Director of Public Prosecutions v Hunt
[2012] VCC 984
•13 July 2012
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
CR-11-00878
CR-11-00877
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| PETER HUNT JANDRE SYNAN |
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JUDGE: | HER HONOUR JUDGE SEXTON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 5 July 2012 | |
DATE OF SENTENCE: | 13 July 2012 | |
CASE MAY BE CITED AS: | DPP v Hunt & Anor. | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 984 | |
REASONS FOR SENTENCE
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Catchwords: Attempt to traffick drug of dependence-possession of precursor drug-possession of tablet press-plea- one accused with relevant criminal history-co-accused no relevant criminal history- no parity
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr J. Singh | |
| For Accused Hunt For Accused Synan | Ms N. Karapanagiotipis Ms G. Morgan |
HER HONOUR:
1
Peter Martin Hunt and Jandre Synan, you have each pleaded guilty to
a charge of attempting to traffic in a drug of dependence, Charge 1. This crime has a maximum sentence of 15 years imprisonment.
2 Peter Hunt, you have also pleaded guilty to a charge of possessing precursor chemicals, Charge 2, and to a charge of possessing a tablet press, Charge 3. Each of these crimes has a maximum penalty of five years imprisonment, or 600 penalty units or both.
Summary of offending for both:
3 An agreed summary of the offending was provided by the prosecutor, and is Exhibit A. I proceed to sentence you both on the basis of that summary.
4 I will briefly outline your participation in the charges, which relate to each of you, and the apparent reasons for your involvement.
Charge 1
5
By your pleas of guilty, you have each accepted that between May and June 2009 you were together attempting to manufacture methylamphetamine in an illegal laboratory, set up in a bedroom of
Ms Synan’s home.
6 Scientific glassware was found there, containing liquids and powders. Two samples were taken, which were found on testing to show phenyl-2-propanone (P-2-P). There were indications of P-2-P in a third sample. P-2-P is a prohibited drug of dependence, which can be used in the manufacture of methylamphetamine.
7 A total of 5.42 kilograms of P-2-P was found, but it was of very low purity.
8 Mr Hunt, I accept that your role was to act as a mentor to Ms Synan, due to your previous experience in illegally manufacturing drugs of dependence.
9 Telephone intercepts show there was discussion between the two of you about the process, and in your interview, Mr Hunt, you admitted that you had answered Ms Synan’s questions about the process and given assistance in that way.
10 Although it is not alleged that you had as active a role as you have played in previous illegal drug manufacturing enterprises, you were still a participant, as your fingerprints were discovered on some of the glassware found at the premises, and through your company, Ropetam Pty Ltd, you ordered some equipment and chemicals, which were also found at the premises and were most likely used in the process.
11 Your previous experience in illegal drug manufacture, being three previous convictions for trafficking amphetamines as a drug cook probably led to you being sought out for advice and used as a supplier of some of the items required for this process. It seems, however, that you received nothing in return for your involvement.
12 Ms Synan, it was submitted by your counsel and the prosecutor that your role was not a significant one. However, your role in providing the premises for the illegal activity was important, as it means that the manufacturing process may not have happened, but for your preparedness to house the illegal laboratory at your property. There were probably others involved in setting up and overseeing the process, who may have done so elsewhere, if you had not become involved, but I have no information about them.
13 Ms Synan, you have conceded that you were an active participant, but as you apparently had no previous experience in manufacturing drugs, the attempt was not sophisticated.
14 In intercepted telephone conversations with your husband, you spoke of the chemical process and problems that had arisen, as well as discussing what you would do with the proceeds of the sale of the manufactured drug, assuming it was successful.
15 In the end, because of the submissions of both counsel, I accept that your role was not a highly significant one, but was of some significance to the illegal operation.
16 Your husband had been sentenced to imprisonment in late 2008 for offences unrelated to drug trafficking, and by 2009 you were unable to continue the mortgage payments on your house.
17 You had suffered violence at the hands of a previous husband, and in the past had difficulty keeping stable accommodation for you and your son, as a result.
18 You were an amphetamine user, and all of these factors apparently led you to make yourself and your house available for this crime, in the hope that the illegal activity would make money to allow you to keep your house.
Charge 2
19 Mr Hunt, in 2008, you arranged to lease part of a factory premises. A company was formed by you, called Ropetam Pty Ltd, although you told police that it also involved a Rod McKenzie and a Jimmy Allen. As at April 2009, you were the sole director and shareholder and Ropetan.
20 It is alleged that Allen was with you when the lease was arranged for part of the factory. The plan was to use the factory premises for legitimate business conducted by you, of the sort you told the police about in your interview.
21 By mid 2009 you were no longer able to afford the rent, and although you effectively moved out of the factory, you arranged with a Mr Fox, who was the major leaseholder of the factory, to still have deliveries arrive there for you to collect.
22 In March 2009, you placed an order for gamma butyrolactone through your company Ropetam. This chemical is a precursor for the manufacture of the drugs of dependence, methylamphetamine and GHB.
23 You told police that you were aware that the chemical could be used for legitimate purposes, but you did not think it was going to be, and did not want to know.
24 You used your credit card to pay for the order. You arranged for the order to be delivered to the factory in May 2009. Although you did not recall it, you were observed collecting the parcel later the same day on which it was delivered.
25
You told police that you became involved in this order because Allen had given McKenzie some money, which McKenzie had used for another purpose, and Allen looked to you for repayment. You told police that you repaid some of the money to Allen, but felt forced by Allen into placing the order, as you said,
“To get you off the hook”, presumably for the balance of what was owed by McKenzie.
Charge 3
26 In September 2009, Mr Hunt, you were involved in arranging for the importation of a tablet press, again through the company, Ropetan. Again, your credit card was used, and again it was arranged for the press to be delivered to the factory.
27 You told Mr Fox that some machinery was arriving, and later collected the importation documentation from him, which nominated Ropetam as the consignee.
28
The press arrived at the factory on 20 October 2009 and you were informed of this. Although you did not collect the press before your arrest on 21 October of 2009, Charge 3 is based on your possession of the tablet press through
Mr Fox, the major leaseholder of the factory, acting as your agent.
29 You told the police that once again you became involved at the request of Allen. You said that although you were concerned that this importation was, “A red light” to authorities of intended wrongdoing, you accepted Allen’s apparent assurance to you that the machinery was to be used for pressing caffeine pills.
30 You apparently did not get any money out of the deal, and did it, you said, to get you finally “off the hook”.
Co-accused and parity
31 It is alleged that Allen ultimately received the gamma butyrolactone which you possessed, (Charge 2), and used it for the purpose of manufacturing a prohibited drug.
32 It is also alleged that Allen was involved in the importation of the pill press, (Charge 3).
33 Your counsel referred me to evidence supporting these allegations and submitted that you were not the one seeking to acquire these items for use.
34 On the material before me, I accept that. Allen’s case is listed for committal in November this year, although I do not know exactly what charges he is facing.
35
Two other men have been charged with drug offences arising out of the police investigation into your activities: Rod McKenzie and George Martin.
His Honour Judge Howie sentenced them on 30 March 2012.
36 Although the sentencing remarks have been provided to me, and there is reference to you supplying these men with chemicals and equipment, therein, and indeed you were questioned by the police about this, you are not charged before me for offences arising from these activities. I therefore have paid little regard to the sentences as they do not relate to men accused of the same crimes, for which I am sentencing you, although your counsel submitted that I may receive some assistance from the term of imprisonment imposed on McKenzie, given that he has a similar criminal history to you.
37 Mr Hunt and Ms Synan, because the personal situations of each of you are so different from each other, I will not apply the principles of parity between you on sentence.
Principles are matters which apply to both of you
38 I will deal firstly with the matters which apply to both of you, then I will turn to deal with factors specific to you, Mr Hunt, and then come to you, Ms Synan.
39 Charge 1, to which each of you have pleaded guilty, is a serious crime. Although it was not a success, the idea was to manufacture drugs illegally and then sell them, in your case, Ms Synan, seeking to benefit from that.
40 In doing so, Ms Synan, you were shutting out of mind the potential for the devastating impact of illegal drug use on drug users and their families, which must have been known to you through your own use.
41 Mr Hunt, you told police that you have never used drugs and do not like them, but that did not stop you from assisting Ms Synan in the process, which was intended to produce illegal drugs for sale.
42
As to Charges 2 and 3, while they are less serious than Charge 1, and you may have preferred not to be involved, you were an active participant in obtaining the chemicals and equipment, and it seems you wilfully turned
a blind eye to the use to which these items were to be put.
43 There are some mitigating factors which I must take into account. The first of these is the fact that you have both pleaded guilty. You are each entitled to have that fact taken into account in your favour, and I do so.
44 By your pleas the community has been spared the time and cost of a trial of three to four weeks. This is an important saving for the community.
45 In your case, Ms Synan, I accept that your lawyers indicated early that you were likely to plead guilty, but because of your memory problems, making it difficult for your lawyers to fully canvass matters with you, you did not enter your plea of guilty until 23 April. This was about three weeks before the trial was due to start.
46 In your case, Mr Hunt, although you did not plead guilty until the first day of the trial, I accept that this was following a change in your legal representatives. It appears from the file that the trial was adjourned for a week, and during that time your counsel undertook analysis of a large amount of material, and no doubt canvassed the issues with you leading to your plea.
47 As required by law, the sentence I intend to impose on each of you is far less than would have been imposed had you been found guilty after a trial.
48
The next matter I take into account in your favour is the time that has passed from the time of your offending to the time of sentence. In respect of
Charge 1 it is now three years ago, with the events in Charges 2 and 3 only
a little less than that. The delay in getting your cases to this point has not been through any fault of yours.
49 In your case, Mr Hunt, you have spent almost all of that time in custody, and all the time since your arrest.
50 In your case, Ms Synan, you have continued to suffer from depression, and the delay may well have worsened your condition.
51 The next matter I take into account is that while you both sought to gain from your offending, neither of you ended up with any financial benefit. Ms Synan, you still lost your home when the mortgage remained unpaid.
52 Mr Hunt, you did not seek to profit from the advice you gave in respect of Charge 1. For Charges 2 and 3, the benefit sought was apparently at least mainly to stop Allen from pressuring you, or McKenzie, for money owed by McKenzie.
53 However, I note that you have many money making ideas, and consider yourself good at obtaining items. While I accept that you did not prosper from any of the crimes for which I am about to sentence you, I cannot ignore the fact that your clear motive in obtaining and selling items was profit, as you explained to police, and that was, at least, a possible additional reason for your involvement in Charges 2 and 3.
54 The next matter I take into account is that you have each agreed to the orders to be made by the court for forfeiture and disposal of the items that were seized by police, with the exception of one item sought to be forfeited, which is the subject of discussion between counsel for you, Mr Hunt, and the prosecution.
55 Finally, in respect of each of you, the principle of general deterrence is of great importance in offending involving drugs, and means that my sentences for each of you must seek to deter others from committing such crimes.
Personal circumstances - Hunt
56 Mr Hunt, I find very little material in your police interview or any other material before me to show that you feel remorse for your offending. The fact that you re-offended in 2009, after submitting to a sentencing court on two previous occasions, -1997 and 2001-, that you had now given up involvement in the illegal manufacture of drugs, certainly tells against remorse.
57 You have 20 charges in your criminal history from 1963 to 2001. The most significant and relevant are those in relation to amphetamines. Between 1993 and 2001 you received three terms of imprisonment for trafficking, attempted trafficking and possession of this drug.
58 Overall, the total of the maximum sentences you received was 17 and a half years, with a total minimum of 12 and a half years.
59 In each instance, as here, you had a very large period of pre-sentence detention. You were released from the most recent sentence in May 2007, and your parole for that sentence expired on 1 May 2009, days before you commenced the offending in respect of Charge 1.
60 It is clear that none of your previous sentences has deterred you from re-offending, nor from re-offending in exactly the same way, other than the fact that you were not the actual drug cook in 2009. Despite this, my sentence of you must still reflect the principle of specific deterrence. In reality, I think the only real deterrence for you is your age and ill-health.
61 You are now aged 70 and will be 71 in December. You have multiple health problems. A stroke suffered in April 2009 did not stop you from offending, but you have since been diagnosed with type 2 diabetes, and with prostrate cancer. The diabetes is managed and you have been on a waiting list for elective surgery for the cancer since November 2011. You have a hernia and suffer from raised cholesterol and sleep apnoea, all of which are managed while you are in custody.
62 In late 2011 you began describing depressive symptoms, and for the first time began receiving antidepressant medication and psychiatric monitoring. In March this year you were diagnosed with adjustment disorder, with depressed mood and some anxiety. It seems that the combined effect of your age, ill-health and the large amount of time you have spent in custody over many years, has finally led you to not be coping well with the prison environment.
63 This is compounded by your isolation, both within the prison, where you are much older than the other prisoners, and outside of prison as you have no family or friends who visit. Your marriage broke down after your first time in custody many years ago, and you have been estranged from your two daughters from that marriage for a long time. You apparently attempted to reconcile with one of them after your release in 2007, but that failed when you were arrested and remanded into custody for this offending.
64 I accept that although you are accustomed to imprisonment, and have been working as a billet and undertaken courses during this latest time on remand, you are nevertheless finding custody more onerous than you did previously. I accept that your depression is contributing to making custody more onerous for you, than it would be for someone who does not have your age and health problems. These factors will be reflected in the sentence I impose.
65 I find that your risk of re-offending is reduced by your age and ill-health, although I cannot totally discount that risk. Because of your criminal history, your prospects of rehabilitation are linked to that potential reduction of risk. Your counsel submitted that unlike submissions made on the last two occasions, this time there is a real incentive not to re-offend because of your age and ill-health. I think it is not so much that these are incentives to rehabilitate, as they are difficulties for you to overcome if you wish to return to offending to make money to live on. I note that you were previously on the aged pension and no doubt will be eligible once again after your release. You had a stable family background and apparently ran successful businesses as a younger man. After your first term of imprisonment I am told that your business declined and you became exposed to earning money through illegal drug manufacture, with which you have been involved ever since.
Submissions in respect of Hunt
66 The prosecution submitted that because of your medical issues, an appropriate range is six years imprisonment, with
a minimum term of three years.
67 Your counsel submitted that it was appropriate to impose a term which enables you to be released immediately, or in the near future.
Sentence - Hunt
68 With consideration given to the totality principle, I will allow some concurrency between the sentences, but not total concurrency, as they are distinct and separate crimes.
69 I will direct a greater period of parole because of your age and ill-health. It is my intention that you will be eligible for parole very soon, if not immediately. Stand up please, Mr Hunt.
70 You are convicted and sentenced as follows:
71 Charge 1, attempted trafficking, four years, six months imprisonment.
72 Charge 2, possession of precursor chemicals, two years imprisonment.
73 Charge 3, possession of a tablet press, two years imprisonment.
74 I direct that nine months of the sentences imposed on Charges 2 and 3 be served cumulatively on the sentence imposed on Charge 1. The sentences are otherwise concurrent. That makes a total effective sentence of six years imprisonment.
75 I direct that you serve a minimum term of two years, 11 months imprisonment, before becoming eligible for parole.
76 I declare that the time you have already spent in custody is 996 days, not including today.
77 If you had not pleaded guilty, but had been found guilty after a trial, the sentence I would have imposed is eight and a half years, with a minimum of four and a half years imprisonment. You may be seated.
Personal circumstances - Synan
78 I turn then to matters personal to Ms Synan. You are now aged 48 and as you have no relevant criminal history, I will be sentencing you as a person of good character before you committed this offence. It is significant that you have not committed offences other than a minor dishonesty offence in 1985, given the difficulties you have had throughout your life. I have received a reference from a Ms Tucker who confirms your general good character, as well as the difficulties that you have faced. She also refers to the remorse you have shown for this offending and I accept that.
79 Can I just pause there to check, Ms Morgan, is it Ms Tucker who is present in court, along with Ms Synan’s son?
80 MS MORGAN: Yes, Your Honour.
81 HER HONOUR: As well as Ms Green?
82 MS MORGAN: That is correct.
83 HER HONOUR: Thank you. Yes. I acknowledge each of those people.
84 Ms Synan, you grew up with your mother as a single parent with an older sister and four brothers. Your sister, Ms Green, was present in court to support you and has been a constant support throughout the difficulties you have encountered in life. As I have just noted, your son and Ms Tucker are also present in court to support you today.
85 You have no contact with your brothers now since you became involved with your current husband, and since your offending came to light.
86 Your parents separated when you were young, following violence your father perpetrated against your mother. Your childhood and schooling were disrupted by the many house moves that occurred as a result.
87 You left school before completing Year 9 and eventually took up modelling. Unfortunately you were introduced to amphetamines in this employment and have been addicted for many years.
88 You were close to your mother and you were devastated when she passed away when you were in your late teens. You ceased modelling and increased your amphetamine use. You also had your first depressive episode.
89
At some stage you married and had two children, who are now adult.
You also have another son who is now aged 15. When your adult children were very young they were removed from your care for a period because of your severe depression.
90 As well as suffering depression, you also endured violence from your first husband, receiving some serious injuries. It seems that you found yourself in a similar situation to your mother, including enduring the threat of homelessness.
91 At the time of committing this offence you had remarried and were apparently very happy. But things fell apart when your second husband was imprisoned. You were still using amphetamines, as well as suffering from depression.
92 With your past experiences, you did not want to lose your home, and have to again find somewhere for you and your son to live. I accept that this is the context in which you set up the laboratory in your home.
93 In 2008, you were assessed as eligible for a disability pension because of your depression. I received a report from a neuro-psychologist, who was recently unable to get valid results in order to determine if you have an acquired brain injury as a result of the violence inflicted on you by your first husband. The neuro-psychologist confirmed that you present with severe and worsening depression, and reported that this impairs your overall cognitive function and memory performance. You do not function well at every day tasks, in which you are assisted by your son, and you are largely incapacitated by depression.
94
I am told that you were prescribed antidepressant medication earlier this year, and
I was informed this morning that you saw that doctor again yesterday, and have been prescribed a higher dose. There is also the prospect of further treatment and therapy.
95 I accept that the level of your depression would make a term of imprisonment more difficult for you to cope with than for someone who was not so impaired.
96 I also accept that if you were to serve a term of imprisonment, your depression and overall functioning is likely to worsen further. I also accept that your amphetamine addiction, depression and impaired cognitive functioning, provide the background to the offence that you committed.
97 I am told that your husband is hopeful of being released on parole soon. Unfortunately, you have been told that he has been diagnosed with a terminal illness, although you have not been given all the details.
98
Despite this, you have apparently set yourself and your son on a new path.
In order to provide a suitable place and circumstances to which your husband can be paroled, you are apparently not currently using amphetamines and about two months ago, you and your son moved into your own private rental accommodation, provided by a friend, which allowed you to move away from housing where others apparently used drugs recreationally.
99 I am told that an additional motivation to change your lifestyle is to avoid any further negative impact on your 15 year old son. He has seen you suffer violence at the hands of his father. He has no doubt seen you affected by drugs over the years, and he was living in the house where you had an illegal drug laboratory. Whatever you do now to change your life, do it for his sake.
100 I find that your prospects of rehabilitation are reasonable, and you are not likely to re-offend in the same way. However, one of the purposes of my sentencing of you is still to deter you from re-offending.
Submissions in respect of Synan
101 The prosecutor submitted that a term of imprisonment was the only appropriate sentence, but that it would not be outside the range to suspend that sentence.
102 Your counsel submitted that a wholly suspended sentence was an appropriate sentence.
103 Application has been made for an intimate forensic sample to be taken from you and you have not objected to this. I am satisfied that it is in the interests of justice, having regard to the seriousness of your offence, that in all the circumstances I order that an intimate forensic sample, namely saliva, be taken from you. The sample may be taken by a doctor or nurse, or other authorised person. A saliva sample is taken by wiping a swab inside your mouth.
104 Although you have not objected, if you change your mind, I must inform you that the police may use reasonable force to enable that procedure to take place.
Sentence – Synan
105 I have decided that I will suspend the term of imprisonment which must be imposed in this case.
106
I am satisfied that no other sentence is appropriate. I am satisfied that
a suspended sentence adequately manifests the denunciation by the court of your conduct, it provides adequate deterrence, and adequately reflects the gravity of the offence.
107 I think there is low risk of you committing an offence punishable by imprisonment during the time that your sentence is suspended.
108 The purpose of imposing a sentence of imprisonment is to indicate how serious your offence is. The purpose of suspending it is to recognise the particular circumstances that exist in your case. Stand up please, Ms Synan.
109 If you commit another offence while your sentence is suspended, you will end up serving your sentence of imprisonment. Do you understand this?
110 PRISONER: Yes, I do.
111 HER HONOUR: You are convicted and sentenced as follows:
112 On Charge 1 of attempted trafficking, two and a half years imprisonment. I direct that the whole of that sentence be suspended for three years.
113 If you had not pleaded guilty, but had been found guilty after a trial, the sentence I would have imposed is four years with a minimum of two years imprisonment.
114 In the event that it becomes necessary to revisit this sentence I note that you have spent no days in custody. Ms Synan may be released from the dock. Just take a seat in court please.
115 I have signed the s.464ZF order and the disposal order, and they may be handed down. I will sign the forfeiture order when provided to me.
116 MR SINGH: As Your Honour please.
117 HER HONOUR: Yes. Are there any questions?
118 MS MORGAN: No, Your Honour.
119 MS KARAPANAGIOTIDIS: No, Your Honour.
120 HER HONOUR: All right. Thank you. Mr Hunt may be removed. Thank you, Mr Hunt. Adjourn the court sine die please.
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