Director of Public Prosecutions v Kelly

[2015] VCC 943

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-14-01765

DIRECTOR OF PUBLIC PROSECUTIONS

v

DYLAN KELLY

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JUDGE:	HIS HONOUR JUDGE GUCCIARDO
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	9 July 2015
CASE MAY BE CITED AS:	DPP v KELLY
MEDIUM NEUTRAL CITATION:	[2015] VCC 943

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 N. Kohn
For the Offender	Mr S. Bright

HIS HONOUR: 

1Dylan Kelly, you pleaded guilty to a charge of trafficking a drug of dependence, possession of a precursor chemical, possession of a drug of dependence, possession of explosives and possession of a firearm by a prohibited person.  A summary of the prosecution opening was tendered and exhibited.  In brief summary, for purposes of this sentence, these were the essential factual circumstances. 

2You were aged 28 years at the time of the offending.  You are unemployed, being unable to work due to a motorcycle collision some years before which left you with a permanent leg injury. 

3At approximately 9.30 pm on Tuesday 28 January, police executed a search warrant at your address.  Immediately prior to the execution of the warrant, you were arrested as you walked along the street with two associates.  You were conveyed to the Narre Warren Police Station and placed in a holding cell pending the completion of crime scene processing by forensic officers. 

4Shortly after the execution of the warrant, members of the Victoria Police Chemical, Biological and Radiological/Disaster Victim Identification Unit conducted a site safety assessment of the premises to identify and mitigate any chemical or physical hazards.  The premises were then secured. 

5Charge 1 is a charge of trafficking a drug of dependence, namely methylamphetamine, on the basis of manufacture.  At approximately 9.30 the following morning, forensic officers returned to the address and began processing the scene.  During the search, they located numerous pieces of scientific equipment and other glassware, some of which contained different coloured liquids and solids.  In total, 125 clandestine drug laboratory related exhibits were seized and the majority of these exhibits were located in the garage and bedroom 3 of the premises. 

6An analysis of those exhibits was conducted by a forensic officer.  A number of items contained methylamphetamine and substances found each contained pseudoephedrine.  A glass test tube contained brown solid.  A plastic bottle labelled "Azito" 1,000 millimetre contained liquid and solid, the solid having a purity of 80 per cent.  A glass vase contained a solid with a purity of 70 per cent.  A plastic bag contained brown and white powder with a purity of 90 per cent.  Another plastic bag contained 22 round white tablets.  Two plastic bottles labelled "Coca-Cola" contained a liquid and a solid.  Brown slurry and liquid was found in a glass container.

7The total quantity of pseudoephedrine in these substances was approximately 27.9 grams. 

8Some items contained pseudoephedrine not in a usable form, suggesting it was a waste product.  Other items also contained pseudoephedrine.

9Other items commonly used in the manufacture of methylamphetamine were located and seized including solvents and chemicals, sulphuric acid, hydrochloric acid, dioxidine, xylene, methanol, sodium carbonate, paint thinners, together with equipment that an expert determined would be sufficient for the manufacture of methylamphetamine. 

10A handwritten document detailing the extraction of pseudoephedrine from pharmaceutical tablets using a variety of solvents was found which involved the use of hydrogen chloride gas generators.  Hydrogen chloride gas generators can be used to convert methylamphetamine into solid form.  Methylamphetamine can be manufactured from pseudoephedrine in combination with ammonia and lithium.  Lithium can be sourced from lithium batteries, some of which were seized. 

11The quantity of methylamphetamine that could be manufactured from 27.9 grams of pseudoephedrine using this method would be in the order of 15 grams. 

12It was the Crown's position that you were involved in the process of pseudoephedrine extraction for the purpose of manufacturing methylamphetamine. 

13Turning to Charge 2, possession of a precursor chemical, ammonia and iodine, a compressed gas cylinder was found to contain ammonia, approximately ten kilograms which is above the prescribed quantity of 150 grams.  A glass bottle contained a solid found to contain iodine.  The total quantity of the iodine was 26.9 grams which is above the prescribed quantity.  Ammonia and iodine are listed as prescribed precursors in column 1 of schedule 1 to the Drugs Poisons and Controlled Substances (Precursor Chemicals) Regulations of 2007. 

14Charge 3 was possession of a drug of dependence, methylamphetamine.  Following the search by forensic officers, a further search of the premises located various snap lock plastic bags, containers containing pills, crystals and powder substances along with the glass pipes and other drug paraphernalia. 

15In April 2014, these items were examined by scientists.  A substance in the form of white powder was found to be 1.35 grams of methylamphetamine with a purity of less than .25 per cent.  A substance in the form of white powder, 1.16 grams of methylamphetamine with a purity of less than .25 per cent.  A white crystal substance which was .42 grams of methylamphetamine with an undetermined purity, and a white crystal substance which was 12 grams of methylamphetamine with a purity of 60 per cent.  The total quantity of methylamphetamine being 3.05 grams.  A traffickable quantity as listed in part 3 of schedule 11 to the Act is three grams. 

16Other items located during the search included - and this relates to Charge 4 - various fireworks, detonator cords and black powder or gunpowder which arson chemists confirmed are all explosive substances. 

17Charge 5 which relates to prohibited person possessing a firearm, a Norica air rifle which was found, you are not the holder of a firearms licence, pursuant to the Firearms Act 1996 and have no firearm registration to you in Victoria. You are also a prohibited person by virtue of your prior conviction dated 1 August 2012.

18There are related summary charges to which you have pleaded guilty.  Charge 11 refers to possessing cartridge ammunition without a licence, numerous pieces of .357 and .22 air rifle and shotgun ammunition which you were not authorised to possess, carry or use. 

19Summary Charges 13, 14 and 15 which refer to the possession of a slingshot, Taser, the part of a nunchaku and a baton torch are possessing prohibited weapon charges. 

20Summary Charges 19 to 20 deal with property suspected of being the proceeds of crime, a Crown boat registration PD538 and a Dunbier boat trailer, stolen from Fulton Street, Oakleigh South between 18 and 21 October the previous year and a number of Axvana chainsaws stolen from Community College Gippsland McMillan Campus in Warragul in January 2014.  The Crown did not allege that you were involved in the theft of these items. 

21You were interviewed at the Narre Warren Police Station in January 2014 but declined to comment.  Your fingerprints were located on a glass beacon and a glass vase which are exhibits and your DNA was located on two respirators, gloves and a gas mask. 

22This matter came before me in early December 2014 upon a plea which was conducted on that day.  On that day, I was concerned that counsel appearing for you had not obtained properly full instructions about your background and I adjourned the plea to enable such relevant material to be placed before me.  Despite my intention to return to that material in a timely fashion, it appears your representatives were neither able to obtain instructions and material, nor remaining contact with you despite efforts made to communicate with you.  To some extent, the delay was due to you having made yourself difficult to contact as attested by the letter and notice of cessation to act by Mr Kelly, your solicitor.  But this matter has clearly had a chequered past. 

23I adjourned the matter to 27 January.  Mr Howard who appeared for you on that occasion had only been briefed the day before.  Another adjournment was granted, Mr Kelly only having briefed Mr Howard then.  By that time, you had missed two appointments with a psychologist, and between December and January, very little was done to further the plea.  The matter went off to March when you failed to appear and a warrant was issued.  The matter was adjourned to May and then to June when finally the plea was able to be concluded. 

24I take delay into account.  Although to some extent the delay can be seen to be your responsibility, recent events in your life have clearly contributed to it.  Initially, in my view, and all the way to May, your representation was not what it should have been.  In my view, I should take this delay into account for a slight amelioration of your sentence which has not been finalised in a timely manner.

25Trafficking in a drug of dependence by way of manufacturing is a serious criminal offence which carries a maximum penalty of 15 years' imprisonment.  Possessing a firearm as a prohibited person carries ten years' imprisonment.  Other possession charges carry five years and the weapon and proceeds of crime charge carry two years as maximum. 

26Trafficking, in particular, is an insidious crime.  Drugs are a blight on our community and on individuals.  Its manufacture and trafficking has wide-ranging effects on health, the commission of crime, safety of the community, the prevalence of its deleterious and damaging impact on people and the life of families generally.  This particularly applies to the manufacturing of ice.  It is, however, accepted in this case that there is an aspect of it which must be taken into consideration which I will come to when I discuss your personal circumstances and the gravity of this particular offence of trafficking. 

27You have relevant prior convictions.  In 2011, apart from driving a motor vehicle related offences, you were sentenced for possessing and use of methylamphetamine, you were given a suspended sentence for the motor vehicle offence and placed on a community based order for 12 months for the drug offence inter alia.  On that occasion, you were also in possession of a controlled weapon. 

28In 2012, you were sentenced for possession of methylamphetamine and sentenced to four months wholly suspended.  However, this offence breached the suspended sentence of the year before which was restored.  The restored term was one month and the court noted that all steps to ensure safe custody were to be taken.  Later in 2012 you appealed that restoration and that order was set aside and no further order was made in this court on the appeal.   This history highlights your problem with methylamphetamine. 

29Before a description of the circumstances personal to you and your offending, I should note that you entered this plea of guilty at the earliest available opportunity and therefore I will apply a discount to this sentence in recognition that it has a significant utilitarian value.  It was offered in an effort to facilitate the course of justice and it is accompanied by appropriate remorse.  While you breached the earlier community based order, you ultimately completed and complied with that order. 

30You are 29 years old and grew up in Narre Warren.  Your parents separated when you were very young.  For the first ten years of your life, you lived with your mother in relatively poor conditions.  Your father was an alcoholic but remained in contact with you.  Your mother re-partnered, but although cordial, your relationship with your stepfather was not a strong bond.  Your mother, who lives in Queensland, was present at the December hearing, despite you having limited contact with her.  Your father died in 2009 aged 51.  Your paternal uncles and aunts were all alcoholics. 

31You were in trouble often as a child, antagonistic towards your stepfather who was in the Air Force.  You were an average student but had little interest in school where you were regularly suspended or in detention.  You completed year 10 in Newcastle where you found the school experience easier.  Thereafter, you completed a plumbing apprenticeship.  Having completed three years, you unfortunately were then involved in a motorbike accident where you injured your left calf. 

32This incident has changed your life.  You spent two-and-a-half weeks in hospital and 18 months in recovery, being subjected to six operations.  Unfortunately your leg was again fractured, requiring further treatment and a medication regime which included a long period on OxyContin and Endone to which you became dependent. 

33Your drug use had begun very young at school and graduated to methamphetamines which you took up when aged 20.  The use of the drug was related to your medical predicament in part, and, in effect, took over from the above mentioned painkillers as ongoing self-medication.  You have also drunk alcohol heavily from age 14 with a current consumption still significant.  Apart from a short course at Odyssey House in the past, you have not undertaken ongoing drug and alcohol treatment or rehabilitation. 

34Though never formally diagnosed, Warren Simmons, a psychologist who provided the court with a report dated May 2015, is of the opinion that your childhood symptoms are consistent with attention deficit disorder.  The injury after the motorcycle accident has impacted on your employment, and your disfigurement in terms of your leg is embarrassing to you.  He did not find any significant antisocial personality traits. 

35You indicated to Mr Simmons that your involvement in manufacturing was essentially for your own use.  You are in an acute phase of post-traumatic stress disorder and depressive symptoms, and he opines that you will experience an exacerbation of these symptoms in reclusion. 

36This is related in particular to recent events which have impacted upon you significantly.  While on remand, you met some men who came to believe you were a significant manufacturer of methamphetamines and that you had a great deal of money.  In late April, a group of men broke into your house with guns.  One of them dropped the firearm which you retrieved and fired as they advanced upon you with weapons.  You fired on a man who consequently died.  No charges have been so far laid. 

37You have experienced hypervigilance and hyperarousal as well as intrusive thoughts. 

38Your partner of the last nine or eight months was also in court in December.  A major relationship lasting some years had broken down also due to your offending behaviour, and your time on remand, I was told, has been unpleasant.

39Mr Simmons believes that if you can deal with drug issues and recent events and their impact, you could return to a more positive lifestyle.  I was finally provided with some material about your injuries.  There it was said initially those injuries could render your time in prison more onerous, both from a medical and a mental health aspect. 

40I received a report from Dr Kaksar, a radiologist, which outlines the details of the injury to your left leg.  He described the rod and metallic clips as well as screws which are in place.  Dr Buyan has been treating you since February 2015, and he reports that you experience chronic and acute pain by the injuries received in 2006 and that your sleep is still affected by the pain, leaving you fatigued. 

41

Interrupting medical treatment which you currently receive may cause further issues and I will note these matters for correctional authorities so that they are aware of these issues.  One of your legs is some

one-and-a-half inches shorter than the other and you have a pronounced limp.  I accept that imprisonment will be a greater burden upon you than an able-bodied person, and I take this aspect into account in ameliorating your term.  At times you need to resort to a walking stick and you experience swelling when standing for long periods.  You have had skin and muscle grafts and more such remedial interventions are likely.  Since that time, you have been relying on a disability support pension. 

42Your offending comprises the possession of a weapon.  The other items including the explosive appear to me to be peripheral to the main count.  But the possession of a weapon, even if only an air rifle, in the face of a relevant prior is a significant matter, given that you are a prohibited person. 

43In my view, although the aspect of your recent predicament, the physical and mental condition and your plea require the imposition of a moderate sentence to accompany the community corrections order for which you have been found to be unsuitable, this combination, in my view, is required, because in this instance, the correctional order has the capacity both to punish to some extent, and face the requirements of general deterrence.  However, alone such an order would fall short of the full expression in a wholly non-custodial disposition. 

44I have received the report from the Department of Justice outlining the assessment outcome which determined your suitability for a community corrections order and a community correction order which will involve judicial monitoring, supervision, treatment and rehabilitation for drugs and medical, mental health and programs to reduce reoffending.  I do not believe that judicial monitoring is suitable in relation to your particular matter. 

45I also note that the correctional services has assessed you as being high risk of reoffending.  In my view, it is appropriate, given all the relevant matters, to impose a term of imprisonment to be followed by a community corrections order upon release. 

46Your offence, it appears to me, was premeditated, informed and relatively sophisticated.  A large number of scientific grade instruments and resources were applied to the extraction of a precursor chemical, and that alone calls for denunciation, punishment and deterrence, as well as concern for community protection. 

47I have signed orders for the disposal and forfeiture of a number of items in the schedule to the application. 

48Please stand, thank you, Mr Kelly. 

49You are sentenced to a period of 12 months' imprisonment to be followed by a community correction order immediate upon your release for a period of two years and subject to the conditions outlined above.  You will report to the Highett Community Correctional Service upon your release. 

50But for your plea, I would have sentenced you to three years' imprisonment. 

51I have signed the orders to which I refer.  I will hand them down. 

52In terms of pre-sentence detention, Mr Kelly was arrested on 28 January 2014 and remanded in custody until being granted bail on 14 February 2014.  He has therefore served 17 days by way of pre-sentence detention which I will note in the records of the court and which will be taken into account. 

53Are there any other periods of pre-sentence detention that I need to take into account? 

54MS KOHN:  No, Your Honour.

55HIS HONOUR:  Yes, thank you.  I will hand those orders down.  Mr Bright, Mr Kelly will have to sign the ‑ ‑ ‑

56MR BRIGHT:  Certainly. 

57HIS HONOUR:  ‑ ‑ ‑ consequent community corrections order. 

58Take a seat, Mr Kelly. 

59I will make a notation on the order for the correctional authorities that they should make all appropriate enquiries to ensure that the situation in relation to Mr Kelly's physical difficulties and medication are immediately addressed and addressed properly. 

60MR BRIGHT:  Yes. 

61HIS HONOUR:  Yes, you can remove Mr Kelly, thank you. 

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