Director of Public Prosecutions v Peterman

[2015] VCC 1570

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 15-01366

DIRECTOR OF PUBLIC PROSECUTIONS

v

NIGEL JOHN PETERMAN

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JUDGE:	HER HONOUR JUDGE WILMOTH
WHERE HELD:	Melbourne
DATE OF HEARING:	6 November 2015
DATE OF SENTENCE:	6 November 2015
CASE MAY BE CITED AS:	DPP v Peterman
MEDIUM NEUTRAL CITATION:	[2015] VCC 1570

REASONS FOR SENTENCE
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Subject: Criminal law - sentence
Catchwords: Pleaded guilty one charge possessing substances and equipment for the purposes of trafficking in a drug of dependence namely methylamphetamine -  experimental stage of manufacturing ice for own use – lower end of seriousness – drug-related criminal history – has ceased drug use.
Sentence: Community Corrections Order with conviction 2 years and 150 hours  of unpaid community work to perform.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr P. Stefanovic	OPP
For the Accused	Mr S. Bayles	James Dowsley

HER HONOUR: 

1Nigel Peterman, you have pleaded guilty to one charge of possessing substances, materials, documents and equipment for the purposes of trafficking in a drug of dependence, namely methylamphetamine.

2On 6 August 2014 police went to a house in Richmond and found you there with three other persons.  You were asleep in a bedroom in which a clandestine laboratory was set up.  The police organised for the immediate evacuation of everyone in the house and all four of you were arrested, two of whom were later charged with other unrelated matters.

3Victoria Police Clandestine Laboratory Team attended and among the items seized were the following:  a distillation set-up with various pieces of equipment; two empty Sudafed packages; a glass beaker bearing a fingerprint of yours; a box containing other pieces of equipment.  Some of the equipment contained substances which were later analysed and found to contain small amounts of pseudoephedrine, methylamphetamine, iodine and hypophosphorous acid. 

4The latter two substances were found in quantities in excess of the threshold requirements for a charge of possessing pre-cursor chemicals, but in the circumstances of this case they are taken to be substances for the purpose of proof of the charge of trafficking.  The forensic scientist who exhibited the substances and equipment stated that they were sufficient for the manufacture of methylamphetamine.

5Also found in your bedroom was a computer and a mobile phone.  The web browser on the computer was on a page displaying instructions for the manufacture of a drug of dependence, including methamphetamine, using the chemicals found in your bedroom.  The mobile phone contained nine saved screenshot photographs depicting a website selling various items of laboratory glassware.

6Other items were found in your car when it was searched, including nine small plastic bags containing small amounts of white crystal residue and a glass drug-smoking pipe.  It was put by your counsel, and I accept, that these items are consistent with your addiction to the drug, ice, and your use of it at the time of the offence.

7Following your arrest you were released on bail and following confirmation as to the precise nature of the charge which would form the indictment, a committal hearing proceeded by means of a hand-up brief and there has been no delay.  Accordingly, your plea of guilty is an early plea and you are entitled to a discount on your sentence for having facilitated the system of criminal justice.  I take that into account and I will have some more to say about that later.

8The other mitigating factors arise from the nature of the offence in that it is at the lower end of the range of seriousness for this type of offence.  The set-up in your bedroom was on a small scale and unsophisticated, capable only of producing an amount of the drug consistent with your personal use of it.  The manufacture had been commenced but had not been completed, as an experiment to see if you could produce the drug for your own use.  In particular, the use of a small number of Sudafed tablets for the extraction of ephedrine confirms this.

9A qualified mechanic, you had been unemployed at the time and had recently experienced the breakdown of a three year relationship, leading to what your counsel has described as a personal crisis.  You re-commenced the use of drugs, something which has been a problem periodically for you throughout your life.  Your drug use was increasing and you could not afford it.

10To place these matters in context I shall refer to your background insofar as it may explain those matters.  For most of your childhood you grew up in Melbourne, living with your mother, who was separated from your father, he having remained in Brisbane where he remarried and had two more children.  After completing Year 10 you left school and took on an apprenticeship as a mechanic.  You worked in that trade here and in Brisbane over the years, returning to Melbourne in 2012 and you have a good work record.  You had married in Brisbane and you have three school age children who live there with their mother.  It appears you still have contact with them.

11In Brisbane you accumulated a criminal history, much of it drug related but with no previous convictions for drug trafficking.  However, you have used illicit drugs periodically, as I said before, although apparently not at such levels which would prevent you from working, nor as to make it impossible for you to cease, as you have done now.  You have had some assistance with this from your doctor but without any support or structure which might assist you in the longer term.  You have returned to the workforce but you are prepared to take on the obligations of a community correction order for which you have been assessed as suitable.  The prosecution does not take issue with this disposition, which Mr Bayles has submitted is appropriate.

12The crime of drug trafficking in any form is serious and the maximum penalty for this charge is ten years' imprisonment.  The disposition should act as a deterrent to those who might offend in this way and a community correction order imposes obligations that are intended to be punitive as well as assisting with an offender's rehabilitation.  You have not had this opportunity given to you before and it offers the best chance you have to stop using drugs and deal with personal difficulties in other ways.

13Will you stand now, please, Mr Peterman?

14The order will begin today and will last for two years.  You will be under supervision and you must perform 150 hours of unpaid community work over nine months.  You must submit for drug assessment and treatment and you must take part in programs to address the risk of re-offending.

15You must go to the Corrections office at Frankston at Ground floor, 431 Nepean Highway, by 4 pm on 10 November, that is next Tuesday, which allows for two clear working days after today.

16The prosecution seeks an order for a forensic sample to be obtained under s.464ZF of the Crimes Act and you consent to that and I shall make that order. I further have to advise you about that, that the police have the power to use reasonable force, if necessary, to obtain the sample but I trust that will not be necessary.

17The prosecution also seeks an order for the disposal of items listed in the schedule attached to the order form and I have heard the submissions made by your counsel as to why the computer and the iPhone should be excluded.  Taking into account all the circumstances and the matters that he has put before me, I will exclude those two items from the order so they will not be disposed of.  Presumably the computer is in the possession of police, Mr Stefanovic, and it will be returned to him.

18MR STEFANOVIC:  Yes, Your Honour.

19HER HONOUR:  All right.

20MR STEFANOVIC:  Your Honour, I have those orders.

21HER HONOUR:  They have been printed off iManage,  Mr Stefanovic.

Do you want me to cross out those two items and initial them?

22MR STEFANOVIC:  That would be fine, with an initial.

23HER HONOUR:  All right, just take a seat, please.  The CCO is ready for signature now but, Mr Bayles, you might want to have a look at it.

24MR BAYLES:  Thank you, Your Honour.

25HER HONOUR:  Are there any other matters, Mr Stefanovic?

26MR STEFANOVIC:  I am just thinking about the s.6AAA.

27HER HONOUR:  Yes, I was going to raise that.

28MR STEFANOVIC:  Yes.  My instructor prompted me.

29HER HONOUR: The other day I was dealing with one of these matters and counsel involved in that matter mentioned, really in passing, that there was no need for a s.6AAA order to made when a CCO was imposed. I said he was not right about that, but since then I have looked it up and he is right. S.6AAA says that the court must make a statement under that section if the sentence falls within certain parts of the Sentencing Act, which does not include a community corrections order, and then the next sub-section says that the court may make such a statement in relation to any other disposition.

30MR STEFANOVIC:  Yes.

31HER HONOUR:  Which presumably would include a CCO.  So I have not made the order.

32MR STEFANOVIC:  I do not compel it then, no.  Very well, yes.

33HER HONOUR:  If you want to urge me to I will hear what you have to say.

34MR STEFANOVIC:  No, no.

35MR BAYLES:  No, Your Honour, there seems no need.

36MR STEFANOVIC:  No.

37HER HONOUR:  Thank you.  Any other matters from you, Mr Bayles?

38MR BAYLES:  No, none from me, Your Honour.

39HER HONOUR:  All right, thank you.

40COUNSEL:  If Your Honour pleases.

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