Director of Public Prosecutions v Lynn

[2016] VCC 313

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 14-01986

DIRECTOR OF PUBLIC PROSECUTIONS

v

CHRISTOPHER LYNN

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JUDGE:	HER HONOUR JUDGE CANNON
WHERE HELD:	Melbourne
DATE OF HEARING:	19 February 2016
DATE OF SENTENCE:	17 March 2016
CASE MAY BE CITED AS:	DPP v Lynn
MEDIUM NEUTRAL CITATION:	[2016] VCC 313

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW

Catchwords:             Sentence – Plea of guilty Trafficking in commercial quantity of drug of dependence, namely methyl-amphetamines and amphetamines – History of alcohol and drug abuse

Sentence:Convicted and sentenced to Total Effective Sentence of 694 days imprisonment together with Community Corrections Order of 2 years duration with mandatory and additional conditions – Pre-sentence detention of 694 days declared as having already been served – s.6 AAA Sentencing Act 1991 – Ancillary orders Forensic Sample Retention Order and Driver’s Licence cancellation

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr J. Dickie	Solicitor for Public Prosecutions
For the Accused	Ms R. Sleeth	VLA

HER HONOUR:

1Christopher Kingsley Lynn, you have pleaded guilty to one charge of trafficking in a commercial quantity of a drug of dependence, namely methyl-amphetamine and amphetamine and one charge of theft.  The first offence has a maximum penalty of 25 years’ imprisonment which reflects the most serious nature of this offence while theft has a maximum penalty of 10 years’ imprisonment.

2Your offending was opened as follows:

3I was told that the basis for charge 1 was that on 23 April 2014, you trafficked in an aggregated commercial quantity of amphetamine, methyl-amphetamine and dimethyl amphetamine which is a derivative of methyl-amphetamine.  You have pleaded guilty to this offence on the basis that you were in possession of these drugs or mixture for the purposes of sale.

4In relation to charge 2, I was told that in September 2013, you asked a Michael Landells to paint your hairdressing salon in Melton.  You came to know Mr Landells over the course of his work at the salon.  He offered you to stay at his property in a country area if you ever wished to have a break.

5Unbeknownst to him, you took advantage of his offer to stay.  At some stage between 1 March and 23 April 2014 you stole a car from the property which Mr Landells had left there for his use in around February or March 2014.  He had left the keys in the ignition as there had been a problem with the lock.

6On 23 April 2014 you were found by police, living in that car in a street in North Melbourne.  This is the factual basis for the theft charge, which is charge 2.

7Police attended after a report that the car had been sitting in the same spot for about three days.

8When police arrived, you were sitting in the car and gave them a false name. You told them you had been living in the Northern Territory and had come down from Darwin a week ago.  You said that a friend of yours called ‘Mikey’ from Bendigo, had given you the car and he had driven it to where you were found.  You said that you planned to push start the car with the help of another friend, ‘Sammy’.

9To identify yourself, you presented a debit card in the name of Mrs N Lynn.

10Police searched the car and amongst other things they found several pieces of foil which had an unusual chemical smell.

11Under the front passenger seat police found a plastic bag with three packages of similar size. One was vacuum-sealed and felt quite hard.  The other two were zip-lock sandwich bags.  One of the zip-lock bags was not sealed and the contents appeared to have leaked into the shopping bag.  The substance in the two zip-lock bags looked like white sugar crystals soaked in a thick brown liquid like molasses.

12Police arrested you and seized the items found in his car.

13The total weight of the substances inside the bags was 1,127.2g.  Each of the substances comprised the following:

(a)       amphetamine, with a purity of between about 2.5% and 3%;

(b)      methyl-amphetamine, with a purity of between about 2% and 2.5%; and

(c)       dimethyl amphetamine, which is a derivative of methyl-amphetamine, with a purity of between about 1.2% and 1.6%.

14I was told an aggregated commercial quantity of the drugs of dependence identified, when contained in or mixed with another substance, is a quantity of not less than 500g.  An aggregated large commercial quantity of the drugs of dependence identified, when contained in or mixed with another substance, is a quantity of not less than 1kg.  The prosecution accepted that you did not intend to traffic in a large commercial quantity.

15In sentencing you, I factor in the level of purity of the drugs which was low but it was not miniscule.  It is accepted by you that you had the substances in your possession for sale; however, I was told that it was not in a final form for consumption and needed to be further processed.

16I was told by your Counsel, Ms Sleeth,  that you approached a former school friend and asked for a job.  I was told that he gave you the job of passing on this drug mixture to another person later that night and you were to be paid $8000 which was to be applied by you to numerous debts that you had incurred in the context of a raging ice habit, including drug debts and debts associated with caring for your mother.  This was corrected at the further plea to you having a speed habit.  There is no evidence that supports your account of your role in the offending. However, the fact that you were living in an apparent impoverished state and the level of purity of the drugs tends to suggest that you were not at the top of some affluent drug hierarchy but, beyond this, I make no finding as to your precise role.  On any view of things, you chose to take an active part in helping the evil drug trade to flourish, a trade which has brought so much suffering to those impacted by it, directly and indirectly.  You did so for profit, albeit that you were in significant debt and apparently trying to sustain a $400 a day drug habit.

17You instructed your Counsel that you committed each of these crimes when in the grips of a drug addiction but even if this is so, this does not reduce your moral culpability.  You made a deliberate and rational decision to have the drugs in your possession for sale, which is confirmed by the Forensicare report and your instructions to your Counsel.  If you were not drug addicted, and prepared to engage in such conduct, I would have found that your moral culpability was even higher than it already is.  While the evidence on this aspect is conflicting and, in my view, it is far from satisfactory, I make no adverse finding against you in this regard.

18On any view of it, your conduct is deserving of a punishment which is just in all of the circumstances and your conduct must also be denounced.  Strong weight must attach to general deterrence in a bid to deter others from behaving as you have.

19You have one prior matter in 2007 of failing to file a statement of affairs, which related to a civil debt.  This is not relevant in sentencing you.

20However, you have subsequent matters, as follows:

21On 13 August 2014 you pleaded guilty to possession of cannabis, drive unregistered motor vehicle and refuse an oral fluid test.

22On 17 December 2014 you pleaded guilty to charges involving drug possession and possessing materials for the purpose of manufacturing and trafficking drugs.  You had been arrested and charged with these matters on 23 October 2013, only six months before committing the offences before me.  I must say that this matter gave me some disquiet as to the nature of your role in respect of the matter before me, especially as you had indicated through your Counsel that you had the wherewithal to purify drugs on that occasion. I put that however to one side.  As I have said, I make no finding as to your role in respect of Charge 1.

23By way of background, you are now 44 years old and were 42 when you committed the offences for which I now sentence you.  I was told you were adopted shortly after birth and had an adoptive sister.  You grew up in an affluent household and were privately educated to Year 12 at various secondary schools.

24When you were seven years old, your adoptive parents separated and when you were 11 they divorced.  You always had a very close relationship with your adoptive mother but you detested your adoptive father.  He was terribly abusive and violent toward your mother before and after separation, and you reported that he assaulted and raped you when you were 11, and away with him on a holiday in Hawaii.

25After your parents separated, you were ordered to see your father on regular access visits, which you disliked intensely.  When you were 14, you were able to choose whether you wished to continue to see your adoptive father and you decided not to.

26You have struggled with binge eating all of your life and were morbidly obese at school.  Although you truanted from school at one stage and left in Year 9, you resumed your education some short time later and completed Year 12, although you failed three subjects, apparently due to you suffering gastroenteritis at the time that the exams were held.  Notwithstanding this, you instructed your Counsel that you were offered a place at university to study engineering, but you left this after two years to become a chef.  You have worked as a chef overseas, leading a fairly itinerant existence and engaging in seasonal work over a number of years.

27Sadly, in 2010, your adoptive sister died in her sleep of an epileptic fit.  I was told that she was a highly regarded constitutional lawyer working in Canberra. Although you had not enjoyed a very close relationship with her, again understandably, you still mourned her loss.  In that same year, your beloved mother suffered two strokes after having a myocardial infarct.  You returned to Australia to look after her.  About 18 months before the offences for which I sentence you, you gave up work to look after your mother on a full time basis.

28You were your mother’s primary carer for an extensive period.  You were devoted to her and had been trying to modify her home to enable her to live there more comfortably and safely.

29I was told that you would not go home when you were drug affected, preferring to live in the car where police found you.  Ultimately, your mother went into care, and sadly, she died whilst you were on remand.  You were unable attend her funeral, which was terribly difficult for you.

30You have been on remand at MRC for nearly two years.  I take into account that you have been impacted by the riots which occurred on 30 June 2015 which led to severe restrictions in the initial period following the riots and that there are still some ongoing restrictions insofar as lock downs are concerned.  You had worked as a chef at MRC but following your reaction to news of your mother’s death and inability to attend her funeral, you were ultimately moved to the library.  Here, you have made a positive contribution to prison life, assisting other prisoners to develop their literacy skills.  I allow for the fact that a significant period of your time in custody has been harsher for you that it would otherwise have been, because of your mother’s death, your inability to attend her funeral and the restrictions imposed after the riot.  Whilst the final matter would dissipate once you were undergoing sentence, the other matters would still make life in gaol somewhat more burdensome for you than for other prisoners.

31You have abused alcohol over the years, which, according to you, is fairly common amongst chefs, due to their long hours and need to sleep and unwind after lengthy shifts.  You also abused alcohol to escape bad memories of your childhood.  You have consumed small quantities of cocaine, speed and cannabis, according to the Forensicare report and you told the assessing officer for Community Corrections that you were snorting about 1 to 1 ½ grams of speed a day at the time you offended.  This and other matters on this topic of drug taking led me to have a degree of disquiet about the true position in respect of your drug taking at the time of the offending before me.

32When you were 37 years old your former girlfriend introduced you to ice while the Forensicare report says that you used this for six months at this time, your Counsel said at the initial plea that this was for a period of two years.  The Forensicare report also records that you told Dr Wood, clinical and forensic psychologist, that you stopped taking ice at the time that the police raided your house which, I understand from the chronology, appeared to be on 23 October 2013.  However I may well be wrong about this.  Dr Wood said that you told her that after this police raid, you ended the relationship with your then girlfriend and you never touched ice again.  She said that you told her that you were abusing alcohol in the 12 months leading to the offending for which I now sentence you.  There is no mention in the report that you were abusing speed at that time but I was told today that this was in fact the case as reported in the Community Corrections assessment report.  As I have said previously, I do not regard this state of affairs as satisfactory and was most tempted to have Dr Wood called in a bid to establish what you had actually told her.  However, in view of the attitude of the prosecution in respect of this aspect and your concession that you were not so drug addicted that you did not make rational choices in respect of the offending, I am prepared to put this aspect to one side.

33I have taken into account the other matters and findings in the Forensicare report, but it is not submitted that you have or had any impairment of mental function which ought reduce your moral culpability or the weight that I would otherwise place on relevant sentencing principles.

34On the other hand, your sound intellect and balanced personality as well as the fact that you are not currently abusing any substances, are matters which are in your favour in respect of your prospects of rehabilitation and capacity to be specifically deterred.  In this respect, I have also taken into account that you have a skill as a chef and that you have a fairly sold work history.

35In assessing your prospects of rehabilitation, I have also factored in that you have no stable accommodation to go to when you are released and that you have little in the way of family or friendship support.  I understand that you will seek out appropriate housing when released as best you can and in the meantime you will be residing at a room in a hotel.  You will need to reach out to community supports and ensure you have stable accommodation as soon as possible upon release in order to maximise your chances of living a productive and crime free life.  It is also important that you deal with issues in respect of your childhood and your grief, do you understand?

36OFFENDER:  I do.

37HER HONOUR:  I make a fairly substantial allowance in your favour in respect of your plea of guilty and the stage at which this was made, which was after a contested committal hearing and at a stage where the matter was about to be the subject of a final directions hearing in this court.  In taking this course, you have saved the witnesses the time and trouble of giving evidence at trial and you have saved the community the time and expense of running a trial.  The discount you will receive however is not as great as it would have been had you entered a plea of guilty at an earlier stage such as pre-committal.  In the circumstances, I allow for some remorse, although this is somewhat confined to your own predicament than the gravamen of what you have done and how it might have affected others.  I am not convinced that you are presently displaying a great deal of insight into your offending, but I hope that this will improve with time.

38Taking into account the serious nature of your offending, your subsequent offending, your struggles with substances and limited remorse and insight, but also factoring in your lack of relevant criminal history, your solid work ethic and sound intelligence, as well as the fact that you were able to lead a fairly blame free life for a number of years, I assess your prospects of rehabilitation as fairly good and I place less than moderate weight on specific deterrence.  In arriving at these findings I have also factored in the assessments by
Dr Wood and the Office of Corrections in respect of the risk of re-offending that they have calibrated.

39Your Counsel submitted that I ought impose a gaol term equal to the time you have served and a Community Corrections Order.  The Prosecution submitted today that such a course would be within the range of sentences available to me.

40In the end, I have decided that this is an appropriate disposition, but let me be very clear, Mr Lynn, if you slip up on this order, that is the Community Corrections Order or commit an further offences, you face the very real prospect of facing further periods in gaol.  I really want you to take advantage of all of the programs that the order has to offer you - in particular, you need to address the issues of your childhood and the grief that you have suffered in more recent times.  You have training as a chef and you are an intelligent man so I do hope that you pursue a positive path in the future.  Would you please stand up

41You are convicted and sentenced as follows:

Ancillary orders

42Firstly, I make a disposal order in respect of the three bags of substances seized, which is an order that is not opposed by you.

43Secondly, I make an order for a forensic sample to be taken by way of buccal swab from the mouth because of the seriousness of the offences, because the order is not opposed and be it is in the public interest to make such an order.  I warn you that if you do not cooperate with the authorised officer in respect of this procedure then he or she may use reasonable force to compel to do so. 

44In respect of the theft charge, all drivers licences are cancelled and you are disqualified from driving for a period of one month.  The period is shorter than might otherwise be the case, as it is important for you to be able to get back on your feet in the community as soon as you can and you may well need to drive in order to assist you with this.

45I impose the following periods of imprisonment:

46Charge 1-  694 days’ imprisonment.

47Charge 2 -  six months’ imprisonment.

48These sentences are to be served concurrently, producing a total effective sentence of 694 days’ imprisonment, and I declare that you have already served 694 days by way of pre-sentence detention.

49In addition to the sentence imposed on Charge 1, and subject to your consent, you are to undergo a Community Corrections Order of two years duration, the terms and conditions of which I will set out now, as I can only place you on this Order if you consent to the terms and conditions of it, all right?  So please listen carefully to the order that I propose.

50As I have said, the Community Corrections Order would run for a period of two years.

51The conditions of the Order would be as follows:

52Firstly, there would be the mandatory terms that apply to all Community Correction Orders, which are:

53Firstly, you must not commit another offence for which you could be imprisoned during the time that the order is in force;

54You must comply with any obligation or requirement prescribed by regulation 17 of the Sentencing Regulations 2011;

55You must report to, and receive visits from, the Secretary to the Department of Justice (or his or her delegate);

56You must report to the Box Hill Community Corrections Centre before 4.00 pm within two clear working days of your release from gaol;

57You must let a community corrections officer know within two clear working days of you changing your address or job;

58You must not leave Victoria without first obtaining permission to do so from the Secretary to the Department of Justice (or his/her delegate); and

59You must obey all lawful instructions from and directions of the Secretary to the Department of Justice (or his/her delegate).

60The conditions that apply in addition to the mandatory terms are:-

Community Work

61You must undergo 100 hours unpaid community work within the next 12 months.

Supervision

62You must be under the supervision of a Community Corrections Officer for a period of  two years.

Treatment and Rehabilitation

63You must undergo assessment and treatment (including testing) for drug and alcohol abuse or dependency as directed by the Regional Manager.

Mental Health

64You must undergo mental health assessment and treatment including (but not limited to) mental health, psychological, neuropsychological and psychiatric treatment in a hospital or residential facility, as directed by the Regional Manager.

Offending Behaviour programs

65You must undergo any programs to address your offending behaviours as directed by the Regional Manager.

66In view of the assessment report, I have decided not to impose judicial monitoring. 

67Now do you consent to the terms and conditions of the proposed Community Corrections Order?

68OFFENDER:  Yes I do.

69HER HONOUR:  I should tell you that if you do not comply with all of the requirements of this Community Corrections Order then you will face breach proceedings before me.  You will be sentenced in relation to the breach and you will be re-sentenced in relation to the charges-in which case you may well be sentenced to a further period of imprisonment.  I would regard a breach of the Community Corrections Order as a most serious matter, whether it be because of further offending or because of non-compliance with any of the other conditions of the order.

70Do you understand this?

71OFFENDER:  I do, Your Honour.

72HER HONOUR:  Do you maintain your consent to the order?

73OFFENDER:  I do, Your Honour.

74HER HONOUR:  Therefore in relation to the charge that is Charge 1, in conjunction with a term of imprisonment,  you are convicted and sentenced  - I have previously convicted you but you are sentenced to the Community Corrections Order  in the terms and conditions that I have just set out.

6 AAA

75I indicate that if not for your pleas of guilty, I would have sentenced you to a total effective sentence of five and a half years' imprisonment with a non-parole period of three and a half years

76I will ask Ms Sleeth to attend upon you in the dock so that you can sign the proposed Community Corrections Order document.

77Yes, before that is done, I just need to update the proposed Community Corrections Order.  So what I am going to do is just briefly stand down so the document can be amended.  So I just ask if Mr Lynn can remain here.  It will not be long before we can return to have that document signed, all right?  Thank you.

78(Short adjournment.)

79HER HONOUR:  Yes that document is now ready to be signed.

80MR DICKIE:  Thank you.  The only other matter, Your Honour, was that Your Honour indicated that a sample, forensic sample, might be taken.

81HER HONOUR:  Yes.

82MR DICKIE:  As I understand it, Your Honour's signed a retention order, which is the order that is sought and that Mr Lynn, in fact, provided a sample.

83HER HONOUR:  I’m sorry.  It's a retention order is it?

84MR DICKIE:  Yes, Your Honour.

85HER HONOUR:  I beg your pardon.  All right, well I vacate that part of my Order and instead I make an Order for retention of the sample previously obtained for the same reasons that I set out previously.

86MR DICKIE:  Yes thank you, Your Honour.

87HER HONOUR:  Yes thank you.  Yes all right, thank you.  I have signed that Community Corrections Order and I understand that now Mr Lynn needs to go back downstairs to be processed.

88MS SLEETH:  Yes, Your Honour.

89HER HONOUR:  If you might remove Mr Lynn at this stage thank you.

90MS SLEETH:  Your Honour pleases.

91HER HONOUR:  We will now adjourn

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