Director of Public Prosecutions v Parks

[2016] VCC 1208

IN THE COUNTY COURT OF VICTORIA  Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 15-01368

DIRECTOR OF PUBLIC PROSECUTIONS

v

SCOTT ANDREW PARKS

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JUDGE:	HIS HONOUR JUDGE MURPHY
WHERE HELD:	Melbourne
DATE OF HEARING:	15 August 2016
DATE OF SENTENCE:	19 August 2016
CASE MAY BE CITED AS:	DPP v Parks
MEDIUM NEUTRAL CITATION:	[2016] VCC 1208

REASONS FOR SENTENCE
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Subject:
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Cases Cited:
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A. Albert	Office of Public Prosecutions
For the Accused	Mr S. Devlin	Melasexxa Kelly & Zayler

HIS HONOUR:

1Scott Andrew Parks, after a ten day trial you were found guilty by a jury of trafficking in a drug of dependence in a commercial quantity namely methylamphetamine. You were also found guilty of trafficking a drug dependence cannabis.  Before the jury panel, you had pleaded guilty to trafficking methylamphetamine and possession of cannabis.

2You pleaded guilty to possessing cocaine and were found not guilty of trafficking cocaine.  You pleaded guilty to a count of possession of 1, 4 butanediol. You were also found guilty of possessing a precursor chemical, phosphorus acid. You were found not guilty of possessing a drug dependence namely methorphan.  You subsequently pleaded guilty to the summary charge of possessing cartridge ammunition.

3The relevant maximum penalties are set out in the prosecution plea outline which I incorporate by reference.  In relation to both the counts of possessing cocaine and possessing 1, 4 butanediol you are to be dealt with on the basis that you were not in possession of those drugs for trafficking and thus the lower maximum penalties apply.

4Circumstances of the offending:  I am required to sentence you in accordance with the jury verdict. The circumstances of the offending emerged in the course of the trial. In brief compass, pursuant to a search warrant police attended at your residential property in Brookfield on 17 October 2014.  You were not at home at the time. The police were allowed into the property by your daughter who was there at the time. In the property the police found a total of 218.6 grams of methylamphetamine in 13 separate packages. The methylamphetamine consisted of 195 grams pure. The largest quantity was in a plastic box and was 197.6 grams with the purity of 90 per cent. There was in addition a total of 21 g in 12 ziploc bags of varying quantities with an average purity of 82 per cent. The commercial quantity of methylamphetamine is 100 grams pure.

5Police also found 5.2 grams of cocaine with a 50 per cent purity. The trafficable quantity of that drug is three grams. You admitted possession of that drug, and told the jury that it was for recreational purposes during the upcoming Melbourne Cup week.

6Police also found 4.09 kilograms of cannabis. The trafficable quantity is 250 grams. In the garage was 683 grams of leaf material in a box. There was also 2.05 kilograms in a PVC pipe being treated to extract the oil. Police found 878 grams of head or bud material in a backpack in the garage and 438 grams of similar material on a bench in the kitchen.  Police also found 16.8 grams of 1,4 butanediol.  You gave evidence that it was for your recreational use.

7In the garage the police found 1.12 kilograms of phosphorus acid. Evidence was led that this is a precursor chemical for the manufacture of methylamphetamine. The quantity found would, when combined with the other ingredients of methylamphetamine, have allowed the manufacture around half a kilogram of methylamphetamine.

8Also in the garage police found two boxes of live ammunition, another box of spent ammunition, and assorted other spent cartridges. These were the subject of the summary charge to which you pleaded guilty.

9The methylamphetamine was found within the garage and in your bedroom and the en suite. Also found were what was described in the trial as accoutrements of trafficking namely numerous ziploc bags, two sets of electronic scales, a notebook containing what was described as a tick list of drug sales, a handwritten document capable of being construed as reference to cutting methylamphetamine and the manufacture of that illegal drug, and a large amount of cash.  The total cash found was $101,340 and you have consented to that being forfeited.

10There was $8,080 found on the main bed, $7,350 found between towels in the laundry, $12,620 found hidden in the bed pillar, and an amount of $69,800 found hidden in a pipe in the en suite.  Police also found a receipt dated the previous day for the purchase of a car in the sum of $19,800.

11You subsequently handed yourself in to the police.  You later executed a document prepared by your solicitor accepting responsibility for the illegal drugs found in your property.

12The issues at the trial were your denial that you intended to traffic a commercial quantity of methylamphetamine.  You also denied that the cannabis was in your possession for trafficking.  You also denied knowledge that the phosphorus acid was a precursor chemical.

13The Crown led extensive evidence as to the illegal drug market and the approximate range of prices for the various drugs found in your possession in order to sheet home to you the prosecution case that you were operating as a low to middle level drug trafficker at the time of the execution of the warrant.

14You gave evidence on the trial and called evidence from your treating physician. In your own evidence you indicated that the methylamphetamine in your possession was for your own consumption and you also sold some of it for what was the cost price to a handful of friends who also smoked it at your property.  Smoking implements were found.

15You also give evidence explaining the cash in your possession as having been as a result of a legacy from your mother who had passed away on 1 January 2013.You gave evidence that you did not believe in banks and led evidence from a friend to whom you had lent substantial amounts in cash and this had been returned at the end of the loan period in a similar form.

16In relation to the cannabis, your account before the jury was that you had found a box of loose leaf material beside a road and were attempting to process it to extract oil to make hash cookies.  In relation to the material found in your garage, it had been left by your drug dealer the night before who had asked you to move it and you had declined to do so but he had left the bag in any event.  You were unable to explain why a pound of the valuable material was on your kitchen bench. You effectively accused the police of placing it there.

17Professor Curry, who first saw you a couple of months after the execution of the warrant, gave evidence that you had ADHD and were addicted to methylamphetamine and, on your account to him, were using up to four grams a day effectively as self-medication for the untreated condition of ADHD.

18Seriousness of the offending:  Your counsel did not dispute the seriousness of the offending here.  It is necessary however to characterise its seriousness.  It is clear from your own evidence and from that of Prof Curry and from Ms Aberdee who gave evidence on the plea that you have long-standing ADHD and addiction to methylamphetamine use.  According to Prof Currie, due to your ADHD condition you are in a small group of patients who are able to tolerate the ingestion of significant amounts of methylamphetamine of up to four grams a day effectively as a medication.

19The issue at the trial and on the plea is the extent to which the methylamphetamine in your possession was for the purposes of your own use or for sale in order to fund your own addiction.  Prof Currie gave evidence that in his experience persons with significant addiction require funds to purchase the illegal drugs.

20As was put in closing submissions by the learned Crown Prosecutor, the greater the level of your consumption of methylamphetamine, the greater amount that you would need to sell in order to fund that addiction.  Your explanation that you are able to buy the drug from a dealer at an amount much less than the police evidence as to the drug market lacked credibility.

21The finding of 197.6 grams of 90 per cent pure methylamphetamine in a plastic bag, along with 12 other bags containing various smaller amounts of methylamphetamine of generally high purity, and the presence of numerous other ziploc bags, and over $100,000 in cash leads me to the conclusion that you were operating a significant trafficking operation.  I reject your explanation as to the explanation of the cash as having been obtained from your mother.  It lacked credibility and on your own account you had an additional amount of some $40,000 available the day before, $20,000 of which you said you paid to purchase the bulk of the methylamphetamine found.  All this indicates that you had all the trappings of a significant trafficking operation.

22While you may have been using some of the drug for your own use I do not accept your counsel's submissions that a significant amount was for your own consumption.  Given that the amount found was nearly twice a commercial quantity I characterise your offending as a serious example of trafficking a prohibited drug.

23In relation to trafficking cannabis your account that you have effectively been left with three pounds of valuable bud material lacked credibility.  The jury must be taken to have rejected that account, along with your further account of finding a box on the side of the road containing a substantial amount of leaf material.

24Your explanation that you intended to convert the leaf material into hash cookies lacked credibility and I reject it.  The sheer quantity of cannabis, the fact that 3 pounds of it were the bud, valuable material, and that you were effectively processing the leaf material supports a conclusion that this was a significant cannabis trafficking operation.

25In relation to the phosphorus acid, this was a significant amount of a precursor chemical. Your explanation that you had been attempting to acquire pool cleaner for an acquaintance lacked credibility.  You are not to be sentenced for manufacturing of methylamphetamine but I am satisfied that you were fully aware of the role of that precursor in the manufacture of the drug.  No other conclusion is available given your evidence that you had been a long term methylamphetamine user and also, Exhibit D in the trial, which was the handwritten note.

26You gave an explanation in relation to the 1,4 butanediol, which is Count 8, as being for recreational use. A similar explanation was given in relation to the cocaine which is Count 4. I am prepared to accept those two explanations and sentence you accordingly.

27Prior Convictions:  You are now aged 42 and have admitted prior convictions dating back to 2008.  Your first most significant relevant prior conviction was before the Sunshine Magistrates' Court on 16 January 2009 when on charges of possessing cannabis, cultivating cannabis, trafficking cannabis, using cannabis, and dealing with the proceeds of crime you are sentenced to a 12 months' community corrections order.  That offending breached a recognisance that had been imposed on you on 12 August 2008 for entering a private place without excuse. On 26 June 2009 on failing to comply with that undertaking you were convicted and fined $400 on the substantive offence. On 30 April 2010 the Sunshine Magistrates' Court found you guilty of failing to comply with a community-based order.  On the same day you were dealt with for trafficking methylamphetamine, possessing a prohibited firearm, possessing a prohibited weapon, dealing with property the proceeds of crime and possessing cannabis.  

28On the counts other than the possession charge you were sentenced to an eight month sentence which was suspended for a period of 18 months.

29On 2 February 2011 you were dealt with on two counts of dealing with property proceeds of crime, burglary, theft, possessing a drug of dependence, possessing ammunition, and possessing a prohibited weapon. On these offences you were sentenced to an aggregate term of 11 months' imprisonment to be served by way of an intensive corrections order. That offending breached the suspended sentence which was not restored on the basis of exceptional circumstances being shown.

30You were before the Sunshine Magistrates' Court on 9 May 2011 on shop theft and convicted and discharged, and on 22 November 2011 for dishonestly receiving stolen goods and the matter was adjourned with conviction for 12 months.

31Your prior convictions are relevant in that you have prior convictions for cultivating and trafficking cannabis, a prior conviction for trafficking methylamphetamine, as well as prior convictions for dealing with property suspected as being the proceeds of crime, as well as burglary and theft and possession of a drug of dependence and possessing ammunition.

32Your prior offending indicates that you have not responded to non-custodial dispositions.  This goes to your moral culpability for this offending and is relevant to specific deterrence and your prospects of rehabilitation.

33Your Personal Circumstances:  Your personal circumstances were outlined on the plea.  You are now 42 and were aged 40 when the offending occurred.  You have been on a disability support pension since 2009 as a result of mental health issues.  Your parents were divorced when you were four and you had little to do with your father.  You have an older sister.  You were brought up in a strict environment by your single mother. Your schooling was such that you left school half way through Year 12.  Subsequently you had a number of positions including commencing a carpentry apprenticeship and working as a machine operator.  You also worked in  fencing and purchased a house early.  You commenced a relationship in 1993 and married in 1996 and have two adult children who have not been in trouble with the law.  You almost completed an adult electrical apprenticeship but failed to complete it in 2009 and at that point lost your job leading to a mortgagee sale of your house.

34You are currently in a relationship with Ms Elma and are engaged and she has been supporting you throughout the trial.

35A significant focus on the plea was your prior drug use which commenced by abusing alcohol and cannabis from your early teens and amphetamines and ecstasy from age 15.  You started using methylamphetamine at the age of 25 and became addicted to it and found that this allowed you to control your ADHD.   Your were under medication for this condition but this ceased sometime in around 2010 or 2011.  It was at this time that you were involved in an earlier episode of drug trafficking which you admitted in the course of your trial and which is the basis of your earlier convictions.

36Events since your arrest:  On the plea you led evidence from a Ms Aberdee a drug and alcohol clinician.  You had been to her facility shortly prior to your arrest and she had arranged a planned treatment program for you and counselling for you.  She gave evidence that you have been diligent in your attendance and are making good progress.

37Also in evidence was a report from a psychologist Ms Raponi-Saunders who has been treating you for depression and PTSD.  She indicates that you have demonstrated considerable remorse and are gaining insight and wish to remedy your past lifestyle issues.

38On the plea your counsel tended a number of clean drug screens and reports of Prof Currie indicating that apart from a couple of lapses you have been able compliant with his program.

39About a year ago you were the subject of a home invasion where  you were stabbed a number of times and spent days in an intensive care unit.  As a result of that event you have post-traumatic stress disorder.

40An important part of the submission on the plea was the evidence of Prof Currie in the trial as to your ADHD and his current treatment of you for methylamphetamine addiction. He has you under medication and gave evidence that this medication and his treatment has a good track record in reclaiming persons from methylamphetamine addiction.  He supported his evidence that he gave in Court with two reports that I have considered.   With his treatment he states that you have made dramatic progress in reducing and ceasing your methylamphetamine use.  You have been attending diligently.   He considers that you require long-term ongoing medical treatment.  He also indicates that incarceration will have a significant impact on your mental health and access to treatment and recovery.

41On the plea your counsel also submitted a number of references which indicates that you are well regarded, have supported others and have the support of others in your battle against your methylamphetamine addiction.

42On the plea your counsel strongly urged that any disposition should not impede the progress that you have undertaken in your rehabilitation.  The learned Crown prosecutor, however, submitted that the offending here is serious and required a significant term of imprisonment.  Further, you had been given opportunities in the past and had not availed yourself of them.

43Overall, I regard the prospects of your rehabilitation as guarded.  I give you credit for the efforts that you have undertaken in the period since this offending but as indicated by Prof Currie you require long-term assistance.  Further, your evidence in the trial where you sought to downplay your involvement in this offending indicates that you do not have full insight into your offending.

44Your counsel submitted that your efforts to date are such that it is appropriate that you be the subject of a longer than usual period during which you will be eligible for parole in order to encourage your rehabilitation.

45     Purposes of sentencing:   The basic purposes for which a Court may impose a sentence are punishment, deterrence (both specific and general), rehabilitation, denunciation and protection of the community.  In sentencing, I must have regard to a range of factors such as the seriousness of the offences, your culpability for them, your personal circumstances and those of the victim, if any.  I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that, as far as possible, offenders are rehabilitated and reintegrated into society.

46In this case, general deterrence must be the most salient sentencing consideration. In the recent decision of Haddara the Court of Appeal referred to the prevalence of methylamphetamine trafficking and indicated that current sentencing practices ought be lifted.

47Here both general deterrence and denunciation are very important. The sentence of the Court must send a signal to those who are minded to profit by trafficking drugs to others that heavy penalties will be imposed.   Similarly the sentence must denounce your conduct.  You have been found guilty of trafficking a commercial quantity of a dangerous drug that is prevalent in the community.  The amount of drugs in your possession for sale was close to double the commercial quantity. The jury must be taken to have rejected your assertion that the drug was for your own consumption or that you were merely selling it to a small group of friends at cost price.

48The seriousness with which the community regards this offence is set out by the maximum penalty of 25 years' imprisonment which must be regarded as a yardstick in fixing sentence.   Adding to your moral culpability in this matter is the fact that you have a prior conviction for trafficking this drug.  This is also relevant to specific deterrence.

49Notwithstanding the evidence of Prof Currie as to your ADHD and addiction, and present efforts to address your addiction and get your mental health under control, the sentence of the court must deter others and denounce your conduct.

50Turning to the second charge of trafficking cannabis; again considerations of general deterrence are prominent.  The evidence led in the trial indicates that this is a valuable drug that can be sold in the market.  The jury must be taken to have rejected your account that you had effectively been left with the drug.  Adding to your culpability is the fact that you have a prior conviction for both cultivating, trafficking, using, and possessing that drug.   This offence carries a maximum penalty of 15 years imprisonment.   You were in possession of a valuable amount of the drug that was readily saleable.   The sentence of the Court must deter others, deter you and denounce your conduct.

51Over your denials you have been found guilty of possession of a precursor chemical, namely phosphorus acid.   This offence carries a maximum penalty of five years imprisonment.    The relevant chemical can be used to manufacture methylamphetamine.  You are not to be sentenced on the basis that you intended to do this and there was no evidence to that effect.   However your possession of that amount of the chemical was without satisfactory explanation and the sentence must deter you and send a signal to others that possession of precursor chemicals to illegal drugs is totally unacceptable and will be met by heavy punishments.

52Weighed against all these considerations is the interest of the community in your reclamation from crime and addiction to methylamphetamine, as well as addressing your long-standing ADHD. The evidence of Professor Currie, Ms Aberdee and Ms Raponi-Saunder’s report indicates that you have made a determined effort to reclaim your position.  It is in the community interest that this be advanced but considerations of general deterrence, denunciation and specific deterrence must be given more prominence in the overall sentencing here.

53I have not accepted your counsel's submission that a combination sentence ought be imposed. I have however accepted your counsel's submission that a longer than usual period during which you will be eligible for release on parole is appropriate given the efforts that you have undertaken in relation to your addiction since the offending and cognisant of the evidence of Professor Currie.

54In sentencing you I have taken into account the submissions made on your behalf and also considered issues of totality and the need not to impose a crushing sentence.  As there are separate criminality involved in the various counts, some cumulation is called for.  Could you please stand?

55Sentence: On the charge of trafficking a drug of dependence in not less than a commercial quantity you are sentenced to six years' imprisonment.  That is the base sentence.

56On Count 4, possession of a drug of dependence, cocaine, you are sentenced to one month imprisonment.

57On Count 5, trafficking in a drug of dependence, cannabis, you are sentenced to three years' imprisonment. 

58On Count 8, possession of a drug of dependence, 1,4 butanediol, you are sentenced to one month imprisonment.

59On Count 9, possession of a precursor chemical you are sentenced to one year imprisonment. 

60On the summary charge of possessing cartridge ammunition you are fined $800. 

61I direct that one year of the sentence on Count 5 and six months of the sentence on Count 9 be served cumulatively on each other and on the base sentence, make a total effective sentence of seven years and six months' imprisonment.  I direct that you serve a period of four years and six months' imprisonment before being eligible for parole. 

62I declare 47 days pre-sentence detention. 

63The prosecution have sought a disposal order for all the drugs that have been seized and I have made the disposal order.  I have also made a forfeiture order for the money and the other drugs and the ammunition.  Are there any other consequential orders, Mr Albert?

64MR ALBERT:  No, Your Honour.

65HIS HONOUR:  I will hand those to you.  In relation to the issue during the trial, I do not propose to take any further action. 

66MR ALBERT:  As Your Honour pleases.

67HIS HONOUR:  I want to thank counsel for their assistance in the trial and adjourn sine die unless we hear anything within ten minutes.

68MR DEVLIN:  Thank you, Your Honour.

69MR ALBERT:  As Your Honour pleases.

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Charge No.	Offence – 17/10/14		Max. penalty	Sentence	Cumulation
1	Traffick drug of dependence in not less than a commercial quantity		25 years	6 years	Base
4	Possess drug of dependence – cocaine	5 years and/or 400 p.u. 1 year and/or 30 p.u. if not for trafficking.		1 month
5	Traffick drug of dependence cannabis		15 years	3 years	1 year
8	Possess drug of dependence 1.4 buttanediol	5 years and/or 400 p.u. 1 year and/or 30 p.u. if not for trafficking.		1 month
9	Possess precursor chemical		5 years and/or 600 p.u.	1 year	6 months
Summary Offence Charge 5	Possess cartridge ammunition	40 pu		$800
Total Effective Sentence:		7 years and 6 months
Non-Parole Period:		4 years and 6 months
Pre-sentence Detention Declared:		47days