Director of Public Prosecutions v Johnstone
[2021] VCC 340
•25 March 2021
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
CR-18-02019
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BRETT JOHNSTONE |
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JUDGE: | HIS HONOUR JUDGE CAHILL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 17 March 2021 | |
DATE OF SENTENCE: | 25 March 2021 | |
CASE MAY BE CITED AS: | DPP v Johnstone | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 340 | |
REASONS FOR SENTENCE
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Catchwords: possession of equipment for methamphetamine manufacture and possession of a handgun – guilty plea – limited role in drug manufacture operation – possession of lethal handgun an aggravating feature – objectively serious offending – impressive steps to reform while on bail – good prospects of rehabilitation – parity
Sentence: aggregate sentence of 9 months imprisonment and 2-year community correction order
Cases cited: Efkan Djemal [2020] VSCA 25
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr D. Hancock | The Office of Public Prosecutions |
| For the Accused | Mr C. Terry | Valos Black & Associates |
HIS HONOUR:
1Brett Johnstone, you have pleaded guilty to one charge of possessing substances, materials, documents and equipment for the purpose of trafficking in a drug of dependence, one charge of possessing a general category handgun without a licence and one charge of storing a handgun and cartridge ammunition in an insecure manner.
2The circumstances of your offending are set out in the summary of prosecution opening on plea dated 16 October 2020.
3In October 2017, you rented a property at Collard Drive, Diamond Creek. At the premises, between 7 February 2018 and 20 March 2018, you had possession of substances, materials, documents and equipment for the manufacture of a drug of dependence. A co-offender Kuldip Cheema was using the premises to manufacture methamphetamine.
4In October 2017, police were investigating two men, Gauci and Kleinsman, for suspected methamphetamine trafficking and manufacture. You came to police attention in the course of their investigation.
5Between 8 January and 16 March 2018, police were surveilling you and monitoring your phone calls. You were observed coming and going from the Collard Drive address and heard regularly discussing with Cheema manufacturing drugs and sourcing precursor chemicals and equipment for drug manufacture. You were also speaking to Kleinsman and others about manufacturing and trafficking drugs. In the course of your discussions, you obtained some platinum, which is used as a catalyst to produce methamphetamine.
6On 7 February 2018, police covertly executed a search warrant at Collard Drive, where they found drug manufacturing equipment and a number of liquids and solids.
7On 9 February 2018, police arrested Cheema.
8On 16 March 2018, police executed a second search warrant at Collard Drive. Again, they found equipment for the manufacture of drugs and various solids and liquids, including a 20-litre drum labelled 'Sceneys Toluene'. Toluene is an ingredient of crystal methamphetamine. Your fingerprint was identified on a broken conical flask. A number of the seized solids and liquids were sampled and analysed. No drug of dependence or drug by-product was detected in any of the samples.
9Throughout the period of the police investigation, you were living with your wife and two of your children at Doreen. On 20 March 2018, police executed a search warrant at your home. Inside a bag in a bedroom robe, they found a stolen Smith and Wesson 357 Magnum revolver and 13 rounds of cartridge ammunition. In the bag with the firearm were a white face mask and nitrile gloves. In your Hilux utility, which was parked in the front yard, they found a heating mantle and PVC pipes, similar to those seen at Collard Drive property on 7 February.
10You were not at home when police attended, your wife and daughter were. Your daughter called you to let you know police were present. You spoke to police and said the gun was yours. You voluntarily went to Mernda Police Station where you were interviewed. You told police you had separated from your wife and were living with your parents at Lower Plenty. You said you had been back and forth from your home to your parents' place. You denied earlier telling police the handgun was yours and when you were questioned about the rental at Collard Drive and the manufacture of methamphetamine, you exercised your right to remain silent.
11You have admitted a criminal record.
12In 1993 and 1995 you were sentenced to short terms of imprisonment for intentionally or recklessly causing injury. In 1999 you were sentence to five years imprisonment with a non-parole period of four years for culpable driving and two counts of negligently causing serious injury.
13You were born on 30 May 1969. You were 48 years old when you offended and are now 51.
14Your personal circumstances are set out in the report of Carla Lechner, psychologist, who assessed you on 4 March 2020. You are the older of two children. When you were nine years old your parents separated. Subsequently, you lived with your father. Your father remarried and you have a younger half-sister. You attended local schools and completed year 11. When you were 16 years old you went to live with your grandmother. After you left school, you completed a plumbing apprenticeship. You told Ms Lechner your work history has been reasonably steady. You have worked mainly as a plumber. For three years you worked in the nightclub industry. During that time, you were drinking heavily and getting into fights and, as a consequence, you served three prison terms. You were married for 13 years. You have four children with your wife. You separated in 2017.
15You told Ms Lechner when you offended you were abusing methamphetamine intermittently and drinking heavily to cope with the stress of your marriage breakdown, your grandmother's death and your mother's illness. You said you rented the Collard Drive home to live there and have somewhere for your children to stay. You said some mates approached you with a criminal business proposition and you agreed. You said you weren't thinking straight when you offended but admitted your drug crime was motivated by financial gain. You said you saw it as a chance to make some easy money. In relation to the firearm, contrary to what you told police when they searched your home, you said you were holding it for someone.
16To Ms Lechner you expressed shame and regret for your wrongdoing. You said your wife and you have since divorced, that you have a good relationship with your children, one of them lives with you, and for the last two years you have been in a relationship with another woman. You told her you were still drinking heavily on weekends but rarely during the week.
17When Ms Lechner assessed you, her impression was you are a man of average intelligence, who presented with symptoms of moderate depression and mild anxiety. In her opinion, you would benefit from a mental health plan referral to help you manage your emotions and reduce your drinking.
18A letter from your mother's general practitioner confirmed your mother was terminally ill with emphysema and lymphoma. Sadly, she died in January this year.
19A letter from your partner, who supported you in court, confirmed your stable relationship. She knows you as a dedicated family man with a great work ethic. Your crimes scared her. She wrote, in the two years you have been together, you have formed a strong bond with her children and she will stand by you.
20Twelve months ago you obtained work as a plumbing supervisor. Your employer described you as a trusted worker with responsibility for major projects. You have continuing employment with his company. In a more recent letter, your employer wrote he has offered you part ownership of the business.
21You have been playing basketball for more than 10 years. Two of your teammates provided references. Both regard you very highly. They describe you as a hardworking family man. Your crimes are out of character with the person they know.
22A cousin also wrote a reference for you. He saw you endure the difficulties of your marriage breakdown, your grandmother's death and your mother's cancer diagnosis. He gave you work in his electrical business. Initially, you worked well but, over time, your performance dropped off and your employment with him ended. When he learned you had been charged with these offences, he told you you had let your family down and yourself and you needed to change. Consequently, you got work and spent more time with your children. You began a new relationship. One of your daughters, who also supported you in court, moved to live with you and you were playing basketball. He believes you are a better person now than when you committed your crimes.
23A friend, Jennifer Wilson, wrote you have done volunteer work for the last three years to help troubled youth and homeless families. During the current pandemic, you have delivered essential items to vulnerable and isolated people in the community.
24A psychologist, Rhonda Jamieson, had assisted your ex-wife and you with relationship counselling from January 2016 until mid-2017. You told her you were working hard but, to relax, you resorted to alcohol and illicit drugs. And when you did, your behaviour deteriorated. In October 2018, you contacted Ms Jamieson again. You told her you had broken up with your wife and were feeling more settled in a new relationship. You also told her police had uncovered a methamphetamine laboratory at your rental property and a firearm at your ex-wife's home. You have continued to see Ms Jamieson intermittently. In her view, you have worked responsibly to address your problems.
25Since 20 November 2020, you have been attending meetings at Greensborough Narcotics Anonymous. You have produced clean urine drug screens collected in January 2021.
26Mr Terry who appeared on your behalf, said you had initially intended to move into the Collard Drive property which had room for your children to stay. As early as 24 January 2018, you had told Cheema you wanted the drug laboratory removed from the premises so you could move into them. In an intercepted phone call with Cheema, you told him you had been kicked out of home and you wanted to move into the Collard Drive address.
27Mr Terry acknowledged your offending was serious and accepted the gravity of the firearm offence is made worse by your possession of the drug related equipment. He submitted, because it is not alleged you were involved in the manufacture of drugs, your possession of drug manufacture items is less serious than manufacturing, as demonstrated by the higher maximum penalty for drug trafficking. He also submitted your firearm possession was less serious than a case where the firearm was used in the course of other criminal offending.
28In mitigation of penalty, Mr Terry relied on, firstly, your guilty plea for its utilitarian value and evidence of remorse. Secondly, your limited criminal record. You have no convictions for drug offences, no convictions for drug or firearms offences and your criminal convictions date to the late 1990s. Thirdly, your otherwise law-abiding life for 15 years from your prison release in 2003 and your successful completion of parole. Fourthly, the stressors of your marriage breakdown, your mother’s terminal illness and your grandmother's death and your abuse of alcohol and speed to cope with them. Fifthly, your limited role in the drug manufacture enterprise. He submitted you derived modest financial benefit from permitting the drug manufacture equipment to be set up and used at your property. Sixthly, the steps you have taken to reform during the three-year delay between your arrest and sentence. And seventh, your good prospects of rehabilitation, considering your stable relationship with your partner, secure employment, your positive relationship with your children and that you have not offended since you were charged with those crimes.
29Mr Terry referred to co-offenders’ sentences. He submitted, because Cheema's offending was more serious than yours, I should impose on you a lesser sentence than the composite sentence of imprisonment and a community correction order I imposed on Cheema. He relied on Kleinsman's three-year community correction order sentence as a comparator.
30As to your disposition, he conceded, because of the objective seriousness of your offending, a sentence of imprisonment is within range. He submitted, however, taking into account your offending occurred in the context of family pressures and the steps you have taken towards your rehabilitation since, a community correction order could achieve all relevant sentencing purposes in your case.
31Mr Hancock who appeared for the prosecution, submitted, because of the objective seriousness of your offending, a community correction order alone would be wholly outside the proper sentencing range. He submitted your offending was demonstrably serious because, while you were not personally involved in the manufacture of drugs, you allowed your premises to be used for drug manufacture for financial gain and were in active discussions with others about producing illicit drugs, presumably for sale. And, in that context, you also had possession of a powerful revolver and ammunition.
32He referred me to the Sentencing Advisory Council sentencing snapshots which show the great majority of persons convicted of possession of a handgun have been sentenced to a term of imprisonment.
33He submitted there were similarities in the circumstances of the offending and the offender, between the case of Efkan Djemal [2020] VSCA 25 and your case. In Djemal's case the Victoria Court of Appeal upheld a total affecting sentence of three years' imprisonment with a non-parole period of two years for possession of methylamphetamine manufacture equipment, drugs and firearms.
34He acknowledged your guilty plea has utilitarian value and your relevant prior convictions are somewhat limited and considerably old. He also acknowledged the added burden of prison in the COVID-19 pandemic.
35He accepted, since your arrest, you have made efforts towards your reformation and he described your prospects of rehabilitation as reasonably good.
36He submitted, considering the circumstances of your offending and your personal circumstances, a composite sentence of a term of imprisonment and community correct order is ‘narrowly’ within sentencing range.
37Because of the grave harm illicit drugs cause in the community, drug crime of any kind is serious offending. The maximum penalty for the possession of things for the purposes of drug trafficking or manufacture is 10 years imprisonment. While you were not involved in the manufacture of drugs, you were actively interested in their production and allowed Cheema to use your premises for that purpose for your financial gain. You also obtained a precursor chemical and handled some of the illicit equipment.
38I note Cheema's operation was not elaborate. Crime scene photographs indicate that cooking was done in a saucepan on a portable gas cooker. No drug product or by-product was found in the liquid seized from the premises.
39Nevertheless, general deterrence and denunciation are important factors in offending of this kind. As Niall and Weinberg JJA said in Djemal, at [21]'The offence targets preparatory conduct and seeks to prevent and disrupt the manufacture and distribution of drugs which cause great harm to the community. Sentences imposed on those who participate in the manufacture of drugs or who possess equipment for that purpose must reflect the importance of deterrence.'
40Your possession of the handgun and ammunition is also a serious matter. The Smith and Wesson Magnum revolver is a powerful and lethal weapon. Whether the revolver and ammunition were yours or you were holding them for someone else, your moral culpability is high. I note, because you were not a prohibited person under the Firearms Act the maximum penalty for the handgun possession is four years imprisonment.
41The court in Djemal explained, in relation to the Firearms Act, at [23], “The purposes of that Act are to give effect to the principle the possession of firearms is conditional on the need to ensure public safety and peace by establishing appropriate systems for licencing them and for the regulation of their possession, carriage and use for dealing in them and acquiring and disposing of them and for their registration and secure storage.”
42I accept that your guilty plea has utilitarian value and you are remorseful. You have a limited criminal record and I accept you otherwise have lived a law-abiding life for 15 years after your release from prison in 2003. I accept personal stressors which led to your abuse of alcohol and methamphetamine contributed to your decision to offend. I accept role was limited to possessing items for drug manufacture and not manufacture itself and, since your arrest, you have taken impressive steps to reform. I accept you have good prospects for rehabilitation. I have taken all these factors into account to moderate the sentence I would otherwise impose.
43
I sentenced Mr Cheema to 21 months imprisonment and a community correction order for 30 months for possession of article for drug manufacture over a
two-month period across four premises working with Kleinsman, a woman named Lundberg, another man named Nov, and you. Cheema had significant relevant prior convictions. He suffered a head injury in a motorcycle accident in 2002 which left him with a moderate to severe brain impairment and working IQ of around 60. All six Verdins limbs were engaged and operated to substantially reduce his sentence. While his offending was more serious than yours, his moral culpability was arguably lower.
44Kleinsman was released on a three-year community correction order for trafficking in a drug of dependence and, being a prohibited person, possess a firearm. I have read Judge Trapnell's reasons for sentence. Kleinsman sold one ounce of methylamphetamine for $4800 and made a profit of $600. He lived with his parents on the family farm. In his bungalow he had a 22-bolt action rifle, which His Honour accepted in all probability was a family firearm. Although Kleinsman had a significant criminal record, his personal circumstances were not meaningfully dissimilar to yours. In my view, the objective gravity of his offending was less than yours.
45In my view, there are relevant differences between the offenders and their offending in Cheema's case, Kleinsman's case and your case which justify a different sentence for you; that is, a sentence less severe than Cheema's but more severe than Kleinsman's.
46In all the circumstances, I am satisfied only a prison sentence is appropriate but one combined with a community correction order can achieve all sentencing purposes in your case.
47Because your 3 crimes are founded on same facts I will impose an aggregate sentence for all your offending.
48I have had you assessed for a community correction order and you have been found suitable. I accept the assessing officer's recommendation of special conditions in addition to the court conditions of a community correction order.
49Mr Johnstone, by this sentence I must denounce your conduct, punish you and deter you and others from committing crimes of the same or similar kind. I must also look to your rehabilitation.
50Considering the circumstances of your offending, your personal circumstances and antecedence and endeavouring to produce a sentence which reflects and promotes the purposes of sentencing in a manner appropriate to you, you are convicted of the charges or possessing articles for trafficking in a drug of dependence, possessing a general category handgun without a licence and storing a handgun and cartridge ammunition in an insecure manner and sentenced to nine months imprisonment with a two-year community correction order which will commence on your release from prison.
51In addition to the core conditions, I impose special conditions as follows:
· drug treatment and rehabilitation,
· alcohol treatment and rehabilitation,
· mental health treatment and rehabilitation, and
· supervision
52I declare you have served eight days of your prison term by way of pre-sentence detention.
53I make an order for forfeiture of the items listed in the schedule to the draft order filed with the court.
54I declare, but for your guilty plea, I would have sentenced you to two years and six months imprisonment and fixed a minimum non-parole period of one year and six months.
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HIS HONOUR: Now, Mr Johnstone, before I can make that community correction order, it requires your consent. When the assessing officer spoke to you, did she explain the core conditions of the order to you?
OFFENDER: Not exactly, no.
HIS HONOUR: All right, well they will need to be explained to you. The principle core condition is that you do not reoffend during the period of the community correction order. Another of the core conditions is that you must comply with the directions of the community corrections case manager who will have control of your order. Was it explained to you that, before I can make that community correction order, it requires your consent?
OFFENDER: Yes. Yes, Your Honour.
HIS HONOUR: And do you consent to the order being made?
OFFENDER: Yes, I do, Your Honour.
HIS HONOUR: All right. Excuse me a moment. All right, well, Mr Johnstone, the law does require that the core conditions of the community correction order be explained to you, so we'll print a copy of those off now. Have you got somebody with you in that room?
OFFENDER: Nuh, they're just outside the room, the officers.
HIS HONOUR: Just outside, I see. Well, I'm just wondering if this document can be somehow sent to you.
OFFENDER: Yeah. Do you want me to get someone?
HIS HONOUR: One moment please. All right, I can read them to you.
OFFENDER: Yeah, that's - that's fine.
HIS HONOUR: The mandatory terms that apply to all community corrections orders are, you must not commit another offence for which you could be imprisoned during the time that the order is enforced. You must comply with any obligation or requirement prescribed by Regulation 17 of the Sentencing Regulations. You must report to and receive visits from the secretary of Corrections or delegate. In other words, it'll be the case manager in your case. You must report to the Community Corrections Centre within two clear working days of the order staring and, as I understand it, the Community Corrections Centre is at South Marong. Is that what you were told?
OFFENDER: Yeah, she told me that, yeah.
HIS HONOUR: You must let a community corrections officer know within two clear working days if you're changing your address or job. You must not leave Victoria without first getting permission to do so from the secretary or delegate, in other words, your case manager, and you must obey all lawful instructions from and directions from the secretary, in your case, the case manager. All right, do you understand that they're the core conditions of the order?
OFFENDER: Yes, Your Honour.
HIS HONOUR: And in addition, that I've ordered additional conditions that you undergo assessment and treatment for drug and alcohol and for your mental health and that you be subject to supervision. Do you understand that?
OFFENDER: Yes, Your Honour.
HIS HONOUR: All right. I'll make that community correction order, Mr Johnstone. Mr Terry, are there any matters arising?
MR TERRY: No matters arising from my perspective, Your Honour.
HIS HONOUR: Thank you. Mr Hancock?
MR HANCOCK: Nothing from our side, sir.
HIS HONOUR: All right. Well, thank you both for your assistance. I've acknowledged the attendance remotely this morning by a number of members of your family, Mr Johnstone, and they will have heard what's been said by me this morning. All right, adjourn the court please.
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