Director of Public Prosecutions v Marven
[2016] VCC 505
•19 April 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-15-02227
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BENJAMINE MARVEN |
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JUDGE: | HIS HONOUR JUDGE SMITH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 1 April 2016 | |
DATE OF SENTENCE: | 19 April 2016 | |
CASE MAY BE CITED AS: | DPP v Marven | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 505 | |
REASONS FOR SENTENCE
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Subject: SENTENCING
Catchwords: Trafficking in a drug of dependence – possession of material or equipment for trafficking in a drug of dependence – possession of precursor chemicals – possession of a drug of dependence – possession of an unregistered general category handgun – recklessly dealing with proceeds of crime
Legislation Cited: Drugs, Poisons and Controlled Substances Act 1981 – Sentencing Act 1991; Crimes Act 1958
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr P Pickering | Office of Public Prosecutions |
| For the Accused | Mr M O’Connell SC | Grigor Lawyers |
HIS HONOUR:
1 Benjamine Marven, you have pleaded guilty to:
· One charge of trafficking in a drug of dependence, namely, methylamphetamine and pseudoephedrine, in a quantity that was not less than an aggregate large commercial quantity contrary to s.71 of the Drugs, Poisons and Controlled Substances Act of 1981.
· One charge of having in your possession solvents, drug literature, household glassware, scientific glassware and apparatus, with the intention of using these substances, documents and equipment for the purpose of trafficking in a drug of dependence contrary to s.71A of the same Act.
· Having in your possession precursor chemicals, namely, hypophosphorous acid, iodine, phenylacetic acid, nitro methane, acetic anhydride, mercury, N-Methylformamide, sodium borohydride, formaldehyde and magnesium, in quantities that were not less than the prescribed quantities applicable to those precursor chemicals contrary to s.71D of the same Act.
· One count of having in your possession drugs of dependence, namely, testosterone, nandrolone and boldenone, contrary to s.73 of that Act.
· One count of having in your possession an unregistered general category handgun, namely, a sawn-off Boito brand shotgun, contrary to s.7B sub-s.(1) of the Firearms Act of 1996
· One count of dealing with the proceeds of crime, namely, a Yanmar global VI035 excavator and a Kobelco excavator, being reckless as to whether or not they were proceeds of crime contrary to s.194 sub-s.(3) of the Crimes Act 1958.
· You have also pleaded guilty to the summary offence of unauthorised possession of schedule 4 poisons, being lignocaine, adrenaline, dexamethasone, ropivacaine, bupivacaine and epoetin, contrary to s.36B sub-s.(2) of the Drugs, Poisons and Controlled Substances Act.
2 The circumstances of your offending are as follows.
3 On 8 December 2014, police attended at premises at Wandin North, where you resided. There they located a clandestine laboratory for the production of methylamphetamine located in container sheds at that address. The concealed room was lined in black plastic, with its own power, heat and water sources and drainage.
4 From the description provided and photographs tendered, a considerable amount of preparation had gone into the construction and equipping of the laboratory.
5 The police located items of scientific glassware, with most containing chemicals or other liquids. Nearby, a Ford Transit van was used for storage, containing a substantial amount of commercial-grade scientific glassware, as well as solvents in sealed buckets containing liquids. A separate shipping container was found to have precursor chemicals in storage and pharmaceutical manufacturing machinery was located in a second container. This machinery included a stainless steel pressure vessel, a large steriliser and an ingredient mixer. A significant number of precursor chemicals were located at the premises.
6 558 g of pseudoephedrine was found. It was estimated by police that approximately 419 g of methylamphetamine could be produced from this amount of pseudoephedrine, using iodine and hypophosphorous acid.
7 A total of just over 1.334 kg of methylamphetamine was found on the premises.
8 Police estimated that, depending on how the substance was sold, the value of that methylamphetamine would have been between $333,600 and $1.6 million.
9 A search of the residence located drugs of dependence, namely, testosterone, nandrolone and boldenone, and a number of schedule 4 poisons, namely, lignocaine, adrenaline, dexamethasone, ropivacaine and bupivacaine and epoetin.
10 Police also found a sawn-off shotgun, along with suitable ammunition for it.
11 The two excavators were found at the property.
12 You were arrested and taken to Lilydale Police Station, where you participated in a tape-recorded interview. In that interview, amongst other things, you told police:
· that you had been producing methylamphetamine;
· that you used most of the methylamphetamine produced yourself;
· that you had been manufacturing for about a month prior to your arrest;
· that the firearm was yours; and
· that the steroids were for personal use.
You declined to reveal to police from where you had sourced the pseudoephedrine and other precursor chemicals, or from where you obtained the sawn-off shotgun, steroids or the excavating machinery.
13 It was conceded by the Crown that the allegation of trafficking was brought on the basis of the quantity of drugs manufactured by you rather than any evidence of the sale by you of such drugs. Further, it was conceded that there was no proof of any financial benefit or enrichment to you.
Background
14 By way of background, you are aged 34. You were 33 at the time of these offences.
15 You were born and raised in the Yarra Valley region of Victoria. You attended school in Wandin and Healesville. You left school after year 11. You worked as a plasterer and in operating earthmoving equipment.
16 Your childhood was a difficult one. Your mother died when you were aged seven and you were brought up by your father, although it appears that he was often away from home on work commitments. You had little supervision or guidance. Your father remarried when you were 11 and you had a difficult relationship with your stepmother.
17 I accept that you have a lengthy history of problematic drug abuse. It appears that you first used cannabis at the age of 13. You were involved in daily consumption of cannabis by the age of 15. Your use of cannabis resulted in mounting problems at school and with regard to your general capacity to cope with life. When you were aged about 22, and following the birth of a stillborn child with your then partner, you became depressed and commenced using amphetamines to help with your mood problems and to increase energy. Your use of amphetamines escalated steadily after that. At the age of about 28 or 29 you commenced using methylamphetamine. During the months prior to your arrest you were using between 1 and 2 g of methylamphetamine each day. You have reported that this resulted in extended periods of wakefulness; you reported being awake for periods up to a week while bingeing on methylamphetamine, resulting in states of profound confusion. You reported prominent paranoid ideation as well as fleeting auditory and visual hallucinations. You used cannabis to assist you to “come down” after those episodes.
18 I note that in June of 2011, you were convicted of possessing cannabis and possessing more than one precursor chemical and other like charges.
19 You are currently single.
20 You had, prior to your arrest and incarceration, never participated in any form of treatment, rehabilitation or counselling with regard to your drug problems.
21 In custody, you have completed a six-hour educational program dealing with recovery from methamphetamine addiction.
22 You have been on remand for approximately 16 months.
Sentencing principles
23 Section 5 of the Sentencing Act of 1991 provides the purposes for which sentences may be imposed. Principally, these include the need to punish you for your offences in a manner that is just in all the circumstances, to deter you and others in the community from committing similar offences in the future and to manifest the Court’s denunciation of your offending and to protect the community from you.
24 In your case, specific and general deterrence and the denunciation of your offending are of particular significance. It is common knowledge in our community that methylamphetamine or ice, as it is commonly known, is a dangerous and addictive drug. Its use has spread dramatically throughout our community in recent years. Ingestion of it often results in violent behaviour. It has caused considerable distress to those using the drug and to those associated with users.
25 It is important that my sentence condemns your behaviour in strong terms. I acknowledge that there is no evidence that you sold the drugs to others in any orthodox manner, and I will say something more about that in just a moment.
26 Further, I have taken into account each of the matters set out in s.5 sub-s.(2) of the Sentencing Act.
27 In particular, I take into account the maximum penalties that have been imposed by Parliament in respect of these offences. These are significant, and it is worthwhile going through each of them.
(a)The charge of trafficking in a drug of dependence in a large commercial quantity: the maximum penalty is life imprisonment, together with a fine of 5,000 penalty units, which equates to an amount exceeding $700,000.
(b)Secondly, possessing materials and substances for trafficking: the maximum penalty is ten years imprisonment.
(c)Possessing precursor chemicals: the maximum is five years imprisonment.
(d)Possessing a drug of dependence: the maximum is one year imprisonment and a fine of 400 penalty units, which equates to approximately $58,000.
(e)Possessing an unregistered handgun: the maximum penalty is seven years imprisonment or a fine of 600 penalty units, which is approximately $88,000.
(f)Recklessly dealing in the proceeds of crime: the maximum sentence is ten years’ imprisonment.
(g)And possessing a schedule 4 poison: a fine of ten penalty units, which equates to just under $1,500, is the maximum penalty.
28 The prosecutor submitted that the Court should sentence you without regard to the baseline sentencing provisions that would otherwise be applicable to Charge 1, and I accept that I should sentence you without reference to those provisions.
Mitigating circumstances
29 Your counsel has made a number of submissions to me regarding matters going to mitigation of your sentence.
30 With regard to your motivation to offend, it was submitted, and I accept, that at the relevant time you were significantly addicted to ice.
31 I am in receipt of a report from Mr Patrick Newton, a forensic psychologist, dated 28 March 2016. Mr Newton reports that you told him that your offending had been committed at the insistence of drug suppliers who had made you cook amphetamine to pay off a drug debt. I note that you did not mention any such pressure to offend when interviewed by police following your arrest. It was not suggested by you following your arrest that you had acted under any duress. I am not satisfied that your offending is anything other than voluntary and intentional.
32 I accept that you were indebted, to an extent, to drug suppliers and that your offending conduct, at least to some extent, was in the context of supplying methamphetamine to them to reduce that debt.
33 In relation to the submission that your trafficking of the drug was confined to the cooking and manufacturing of it and that there is no evidence that you sold the drug to any other person or had been enriched to any extent, the prosecutor agreed that that was so. Nevertheless, your supplying of a drug to others in order to reduce a debt owed is, in my view, the equivalent of a sale to those persons. I accept that there was no evidence that there were any trappings of wealth found by police or that you were in possession of any large sums of money. To the contrary, you appear to have been living a relatively humble lifestyle. Nevertheless, I note that the quantity and value of the drugs found in your possession was large. The value was high, and this casts some doubt on your account to police that it was all for your own personal consumption.
34 It was submitted by your counsel that the value of the drug in your possession was not as high as that suggested by the prosecutor. I note that the prosecution submission as to value was made on the basis of a statement made by Detective Acting Senior Sergeant Campbell McNair of the Clandestine Laboratory Squad. I note that Mr McNair was not required by the defence for cross-examination at the plea hearing, and I accept the prosecution submission as to the value of drugs, or the range of that value, of the drugs in your possession.
35 It was submitted, and I accept, that there has been considerable delay between the date of your arrest and the hearing of your plea. It is put that you have had these matters hanging over your head from the time of your arrest on 8 December 2014, some 16 months ago. Part of that delay appears to have resulted from your application for an adjournment of the committal hearing which was originally listed for 24 August 2015. On your application, it was adjourned until 14 December of last year and, on that date, you pleaded guilty to these offences.
36 Whilst I do not consider that your plea has been made at the earliest opportunity it does, nevertheless, have utilitarian value in that it was not necessary for a significant number of witnesses to give evidence at a trial and there was a saving of Court resources and time by reason of your plea.
37 The report from Mr Newton discloses that you had not participated in any form of treatment, rehabilitation or counselling to address your drug problem prior to being on remand. You acknowledged to him that you had been in denial about the severity of your addiction. Mr Newton reports that you have completed a six-hour educational program regarding recovery from methylamphetamine addiction. You are on the waiting list for further programs, which is to your credit. Your current incarceration has, in Mr Newton’s opinion, intensified your depressive symptoms, and I accept that is likely to be so. He considers that there is a genuine risk that your mood could deteriorate if these circumstances continue for a prolonged period. He strongly recommends that you should continue to receive appropriate professional treatment for at least the medium term, particularly in the period immediately after sentencing.
38 Mr Newton diagnoses that your symptoms would meet the criteria for persistent depressive disorder in a chronic form, or clinical depression.
39 He considers, and I accept, that your current circumstances and incarceration were exacerbating your mood disturbance and that there was a clear need for ongoing professional assistance and a risk that you could develop more intense depressive symptoms if your stress should continue for a prolonged period. He considered that you were currently in a period of enforced remission from a severe addiction to cannabis and methylamphetamine.
40 You have apparently indicated to Mr Newton that you are now determined to do whatever you need to do to ensure that you eliminate illicit drug use from your lifestyle once and for all. Mr Newton considered that this was a positive attitude which augured well for your long-term wellbeing. However, as Mr Newton conceded, such optimism must be clearly tempered by the fact that your current abstinence is occurring in the context of prison confinement and that your capacity to transfer the skills and insights you have gained from your latest limited rehabilitation remains untested. I interpret this as being that he is uncertain as to whether you will adhere to such abstinence once you are released from the confines of prison. Mr Newton considers that there is a need for further drug education and counselling to equip you with the skills in relapse prevention and harm minimisation.
41 I take into account your unstable upbringing and the lack of parental guidance that you had for many years.
42 I have read and take into account a number of character references tendered on your behalf from two of your sisters, a former work colleague and from your former de facto partner. Each refer to your honesty with them, your generous character. Those from your sisters emphasise your difficult childhood. Each of those persons are of the view that you are genuinely remorseful and are hopeful that you can turn your life around after release from prison.
43 I am conscious of the provisions of s.5 sub-s.(4) of the Sentencing Act, which provides that a court must not impose a sentence that involves the confinement of the offender unless it considers that the purposes for which the sentence is imposed cannot be achieved by a sentence that does not involve the confinement of the offender.
44 In your matter, I consider that the offences are significant. You have engaged in the manufacture of methamphetamine and were in possession of a large commercial quantity of that drug.
45 It is a dangerous and illicit drug. It is highly addictive. Its effect on those using it and those in contact with them is well-known.
46 Even allowing for the fact that there was no evidence pointing to any significant level of selling of the drug to others for profit, I consider it necessary for the Court to impose a sentence which reflects its denunciation of that behaviour and conveys both specific and general deterrence to you and others in the community from committing this, or similar, offences.
47 There was no explanation provided at your plea hearing for your possession of a sawn-off shotgun. Parliament regards such possession as a serious offence, as indicated by the maximum penalty it has imposed of seven years imprisonment.
48 Likewise, there was no explanation provided at your plea hearing for the possession of the two excavators which had been found at the property. They were of considerable value. Your plea of guilty to that charge indicates that you admit that you were reckless as to whether they were proceeds of crime.
Sentence
49 In all the circumstances, I consider that a sentence involving your incarceration for a further period of time is warranted.
50 Mr Marven, just stand up, please, if you would.
51 In relation to Charge 1, that of trafficking in a drug of dependence in a large commercial quantity, you are convicted and sentenced to a term of imprisonment of five years. That shall be the base sentence.
52 In relation to Charge 2, that of possessing materials and substances for trafficking, you are convicted and sentenced to a term of imprisonment of one year. I direct that sentence be served concurrently with the sentence imposed in relation to Charge 1.
53 In relation to Charge 3, that of possessing precursor chemicals, you are convicted and sentenced to a term of imprisonment of one year. Likewise, I direct that that sentence be served concurrently with the sentences imposed on Charges 1 and 2.
54 In relation to Charge 4, that of possessing a drug of dependence, you are convicted and sentenced to a term of imprisonment of six months. I direct that that sentence be served concurrently with the sentences imposed on Charges 1, 2 and 3.
55 In relation to Charge 5, that is, the possession of a sawn-off shotgun, you are convicted and sentenced to a term of imprisonment of one year. I direct that six months of that sentence be served cumulatively to the sentences imposed on Charges 1, 2, 3 and 4.
56 In relation to Charge 6, that of recklessly dealing with the proceeds of crime, you are convicted and sentenced to a term of imprisonment of one year, and I direct that six months of that sentence be served cumulatively to the sentences imposed on Charges 1, 2, 3, 4 and 5.
57 In relation to the summary charge of possession of the schedule 4 poisons previously identified, you are convicted and sentenced to a fine of $250.
58 It follows – and I trust my mathematics are correct here, Mr Pickering; you will no doubt assist me as you, Mr O’Connell – that the total effective sentence then is one of six years. Is that right?
59 MR O’CONNELL: Yes, Your Honour.
60 HIS HONOUR: It is. Thank you – is a total effective sentence of six years, in addition to the fine imposed in relation to the summary charge. I direct that you not be eligible for parole for a period of three years and six months. I have imposed a somewhat shorter period of non-parole than I would otherwise have imposed, because I consider it is significant that you have had many years of problems connected to drug addiction but, until recently whilst on remand, no treatment or education whatsoever with regard to those problems. I consider that the sooner you receive such treatment on a consistent basis the better are your prospects for rehabilitation.
61 Pursuant to s.35 of the Sentencing Act, I declare that you have served – now, Mr Pickering, I have 499 days, not including today. Is that correct?
62 MR PICKERING: My learned friend and I made it 498 not including today, Your Honour. It would be 499 including today.
63 HIS HONOUR: Well, if both counsel are in - - -
64 MR PICKERING: It was 480 on the last occasion and the hearing was on 1 April, and that was not including that day.
65 HIS HONOUR: All right. Pursuant to s.35 of the Sentencing Act, I declare that you have served 498 days of presentence detention in respect of the sentences imposed by me, not including today. I direct that those days be reckoned as a period of detention already served under the sentences imposed by me today and that this be recorded on the Court file.
66 It is to be hoped that upon your release from prison you will make every effort to receive appropriate treatment for your previous addiction to this dangerous and antisocial drug.
67 Pursuant to s.6AAA of the Sentencing Act, I declare that had you not pleaded guilty to these charges and been found guilty of each of them, I would have sentenced you to a total effective term of imprisonment of eight years, with a minimum non-parole period of four and a half years.
68 On the application of the Director of Public Prosecutions pursuant to s.464ZF(2) of the Crimes Act, that you undergo a forensic procedure for the taking of a sample for the database – Mr O’Connell, is that an order that is consented to, or is that - - -
69 MR O’CONNELL: I think the position is that it is an automatic retention, Your Honour. There is no formal application before the court, is there?
70 MR PICKERING: No, Your Honour. I should have mentioned that, Your Honour. Once the sample has been taken, under the current legislation it is automatically retained. So Your Honour does not have to make any further orders.
71 HIS HONOUR: No further order there required. Thank you.
72 MR PICKERING: No, only the – there are ancillary orders, which are the disposal and the forfeiture orders, and I understand they are now by consent.
73 HIS HONOUR: Thank you. Mr O’Connell, there are two separate forfeiture orders.
74 MR O’CONNELL: Yes. I am instructed that is by consent, Your Honour.
75 HIS HONOUR: Thank you. I shall make those orders and sign them accordingly. That is two forfeiture orders and one disposal order.
76 MR PICKERING: Yes, Your Honour.
77 MR O’CONNELL: If Your Honour pleases, there are no other matters.
78 HIS HONOUR: Thank you. Anything else, Mr Pickering?
79 MR PICKERING: No, Your Honour.
80 HIS HONOUR: Adjourn the court until 10.30. Thank you.
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