Director of Public Prosecutions v Holt
[2016] VCC 2043
•22 December 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. 15-00288 and CR-15-00287
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ROBIN HOLT KENNETH YOUNG |
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JUDGE: | HER HONOUR JUDGE HAMPEL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | Trial: 2 November 2016 – 1 December 2016 | |
DATE OF SENTENCE: | 22 December 2016 | |
CASE MAY BE CITED AS: | DPP v Holt & Anor | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 2043 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr M. Regan Mr G. Martin (for Sentence) | Office of Public Prosecutions |
For the Accused Holt | Mr A. Jackson | Haines & Polites |
| For the Accused Young | Mr A. Patton | Valos Black & Associates |
HER HONOUR:
It was the prosecution case at the trial that a clandestine laboratory had been set up at the home of the accused, Robin Holt’s, in Steiglitz, just out of Geelong and used to manufacture methamphetamine and possibly amphetamine, which Robin Holt then supplied to Kenneth Young who, in turn, supplied it to other dealers further down the chain. The prosecution case was based on telephone intercepts and surveillance evidence which the prosecution said evidenced the regular receipt by Young of orders from his customers and then the placing of a bulk order by Young, with Holt, and the supply by Holt to Young of the drugs ordered at the regular Tuesday lunches and Friday dinners they attended together at various hotels in Melbourne.
On 19 March 2014, police executed a search warrant at 2502 Steiglitz Road, Steiglitz. The accused, Robin Holt, was not present. Surveillance indicated that he had spent the night in Geelong and was arrested later that day at a property in Geelong. In the course of a recorded interview, he told police that he lived at the property at Steiglitz Road and was the sole occupant of it.
Found at the property in various rooms in the house, most particularly the lounge, entry, kitchen and laundry, was all the equipment necessary to manufacture methamphetamine, save for a fully operational condenser. There was a condenser on site but it was broken. Evidence indicated that one could be fashioned relatively easily from household items. There were also sufficient precursor chemicals, bases and solvents to manufacture methamphetamine from pseudoephedrine and, but for P2P itself, otherwise all the other precursor chemicals, bases and solvents needed to manufacture methamphetamine using P2P. Rubbish found on site was suggestive of methamphetamine manufacture using P2P having previously occurred. Documents, including a book described as "Uncle Fester’s Guide to the Manufacture of Amphetamine and Methamphetamine", and recipes in the handwriting of the accused, Robin Holt, for the manufacture of methamphetamine using pseudoephedrine and P2P, as well as a recipe for making methamphetamine, using what is known as the “shake and bake” method were also found in various places in the house, including in Robin Holt’s bedroom on the bedside table and in his chest of drawers. Other books relating to the manufacture of drugs were found in the book case in the lounge room. Robin Holt's fingerprints were on some of the pages of the Uncle Fester book and also on some of the handwritten recipes. In various places in the house, some concealed in cartons bearing labels for coffee pods, some in their original packaging, were vast quantities of cold and flu tablets containing pseudoephedrine; 3620 tablets in total.
Robin Holt, you were charged, as a result, with possession of substances, equipment and documents with the intention of using them for a purpose related to trafficking in a drug of dependence and trafficking in a commercial quantity of pseudoephedrine. Pseudoephedrine is, itself, a drug of dependence under the Drugs, Poisons and Controlled Substances Act 1981 (Vic), as well as a well-known precursor used in the manufacture of methamphetamine.
When the search warrant was executed, a gas bottle was found sitting in the lounge room beside the sofa. It was later examined and three bags of methamphetamine were found in a concealed compartment in that gas bottle. Two of them had "28" written on them, the third "29". Each contained approximately 28g, or in the terminology often used in these cases, 1 oz of methamphetamine. In total, that exceeded a trafficable quantity, namely 138g of methamphetamine. In addition, four bolt action rifles were found in the main bedroom of the property and a small quantity of amphetamine was found on a bookshelf in the lounge room, along with some other drugs or precursor chemicals in small quantities.
The telephone intercepts that had been in place for some time revealed what the prosecution alleged was Kenneth Young receiving orders for 211g of methamphetamine from his associates and placing orders with Robin Holt for
406g of methamphetamine over the period between 1 December 2013 and
19 March 2014. That gave rise to Giretti type trafficking charges against Holt and Young over that period. Holt was also charged with trafficking in methamphetamine by reason of possession for sale of the 138g of methamphetamine found in the gas bottle.
The combined weight of the methamphetamine found in the gas bottle and that alleged to have been ordered by Young and supplied to him by Holt over that period was 544g. That quantity exceeds the quantity prescribed in the Drugs, Poisons and Controlled Substances Act 1981 (Vic) as a commercial quantity of methamphetamine. The aggregation of those two quantities and reliance on the two different means of trafficking, possession for the purpose of sale and actual sale, gave rise to a charge of trafficking by Holt in a commercial quantity of methamphetamine between 1 December 2013 and 19 March 2014. It followed that the discrete charges of trafficking simpliciter by Holt, by possession of the trafficable quantity of methamphetamine found in the gas bottle and by supply to Young of the 406g, calculated by reference to the telephone intercepts, were laid as alternatives to the trafficking in a commercial quantity charge.
Kenneth Young was charged with a Giretti trafficking charge based on the telephone intercepts, recording what were, the prosecution alleged, the receipt of orders by him for 211g and the placing of an order by him with Holt for the 406g.
The prosecution case in respect of the trafficking in methamphetamine charges was therefore clearly based on Mr Holt having a clandestine laboratory established at his property and therefore, having the means to manufacture and supply Young with the methamphetamine which was so regularly ordered by Young. It was not necessary as part of the prosecution case in respect of the trafficking charges to prove that Mr Holt was actually the cook or whether somebody else was. It relied on having the means to produce the methamphetamine to fill the orders.
The telephone intercepts and surveillance evidence also revealed what the prosecution allege was a single transaction supply of amphetamine by
Mr Young to man by the name of Hines on 28 December 2013. There were intercepted calls indicative of an arrangement to supply Hines with a quantity of a drug on that day. Hines was under surveillance and arrested shortly after leaving Young’s home and found in possession of just over 6g of amphetamine.
The telephone intercepts also revealed conversations between Young and two men, a father and son by the name of Robert and Bryce Curran, essentially, during December 2013. The prosecution alleged that they revealed that Young, and Robert and Bryce Curran were parties to a joint criminal enterprise to bring five 25kg bags of phosphorous acid into Victoria for use, most likely, by on supply to others for the manufacture of methamphetamine. Phosphorous acid is a prescribed precursor chemical and is able to be used in the production of methamphetamine. Kenneth Young was charged with possession by reason of participation in a joint criminal enterprise with Robert and Bryce Curran, of a prescribed quantity of a precursor chemical, namely the phosphorous acid. When search warrants were executed at the homes of various of the accused alleged to be part of the on supply of the drugs provided to Young by Holt, two 25kg bags of phosphorous acid were found at the home of Bryce Curran and one 25kg bag at the home of William Cartledge. Two further bags were found at Holt’s premises at Steiglitz in a shed. One of those bags had been opened and a small quantity decanted. The phosphorus acid found at Robin Holt’s premises at Steiglitz was listed as one of the substances in the possession of substances, equipment and documents for the purpose of trafficking a drug of dependence charge.
The trial, based as it was, essentially on a telephone intercepts and what was found at Steiglitz had very little contested evidence. Both the accused placed in issue at trial, their knowledge and intent in respect of these various trafficking and possession charges laid against them.
At trial, Robin Holt gave evidence; Kenneth Young did not. Mr Holt, in his evidence, admitted that the telephone intercepts revealed that he was engaged in an ongoing business of supply to Mr Young, of illicit substances, with code being used to conceal the true nature of what was being ordered by Young, and supplied by Holt to him. He gave evidence that the substance supplied and ordered was a men's energy product, a product containing sildenafil, the same active ingredient as is in Viagra. He gave evidence that this was supplied to him by the Bandidos. He also gave evidence that an initially innocent association with motorcycle riders had led, in effect, to his property being colonised or appropriated or occupied and used at will by the Bandidos.
He gave evidence that the Bandidos were responsible for bringing pseudoephedrine and most of the other chemicals, substances and equipment capable of use in the manufacture of methamphetamine onto his property. He acknowledged that he was aware of the presence of the chemicals and the pseudoephedrine in the house. It should be noted that these substances - the scientific glassware and the domestic items, such as grinders, coffee filter bags and portable hotplates which, on the expert evidence, were part of what could be used to manufacture methamphetamine - were stored in various locations in the house, mixed up with items belonging to him and apparently used by him in his day to day activities. The only precursor chemical that Mr Holt said was not brought in by the Bandidos was the two bags of phosphorous acid. Mr Holt said that Robert Curran had asked him to store them and had brought them to the property for that purpose. He said that he was unaware that one of the bags had been opened and part of the contents removed.
He acknowledged that he was aware that the materials, the substances and equipment on the property that were identified as being capable of being used for the manufacture of methamphetamine could, in fact, do so. He acknowledged that the handwritten recipes were his and that he had read Uncle Fester’s cookbook. He acknowledged being a long-term amphetamine user and said that the small quantity of amphetamine found on the bookshelf in the lounge room was his, for personal use.
He gave evidence that he was unaware of the existence of the gas bottle or of the methamphetamine concealed in it and that it had not been on his property when he had last been there, the day before the execution of the warrant.
The jury was unable to agree on any of the trafficking in methamphetamine charges but it found you, Robin Holt, guilty of the charge of trafficking in a commercial quantity of pseudoephedrine, the charge of possession of equipment, substances and materials for a trafficking related purpose and possession of a small amount of amphetamine. It found you, Kenneth Young, guilty of the charge of possession, by reason of the joint criminal enterprise with the Currans, of the prescribed quantity or an amount in excess of the prescribed quantity of phosphorous acid, the prescribed precursor chemical and found you guilty of the single transaction trafficking in amphetamine charge to Hines on
28 December.
I have set this out in such detail as to make it clear, consistently, with the verdicts and the charges in respect of which the jury was unable to agree, the charges and the actual basis on which I can sentence each of you.
So far as you, Robin Holt are concerned, you come to be sentenced for possession of the substances, equipment and documents connected with the operation of a clandestine laboratory, that is, possession of substances, equipment and materials intending that they be used for a purpose related to trafficking in a drug of dependence; trafficking, by reason of your possession of that commercial quantity of pseudoephedrine for a purpose related to trafficking and that can include manufacture of a drug of dependence for the purpose of trafficking; and also of possession of that small quantity of amphetamine, which I accept is to be treated as for your own use.
As I made clear, in the course of the post-verdict discussions, as the trafficking in methamphetamine charges did not result in verdicts and you are to be re-tried or you have been directed to re-tried in respect of them, I cannot and do not make any finding in respect of the clandestine laboratory and trafficking in pseudoephedrine charges of which the jury found you guilty, that you had manufactured methamphetamine or allowed others to manufacture methamphetamine for the purposes of supply to Young.
So far as you, Kenneth Young are concerned, so far as the trafficking to Hines charge is concerned, I treat it as a single act of supply of a trafficable quantity of amphetamine to Hines. I make no finding, as an aggravating circumstance, that you were in the business of supplying drugs of dependence or, as a mitigating factor, that this was a one-off transaction. But I treat it as a single transaction. So far as the possession of the phosphorous acid is concerned, I sentence you upon on the basis of knowing participation in a joint criminal enterprise with Robert and Bryce Curran. Whilst each of you, and Robert and Bryce Curran played different roles, there is no basis for finding you played any lesser role or stood to make any lesser gain than the Currans.
Dealing then, with your personal circumstances. You are both 69 years of age. You both have extensive criminal histories dating back to your youth and you both have relevant prior convictions.
In particular, you, Robin Holt, were arrested back in November 2001, at the same property at Steiglitz. Then, on that occasion, substances, equipment and documents connected with the operation of a clandestine laboratory were in existence there. A significant quantity of methamphetamine was found on the property, as well as significant quantities of pseudoephedrine and significant quantities of empty pseudoephedrine-based tablet packs. Ultimately, you pleaded guilty to a rolled up trafficking charge based on a combination of the methamphetamine found on the property on the day of the execution of the warrant in November 2001 and a single large quantity supply to a person who, unbeknown to you at the time, was an undercover policeman. Although the ultimate plea deal did not result in a conviction for possession of substances, equipment and documents connected with the operation of a clandestine laboratory, it was clearly part of the context evidence to which the trafficking charge to which you pleaded guilty was based. You were sentenced following your guilty plea to a term of imprisonment of two years six months on that trafficking charge. You were sentenced at the same time for other offences, conspiracy to pervert the course of justice and possession of a firearm as a prohibited person. You received a total effective sentence of three years and six months with a non-parole period of two years and six months. You had spent close to two years on remand before being sentenced.
You, Kenneth Young had been arrested in 1998 after a four month engagement with a man you did not appreciate at the time was an undercover policeman. That engagement being one in which you acted as the broker in supplying him with significant quantities of precursor chemicals for use in the manufacture of methamphetamine. You ultimately pleaded guilty to a charge of possession of substances with intent to manufacture drug of dependence. You were sentenced to a term of imprisonment of three years for that. You pleaded guilty at the same time to a charge of conspiracy to traffic in a drug of dependence, for which you were sentenced to imprisonment for a period of seven years. The term for the possession of the substances with intent to manufacture was directed to be served concurrently with that other sentence, resulting in a total effective sentence of seven years. A non-parole period of five years was fixed. An appeal against that sentence was unsuccessful. You, too, had spent close to two years on remand before being sentenced.
For each of you, these were the last appearances by you before a court until these charges arose. However, they were far from your first and far from your first for drug related offences. Your record, Robin Holt, commences in 1964 when you were 17. You have numerous convictions for offences of violence, robbery, possession of firearms and other weapons, as well as dishonesty offences, driving and what might be called summary or street offences. Your record, Kenneth Young, commences when you were 18. You, too, have offended across a broad spectrum; violence, dishonesty, drug offences, property damage, driving and street and summary offences. In addition, you have a conviction for a breach of an intervention order and you too, have been convicted of a pervert the course of justice offence, yours an attempt to pervert the course of justice charge. Each of you has each served numerous terms of imprisonment.
You have clearly not been deterred by your previous encounters with the criminal law in respect of the type of offending for which I must sentence you now, following the jury verdicts, or more generally. You have not been deterred by the previous sentences of imprisonment that have been imposed upon you. You are both well old enough to know better, old enough to know exactly what you were doing, and both experienced enough to know, by reason of your previous exposure to the criminal justice system, the consequences if caught.
You both have families and continued family support. I am told you, Robin Holt, are currently in a relationship and have adult children from previous relationships. Your two oldest children are in relationships of their own, have good employment and have children of their own. Your youngest child is just finishing his schooling.
I am told that you, Kenneth Young, are not in a relationship at present but maintain good relations with the past three partners with whom you have fathered a total of seven children. They are now aged between 44 and 20 and you maintain relations with all of them. The youngest, a girl, had been living with you up to the time of your remand. As the telephone intercepts revealed over the six month or so period covered by the surveillance and investigation, you were and had been for some time before then, sharing the care for your profoundly intellectually and physically disabled son, Tristan, who is now 30. Although I am told he is now in residential care as the physical burden of attending to his complex needs became too much for you to manage, you still clearly consider yourself responsible for ensuring that he enjoys as good a quality of life as he can and have maintained regular contact with him since he went into care.
But at a time most men are looking forward to retirement and spending time with children and grandchildren, each of you took a gamble with your future liberty and lost. Neither of you can call in aid to mitigate your moral culpability, any mental illness, intellectual disability or psychological condition.
It is clear that the sentences to be imposed on each of you must reflect denunciation for the conduct in which you have engaged, just punishment and deterrence, both general and specific. Your prospects for rehabilitation, having regard to you past histories, cannot be rated as anything better than poor.
Each of you suffers a range of conditions not uncommon in men approaching their 70s. You, Robin Holt, have had both hips replaced and are clearly experiencing some prostate issues. As a result of your experiences as the victim of two violent attacks when you were considerably younger, on one occasion you were stabbed and on another, you were shot, you have what your counsel described as issues with your nerves and have long been prescribed Valium for that. You also report being a long-term user of amphetamine and methamphetamine and report, somewhat counterintuitively perhaps, that you use amphetamine, in part, to counteract the sedating effect of the Valium.
You, Kenneth Young, suffer from high cholesterol, atrial fibrillation, chronic arthritic back pain and bladder function problems. Whilst all of these conditions are treatable, as are those that Mr Holt has, they all need monitoring and they are likely not to disappear. In addition, Mr Young, you have reported and been investigated for impaired cognitive functioning. Investigations, to date, have led to questions as to whether you are in the early stages of a form of dementia known as Lewy body dementia. Although no definitive diagnosis has been made, I accept the uncertainty of not knowing whether you will develop dementia is an added pressure for you.
I adopt, without repeating here, the lengthy recitation of the medical reports that were provided at an earlier stage of the proceedings and which led to my encapsulation of what I understand to be the summary and the ultimate position in respect of that here and I will make sure that that earlier ruling of mine setting that out is also provided to those who will be responsible of your care and welfare in the immediate future.
Whatever physical or cognitive deficits that both of you suffer, they did not prevent either you from committing these offences and they are no bar, in my view, to you serving terms of imprisonment.
Although you have, each of you, significant criminal histories, and so it can be said in that sense, have shown little regard for keeping the law, your conduct in court has been respectful throughout and appropriate. You have always been on time, you have both been on bail since being charged but for relatively short periods and you have, apart from what I am told are a few minor lapses in some of your reporting conditions, abided by the strict and onerous conditions of bail. I am told that in respect of each of you, there are no charges pending. That means that each of you had a period of ten years or more between your last sentence and these charges and that you have not been charged with any further offences in the years since these charges were laid. It is a particular pity, in that sense, that you had gone so long since your last terms of imprisonment before coming into conflict with the criminal law and then offending in a way that, in my view, leaves no sentence other than one of imprisonment, for each of you, open.
Whilst the delay between the laying of these charges and the sentencing has been considerable and, to some extent, caused by the manner in which pre-trial issues were raised and litigated by either one or other of you, nonetheless, you have had these matters have been hanging over your heads for a considerable period and that I take into account as being an added burden. I also take into account the fact that this does not finally dispose of all matters outstanding against you. There will be some time before all outstanding matters are dealt with and you will know your ultimate fate and can start to plan your futures. There is a pending re-trial on the trafficking in methamphetamine charges for both of you and for you, Robin Holt, there are also the outstanding charges in relation to the possession of the firearms that were found at your property on the day the warrant was executed. I take into account the fact that these outstanding matters are yet to be resolved, as adding to the burden of imprisonment for both of you.
The mixed verdicts mean that you lose the possibility for any sentences, if ultimately you are convicted of any charges relating to trafficking in methamphetamine or for you, Mr Holt, in relation to the firearms, to be served concurrently or partially concurrently with these sentences and to have those orders made today. I can only sentence you, obviously, for the offences for which you have been found guilty and I must ensure, as I hope I have taken pains to do, that I do not assess the gravity of this offending by reference to the evidence or by taking into account the evidence that relates to the trafficking charges. If you are ultimately convicted of any charges in relation to trafficking in methamphetamine, it will be for the sentencing judge at that time to do such adjustment as he or she thinks fit, to ensure that as best as possible, you do not lose the benefit of any concurrency you would have been entitled to if sentenced for all offences at the one time.
I want to make it clear again, I am not pre-judging any guilty findings in respect of the trafficking charges but making it clear that had I been sentencing you for the trafficking in methamphetamine charges at the same time as this, I would have considered it appropriate to have a degree of concurrency between these charges and the other charges and I want that expressly on record so that if there are, ultimately, trafficking charges found proven against either of you, that the judge who ultimately comes to sentence you for those, knows my view about that. I cannot, of course, bind any other sentencing judge but I do think it is important that I place that on record.
It is clear from what I have said that I do not consider any sentence other than imprisonment appropriate for both of you. Although a spirited plea was made by Mr Patton on your behalf, Mr Young, for the imposition of a Community Correction Order, so as to achieve parity with the sentences imposed on Robert and Bryce Curran and William Cartledge, I do not consider your circumstances and the circumstance of the offending justifies such a course. Each of the Currans pleaded guilty. They did so, following a sentencing indication hearing and where the Crown had indicated that a Community Correction Order was within range.
Knowing what I know now about the offences, had I been the sentencing judge, I am not convinced that I would have considered a CCO sufficient, but I was not the sentencing judge. But in any event, each of the Currans had far fewer and much less serious previous convictions. They did plead guilty and were entitled to a considerable sentencing discount for the guilty pleas. Mr Cartledge’s charges are not on all fours with those of which you have been convicted. He has a more extensive history than the Currans but I did sentence him and I had more information about him. I was satisfied on the materials presented to me on his plea, that he is a man who has suffered considerable disadvantage throughout his life and that the disadvantage, despite his advanced years, had not diminished over the years. He also, on the materials before me, had a low level of intellectual functioning that did affect the assessment of his moral culpability. He too, was entitled to a substantial reduction in his sentence by reason of his guilty plea.
In coming to the sentences that I have, I take into account, so far as you are concerned, Mr Holt, in a global sense, the sentence that was imposed upon you in respect of the previous trafficking charge because, as I said, part of the context behind that was the finding of the clandestine laboratory at Steiglitz and I take into account that the sentence that was imposed in respect of that, came about as a result of a guilty plea and therefore, that a discount had to be applied for that guilty plea.
So far as you, Mr Young are concerned, I take into account, also, that you have been sentenced previously for a like offence to the charge of possession of precursor chemicals and that again, the sentence imposed on that occasion was one following the entry of a guilty plea. There are two things that I must take into account in fixing the sentence for this. First, this is your second offence for a like matter and second, that the previous sentence was one imposed following the entry of a guilty plea with a discount that must follow for that.
Balancing those matters that count in your favour and the limitations that I have expressed in terms of ensuring that I do not take any of the factors relating to the trafficking into account, I have tried to fix sentences that balance those matters in your favour with the need, as I have said, to properly reflect deterrence, both general and specific, denunciation and just punishment.
Robin Holt, on the three charges of which the jury found you guilty, you are convicted.
On Charge 6 of trafficking in pseudoephedrine, you are sentenced to be imprisoned for a period of two years.
On Charge 8, the charge of possession of substances, equipment and documents connected to the operation of a clandestine laboratory, that is possession of the substances, equipment and materials, intending to use them for a purpose relating to trafficking a drug of dependence, you are sentenced to be imprisoned for a period of three years and six months.
On Charge 9 of possession amphetamine, you are convicted and discharged.
The sentence on Charge 6 is to be served wholly concurrently with the sentence on Charge 8.
That makes a total effective sentence of three years and six months and I fix the period of two years as the time that you must serve before being eligible for parole.
I declare you have served 64 days in pre-sentence detention, I direct that that be counted as part of the sentence already served.
Kenneth Young, on the two charges of which the jury has found you guilty, you are convicted.
On Charge 4 of possession precursor chemicals, you are sentenced to be imprisoned for a period of four years.
On Charge 5 of trafficking amphetamine, you are sentenced to be imprisoned for a period 12 months and I direct that nine months of that be served concurrently with the sentence on Charge 4.
That makes a total effective sentence of four years and three months.
I direct that you serve a period of two years and three months before being eligible for parole.
I declare that you have spent 20 days in pre-sentence detention and I direct that that be counted and reckoned as part of the sentence already served.
Is the arithmetic correct?
MR MARTIN: Yes, Your Honour.
HER HONOUR: Any further orders required to be made?
MR MARTIN: Just the disposal orders, which are not opposed.
HER HONOUR: I make the disposal orders sought. I will sign them in chambers.
COUNSEL: As Your Honour pleases.
HER HONOUR: Can you please remove Mr Holt and Mr Young? I will sign these outside and send them straight back in.
MR MARTIN: Yes, Your Honour.
HER HONOUR: Adjourn please.
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