Director of Public Prosecutions v Petkovic

[2021] VCC 1723

IN THE COUNTY COURT OF VICTORIA

 Revised

Not Restricted

 Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 20-00642

DIRECTOR OF PUBLIC PROSECUTIONS

v

SIMON PETKOVIC

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JUDGE:	HIS HONOUR JUDGE M.P. BOURKE
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	3 November 2021
CASE MAY BE CITED AS:	DPP v Petkovic
MEDIUM NEUTRAL CITATION:	[2021] VCC 1723

REASONS FOR SENTENCE

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Subject:

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Cases Cited:

Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr P. Pickering
For the Accused	Mr L. Hartnett

HIS HONOUR: 

1Simon Petkovic, on indictment you are to be sentenced for one charge of trafficking a drug of dependence, 1,4-Butanediol, in a large commercial quantity (Charge 1); two charges of possession of substances, material documents, or equipment for trafficking a drug of dependence (Charges 2 and 3); seven charges of possession of a drug of dependence (Charges 4 to 10); and two charges of possession of prescribed precursor materials under s71D of the Drugs, Poisons and Controlled Substances Act (Charges 11 and 12). 

2Could you hand me the indictment please?  You need to print it out, do you?  Well - no, do not worry.

3Applicable maximum sentences are life imprisonment for trafficking in a large commercial quantity; 10 years' imprisonment for possession of substances, materials, et cetera, for trafficking; five years' imprisonment for possession of a drug of dependence and for possession of precursor materials, chemicals.

4You are also to be sentenced for the summary offence failing to comply with a direction to provide the password to an electronic device, under s465AAA of the Crimes Act.  That has a maximum sentence of two years' imprisonment.

5You pleaded guilty before me on 7 October. When interviewed by police on
15 January 2020,   you made some, but only minor admissions.  The committal went by hand-up brief in May of that year.  There was some delay in this court before it was listed before me on 7 October. 

6You receive the benefit of your plea of guilty  and the level of cooperation that brief history of the proceeding shows.  Your plea has facilitated the interests of justice, accepted responsibility and expresses remorse.  The utilitarian benefit of it has greater weight, bearing in mind the impact of the COVID-19 pandemic on the criminal trial system. 

7At your plea hearing on 7 October, Mr Pickering for the Crown tendered an amended summary of prosecution opening.  He provided appellate court authority in comparable sentencing cases.  Mr Hartnett, who appeared with
Ms Willard for you,  tendered a number of letters of character reference, including those by your parents.  He provided written submissions on sentence, which also referred to comparative sentencing cases.

8The circumstances of offending are set out in the tendered Crown opening, which is  Exhibit A.  My own summary may therefore be shorter.  It is also informed by matters put on your behalf,  not challenged by the Crown. 

9On 15 January 2020, police raided your home in Preston, which you shared with other tenants.  Some days earlier, they had been notified of an intercepted shipment of the drug of dependence, 1,4-Butanediol, connected to your address.  The raid revealed a so-called clandestine drug laboratory in your bedroom there.  A number of illegal drugs and related substances were also found.  These are identified in the Crown opening as follows:  2470 grams of 1,4-Butanediol (part of Charge 1, trafficking in a large commercial quantity); 7.5 grams of N,N-Dimethyltryptamine (Charge 4); 4.3 grams of methylamphetamine (Charge 5); 1.3 grams of cocaine (Charge 6); 0.7 grams of MDMA (Charge 7); 0.7 grams of ketamine (Charge 8); less than 0.5 gram of alprazolam (Charge 9); 0.6 grams of methylphenidate (Charge 10).

10Also within the laboratory set up, there were quantities of precursor materials (Charges 11 and 12). 

11As to particular chemicals within the laboratory (Charges 2 and 3), paragraph 11 of the opening states:

'During the search, police located:  (a) scientific glassware, instructions for manufacturing and trafficking drug of dependence, as well as solvents and chemicals for this purpose (Charge 2); (b) 1-phenyl-2-nitropropene (P2NP), 2109.3 grams, and phenyl-2 propanone (P2P), 236.9 grams (Charge 3) for the purpose of trafficking.'

12Paragraphs 19 and 20 state:

'In addition to the drugs of dependence, subsequent analysis of the contents of the laboratory indicated prescribed precursor chemicals:  (a), nitromethane, 4092.4 grams (Charge 11); (b), benzaldehyde, 784.2 grams (Charge 12).'

13I think I said Charge 11 in relation to the nitromethane.  If I did not, I will correct when I revise. 

14Paragraph 20, based on expert opinion:

'Provided other chemicals could be obtained by the accused, the accused could manufacture up to 748 grams of P2NP from the 784.2 grans of benzaldehyde or 1474 grams of P2P.

15I understand these are prohibited substances, potentially related to the production of methylamphetamine.

16Charge 2 is trafficking in a large commercial quantity of the drug 1,4-Butanediol between 16 November 2019 and 15 January 2020.  The basis of it is not only the approximately 2.5 kilograms of that found at the house; but also emails between those dates evidencing your requests, orders for purchase and delivery of larger quantities. 

17The evidence and your plea state that you were involved in the purchase, possession or offer for sale, and movement of the drug.  The precise quantity is not absolutely clear and requires some interpretation of the material.  Defence submissions concede that you received 75 kilograms.  The large commercial quantity threshold is 20 kilograms.  Accordingly, a modest assessment of the quantity received puts it at over three times that threshold. 

18The summary charge relates to your failure to provide the password, the passcode for a mobile phone found in your room.  You denied that it was yours. 

19You are aged 34 and await this sentence in remand custody.  You were raised in Northern Queensland in a law abiding, caring family.  Your parents remain very supportive of you.  You have a brother and sister, neither of whom have been in trouble with the law.  You completed Year 12 at school.  Whilst you present as an intelligent person, there were difficulties, which included bullying of you and possible, but not certainly diagnosed conditions of ADHD and chronic fatigue syndrome. 

20However, you performed well at university, obtaining a Bachelor of Social Science and then a master's degree in anthropology.  You moved to Brisbane and became fixed on a career in music production and design.  Your master's thesis was on dance music culture.  You had developed a strong interest in music production during teenage.

21In your late 20s, you moved through parts of Europe, performing and teaching in sound design.  You became, the defence submission states, heavily involved in the electronic music scene.  On return from Europe at 30, you came to Melbourne.  You worked part-time in music and in the construction industry. 

22You have a very limited criminal record, having been fined without conviction for possession of drugs at the Brisbane Magistrates' Court in May 2016.  I accept that it is not very usual to find engagement with such large scale trafficking as Charge 1, and also offences such as Charge 2 and 3, without criminal association and often,  consistent with that, a substantial criminal record.

23The explanation raised is your decline into drug abuse and addition.  You used cannabis in late teenage an drank heavily in your 20s.  That alcohol abuse was such that you would begin to drink in mid-morning.  In the context of working and mixing in the social milieu of the music industry, you transitioned to MDMA, hallucinogenic drugs such as LSD and drugs such as ketamine.  In your late 20s, you began to use and became addicted to methylamphetamine.  Your daily use became such that you no longer worked.   The defence submission document states - not challenged by the Crown - that you were heavily under the effect of ice amphetamine when the police raided your home.  I accept that your offending occurred in the context of drug abuse and addiction.  However, some things are left unanswered.  For example, it can be said that the emails relied upon state purchases or prospective purchases in amounts, whilst less than the cost of other well-known illicit drugs, which are arguably not consistent with payment by an unemployed, heavily dependent addict. 

24This - particularly Charge 1 - is self-evidently very serious offending.  Reflecting this,   that charge carries a maximum sentence of life imprisonment.  As stated, the quantity received was at least three or more times the large commercial quantity threshold.  There is also offending (for example, Charges 2 and 3) beyond that and in respect of other illicit drugs.  The fact and consequences of movement of drugs of dependence into and throughout the community are properly seen as badly damaging to it.  It hardly needs to be said. 

25The nature and circumstances of your offences make important sentencing considerations and purposes of moral culpability, both specific, but particularly general deterrence, condemnation of the offending and proportionate punishment of it.  That you were abusing drugs yourself  is not a mitigation.  It is offending which requires a very substantial sentence. 

26That is reinforced and emphasised in that Charge 1 (trafficking in a large commercial quantity is a so-called standard sentence offence under s71 of the Drugs, Poisons and Controlled Substances Act, and accordingly makes applicable the provisions relevant under s5A and 5B of the Sentencing Act.  The standard sentence is 16 years' imprisonment.  This is not determinative of my sentence on that charge but must be taken into account in the way those Sentencing Act provisions guide and direct.  There was not disagreement between counsel that the principles stated in such cases as Dalgliesh and Brown, and the more recent case of Quah v The Queen [2021] VSCA 164, direct my approach.

27The defence submissions raised that the category of trafficking a large commercial quantity, applicable here to the drug 1,4-Butanediol, came into existence in June 2019.  Before that, the charge commercial quantity applied.  The comparative sentencing cases on trafficking 1,4-Butanediol in a commercial quantity to which I was directed must be considered in this light.  You are in the situation that the offence large commercial quantity, its maximum sentence and the stated standard sentence are applicable to my sentence of you.  This is not a circumstance of parity or like comparison with those commercial quantity cases identified.  They do not state current sentence practices for a large commercial quantity. 

28However, as I have said, the standard sentence of 16 year is not determinative.  I must look at and consider the range of still relevant factors.  I must consider and take into account moderating factors.  Here they include the following matters.

1)Your plea of guilty.  I have raised aspects of this earlier.  I accept that it should be seen as an early plea of guilty.  The tendered character evidence states genuine remorse.  I accept that you are remorseful.

2)As to your circumstances of offending, as I have said earlier some aspects are curious.  Indeed, I find that this presents as an usual example of trafficking on such a scale.  However, I bear in mind the need to avoid speculation, particularly of an adverse kind.  You should be sentenced on the basis of the offending circumstances which are shown by the evidence.  That includes, here, that you are not shown to be part of a broad criminal organisation set up, for example, in a planned sophisticated way to achieve high profit.  The period of offending was relatively short.  This is consistent with unsophisticated features of it; for example, that you were using your own home for the clandestine laboratory, and connected to the delivery (the suspected pending shipment which led to the raid involved transport documents to your home address).  There is no evidence of financial betterment or benefit.  I accept the defence proposition that the amounts for purchase of the 1,4-Butanediol are lesser than those associated with other drugs.  That you were using heavily yourself is not primarily or in itself a matter of mitigation.  However, it is consistent with these other matters I raise.  They are matters relevant to my assessment of the gravity of offending and your subjective or personal culpability.  I am not precluded by the standard sentence provisions from doing so.  There are, of course, the very serious objective factors and adverse sentencing purpose which must inform my sentence. 

3)Despite the seriousness of offending, I do not discount prospects for rehabilitation.  You have very limited prior offending.  The character evidence tendered speaks well of you.   You have family support and, if not abusing drugs, talent and capacity for employment and career.  My sentence should have reference to this and not unduly crush your hopes for it.

4)There will be additional hardship for you in prison, given the COVID-19 pandemic and its impact on those in custody.  It is well established that this includes risk and anxiety, restrictions to movement, programs, and personal support.  You have experienced such restriction in remand.

5)There has been delay now of over 20 months since arrest.  I take into account that this has impacted upon you.  You have not contributed to this.  You indicated a plea of guilty over 12 months ago.

6)The principle of totality applies.  I should direct some cumulation; particularly, for example, on Charge 2 or 3, the laboratory presenting as a different enterprise to Charge 1.  However, I aim to impose a just total sentence.  Some sentences, for example, in the small possession quantities, all or most consistent with use, should be concurrent to achieve this.

29The moderating factors I identify should impact upon your head sentence and upon your minimum term.  The combination of these factors persuade me that on Charge 1 a significantly lesser term of imprisonment than the standard sentence of 16 years is appropriate and just. 

30Ultimately, however, the serious nature and circumstances of your offending requires a substantial sentence.  To make it clear, I have come to what I see to be the just sentence, having considered and weighed the relevant matters both adverse and favourable to you, and which include the standard sentence and the Sentencing Act provisions related to it. 

31As I have stated, the moderating factors raised should also affect your minimum term. 

32Particularly, I refer to your plea and cooperation, personal history and circumstances at the time of offending, your limited criminal record, and prospects for rehabilitation.  These go to justify an opportunity for you to be released on parole and to rehabilitate in the community after what will be a substantial period in custody. 

33There was a discussion before I commenced my sentencing reasons before as to whether my stated minimum term offended or was beyond or other than the stipulated minimum terms or proportions in s11A. The present view is, on the arithmetic, my minimum term does not. In any event, I would say this, a non-parole term other than what is stipulated in s11A of the Sentencing Act is, in my view, or would be in my view justified. 

34I have considered the comparative cases provided; but also bear in mind the need to sentence individually to your case.  There are unusual aspects to this case. 

35Having, as I have said, considered and weighed what I see to be the relevant matters, I sentence you as follows. 

36I formally sentence you as follows:

37On Charge 1, trafficking in a large commercial quantity, you are sentenced to 11 years' imprisonment.

38On both Charges 2 and 3, you are sentenced to three years' imprisonment.

39On Charges 4 and 5, six months' imprisonment.

40On Charges 6 to 10, that is six, seven, eight, nine, and 10, four months' imprisonment.

41On Charges 11 and 12, six months' imprisonment on each. 

42For the summary offence, failing to comply with a direction to provide a passcode to an electronic device, you are sentenced to four months' imprisonment. 

43I direct that 12 months of the sentence on Charge 2 be served cumulatively on the sentence for Charge 1.  That is a total effective sentence of 12 years' imprisonment.  I set a minimum term before eligibility for parole of seven and a half years' imprisonment.  I declare, under s18, 658 days of pre-sentence detention. 

44Under s6AAA, had you not pleaded guilty, I would have imposed a sentence of 16 years, with a minimum term of 12 years. 

45Anything else I need to do, Mr Pickering?

46MR PICKERING:  No, Your Honour.

47HIS HONOUR:  Good.  Thank you.  There have been forfeiture and disposal orders - or they are not necessary in relation to the drugs?

48MR PICKERING:  The orders were made on the last occasion, I believe, Your Honour, by consent.

49HIS HONOUR:  I suspect not.  It is my usual practice not to do so.  Originally, I came to it ‑ ‑ ‑

50MR PICKERING:  Perhaps it was just ‑ ‑ ‑

51HIS HONOUR:  ‑ ‑ ‑ so that I would not be blamed for losing the hardcopy documents.  But it is all done a bit differently now. 

52MR PICKERING:  Perhaps it was just ‑ ‑ ‑

53HIS HONOUR:  I would make any orders if they are sent to me in chambers.  Mr Hartnett, you do not oppose any disposal of forfeiture orders in relation to the drugs or any of the items that are taken during the raid, I take it?

54MR HARTNETT:  No, Your Honour.

55HIS HONOUR:  All right, good.  Thank you both for your assistance in what I found to be a difficult case.  Good, thank you.

56MR HARTNETT:  Thank you, Your Honour.

57MR PICKERING:  As Your Honour please.

58HIS HONOUR:  I will stand down now and turn you both off. 

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