Director of Public Prosecutions v Philipsen

[2024] VCC 743

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

AT MELBOURNE

CRIMINAL JURISDICTION

CR-23-00570

DIRECTOR OF PUBLIC PROSECUTIONS

v

JAKE PHILIPSEN

---

JUDGE:	HER HONOUR JUDGE TODD
WHERE HELD:	Melbourne
DATE OF HEARING:	22 May 2024
DATE OF SENTENCE:	23 May 2024
CASE MAY BE CITED AS:	DPP v Philipsen
MEDIUM NEUTRAL CITATION:	[2024] VCC 743

REASONS FOR SENTENCE
---

Subject:CRIMINAL LAW – Sentence

Catchwords:              Possession of a drug of dependence; committing an indictable offence while on bail

Legislation Cited:      Drugs, Poisons and Controlled Substances Act 1981 (Vic) s 73; Bail Act 1977 (Vic) s 30B.

Cases Cited:

Sentence:                  Convicted and fined $2,100

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr F. Cameron	Office of Public Prosecutions
For the Accused	Mr D. De Witt	McNally & Gleeson Lawyers

HER HONOUR:

1Jake Philipsen, you have pleaded guilty to one charge of possession of a drug of dependence.[1]  This offence carries a maximum penalty of five years' imprisonment, though in your case the lower maximum penalty of one year is to be applied.  You also agreed to have uplifted and pleaded guilty to one charge of committal an indictable offence while on bail,[2] an offence which carries a maximum penalty of three months' imprisonment.

[1]Drugs, Poisons and Controlled Substances Act1981 (Vic) s 73.

[2]Bail Act 1977 (Vic) s 30B.

2Briefly I refer to the circumstances of your offending.  On 9 August 2022 police executed a search on a house in Longbourne Avenue in Notting Hill.  The bond associated with a lease on that address had been lodged a few months earlier with the Residential Tenants Bond Authority and you were named as the sole tenant.

3The police search took place at 5:30 am and you were not in the house, but another person, Mr Weaver, was in the house and he spoke to police.

4Mr Weaver told police that the font room of the house was yours.  That room was locked.  Mr Weaver said only you held a key to that room.

5Police forced entry into that front room.  They found a safe in there, which required a passcode to open it.  On top of the safe was a small white plastic bottle with a viscous liquid in it; police seized the bottle on suspicion it contained 1,4‑butanediol.

6Mr Weaver told police various things:  that you had been at the house night before, that you had moved all your belongings out the day before, everything in the front room belonged to you, that the front room had been broken into by other people visiting the house when you were not there, among other things.

7The safe was seized by police and later forced open.  Inside was a 20 litre jerrycan and a 1 litre plastic bottle.  The bottles and jerrycan were analysed for drugs and for DNA.

8You attended at a police station by appointment and volunteered a DNA sample.  Ultimately you were remanded into custody on 10 August 2022 and later granted bail on 21 December 2022.

9The contents of the containers was analysed and found to contain 1,4‑butanediol with a total weight of 13.6 kilograms.

10In relation to the DNA analysis the result was this:  one mixed profile of DNA was found on the underside of the handle of the jerrycan, with a total of four contributors.  It was 100 billion times more likely that you were a contributor to that sample of DNA than if it were another person randomly selected within the community.

11You were remanded into custody.

Personal circumstances

12You are 38 years old; at the time of your offending you were 36.

13You were born in Melbourne and enjoyed a stable childhood.  Although your parents separated when you were three, you maintained a close relationship with each of them and lived between both households.

14You completed primary school at Ruskin Park Primary School and went to Aquinas College in Ringwood until Year 11.  You were a good student and enjoyed school, though you made the decision to leave in Year 11 to pursue an apprenticeship as a diesel mechanic.  You completed your apprenticeship at the age of 21 and have had a consistent employment in the field since.

15In 2008 you started working for the company where you are currently employed, Gocold Logistics Pty Ltd.  Initially you worked in transport before being promoted to manager, where you now oversee the Dandenong branch and its six employees.  You maintain a positive relationship with your employer.  They have provided both a character reference and continued support for you throughout the proceedings.  

16You have been exposed to drug use throughout various periods of your life; you were introduced to cannabis and speed at about 16 and you have intermittently used and abstained from use of these drugs.  You have remained abstinent since being granted bail in December 2022.

Procedural history

17Your case proceeded through committal and s 198 hearings in this court.

18I note that through your counsel you made an offer to resolve your case on what has been described as a reasonable and superior basis a year ago.  I note that that offer was rejected.  Your case ultimately resolved after a sentence indication hearing yesterday and was finalised with a plea today. It is not necessarily an early plea but still a useful one and important prosecution concession has been made about your earlier efforts to bring this case to a resolution.

19You trial is listed to commence on 22 July 2024 and I note that the charge you are pleading to is of a very different and much less serious character to the one you originally faced.  The intervening period facilitated your challenge to the prosecution case, which has apparently been successful, forging the resolution that is now before me.  It appears to me that neither party necessarily held a winning hand in your trial.  What this means is that your plea is valuable.

20In terms of the objective gravity of your offending, this is a significant quantity of the drug, which, like all drugs of dependence, was poised to wreak havoc in the lives of ordinary and often vulnerable people.  You will be sentenced by reference to the statutory maximum of one year imprisonment, conceded by the prosecution.  You, it seems, had knowledge of the drugs and had access to them and some capacity to exercise control over it.  More than that it is difficult to say.  The weight is not an insignificant matter in this case, although your particular criminality in relation to it is confined.

21There is no evidence you knew of the specific quantity in the jerrycan; it is also clear that others jointly possessed and had access to it, this proposition referable to the mixed DNA profile. 

22You have one prior conviction.  In 2019 you were fined for an unlawful assault and other offences.  I note that no conviction was recorded.  You have a subsequent conviction relating to offending in 2020, possession of a drug of dependence and a driving I think without a licence.  It is certainly true that had this case been able to be resolved in parallel with that, a disposition involving probably a fine for the whole suite of offending was perhaps available.  So I take totality considerations into account.

23You were remanded on your original charges.  You spent four months and 11 days in custody.  That was your first time in prison; it was sobering for you, in more ways than one I infer.  You were in police cells for the first few days and you struggled to learn the unwritten rules of gaol.  Lockdown periods were still causing restrictions in custody.

24All drug sentences must reflect the role for general deterrence in drug sentencing and reflect the community's denunciation of drug-related offending.  I have considered the role for specific deterrence; I accept that the time you spent in custody was most salutary and that you now understand what awaits you if you were to reoffend.  That time in prison will not form part of this sentence, but it still has significance in the overall circumstances of your case.  You need to understand though if you offend again in the same manner the kind of penalty you receive today is unlikely to be within reach.

25You have been on bail for over 18 months.  You are in full-time work; you presented a reference from an employer who regards you as a valuable and competent employee.

26Another letter from your friend Ms Christie confirms you have been conducting yourself properly while a member of her household.

27I consider overall your prospects of rehabilitation to be very good.

28So turning now to my disposition, if you will stand up for me now, please, Mr Philipsen.

29On the charge of possession of a drug of dependence you are convicted and fined $2,000.

30On the charge of committing an indictable offence while on bail you are convicted and fined $100.

31I make the order for disposal as sought.

32I vacate the final directions hearing of 31 May 2024 and trial commencing 22 July 2024. 

33So in the end, Mr Philipsen, it is a total fine of $2,100 and your lawyers will give you some advice about what you need to do about that.

34Have I neglected any orders, Mr Cameron?

35MR CAMERON:  No, Your Honour.

36HER HONOUR:  All right, take a seat, Mr Philipsen.  That concludes your case.  Thank you for your assistance, counsel.  That concludes this matter.

- - -