Director of Public Prosecutions v Hutton

[2015] VCC 878

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 14-02046

DIRECTOR OF PUBLIC PROSECUTIONS

v

ANDREW HUTTON

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JUDGE:	HIS HONOUR JUDGE PILGRIM
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	26 June 2015
CASE MAY BE CITED AS:	DPP v Hutton
MEDIUM NEUTRAL CITATION:	[2015] VCC 878

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms G.A. Coghlan
For the Accused	Mr C.G. Mandy

HIS HONOUR: 

1Mr Hutton, you have pleaded guilty to four counts of possession of precursor chemicals and one count of conduct endangering life.  You have heard the learned prosecutor Ms Coghlan tell this court that the maximum sentences of possessing precursor chemicals is that of five years for each offence - that is five years' imprisonment for each offence - and the maximum sentence for conduct endangering the life of others is that of ten years' imprisonment.  For having pleaded guilty, I will impose a lesser sentence than I otherwise would have imposed.  In other words, you receive a discounted sentence for having pleaded guilty.

2Mr Hutton, the nature of your offending is briefly as follows, and I unashamedly quote directly from the prosecutor Ms Coghlan's opening.  It was from 27 November 2001 through to 27 November 2004 - that is approximately a three-year period - that you registered a company called Chemcycle Pty Ltd at 45 Molesworth Street, Seaford with the Australia Securities and Investment Commission.  The Molesworth Street address is a residential dwelling formerly occupied by you.

3From 19 April 2007 through to 28 August 2011 you registered a company, Chemcycle Australia Pty Ltd, at 7 Yardley Court, Frankston and at either Unit or Suite 4 - I am not sure what they call factory sites - Unit or Suite 4, 48 Peninsula Boulevard, Seaford again with ASIC.  The Yardley Court address is a residential dwelling formerly occupied by you, as I said earlier, and he Peninsula Boulevard address is an office factory dwelling formerly occupied by you.

4You initially operated the chemical companies for a lawful purpose by providing sales and advice for industrial and domestic cleaning products via an online internet service.  Some of the chemicals handled by you have a lawful purpose for the use in food manufacturing, perfume manufacturing, model aeroplane fuel and industrial cleaning, but they can also have an unlawful purpose whereby they can be used as ingredients or precursor chemicals in the manufacture of drugs of dependence, particularly methylamphetamine.

5Mr Hutton, you handled and stored various precursor chemicals, namely sodium metal; benzaldehyde; nitromethane; nitroethane; phosphorous phenylacetonitrile, commonly known as benzyl cyanide; benzyl chloride, acetic anhydride between 12 November 2003 and 7 August 2013.  As these chemicals are listed as schedule 1 precursor chemicals as specified in the Drugs, Poisons and Controlled Substances precursor chemicals regulations, the regulations when in quantities exceeding the prescribed weight.  So once they are over a certain weight, they then become subject to strict regulation.

6On 12 November two 10-kilogram drums of sodium metal were delivered to you at 39B Swift Way, Dandenong South from a chemical recycler, J & N Chemical Recycling of 140 Gleneagles Drive, Robina, Queensland.  Sodium metal is listed as a schedule 1 precursor chemical, as specified in the regulations, when in quantities exceeding 25 grams.  So it has gone from that what that level was, a very low level, compared to the 10-kilogram drums.  There was two of them, so it has gone from 20 kilograms and you are allowed 25 grams to comply with the regulations.

7On 8 December an importation from China 2305 kilograms of benzyl cyanide was delivered to you.  Benzyl cyanide is also known as a word that is almost impossible to pronounce, but you know what it is, and is listed as a schedule 1 precursor chemical as specified in the regulations when in quantities exceeding 50 millilitres.  So you have got 2305 kilograms and 50 millilitres is permissible, so it is a massive - to those that do not understand - difference.  You understand, counsel understand and those that have been in court know why we have got these massive differences.

8

Now, in fairness to the staff, because this is being recorded, I will spell that word that I do not like to pronounce so that they can type that into the transcript.  The word I said that I do not like to pronounce is spelt

p-h-e-n-y-l-a-c-e-t-o-n-i-t-r-i-l-e.

9Moving on, on 1 March 2008 an importation from China of 3012 kilograms of nitromethane was delivered to you at Chemcycle Australia at Unit 4, 48 Peninsula Boulevard, Seaford.  Nitromethane is listed as a schedule 1 precursor chemical as specified in the regulations when it is in quantities exceeding 50 millilitres.  Of course I have just said there was 3000-plus kilograms, again a massive difference if one does not understand what we now understand as your legitimate business becoming, I suppose I can say, illegitimate because the lawfulness changed to unlawfulness, as you pleaded guilty to.  That might sound double-Dutch, but it becomes clear.

10On 17 June 2009, 12 ten-kilogram drums of potassium borohydride were supplied to Chemcycle Australia Pty Ltd at Unit 4, 48 Peninsula Boulevard, Seaford by the Consolidated Chemical Company Pty Ltd of 52 Waterview Close, Dandenong South.  Potassium borohydride is not listed as a precursor chemical.  On 20 October 2009 an importation from Singapore of 10,475 kilograms of benzaldehyde was delivered to you at Chemcyle Australia at Unit 4, 48 Peninsula Boulevard, Seaford.  Benzaldehyde is listed as a schedule 1 precursor chemical as specified in the regulations when in quantities exceeding 50 millilitres.  Again there seems to be a massive difference, but again it is clearly understood from 50 millilitres to 10,475 kilograms is a massive difference.

11I am making these sort of announcements to hopefully justify what I formed the view when I first read this material. 

12Storage of the precursor chemicals was as follows.  You stored these chemicals at various locations, including your current home situated at 89 Diamond Parade, Skye; your former home situated at 7 Yardley Court, Frankston; your former business at Unit 4, 48 Peninsula Boulevard, Seaford; and Busy Bee Brushware Pty Ltd situated at 39 Swift Way, Dandenong South, owned by your friend Christopher Frier; and Mr Redgum Firewood Pty Ltd situated at 15-19 Moore Road, Airport West, owned by Heiko Krueger.

13Mr Hutton, this sets out the various chemicals that came into your possession in conducting your lawful business.  The offences that subsequently flowed from this possession is as follows.  In relation to Counts 1 and 2, between 8 August 2012 and 28 March 2013 you stored a 10-kilogram drum of sodium metal and 10-kilogram drums of potassium borohydride at your brother John Hutton's residence at 11 Augusta Court, Skye.  These drums were stored in John Hutton's metal garage.  The chemicals should be stored within the parameters of strict safety guidelines and should not be stored in a residential area. 

14Both sodium metal and potassium borohydride are highly flammable; in particular sodium metal is explosive and can react with moisture, including moisture in the air.  Potassium borohydride is a flammable, reactive chemical and a dangerous fire and explosive hazard.  The storage of the chemicals presented a risk to the safety and welfare of the public because, if the sodium metal had exploded whilst stored with the flammable potassium borohydride, there would have been a significant explosion that could have resulted in the death or serious injury of any person within the immediate or surrounding area.

15Some time after 28 March 2013 your brother John Hutton became tired of the chemicals being stored in his garage, as he wanted to use the space taken up by the chemical drums.  John Hutton therefore moved the chemicals to 7 Yardley Court, Frankston and placed them in a rear garden shed.  John Hutton was unaware of the nature of the chemicals and, unbeknown to John Hutton, you had moved to 89 Diamond Parade, Skye and the Yardley Court residence was in fact vacant.  The chemicals remained in the garden shed at 7 Yardley Court, Frankston until discovered by fire officers from the Frankston Country Fire Authority on 26 May 2013, upon responding to an anonymous call to Crime Stoppers. 

16I would assume that would have to be your brother.  It seems to all point in that direction, because he at least knew where they were; you may not have.

17Due to the hazardous nature of the chemicals, upon discussions between the fire officers, police and investigators from the Victoria Police Clandestine Laboratory Squad, the immediate neighbourhood was evacuated and the chemicals were then removed and destroyed by Trans-Pacific Technical Services Pty Ltd.

18As to Charge No.3, on 7 August 2013 police executed a search warrant at your home address, 89 Diamond Parade, Skye.  As a result of this search the following chemicals were found in the garage:  two 1-litre containers of precursor chemical benzaldehyde and one 1-litre container of precursor chemical nitromethane. 

19Charge 4, later on 7 August police attended at the Busy Bee Brushware Pty Ltd at 39 Swift Way, Dandenong South, where they met the owner, Christopher Frier, your friend.  Frier directed investigators to a shipping container located within the property where a large quantity of chemical drums were stored within.  Police executed the search warrant and found the following precursor chemicals:  2520 litres of benzaldehyde - I am spelling this for the typists and the fact that I cannot pronounce half of them anyway - 575.9 kilograms of phosphorous; 1280 litres of phenylacetonitrile, commonly known as benzyl cyanide; and 200 litres of benzyl chloride; and 70 litres of acetic anhydride.

20Phosphorous is a schedule 1 precursor chemical as specified in the regulations when in quantities of 10 grams and of course you had 578 kilograms, again startling information to the ignorant, such as I was when I started on this matter and, I suspect, the informant as well.  Phenylacetonitrile is a schedule 1 precursor chemical as specified in the regulations when in quantities exceeding 50 millilitres and you had 1280 kilograms.  Benzyl chloride is a schedule 1 precursor chemical as specified in the regulations when in quantities exceeding 50 millilitres and you had 200 litres.  Acetic anhydride is a schedule 1 precursor chemical as specified in the regulations when in quantities exceeding 100 millilitres.

21Mr Frier had allowed you to store chemicals within the shipping container at his premises for several years.  Mr Frier received rent payments for providing this service.  You were the only person who accessed the chemicals from the shipping container and you had control over them. 

22Charge 5, on 19 August 2013 police officers executed a search warrant at Mr Redgum Firewood at 15-19 Moore Road, Airport West.  At this property the owner, Heiko Krueger, indicated to investigators where chemicals were being stored on his property.  Mr Krueger did not know you and the storage of the chemicals was facilitated by a friend of Mr Krueger's known as Kenneth Wiggett on behalf of another third party. 

23As a result of this search within the compound, 15-19 Moore Road, the following precursor chemicals were found at two locations, namely within a shipping container and within a semitrailer Tautliner:  6725 litres - that is 36 drums - of benzaldehyde; 800 litres - that is four drums - of nitromethane; 600 litres - that is three drums - of nitrothane; and 60 litres of acetic anhydride. 

24Nitrothane is listed as a schedule 1 precursor chemical as specified in the regulations when in quantities of 50 millilitres and you had 600 litres; acetic anhydride, a schedule 1 precursor chemical as specified in the regulations when in quantities exceeding 100 millilitres and you had 60 litres; and the chemicals at 15 Moore Road, Airport West were transported by you in a Bayswater Budget hire truck on 28 June 2013 and a Frankston Budget hire truck on 9 July 213.  The truck on both occasions was an Isuzu 3-tonne Tautliner, blue, curtain-side truck.  That formalises and completes the summary of what was found.

25Mr Hutton, as you well know, your friend Mr Frier and Mr Krueger pleaded guilty to storing the chemicals in dangerous circumstances and they both received good behaviour bonds without conviction.  As I mentioned earlier in this plea hearing, that is when the discussions were flowing and your barrister and Ms Coghlan were here, I expressed my concern about the quantities and not being aware of the true facts until after all matters were raised properly, so I mentioned earlier in this plea hearing that when I commenced to read this file I was indeed very alarmed at the early point in time before hearing all the facts.  I unashamedly thought to myself what an Aladdin's cave for those of criminal mind or criminal intent.

26For those of criminal mind these chemicals are most sought after in order to be involved in the manufacture of illicit drugs.  The prosecution do not suggest that that was what you were doing.  It is only after hearing counsel, as I have said on a couple of occasions already this morning, that it becomes obvious that all of this material was obtained legally.  It is only after your personal life was turned upside down that the possession of the material then developed and became illegally held in a sense the possession and storage without lawful excuse then came to exist.

27In hindsight you now realise that, despite all of the chaos that descended upon your personal family life, you should have acted and taken some action to dispose of these chemicals so as to not attract the attention of the authorities.  It is easily said after the event, but nothing happened of course.  Then in that longer period it went from being a lawfully held to an unlawfully held product.

28Mr Hutton, I quote directly from Mr Mandy's summary of your plea.  There is no sense me regurgitating in my words what he said.  I repeat exactly what he said.  Andrew Hutton's wife, Liza, the mother of their four children, suffered from mental health issues including depression and drug addiction.  Her behaviour started deteriorating in 2011.  By the middle of 2012 and the start date of the offending period she required a lot of care and attention, as did the four children then aged eight, five, three and one on the way.  Charlotte, the five-year-old at that time, was very ill.

29In June 2012 Charlotte was diagnosed with stage 4 cancer and Liza's mental health was seriously affected by that diagnosis.  You no longer had any time or energy to direct toward your business.  Charlotte was undergoing extensive treatment and hospitalisation and the other three, sometimes four - and I will explain why I say sometimes four - children needed to be properly looked after.  Because of their mother's illness and their sister's cancer, they then needed obviously more attention from you.

30I do say sometimes four, because, as you know, you share custody of your daughter Jade, a daughter from a previous relationship with Liza.  You are I suppose technically the stepfather.

31In January 2013 the Department of Human Services became involved and court cases commenced in relation to the care of the children.  The Department of Human Services were concerned that the children would suffer because of the distress of their parents.  No doubt that was very stressful for you, authorities moving on your own family unit.  I do not say it unkindly, but they are interfering properly, but you have may not have seen it that way.  But it would have caused more stress, as if you did not have enough.

32Not long after, you were evicted from your business premises because you had not paid rent for several months and you had to make alternative arrangements for the storage of the chemicals.  You did your best to store them safely, including at your brother John's house.  That is directly from what your barrister said in his submissions that he submitted to me back when this case was heard.

33Sadly, your problems did not subside.  Your daughter Chloe, sadly, died in hospital in December of 2013 and your wife, Lisa, shortly thereafter took her own life in late January of 2014.  You have recently seen Mr Jeff Cummins, a well known forensic psychologist in these courts.  He provides a court report dated 2 June 2015.  Mr Cummins reports as to your present circumstance in terms of your living arrangements.  I quote directly from what he said.

34Cummins says this about you, and this is Cummins speaking:

"From early 2015 he has been living with his 46-year-old sister, Ms Joy Hutton, at her address at 15 Southampton Drive, Langwarrin.  Living with him are his three daughters, namely Anastasia, who is aged nearly ten and attends the Skye Primary School; Ella, who is aged four and attends kindergarten three days per week; and Priscilla, who is aged three and attends day care three days per week.  He also looks after his stepdaughter, Jade, who is aged 13 and has just commenced high school.  Jade spends every alternate weekend with him and half of all school holidays and for the remainder of the time she resides with her biological, Mr James Sellers, in Frankston".

That is the end of the quotation from Mr Cummins report.

35Mr Hutton, you are now aged 40, having been born in Melbourne on 4 November 1974.  Both of your parents are still alive.  They are very committed to their faith.  That is the Jehovah's Witness.  Mr Hutton, you are one of ten children.  You are estranged from your parents and some of your siblings.  Mr Cummins quotes you in his report as to some of these issues, so I will read directly from what he says again.  This is Cummins speaking about you:

"He spontaneously stated the words to the effect, 'Well, as Mum and Dad have aged, they have become more committed to the Jehovah's Witness faith.  I have not been actively involved with the faith for 20 years.  When I was being investigated in relation to the present charges, the informant spoke to my parents'".

36Cummins says of you:

"He is the youngest in the sibship.  He has five sisters and four brothers with the eldest of his siblings being now aged 55.  Two of his sisters, including the sister with whom he lives, are not Jehovah's Witness and he has a brother who is also not a Jehovah's Witness.  He said the issue of this parents' faith had essentially split his family of origin.  He said one of his brothers, Mr James Hutton, was a member of a motorcycle club and then found religion in the form of Jehovah's Witness faith".

Again that is the end of what Mr Cummins said about your family constellation and the difficulties that you encountered with them.

37Mr Hutton, you attended local primary schools.  That is Mentone Park and then Belvedere Park.  You then attended Carrum High School and then Baxter Tech to year 11.  Since leaving school you have been in continuous employment as a storeman, in sales, furniture removal and as a branch manager for NAK Australia.  In about 2001 you established the Chemcycle business and ran this business up until your family life fell into turmoil, as I have already mentioned.

38Mr Cummins at the end of his excellent report and extensive report forms this opinion and I again quote him:

"In my opinion at the interview Mr Andrew Hutton acknowledged the wrongfulness of his offending behaviour and he noted this matter had been prosecuted very rigorously by the informant, Detective Senior Constable Roberts".

As you know - I pause there for a moment - I raised the same issues that I assume was concerning Roberts.  He thought, like I thought when I first saw it, here is an Aladdin's cave for the crooks.  As it turns out when it is all explained, it is quite the opposite.  I read on; this is from Cummins:

"On the basis of my assessment of Mr Hutton, I would not expect him to reoffend.  At interview he stated he regretted his offending behaviour and in my opinion he spoke in a remorseful manner and I am obviously aware of the admissions he made when interviewed by the police on 7 August 2013".

39Mr Hutton, as you know, had these precursor chemicals fallen into the wrong hands then the results could have been quite catastrophic for those who find themselves in the dark confines of the drug culture.  I accept that your possession of the material was lawful and had your personal family life not imploded then you would highly probably not stand where you now find yourself. 

40I confess that I am amazed at the lack of supervision or control by those in authority such as some form of licensing or some sort of supervision that does not exist.  I am simply saying that, judged by what you were doing, those of criminal mind could surely do the same if there is no supervision or no licensing.  It seems to be too simple; it is frightening.  You heard me speaking to the prosecutor, "Do the authorities know about this sort of matter and is something being done?"  I got a positive response; I do not know what they are doing and perhaps it is better that I do not know.

41I formed the view, as I said to you many times, the mind boggles.  It seems to me that those who are criminally inclined could, with little effort, assuming they did what you did but not with the same intent that you did it, find themselves in your position should the police officers or authorities who supervise our law - then they have got to find who have got those precursor chemicals such as these that you had. 

42I accept that you are a man of previous good character.  You have no prior convictions.  I say this:  you have been to court once before, but you have no prior convictions.  Would you stand up, please.

43Obviously from the material I have read to you earlier from these sentencing comments and what was said by counsel on your behalf, you are an industrious man.  You have a good work ethic and have maintained full employment until, of course, your life turned upside down in a most horrendous way in terms of personal matters.  I refer to your reference from Mr Michael Nielsen.  He says this of you.  He obviously has close contact with you; I infer that both you and your sister in some way work through or from his set-up.  Nielsen says,

"I have always known Andrew to be a very likeable, responsible, conscientious, trustworthy person and an extremely devoted carer of his family.  He has always been the person in the world where he would help anyone.  I have always respected him greatly for this.  He is trying to rebuild his life after what most would see as an unimaginable adversity.  To this end Andrew has been working in our Peninsula-based business and is also impressing me with his team-based mentality and great work ethic.  It is a very responsible role and I see a great future for him with us.  Andrew is very supportive of our younger team members and I have valued the mentoring role he has initiated. 

"He is still a young man with a young family, with life experience that will strengthen him for the future.  I have been in business for most of the time I have known Andrew and have built a business that relies on trust and integrity with responsibility for many of the Peninsula large, iconic properties.  Andrew is also well respected and trusted by our clients, who are also eager to stand up and support him".

44I further take into account the references that were provided by Mr Short and Leonie Galvin.  Both are very positive in their comments of your character and your reputation.  Mr Hutton, I assure you I have taken into account everything that was said on your behalf by Mr Mandy.  I take into account your early plea of guilty, which is also an indication of your remorse.  Mr Cummins in his report mentioned and reported on your remorse; I do accept that you are indeed remorseful.  I also take into account your prospect of rehabilitation, which has to be very positive indeed taking into account your work ethic.

45On Counts 1, 3, 4 and 5, on each count the offender is convicted and sentenced to six months' imprisonment.  They are all pursuant to the Drugs, Poisons and Controlled Substances Act.  Count 2, which is under the Crimes Act, convicted and sentenced to 12 months. All of those sentences are to be serviced concurrently with one another. Pursuant to s.26 of the Sentencing Act, that sentence is suspended for a period of 18 months. There will be an order made pursuant to s.464ZF of the Crimes Act.  I will read that and explain to you what that means.  464ZF means nothing to those that do not know about the Crimes Act.

46It means that police officers will come to your address - or you will go to their address, I think - and supply a sample.  It is just a buccal swab in your mouth.  Reasonable force can be used to take that sample.  I think it is almost nonsense that I have got to tell you that, but the Act says I have got to tell you, so I had told you.  There is also an order for disposal of the property pursuant to s.81(3) of the Disposals Act.

47Pursuant to s.6AAA it is very hard to in these circumstances, being a most unusual offence, really know what one would have done, but I believe that I would have at least imposed the same penalty with immediate term of imprisonment.  I do not know.  It was so different in terms of the offending.  I think in terms of the offending the penalties that are provided are probably for those criminally inclined, for four of the five counts, totally insufficient.  If you do not understand that, Mr Mandy does and I am sure he will explain it to you.