Director of Public Prosecutions v McRory
[2012] VCC 1119
•13 June 2012
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT LATROBE VALLEY
CRIMINAL DIVISION
Case No. CR-12-00457
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BRIAN McRORY |
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JUDGE: | HIS HONOUR JUDGE MASON | |
WHERE HELD: | Latrobe Valley | |
DATE OF HEARING: | 8 June 2012 | |
DATE OF SENTENCE: | 13 June 2012 | |
CASE MAY BE CITED AS: | DPP v. McRory | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1119 | |
REASONS FOR SENTENCE
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Catchwords: Plea - sentencing - attempting to traffick in a drug of dependence -
possess a drug of dependence - transferred summary charge of possess controlled weapon
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APPEARANCES: | Counsel | Solicitors |
| For the Crown at hearing For the Crown at sentence | Mr B. Halpin Mr T. Lynch | Office of Public Prosecutions |
| For the Accused | Mr R. Backwell | Victoria Legal Aid |
HIS HONOUR:
1 Brian McRory, you have pleaded guilty to one charge of attempting to traffick in a drug of dependence, namely amphetamine, and one charge of having in your possession a drug of dependence, namely amphetamine. Charge 1 carries a maximum penalty of 15 years’ imprisonment and Charge 2 carries a maximum penalty of 30 penalty units or one year's imprisonment or both.
2 You have also pleaded guilty to the transferred summary charge of possession of a controlled weapon, namely a bayonet, pursuant to s.6 of the Control of Weapons Act 1990. That offence carries a maximum penalty of 120 penalty units or imprisonment for one year.
3 The detailed circumstances of your offending are set out in the summary of prosecution opening in these proceedings admitted as Exhibit “A”. That summary was accepted by you as an accurate factual summary for the purposes of sentencing and I accept this and incorporate it into my reasons for sentencing.
4 In essence, you attempted to traffick by an attempt by you to manufacture amphetamine after setting up a clandestine laboratory in a small storeroom adjoining the garage at your parents' home. A large quantity of glassware, chemicals, various other substances, an electric hotplate, a gas cooker and a modified stockpot were found in the storeroom. A comprehensive list of these items was annexed to the prosecution summary, labelled “Annexure A”. Police also located a 30-cm-long bayonet in a sheath under clothing in a drawer in your bedroom. Also located in the bedroom were ten small snaplock bags, four of which contained small amounts of amphetamine.
5 After your arrest you co-operated with police and participated in a record of interview on 1 August 2011. In that interview you told police that the majority of the glassware and precursor chemical items were yours but some belonged to "another fellow". You were not prepared to name the other fellow. You had had those items for maybe three months. You had started to attempt to manufacture amphetamine two to three weeks after obtaining the glassware. You had sourced this information by searching on Google. This was done on a laptop, which was present. You had copied instructions off the internet as recently as "last night". You gave the methods of chemical processing that you had discovered.
6 You said you were attempting to make the amphetamines for yourself. You said you were “not a real good chemist” and you “kept stuffing up the manufacturing process”. You said you had never produced any amphetamine but you were a drug user and that the white powder residue found in the four snaplock bags was from your previous amphetamine use. You said that you were not aware that manufacturing amphetamines was trafficking. You said it was not your intention to traffick - by that I understand that you mean to others - it was for your own use.
7 You said you had been using amphetamines since your early 20s. You used a gram of amphetamines a day. You had last used amphetamines on the day of your father's funeral.
8 You also told police as to the bayonet that you had confiscated the bayonet from your children in October 2010. It had been sitting in a drawer since then and you were not aware that it was a prohibited weapon in Victoria. In fact, it is what is termed a controlled weapon, but I understand your answer to mean the same thing.
9 You were charged with offences at the conclusion of the record of interview. Less than a fortnight after your record of interview, you made a statement to police. That statement was made on 12 August 2011. In your statement you provided more details to police concerning your attempts at manufacture, the reasons why you were attempting that manufacture and, importantly, the involvement of another man who had provided you with a considerable quantity of further material and who stated he would help you in the manufacture of amphetamine. He apparently agreed to manufacture for you, using the materials. You would get whatever you needed to use, he would take his share and you would pay for the material.
10 You stated that despite his assurances he failed to perform his part of the agreement and no amphetamine was ever produced to you. You believed from the state of the glassware that this other person, whom you have now named, was manufacturing in the storeroom at times without you knowing.
11 As a result of this statement, charges are to be shortly instituted against that person you have named. Furthermore, your evidence, as disclosed in your statement of 12 August 2011, is anticipated to be used as evidence of tendency in a separate matter currently proceeding against that same man. You have been subpoenaed to give evidence in accordance with your statement at that hearing.
12 The prosecution has acknowledged that the informant in this current case before me accepts the contents of your statement of 12 August and the answers in your record of interview as correctly reflecting the culpability of the other person you have named. In evidence on oath before me, you gave an undertaking to give evidence in accordance with your statement and you acknowledge that you understand that should you not comply with that undertaking you could be brought back before me to be re-sentenced.
13 I turn now to your personal circumstances. Your father was a regional bank manager and you enjoyed a stable home background. Your father died in July 2011 after a protracted illness. You moved in with your mother in October 2010 to assist with your ailing father. You left school after completing Year 10, completed an apprenticeship as a butcher and worked principally in the meat industry for the next 22 years. That employment ended in 2009 when you suffered a bad spinal injury as a result of an incident in the workplace. You were subsequently confined to a lounge chair for an extended period and became sedentary, depressed and obese.
14 You have married twice but each relationship has failed. You have four adult children with whom you remain in contact.
15 You have a history of early amphetamine use commencing when you were about 22. It has, however, been sporadic, and you had returned to its use at times when you encountered emotional disruptions in your life. It made you feel adequate and confident.
16 It was in the context of your second failed marriage, your injury and its aftermath effects that you returned to amphetamine use to manage your mood and mobility. Your father's developing illness exacerbated your low mood levels. In the process you began to need more and more amphetamine, and looked to manufacturing your own in order to maintain a supply which otherwise was becoming financially prohibitive. Through a chance encounter, you met the man who provided you with the further materials.
17 As a result of your arrest and the sober recognition of your circumstances, you have made attempts to reform your life. You have described having been apprehended as being therapeutically the best thing that has happened to you and made you realise that your drug use was deleterious to you and to everyone involved with you.
18
You have begun a regular program of exercise and in the process have lost 20 kilograms. You have also engaged in regular counselling with Ms Oates, a psychologist, who reports that you have engaged positively in programs to manage your depression, chronic pain and negative self-esteem. You have commenced a study plan that involves training in therapeutic massage as a means of providing for self-employment.
19 Reports from Dr David Bruce, psychologist, and your treating GP, Dr Boldana, were also tendered. Both psychologists' reports refer to your depression and your entrenched feelings of low self-worth, but also to your evident remorse, realistic view of your circumstances and genuine attempts to address your issues. They each also endorse the necessity of continuing professional guidance. Without professional support, Ms Oates believes your symptoms will deteriorate, and with those supports Mr Bruce believes your general prognosis for rehabilitation is very optimistic.
20 The offence of attempt to traffick in amphetamine is treated seriously by the courts. Parliament has indicated its serious nature by the maximum penalty imposed, which is 15 years' imprisonment. Amphetamines, no matter what you may have thought about them, are seductive drugs. They make you feel good when you are feeling bad. But they are illegal because they are very dangerous to the individual and have an enormous negative impact on the community. It is well recognised in the experience of the courts that they are pernicious drugs which can cause psychotic episodes and are frequently associated with offences of violence.
21 Furthermore, whilst your intention may have been to manufacture for your own use, there was a very considerable danger in the particular circumstances of your case through the access that you have provided to the other person you have named that the product of your activities had the potential to be disseminated further into the community. Ineptitude in the manufacture has to be seen in this context.
22 In mitigation I accept, however, that your original intent was initiated by your depression, chronic pain, poor cognitive self-image and attempts to find solace in self-medication. Since your arrest you have made valiant attempts at reformation including regular physical activity, cognitive therapy and progress in developing a worthwhile career. You have expressed remorse and, moreover, you have acted upon it, pleaded guilty and in particular you have been prepared to give evidence against another involved in your illicit enterprise. For that, you are entitled to a significant discount in the sentencing discretion.
23 At age 49 you are now a mature adult and your prior convictions do not reflect an ingrained antisocial nature or criminal propensity. I am prepared to act upon the acceptance that you do have a sincere intention to use these circumstances to improve your life. I am therefore prepared to tailor a total effective sentence which will assist you in achieving that end. Ultimately it will be up to you to determine how successful that indulgence will be.
24 I am first satisfied that the objective gravity of your offence of attempting to traffick in amphetamine by manufacture is such that a sentence of imprisonment is the only appropriate sentence in the terms expressed by s.5 of the Sentencing Act 1990. However, I am prepared to suspend the immediate serving of that term in combination with a Community Correction Order in order to reflect your prospects of rehabilitation and to provide you with the opportunity to further those prospects.
25 Mr McRory, could you please now stand.
26 On Charge 1 of attempt to traffick in amphetamine, I propose to sentence you to 12 months' imprisonment and to wholly suspend that sentence for a period of two years.
27 The purpose and effect of the proposed suspension order is to grant you conditional freedom from its commencement, the condition being that you avoid conviction for an offence punishable by imprisonment for the next two years. If you commit such an offence in that period, you will be liable to again attend court, and if necessary that will be under arrest. You will be brought back before me and, in the absence of exceptional circumstances, you will be ordered to serve that sentence, do you understand that?
28 PRISONER: I do.
29 HIS HONOUR: On Charge 1 of attempt to traffick in amphetamine, you are convicted and sentenced to a term of imprisonment of 12 months.
30 Pursuant to s.27 of the Sentencing Act, I order that this sentence be wholly suspended and I declare that the operational period of the suspended sentence is two years.
31 In light of all these matters I have also requested an assessment and report as to your suitability for a Community Correction Order as an appropriate mixed sentencing option. I have received that report and it is positive as to your suitability. In light of your circumstances, it is recommended that you participate in programs directed towards your rehabilitation.
32 On Charge 2 of possession of a drug of dependence and on the transferred summary charge of possession of controlled weapon, you are convicted and ordered to undergo a Community Correction Order for a period of 12 months.
33 The Community Correction Order commences today and ends on 12 June 2013. The corrections centre you will attend is the Morwell Community Correctional Service at 2 Ann Street, Morwell, and you must attend there within two clear working days after the commencement of the order, that is, by 4 pm this Friday 15 June 2012.
34 All the mandatory terms of the Community Correction Order apply and the additional conditions I impose are that:
· you be under the supervision of a community corrections officer,
· you undergo mental health assessment and treatment and that may include psychological, neuropsychological and psychiatric and, if necessary, in a hospital or residential facility as directed by the regional manager,
· you undergo drug assessment and treatment as directed,
· you undergo alcohol assessment and treatment as directed, and
· you undergo programs to reduce offending as directed, and to complete the Positive Lifestyles program as part of this order but also, as I am informed, which has not been completed in accordance with the last previous offence from 21 July 2011, where you were required to complete a Positive Lifestyles program.
35 Now, I believe from the pre-sentence report that you have had the mandatory terms of the Community Correction Order explained to you. Do you understand and agree to those conditions, Mr McRory?
36 PRISONER: Yes, I do.
37 HIS HONOUR: Now, if you are ill or if there are exceptional circumstances, the order may be suspended for a period of time and if your circumstances materially alter you may apply for a variation or cancellation of the order. In either case you must notify the community corrections centre, that is the centre at Morwell, and I recommend that you obtain legal advice if any of those things happen.
38 However, I must warn you that if you breach any condition of this order you will be brought back again before me. One of the options open to me is to cancel the Community Correction Order and re-sentence you on the original charge and I may also deal with you for the breach by sending you to prison for up to three months. So Mr McRory, do you understand the consequences of breaching your Community Correction Order?
39 PRISONER: Yes, I do.
40 HIS HONOUR: I have viewed the disposal order and the forensic sample order pursuant to s.464ZF(2) of the Crimes Act 1958. There needs to be an amendment made to those orders. I shall sign them shortly and provide them to each counsel later this morning.
41 Pursuant to s.6AAA of the Sentencing Act, but for your pleas of guilty the sentence that would have been imposed is a total effective sentence of two years' imprisonment with a non-parole period of 18 months. You may be seated for the moment, Mr McRory.
42
Now, apart from the signing of the Community Correction Order, which can be done now – have you got a copy of that order? Could you pass it down to
Mr Backwell, please?
43 MR BACKWELL: May I approach the dock, Your Honour?
44 HIS HONOUR: Yes. Thanks. Are there any other matters from either counsel?
45 MR BACKWELL: No, Your Honour.
46 HIS HONOUR: Mr McRory, I do not want to know what the circumstances are, there may be particular reasons for it, but on first reading I am not terribly impressed that the Positive Lifestyle program that was required under the last matter for which you appeared before the courts in July of 2007 was uncompleted. Now, it may be an administrative matter to do with the Office of Corrections or it may have been to do with some of the issues you were confronting at the time, but whatever it is, I do not need to go into that.
47
All I need to say is that you, having faced a very serious charge of attempting to manufacture amphetamines, have received now what I believe is a generous acceptance of your explanation for this descent into such serious crime. I have accepted the matters that you have put and are in mitigation, but in particular it is going to be a matter for you now to address those issues and apply yourself and continue with the work you are doing, with your exercise, with your career that you propose to undertake and to maintain that, and it will not be easy for you.
48 You will find times when you feel low again and the only way to address that is to keep with the counselling that is being offered to you and the opportunity you are going to get through the Office of Corrections. If you embrace those matters then you may be able to find your way through this and you will not be back before me. Do you understand that?
49 PRISONER: Yes, I do.
50 HIS HONOUR: All right, good luck.
51 PRISONER: Thank you.
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