship with your father was more difficult in your younger years, but improved from around your late twenties.
28You successfully attained a Year 12 education at MacKillop College. Your academic performance was unexceptional, though it is likely that your later diagnosis of ADHD played some role in your results. Further, you experienced a degree of bullying between Grade 5 and Year 10. You reported that this experience resulted in feelings of inadequacy, as well as anxiety and depression.
29Upon leaving school you worked for two years at a meat factory, before beginning a six year stint of varied employment and entrepreneurial mishap. You spent some 18 months working at a fishing store, and with the support of your parents, attempted to begin several of your own ventures, particularly a tackle and bait store, which was not successful. You also worked as a laboratory analyst for some time.
30When you were 26 years old you began studying at Swinburne University, enrolling in a Bachelor of Applied Science, with a double major in Biochemistry and Psychology. Though you successfully progressed through your degree, your performance was, again, unremarkable. You struggled with tertiary studies and sought assistance from your GP. You were diagnosed with depression and anxiety and were treated with anti-depressant medication, which you did not find effective. Three years later at age 29 you were diagnosed with ADHD and you were prescribed the psychostimulant, dexamphetamine. You found this medication somewhat effective but did not appreciate its side effects.
31Upon graduation you commenced working as an ambulance attendant. Barring a brief period of six months during which you left to pursue work in data entry, and in sales, you have remained in that line of work until the time of your guilty plea on 27 July 2022. Although you found this work testing, and at times remarkably stressful, you were incredibly good at it. During the pandemic you were entrusted with the care of the most vulnerable members of our community, no doubt this added significantly to what was already a very difficult job.
32Testimonials from your work colleagues Clyde Scorgie and Sue Peters were tendered on your plea. Both described you as being reliable, accountable and helpful. Sue Peters described how you cared for patients as though they were members of your own family and shared the story of your return to a retirement village to check on a patient at the conclusion of your shift and then sitting and watching the tennis with her.
33I accept the submission of your counsel that the loss of your employment because of this offending amounts to extra-curial punishment. Further it is my view that the community has suffered a loss, in that you can no longer perform this employment with such caring and compassion as a result of your conviction for these charges.
34In the brief period you were involved in the sales industry your relationship with methylamphetamine commenced at the age of 35 years. What began as experimental use escalated as you became addicted to the drug. It appeared to have a somewhat therapeutic impact upon you reducing your stress in social settings and making it easier to meet the demands of life. Although you candidly admit to multiple relapses since the time of your arrest, you have remained entirely abstinent since early 2022. The arrival of your son James has been a significant bolster to your resolve to remain abstinent. Further you have engaged in regular counselling since September of last year, and have attended 27 sessions since that time.
35You were 31 years old when you met Kelly Helebrant and you married two years later. Despite the tensions placed on your relationship by these proceedings, you and Kelly remain committed to fostering a strong relationship and marriage. You are now further united in your role as parents to your precious son, James. Several testimonials were tendered from both Kelly's family and your family. Invariably they speak of you as a wonderful, caring father and husband and as enjoying a good family that love and support you dearly. Your mother-in-law has recounted the way in which you would take her late father, then 90 years old, fishing, and the visits you would pay him in his nursing home, or that you would pay her mother, while she was in palliative care. Both your sister-in-law and your good friends describe you as being like a brother to them. Uniformly, all those who have spoken for you have expressed their shock at your offending and how at odds it is with your character. I was impressed that as a further mark of their support all those who wrote references gave up their time to attend court for your plea hearing.
Mental health
36A very thorough and informative psychological report authored by Sandra Cokorilo was tendered on your plea. Ms Cokorilo provided the following opinions;
(a) You have a primary diagnosis of Attention Deficit Hyperactive Disorder which she considered relevant to your offending. ADHD is a pervasive neurodevelopmental disorder that causes significant functional impairment and psychosocial disability, proposed to originate from anomalies in frontal lobe function and dopaminergic transmission.
(b) Inattention, impulsivity and hyperactivity are the most prominent features of ADHD. It is also associated with deficient inhibition, memory, executive function, decision making, motivation and emotional dysregulation. There are also secondary symptoms which involve addiction issues and social and relationship problems as is the case with you.
(c) You also have pre-existing diagnoses of persistent depressive disorder, generalised anxiety disorder, and stimulant use disorder.
(d) Your inadequately treated complex and multi-factorial psychopathology, characterised by marked impulsivity, affective instability, proper self-control and inhibition, has compromised your ability to think clearly, respond calmly and exercise appropriate judgement, thereby contributing to your offending.
(e) There are a number of factors which are considered relevant to your offending behaviour. Whilst your substance use has clearly played a role in your offending your inadequately treated psychopathology has played a key underlying role and predisposed you to substance abuse.
(f) You have demonstrated a history of prosocial functioning, you present with strong protective factors, and are deemed to be at a low risk of recidivism with good prospects of rehabilitation. From a purely psychological perspective, engagement with therapeutic resources should be a priority and would likely be sufficient in itself to manage the low risk of recidivism.
(g) You would likely experience the custodial environment as more onerous than a person without your psychopathology as individuals with ADHD are more prone to developing mood disorders and you already present with a history of anxiety and depression. The tense and volatile correctional setting would likely cause a decompensation in your mental health.
(h) Additionally, you would be considered a vulnerable individual within the custodial environment as you have no history of incarceration and you are naive to antisocial individuals. This would place you at a higher risk of threats intimidation and exploitation buy those with more entrenched patterns of offending.
37I accept the unchallenged opinions of Ms Cokorilo. I consider that limbs 5 and 6 of Verdins[7] are enlivened in your case. That is, you are likely to find imprisonment more onerous than a person who does not suffer from your mental health conditions and, there is a serious risk that your already compromised mental health will deteriorate further should you be imprisoned. I take this into account in sentencing you.
[7]R v Verdins & Ors [2007] VSCA 102.
38Your counsel also relied on the first limb of Verdins[8], he acknowledged the fact that you had a co-existing drug problem that reduces the weight I should attribute to this limb. I accept that Verdins[9] does have application in your case. In my view your substance abuse was caused by your impairment and the impairment was connected to the offending. I accept that your moral culpability should be reduced given the mental health issues you were suffering at the time and the opinions of Ms Cokorilo. In my view the application of general deterrence should be somewhat moderated in your case.
[8]Ibid.
[9]Ibid.
Matters in mitigation
39Your counsel in a persuasive and thorough plea has submitted that I should impose a Community Correction Order by way of disposition. His submission was predicated on the fact that your offending fell towards the lower end of the scale of seriousness for offending of this type. I accept such characterisation of your offending.
40In addition, Mr Johnston relied on several factors by way of mitigation. He submitted that you had entered an early plea and in doing so your plea has spared the need for any witnesses to give evidence, at either committal or trial. Your plea has saved the court time and as such has facilitated the course of justice. Further, he submitted a plea of guilty during the pandemic should attract a more pronounced amelioration of sentence than at another time due to the enormous backlog in cases before the courts[10]. I agree with these submissions and have given you a significant sentencing discount for your plea of guilty.
[10]Worboyes v The Queen [2021] VSCA 169.
Remorse
41Your counsel also submitted that you are extremely remorseful for your offending. This submission was supported by various sources of evidence. First, your plea of guilty. Second, your admissions in your record of interview. Third, your expressions of remorse repeated in the psychological report of Ms Cokorilo, and each of the letters tendered on your behalf. Fourth, when being assessed for the corrections order you told the assessing officer that you were embarrassed and ashamed of your actions. And lastly, I watched you in court during the plea and could see that you have taken this matter extremely seriously.
42In my view the most significant expression of your remorse is that you have participated in counselling with Jaimee Krawitz, a counsellor with Three Seas Psychology Group. Not only have you attended 27 counselling sessions but according to Ms Krawitz you have put in effort and displayed a high level of engagement over a long period of time.
43Mr Helebrant, you have taken the very important step of accepting responsibility for your offending, you are undertaking treatment to deal with the difficult issues that led you to offend, and you are now abstinent from drug use. I accept that your remorse is both profound and genuine.
Reasons for the offence
44To fully understand your offending, it is important to put it in context of what had been occurring in your life in the preceding couple of years. Your offending occurred about 18 months into the pandemic. The pandemic was particularly difficult for you as I have already mentioned in terms of your work. Further to this you and your wife were on the rollercoaster of IVF and had suffered two miscarriages. There was also the death of your cousin. It is not surprising that you struggled to cope, particularly considering your pre-existing mental health issues.
Rehabilitation
45I agree with your counsel that you have excellent prospects for rehabilitation. You have insight into your offending and remorse. You have no prior convictions or subsequent offending. You have stable housing and a huge amount of family support. You have the motivation of your six month old son, James and you have already commenced treatment. You have an excellent work history, you are currently abstinent from illicit substances and Ms Cokorilio has assessed you as a low risk of reoffending. All of these factors combine to give me comfort that you will not re-offend and you will successfully complete the community correction order I intend to impose.
Sentencing principles
46I consider that the relevant sentencing principles that must be applied in this case are general deterrence, albeit somewhat moderated, denunciation and just punishment. In my view specific deterrence plays little or no role in the sentencing matrix, given your age, your background, and experience of having your home searched by police and being arrested. Further, I am of the view that community protection in your case can best be achieved by your rehabilitation.
47Other sentencing principles that I must apply are parsimony and proportionality. That is, I must do no more than is necessary to punish you. I consider that a sentence of imprisonment is not required and in the circumstances of your case the sentencing factors can be addressed by a suitably onerous Community Correction Order.
Disposition
48So, if you could now stand? I have had you assessed for a Community Correction Order and you have been assessed as suitable for such an order.
49So, in relation to the charges of trafficking in a drug of dependence, cultivation of a narcotic plant, possession of a substance, material, documents or equipment for trafficking in a drug of dependence, possession of precursor chemicals you are convicted and you are placed on a Community Correction Order for a period of three years. The conditions of this Community Correction Order include that you must perform
(a) 250 hours of unpaid community work over that three-year period;
(b) you must submit for assessment and treatment for mental health; so it is likely to continue with Jaimee Krawitz.
(c) that you submit for assessment and treatment for drug abuse;
(d) and that you attend for supervision.
50I will offset 100 hours of the community work against the treatment. So that means if you engage in counselling, any hours that you do can be offset against the community work. So for example, if you were to do the 100 hours that are able to be offset you would only have to do 150 hours of community work.
51In addition to the conditions that I have imposed, there are standard conditions that you must comply with. And the first and foremost of these is that you are not to commit another offence punishable by imprisonment for the period of the order, which is three years. You need to report within two working days to your nearest Correction office, which I understand is Broadmeadows.
52And you are required to advise your supervising Corrections officer of any change of address of where you are living or working within two clear working days. And it is a term of all Community Correction Orders that you must submit to visits as directed and obey the instructions and directions of the Corrections officer and you cannot leave the State of Victoria without their prior permission.
53Mr Helebrant, if you reoffend you will breach the Corrections Order, if you do not comply with the conditions you will also breach the Correction Order, and if you do that you will come back before me and you may be resentenced on the original charges.
54I can only place you on a correction order if you agree, so firstly do you understand what is involved in the order?
55OFFENDER: Yes.
56HER HONOUR: And do you agree to comply with such an order?
57OFFENDER: Yes, Your Honour.
58HER HONOUR: All right. We've got a copy of the order here, so I'll sign it and then, just get Mr Johnston to check it and assist you to sign it.
59MR JOHNSTON: If I may approach, Your Honour?
60HER HONOUR: Yes, sure. All right. I will make the forfeiture and disposal orders that are sought by the Crown and I note the making of these orders is not opposed.
61MR JOHNSTON: It's not Your Honour.
62HER HONOUR: All right, and is there anything else?
63MR JOHNSTON: No, Your Honour.
64HER HONOUR: All right. Great, we'll make copies of the Corrections Order and we'll get that across to you Ms Paganis as well and thank you very much to counsel for submissions and the plea and Mr Helebrant I wish you all the best with the order.
65OFFENDER: Thank you.
66HER HONOUR: I hope that you can - I've got every confidence that you'll be able to do it, so that's good.
67OFFENDER: Thank you.
68HER HONOUR: And I have every confidence that you won't come back to court, because I think this has been a terrible experience for you. Not one that you've enjoyed at all.
69OFFENDER: Thank you, very much.
70HER HONOUR: Pursuant to s. 6AAA[11] I indicate the sentence I would have imposed but for your plea of guilty would have been 12 months imprisonment and a CCO in the same terms as that imposed this day. All right. Thank you.
[11]Sentencing Act 1991 (Vic) s6AAA.
71MR JOHNSTON: As Your Honour pleases.
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