Director of Public Prosecutions v McNaughton

[2023] VCC 1364

IN THE COUNTY COURT OF VICTORIA

AT Melbourne

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-21-01977

DIRECTOR OF PUBLIC PROSECUTIONS

v

ANDREW MCNAUGHTON

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JUDGE:	HIS HONOUR JUDGE WRAIGHT
WHERE HELD:	Melbourne
DATE OF HEARING:	3 July 2023
DATE OF SENTENCE:	13 July 2023
CASE MAY BE CITED AS:	DPP v McNaughton
MEDIUM NEUTRAL CITATION:	[2023] VCC 1364

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – SENTENCING

Catchwords:              Possession of a drug of dependence – Possession of precursor chemicals – Offences treated serious – Possession of drugs of dependence not for the purpose of trafficking – Disruptive childhood and adolescent – Tertiary education – Education disrupted by incarceration – History of drug use – Paranoid Personality Disorder – Verdins - Rehabilitation – General and Specific Deterrence.

Legislation Cited:      Drugs, Poisons and Controlled Substances Act1981; Crimes Act 1958; Sentencing Act 1991.

Cases Cited:Worboyes v The Queen [2021] VSCA 169

Sentence:                  Conviction and fine of $800 on Charge 1. Community Correction Order for a period of 2 years on Charge 2.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr P. Stefanovic	Office of Public Prosecutions
For the Accused	Mr C. Farrington	Theo Magazis Lawyers

HIS HONOUR:

Introduction

1Andrew McNaughton, you have pleaded guilty to one charge of possession of a drug of dependence contrary to s 73 of the Drugs, Poisons and Controlled Substances Act1981 (‘Drugs, Poisons and Controlled Substances Act’), which, in this instance, carries a maximum penalty of 1 year imprisonment (Charge 1). You have also pleaded guilty to one charge of possession of precursor chemicals contrary s 71D of the Drugs, Poisons and Controlled Substances Act, which carries a maximum penalty of 5 years imprisonment (Charge 2).

2You have also admitted your Criminal Record.

Circumstances of the offending

3A prosecution opening was tendered on the plea and may be summarised as follows:

4At 7am on 6 August 2020, police attended at your home address at Myers Parade, Altona Meadows. You answered the door and police executed search warrants issued pursuant to s 81 of the Drugs, Poisons and Controlled Substances Act and s 465 of Crimes Act 1958. You were the only person present at the time the warrants were executed.

5The police searched the premises and located and seized a number of items, including:

·     a plastic bottle containing 500ml of tin chloride dehydrate in a chest of drawers in the garage of the house;

·     a plastic container of hydrochloric acid, also in the garage near the roller door;

·     aluminium powder inside a portable toolbox in the garage;

·     numerous glass flasks of various shapes and sizes in the garage and the lounge room;

·     a hot plate in a cardboard box in the garage;

·     a magnetic stirrer in the garage;

·     a separating funnel in the garage; and

·     glass condensers in the garage.

Charge 1

6During the search police located the following drugs constituting Charge 1 which is a rolled up charge:

·     four blister packet portions labelled “Serapax” containing 24 orange tablets found to contain Oxazepam, a drug of dependence;

·     numerous blister packs containing capsules or tablets labelled “MS Contin” and found to contain morphine, a drug of dependence; and

·     blister packs containing tablets which were found to contain diazepam, a drug of dependence.

7At the time of the execution of the warrant, you were not a person who held a licence, permit, warrant or authority under the Drugs, Poisons and Controlled Substances Act to possess any of the drugs of dependence.

Charge 2

8During their search the police also found in the garage the following substances which are categorized as precursor chemicals, constituting Charge 2 which is a rolled-up charge:

·     a plastic bottle containing 100 grams of sodium iodine. The prescribed quantity is 25 grams;

·     48 blister packets labelled “Ducene”. These were found to contain 96.1 grams of Mercuric Chloride. The prescribed quantity is 0.1 grams;

·     Two blister packets labelled Panadeine forte which contained 16 white capsules which were found to contain 102.4 grams of magnesium. The prescribed quantity is 25 grams; and

·     a glass jar with a label, “mercury”. This was found to contain 3601.1 grams of Nitromethane. The prescribed quantity is 50 grams.

9At the time of the execution of the warrant, you were not a person who held a licence, permit, warrant or authority under the Drugs, Poisons and Controlled Substances Act to possess any of the precursor chemicals.

10You were arrested and conveyed to the Altona North Police Station. You were formally interviewed by police and exercised your right to answer no comment to questions put to you.

Nature and gravity of the offending

11When consideration is given to your possession of the chemicals that are represented by Charge 2, which is a rolled-up charge, it is self-evident that in relation to each chemical, you were in possession of many times the prescribed quantity. Your explanation, which it appears you maintain, is that you possessed the chemicals for legitimate purposes related to your Master’s research.

12While there was no evidence of actual manufacture of drugs, or any evidence related to trafficking, the precursor chemicals in your possession are capable of being used for the manufacturing of drugs of dependence when in combination with other substances. As such, the offence is treated seriously by Parliament and carries a maximum penalty of five years imprisonment.

13Turning to Charge 1, as I indicated at the sentence indication hearing, I am satisfied that your possession of the items named in the charge were not possessed for the purposes of trafficking. As such the lower penalty applies to Charge 1.

Personal Circumstances   

14You are now 59 years old.

15Your childhood was unstable, marred by difficulty in your early development, family and financial instability, physical abuse and emotional deprivation. You describe your father was a ‘largely disinterested figure’ and a chronic alcoholic. He had sporadic and seasonal employment as a carnival worker, which further complicated your relationship with him. He died approximately 20 years ago.

16Your parents separated and you lived with your maternal grandparents, on and off, throughout your life. Your mother re-partnered twice during your adolescence and you describe both men as violent and disinterested. You experienced and witnessed domestic violence. You are estranged from your mother, half-sister and half-brother. You have an older brother who passed away in September 2022. You were living with him at the time of his death and performed CPR on him when you found him unconscious. He died in hospital a short time later from what you believe to be long term alcohol abuse.

17You ceased your education at the end of Year 10 and were sporadically employed, experiencing periods of unemployment.

18In 2011, you returned to study. You completed TAFE courses in earth-moving, aged care, small business management and information technology before enrolling as a mature aged student in a Bachelor of Science degree, majoring in Biotech and Chemistry, at Victoria University.

19You had suffered drug addiction throughout your adulthood. In 2013, you were sentenced to a term of 6 years and 4 months imprisonment with a non-parole period of 3 years and 10 months having been convicted of trafficking and manufacturing drugs of dependence and cultivating cannabis. This sentence interrupted your studies.

20You were released from prison in 2017 and recommenced your studies. You completed your Bachelor’s degree and commenced a Masters of Research degree. You completed your Master’s on 6 February 2023, entitling your thesis ‘[m]agnetic and electromagnetic field induced kinetic effects on aqueous solutions with a focus on the iodine clock reaction’. You intend to complete a PhD but believe that you will not be admitted into the program as a result of the offending before this Court.

21A report prepared by Luke Armstrong, consultant psychologist, dated 30 June 2023 was tendered on the plea. Having assessed you and reviewed historical psychological materials, in Mr Armstrong’s opinion you suffer from a Paranoid Personality Disorder which is a pervasive and chronic condition that you seemed to have suffered from much of your adult life. In a more historical report of Patrick Newton, dated 13 July 2013, he too formed the view that you suffered significant psychological instability identified as a Paranoid Personality Disorder. The reports of Mr Armstrong and Mr Newton provide a detailed history of your personal circumstances and psychological profile, and I have taken the contents of both reports into account.

22Mr Armstrong is also of the view that your disorder would make any term of imprisonment more arduous for you than for a prisoner without your mental condition.

23Three references were tendered; one from your great uncle and two from long term friends. While they each speak of your otherwise good character, they also summarise your explanation to them for your possession of the chemicals which they seem to accept. It is clear that you have not admitted to them that your possession of the chemicals was unlawful.

Sentencing Considerations

24Mr Farrington who appeared on your behalf summarised the matters relied on in mitigation.

25First is your plea of guilty. Your plea has saved the court considerable time and expense and has therefore facilitated the course of justice. The plea carries additional weight which must be reflected in a further amelioration in sentence, as the plea was entered in circumstances where the pandemic has caused a substantial backlog of cases in the criminal justice system.[1]

[1] Worboyes v The Queen [2021] VSCA 169, [39].

26While I give weight to your pleas of guilty, it is plain that you continue to deny that you acted unlawfully. In an assessment report prepared following the plea by Corrections Victoria, you stated to the writer that you had a declaration allowing you to be in possession of the chemicals. As such, in my view, while I accept your plea of guilty, there is no evidence of remorse.

27I take into account the fact that you suffer from a chronic mental health disorder, and I accept that if you were to face further imprisonment, it would be a greater burden for you than someone not suffering from your condition. While I take this into account as part of your personal circumstances, it also, in my view, would enliven Verdins principle 5.

28As to your prospects of rehabilitation, I accept that while you have battled with drug addiction in the past, you have remained abstinent since your release from prison in 2017. Further, you have emersed yourself in education being awarded a Master of Research earlier this year. You have ambitions to enter a PhD program although your university of choice may not be an option following this offending. You are also actively looking for employment. In my view and in all the circumstances, your prospects of rehabilitation are positive.

29Clearly, deterrence both general and specific are the prominent sentencing considerations in this instance. Being in possession of precursor chemicals is preparatory conduct in the manufacture of drugs which ultimately causes great harm to the community. Others must be deterred from such conduct. As to specific deterrence, you have a relevant prior criminal history and I am satisfied that you were well aware of the nature of the chemicals in your possession and their potential. While your conduct, together with the criminal process, has already had an impact on you and your future plans, the sentence I impose must also deter you from being tempted again to engage in similar conduct.

30This matter came before me for a sentence indication where I indicated that on Charge 2, I would impose a community correction order and on Charge 1, a fine. I note that the prosecution accepted that a community correction order was within range in all the circumstances. I had you assessed for an order and while you have been found suitable, the Mental Health Advice and Response Service has not recommended a mental health condition as you have an established and ongoing relationship with a psychiatrist in the community. I accept that recommendation.

Sentence

31Mr McNaughton, would you please stand.

32Andrew McNaughton, on Charge 1, possession of drugs of dependence, you are convicted and fined $800. On Charge 2, possession of precursor chemicals, you are convicted and will be placed on a community correction order for a period of 2 years. In addition to the standard conditions that attach to all community correction orders, you will be required to complete 200 hours of unpaid community work and you will be subject to supervision.

33Pursuant to s 6AAA of the Sentencing Act 1991, if not for your plea of guilty, I would have sentenced you to 12 months imprisonment followed by a community correction order.