Director of Public Prosecutions v Maney

[2020] VCC 418

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 19-00146

DIRECTOR OF PUBLIC PROSECUTIONS

v

CHRISTOPHER MANEY

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JUDGE:	HIS HONOUR JUDGE CAHILL
WHERE HELD:	Melbourne
DATE OF HEARING:	31 March 2020
DATE OF SENTENCE:	8 April 2020
CASE MAY BE CITED AS:	DPP v Maney
MEDIUM NEUTRAL CITATION:	[2020] VCC 418

REASONS FOR SENTENCE
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Subject: Possession of materials and equipment for trafficking in a drug of dependence and trafficking in a drug of dependence
Catchwords: guilty plea – limited criminal history – sophisticated clandestine laboratory – significant investment and planning – impressive steps to self-rehabilitate while on bail – excellent prospects of rehabilitation – prison hardship due to COVID-19 pandemic
Legislation Cited:
Cases Cited: Boulton v The Queen (2014) 46 VR 308, Luke Williams [2018] VSCA 171, Jiang Zhen [2019] VSCA 126
Sentence: 16 months imprisonment with a 2-year community correction order

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr B. Nibbs
For the Accused	Mr W. Barker

HIS HONOUR:

1Christopher Maney, on 31 March 2020, you pleaded guilty to one charge of trafficking in a drug of dependence on 3 September 2017, one charge of possession of materials and equipment for trafficking in a drug of dependence, on the same day, and possession of a drug of dependence on 4 September 2017.

2The circumstances of your offending are set out in the summary of prosecution opening, which is Exhibit A. They are agreed facts.

3On 4 September 2017, police arrested you and an associate, Valeria Gabrielle, at your home at Glenroy.  They found several phones, computers, papers containing instructions for amphetamine manufacture, receipts for chemicals, and flask packaging, and papers relating to a trailer which was registered in your name.

4Earlier on the same day, police executed a search warrant at a rural address where they found the trailer and an underground shipping container which had been converted for use as a large-scale clandestine drug laboratory.  Inside the container, there was scientific glassware and apparatus, chemicals and a pill press for the manufacture of drugs.  There were chemicals enough to manufacture approximately 19 grams of 1-phenyl-2-nitropropene (1P2NP), a precursor chemical for the manufacture of methylamphetamine.  Your possession of these items constitutes Charge 2, possession of substances, materials, documents and equipment for trafficking in a drug of dependence.

5There was also a semiautomatic handgun located in the bag inside the container.  You face no charge in respect of that firearm.

6As well, Police found quantities of substances which contained in total 31.23 grams of pure methylamphetamine.  A trafficable quantity of methylamphetamine is 3 grams of mixture.  A commercial quantity is 50 grams of pure methylamphetamine.

7Your possession of methylamphetamine in a trafficable quantity constitutes Charge 1, trafficking in a drug of dependence.

8On the same day, at another address connected to you, police found glass jars containing liquids linked to the manufacture of drugs.  They also found
3.4 grams of amphetamine.  Your possession of this drug constitutes
Charge 3, possession of a drug of dependence.

9Police arrested you and when they questioned you, you exercised your right to remain silent.  You were remanded in custody.

10On 26 September 2017, you were released on bail on stringent conditions.

11A committal hearing was listed on 23 January 2019.  On that day you resolved to plead guilty to the charges which are now before me.

12You have admitted a criminal record. 

13Relevantly, on 28 April 2009, at Melbourne Magistrates' Court, for drug possessions charges, you were released on a 12 month community based order.

14On 28 October 2019, at Heidelberg Magistrates' Court, for dishonesty charges and threat to inflict serious injury, you were released on another community based order. 

15And, on 19 January 2010, at the County Court at Melbourne, on a charge of driving under the influence of a drug you were sentenced to three months' imprisonment, suspended for two years.

16I turn to your personal circumstances.

17You were born on 22 May 1985 and are now aged 34 years. 

18Your Counsel, Mr Barker, told me your parents separated when you were 4 years old. Your mother later re-partnered. She moved to Queensland with your stepfather in mid-2017. You have a close relationship with them. You have 3 stepsisters.

19Unfortunately, you do not have a good relationship with your father. Your father had 3 more children, so you had 2 half-brothers and a half-sister.

20When you were 18 years old, your half-brother, Declan, died as a result of a rare childhood cancer.  You were very close to him and turned to methamphetamine to deal with your anxiety and sadness as you watched the cancer takeover.

21You have three children, a daughter, Hazel, aged four years, a son, Banx, also aged four years, and another daughter, Primrose, aged two years, from three different relationships.

22During your childhood you attended primary school in Queensland and then, when your family moved to Melbourne, St Leonards Secondary College at Brighton.  In Year 11 you moved to Sandringham Secondary College and, in that year, you left school to start an electrician's apprenticeship.  You remained in that job for two and a half years but did not want to be an electrician forever and, in 2005, you started working at a plastering company where your father worked.  You were there for three to four years but lost your job when your work performance declined due to your drug use.

23In May 2009, you went to Odyssey House, where you completed the residential rehabilitation program, and then stayed assisting junior clients in the program, until 2011, when you returned to work with the plastering company which had previously employed you.  Over time you were promoted to a position of leading hand and then project manager.  At your peak, you were supervising teams of up to 170 workers at a Bendigo Hospital construction site.  You were working hard and earned a very good salary.

24In 2016, you moved to Lendlease as a project manager but left after six months to start up your own business.  This lasted 12 months.

25You had abstained from drug use until 2017, when your relationship with Hazel's mother broke down.  You had been using methamphetamine in the period leading up to your arrest for this offending on 3 and 4 September 2017.

26On 26 September 2017, without police opposition, you were released on bail on stringent conditions.  You obtained work with a construction company and, when that company dissolved in 2018, you started a furniture making business, which you operated successfully until you were arrested again on 23 May 2019 and remanded in custody.

27While you were on bail, between September 2017 and
May 2019, you found work and voluntarily submitted to drug testing.  24 drug screens, covering 29 January 2019 to 13 May 2019 show you were drug free for that period.

28You also sought the assistance of a psychologist, Ms Seigel, who saw you for 11 counselling sessions, between 16 October 2017 and 1 November 2018.  You told her your greatest stress was hindered access to your three children, then aged three, two and one.  In her letter, dated 24 November 2018, she wrote while your early sessions were ad hoc, from March 2018 you increased your session attendance, and your engagement during sessions, and you completed all your homework tasks and developed coping mechanisms.  The sessions ended when her sister contacted you and said you should stop them because Ms Seigel was not licenced to practice.

29The mother of your son, Banx, provided a very impressive reference, dated
23 March 2020.  She is a social worker.  She wrote she is aware of the charges you face and despite lengthy disputed custody proceedings between you, in the past, she is now convinced you can be a good parent.  While you were on bail you were, as she described you, an active, loving and selfless father.  You showed her your drug screens and told her about your counselling and she now completely trusts you.  She has seen your gaol experience give you clarity and humility.  You have not wanted your son to see you in prison but speak to him almost daily by phone.  She proposes, when you are released, you should be your son's primary carer so that she can resume full time work.

30Your sister, Rebecca, wrote that she and her husband will have you live with their two young children and them.  There is a no-drug rule in their home.  She will assist you to meet any appointments if you are released under supervision.  She described you as a hard worker who adores your three children.  She wrote their absence is the hard, for you and you look forward to spending time with them and putting your criminal offending behind you.

31Odyssey House has offered you readmission to its residential rehabilitation program if needed.

32You mother wrote a letter to the court and she also gave evidence before me.  As a lawyer, she well understands the gravity of your situation.  She wrote, her separation from your father, leaving you without a male role model, had a profoundly negative impact on you.  She has seen you struggle with drug addiction since 2003.  She confirmed you started using drugs when, in July 2003, Declan was diagnosed neuroblastoma and six months later died.

33In searching for an explanation for your crimes herself she noted, from the ages of 18 to 26 you were either using drugs or recovering from them, that your Odyssey recovery program was intensive but relapse but all too present for many graduates. Additionally, by the time you had turned 29, you had fathered three young children in rapid succession, you were struggling with three complex parenting relationships and you felt great financial and emotional pressure to be, to your children, the father you never had. In this context, you relapsed into drug use.  In her view, had you not lapsed, you would not have re-offended.

34She saw you turn your life around in 2011 and she believes you have the character and will to do it again.  In her evidence, she said while she and her partner moved to Queensland in August 2017, they had flown to Melbourne every four to six weeks to visit family.  With her help, in March 2019, you started seeing Hazel and Banx until your arrest last May.

35She said, initially after your arrest, you were avoiding responsibility for your actions, but, since late 2019, she has noticed considerable change in your attitude.  You have told her you were glad that you were gaoled as it has forced you to realise you must change.  She described you as realistic about what you need to do to beat your addiction.  You have told her, 'I know what my triggers are, I just need help to manage them'.

36You were arrested on 23 May 2019 for similar offending.  Police found items of equipment and materials for the manufacture of drugs in a bin in your workplace.  Mr Barker told me you had them prior to your arrest on 4 September 2017.  You had no drugs in your possession on 23 May.

37Your bail, in respect of the current charges, was revoked on 27 November 2019.

38On 25 February 2020, a magistrate sentenced you to 189 days imprisonment, equivalent to the time you had served from 23 May until 27 November 2019 for your possession of the items police seized.

39Prison screen tests show you have been drug abstinent in custody.

40In relation to your offending, Mr Barker acknowledged the clandestine drug lab you built was a sophisticated and premeditated setup.  However, he submitted the extremely low purity of the substantial number of quantities of drugs seized showed your attempts to manufacture were amateurish.

41In written and oral submissions he relied on the following factors in mitigation of penalty.

42Firstly, your early plea of guilty made before a committal hearing proceeded.

43Secondly, your limited criminal history.  Your three drug convictions were for use and possession of drugs for personal use and you have not previously been incarcerated.

44And thirdly, your excellent prospects of rehabilitation demonstrated by your successful completion of the treatment program at Odyssey House, between 2009 and 2011, your abstinence for six years until 2017 and following your release on bail in 2017, your steps to voluntarily abstain from drug use, to seek counselling for personal issues and maintain steady employment, your good work history over a period of more than 15 years, your strong family support, your motivation to be a good and supportive parent and your compliance with previous court orders.

45And fourthly, the additional hardship in prison due to COVID-19 enforced restrictions.

46Mr Barker accepted I must impose a gaol sentence on you.  He submitted I should imposed a term of imprisonment in combination with a community correction order.

47Mr Nibbs, who appeared for the prosecution, did not take issue with the submissions Mr Barker made in relation to your personal circumstances.  In relation to Charge 1 he told me the trafficking charge was put on the basis that you were in possession of a quantity of methylamphetamine which is presumed to be for the purposes of trafficking under the legislation.  By your guilty plea you acknowledge the application of the statutory presumption.

48In relation to Charge 2, he said there was no evidence of what quantities of methylamphetamine were manufactured.  However, he submitted the establishment of the laboratory was well planned, highly sophisticated and well concealed, and, accordingly, your offending was serious.  He submitted a combination sentence was outside proper sentencing range.

49Mr Barker referred me to the cases of the DPP v Van Nguyen, DPP v Marvin, DPP v Grasso and DPP v Western.  I have read them.  None of them are directly comparable to your case, as Mr Nibbs submitted.  However, making appropriate adjustment for the differences between them and yours, I have used them as a general yardstick to measure the sentence I should impose on you.

50I have found helpful guidance in the recent Court of Appeal decision of
Djemal v The Queen [2020] VSCA 25.

51Your offending in relation to Charge 2 was serious.  While you had chemicals capable of producing only a relative small quantity of the methylamphetamine precursor P2NP, and most of the items containing methylamphetamine were of purities too low for any use, your clan-lab setup involved investment and planning.  While I cannot know the precise quantity of drugs manufactured, or that might be manufactured, you possessed a setup of some scale and sophistication.  And the compelling inference is that you were in possession of the equipment for the manufacture of drugs to be supplied or sold to others.

52As the court in Djemal, Niall and Weinberg JJA said at paragraph 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'.

53I accept your early guilty plea has high utilitarian value, particularly considering the uncertainty of the global public health crisis, which has caused jury trials in Victoria to have been stopped for the time being.  I also accept you are deeply remorseful and your desire to be a good father to your children is a powerful motivation to you not re-offend.

54After your release on bail in September 2017 you took impressive steps to address the causes of your offending and I accept you have the skills and strength to reform, and provided you can manage your triggers, your prospects of rehabilitation are excellent.

55I also accept the COVID-19 pandemic is causing additional stress and anxiety for you, as it is for all prisoners, and every member of the community.  I take it into account in the sentencing synthesis.

56To enable me to consider all sentencing options, I have had you assessed for a community correction order and you have been found suitable.  You have a good history of compliance with previous court orders.  The assessing officer indicated case management will assist you to build prosocial supports and to function in the community without re-offending.

57The Court of Appeal said in Boulton v The Queen (2014) 46 VR 308 at paragraph 2,

'The CCO is a flexible sentencing option, enabling punitive and rehabilitative purposes to be served simultaneously.  The CCO can be fashioned to address the particular circumstances of the offender and the causes of the offending, and to minimise the risk of re-offending by promoting the offender’s rehabilitation'.

58And, at paragraph 131,

'A CCO may be suitable even in cases of relatively serious offences which might previously have attracted a medium term of imprisonment'.

59The principle has been recently applied in cases of Luke Williams [2018] VSCA 171 and Jiang Zhen [2019] VSCA 126.

60I have decided yours is an exceptional case where, notwithstanding the seriousness of your offending, a community correction order, combined with a term of imprisonment can properly meet all sentencing objectives, including your punishment and rehabilitation.

61By the sentence I impose I must denounce your conduct, punish you and deter you and others from committing crimes of the same or a similar kind.  I must also look to your rehabilitation.

62Taking into account the circumstances of your offending, your personal circumstances and antecedents, and endeavouring to produce a sentence which reflects and promotes the purposes of sentencing in a manner appropriate to you, on Charge 2, possession of items for trafficking in a drug of dependence, you are convicted and sentenced to 15 months' imprisonment.  On Charge 1, trafficking in a drug of dependence, you are sentenced to two months' imprisonment.

63I direct one month of this sentence be served cumulatively on the sentence I have imposed on Charge 1.

64So you are sentenced to an aggregate term of 16 months imprisonment, in combination with a two year community correction order, which I impose in respect of both Charges 1 and 2. The order is to commence on your release from prison.

65In addition to the core conditions, accepting the assessing officer's recommendations, I impose the following special conditions:  supervision and drug treatment and rehabilitation.

66When you are released you will be required to attend the Moorabbin community correction services office at 1140 Nepean Highway, Highett.

67On Charge 3, possession of a drug of dependence, which I accept was for personal use, you are convicted and fined $500.

68I declare you have already served 157 days of your sentence by way of
pre-sentence detention.

69But for your plea of guilty I would have sentenced you to three years' imprisonment, with a minimum non-parole release period of two years.

70I make an order for forfeiture of the mobile phone handsets and other items listed in the schedule to the proposed order.

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