Director of Public Prosecutions v Rae

[2020] VCC 277

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-18-00948

DIRECTOR OF PUBLIC PROSECUTIONS

v

JYLE RAE

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JUDGE:	HER HONOUR JUDGE GWYNN
WHERE HELD:	Melbourne
DATE OF HEARING:	6 December 2019, 13 & 17 March 2020
DATE OF SENTENCE:	17 March 2020
CASE MAY BE CITED AS:	DPP v Rae
MEDIUM NEUTRAL CITATION:	[2020] VCC 277

REASONS FOR SENTENCE
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Subject:  Criminal law

Catchwords:              Possession of material, substance, document or equipment for trafficking a drug of dependence; possess drug of dependence

Legislation Cited:      Sentencing Act 1991 (Vic)

Cases Cited:DPP v Chong [2019] VCC 274; DPP v Defrenza [2016] VCC 990

Sentence:Community Corrections Order (20 months duration, 175 hours community work, programs) and $1,000 aggregate fine

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms H. Baxter	Office of Public Prosecutions
For the Offender	In Person

HER HONOUR: 

1Jyle Rae, you have pleaded guilty on indictment to one charge of possession of substance, material, document, or equipment for trafficking a drug of dependence and three charges of possessing a drug of dependence.  The first charge carries a maximum penalty of 10 years imprisonment and the remaining charges each carry a maximum penalty of five years imprisonment, or a one year maximum if your possession of the respective drugs is for a purpose unconnected with trafficking.  These maximum penalties reflect the seriousness with which Parliament regards your offences. 

2The circumstances of your offending are set out in a document entitled “Summary of Prosecution Opening Upon Plea”.  It is dated 3 December 2019 and sets out the factual basis upon which you have pleaded guilty and for which you fall to be sentenced.  I understand that you do not take issue with the contents of that document.

3You are self-represented in this plea hearing and have previously been provided with a copy of the Crown opening and other relevant documents. 

4In terms of your offending, in February of 2017, investigators from the Clandestine Laboratory Squad commenced an investigation into the manufacture and trafficking of methylamphetamine in Melbourne and its surrounding suburbs.  Lawrence Chong was identified as the principal manufacturer and trafficker of methylamphetamine.  You were identified by police as an associate of Chong.  You had agreed to store equipment and precursor chemicals for him at your residential address. 

5Chong pleaded guilty to one charge of trafficking in a drug of dependence, namely methylamphetamine; one charge of burglary; one charge of theft;
one charge of possessing substance, material, document or equipment for trafficking a drug of dependence; and a charge of trafficking in a drug of dependence, namely ephedrine, in a quantity not less than a commercial quantity.  He also pleaded guilty to a related summary offence of possessing a prohibited weapon.  He was sentenced by Her Honour Judge Cannon on
14 February 2019 to a total effective sentence of 10 years imprisonment, with a non-parole period of seven years imprisonment.  I have had recourse to Judge Cannon's reasons for sentence.

6The parity principle demands that any sentence imposed reflects difference in the culpability and personal circumstances of co-offenders and avoids unjustifiable difference in co-offenders' sentences.  The parity principle requires a judge to impose the same sentence for the same offending, unless there were distinguishing features in respective roles in that offending or in any other relevant sentencing considerations which warrant differential sentences.  As will become clear, Chong's offending was vastly different to that committed by you.

7Your offending occurred between 8 September 2017 and 23 November 2017.  At that time you were living with your mother at an address in Mitcham. 

8Police investigators had identified you as an associate of Chong and as purchasing drugs from him.  You had apparently known Chong since high school. 

9On 8 September 2017, Chong sent you a text message which commenced a chain of communications between you and Chong.  These communications related to your preparedness to store items for him in a shed at your premises.  Arrangements were made for Chong to attend your address on 19 November 2017.

10At approximately 7.30 am on 23 November 2017, police executed a search warrant at your address.  A padlock was cut on the door of a small shed in the backyard.  Police identified items suspected to be related to the manufacture of illicit drugs and seized those items and a number of substances.  I understand that many of these items remained untouched and contained in boxes. 

11The items seized included scientific glassware, smoking implements, scales, and two industrial chillers.  Police also seized 450.2 grams of a substance containing phosphorous and 1,816 grams of a substance containing iodine.  Each of those substances are prescribed precursor chemicals.  No ephedrine or pseudoephedrine was located in the shed.  Methylamphetamine can be manufactured from these substances in conjunction with phosphorous and iodine.  Washings taken from a four-necked flange and glass condensers located in the shed did contain methylamphetamine.  It is not suggested that it was intended that any manufacturing took place in the shed or had indeed been undertaken in the shed. 

12A list of all equipment, prescribed substances and non-prescribed chemicals and substances that were located in the shed were annexed to the Crown Opening at Schedule A.  You have admitted possession of each of these items and substances for the purposes of trafficking in a drug of dependence, and your possession of these items and the surrounding circumstances form the basis for Charge 1.  I note and accept that your role was clearly in the provision of storage facilities for Chong.

13Police also located a plastic bottle containing 31 grams of methandienone, a steroid, a plastic bag containing .2 grams of cocaine and a plastic bag containing .1 gram of diazepam.  It is these drugs which form the basis for the remaining charges on the indictment of drug possession.  I am satisfied to the requisite standard, on the balance of probabilities, that these drugs were not for a purpose connected with trafficking and therefore the maximum penalty applicable is one year imprisonment. 

14You were not present at the time police executed the warrant at your premises and voluntarily returned to the address, where you were arrested and taken to Melbourne West police complex for interview.  In that interview you made admissions to helping Chong move boxes into the shed and to your knowledge of glass beakers and cardboard boxes being present.  You denied knowing that these items were for making drugs and denied receiving any money or drugs from Chong to allow him to store the items in your shed.

15Through your plea of guilty, you now admit criminal responsibility for your preparedness to offer your shed to Chong.  It would appear from the Reasons for Sentence of Her Honour Judge Cannon, dated 7 March 2019, that Chong was a sophisticated drug trafficker at the top of his own hierarchy who was operating a drug trafficking business, importing scientific glassware from China for the purpose of manufacturing methylamphetamine, sourcing precursor chemicals and various materials to assist him in the manufacture of methylamphetamine and had a number of associates to assist him.  He had a relevant prior history for trafficking in drugs. 

16In terms of the matters to which he pleaded guilty, you do not appear to have any charges directly in common and the parity principle to which I have referred has little, if any, application in fixing the sentence to be imposed on you. 

17You would appear to have played a limited role in Chong's enterprise.  I accept that role was restricted to being a storage facility, as I have already described, and to doing so for a relatively short period of time, in the context of a
long-standing friendship and your misplaced loyalty.  Your shed was not an operating clandestine laboratory. 

18I also accept that it was your admission to police in your record of interview that assisted the prosecution to fix a date range for Charge 1.  This is a factor that will be taken into account in your favour. 

19Overall, my assessment is that in relation to Charge 1 your offending is not at the higher end.  However, you still played an essential role in a sophisticated drug trafficking and manufacturing business and assisted Mr Chong to hide his nefarious activities.  Weight does need to attach to general deterrence to send a clear message to others in the community that they should resist providing such assistance. 

20You spent one day in custody, before being released on bail.  Whilst a relatively confined period, I accept it is still capable, in your case, of acting as both sanction and as a deterrent into the future. 

21Since that time, this matter has a somewhat tortured history in an effort to encourage you to obtain legal representation.  The matter has been listed for plea on a number of occasions, but further opportunities were given to you to arrange legal representation.  You have chosen to represent yourself. 

22Whilst largely a delay of your own making, I take into account that it has been close to two years since you first indicated a willingness to plead guilty.  Indeed you entered pleas of guilty to the offences on the indictment on 4 May 2018. 
I accept your plea represents a willingness by you to take responsibility for your offending.  It has saved the court time and expense and the need for witnesses to attend and has utilitarian value.

23Having now been provided with reference material and observed your overall presentation in my court, I am satisfied that your plea of guilty is one indicative of remorse.  All of these factors will be taken into account in your favour. 

24You do have an admitted prior criminal history.  On 29 March 2007, you appeared at the Melbourne Magistrates' Court in relation to charges of possess cannabis, assault police and theft of a motor vehicle.  At that time you were placed on an adjourned undertaking for a period of 12 months without a conviction being recorded. 

25On 5 January 2009, you appeared at Ringwood Magistrates' Court in relation to unlawful assault, theft, using indecent language in a public place, using threatening words in a public place and assault by kicking.  You were convicted and placed on a community corrections order for a period of 15 months, with treatment conditions. 

26Your next appearance was on 8 June 2010 at Melbourne Magistrates' Court, at which time you were fined an aggregate of $1,000 in relation to charges of wilfully damaging property and being drunk in a public place. 

27On 22 November 2011, you appeared at Ringwood Magistrates' Court in relation to resist police and drunk in a public place and were again fined.

28On 9 December 2014, you appeared at Ringwood Magistrates' Court in relation to a charge of failing a drug test within three hours of driving, exceeding the prescribed blood alcohol concentration and a range of driving offences.  Charges of resisting a protective service officer and drunk in a public place also proceeded.  You were again convicted and placed on a community corrections order with treatment conditions.  The duration of this order was for 12 months. 

29Your prior criminal history is relevant to the assessment that needs to be undertaken in relation to what weight to give specific deterrence, that is, putting you off further offending, denunciation and protection of the community.  It is also relevant to your prospects of rehabilitation. 

30These five previous court appearances largely relate to street-based offending, and would indicate overuse of both drugs and alcohol.  Apart from drug possession, you have no prior history relevant to the charges on the current indictment.  You do not present with a recorded history of breaching court orders. 

31In terms of your personal circumstances, which I am also obliged to take into account, you have told me you were born in Darwin, with your parents separating when you were approximately two years of age.  You are currently 32 years of age and have a younger brother, Sharn, aged 30 years.  Your family moved to Long Pocket in Queensland, with your parents separating and your mother then moving to Melbourne, Victoria.  You maintain a relationship with your father, but he is in and out of your life.  You obtained a Year 12 education and commenced a pre-apprenticeship in carpentry, which you completed.  You then spent 10 years as a carpenter, before moving into scaffolding approximately six years ago.  It would appear that you have largely maintained consistent employment, which is another positive factor in your favour. 

32You also have a keen and active interest in golf.

33You have used cannabis from the age of 15 years and have flirted with a range of other drugs.  You have an admitted history of alcohol abuse.  Upon your arrest you ceased using each of these substances and in fact commenced attending Alcoholics Anonymous.  You have not returned to drug use, but have admitted a return to the use of alcohol. 

34In more recent times you have worked for your brother in his scaffolding business.  I have received a reference from him, which, albeit somewhat dated, speaks favourably of you as both a brother and employee.  I have taken the contents of his reference into account. 

35You are also fortunate to maintain a good relationship with your mother, with whom you currently reside.  She is clearly a source of support for you.  She has provided a detailed reference, which sets out some very difficult personal circumstances that were in place for you at the time of your offending.  She also speaks of your “wake-up call” upon your arrest for these matters and since that time you have made a concerted effort to avoid drug use and alcohol use. 

36In your plea before me you raised your own concerns about your use of alcohol, which shows considerable insight.  It would appear that your use and abuse of drugs and alcohol is the primary factor which has brought you before the courts, when you were otherwise intelligent, hardworking and well supported. 

37I note that I have also had recourse to references authored by Andrew Taylor, Julie Jenkins and Debbie Weinlich.  They have known you in a number of different capacities, but were aware of your offending and speak of your general kindness, reliability and your industrious nature. 

38I have also had recourse to a report dated 9 March 2018, authored by Bernard Healey, clinical psychologist.  This report sets out much of your background, which I have taken into account.  In addition, Mr Healey speaks of your embarrassment and shame in relation to your offending.  He assessed you as intelligent.  He sees clear benefit to you overall in remaining abstinent from both drugs and alcohol.  This is perhaps obvious.

39It would appear to me that if you can get on top of your alcohol use, you present with good prospects of rehabilitation.  I accept that you are motivated to make positive change.

40In terms of sentencing, the Crown submission is that I should consider a combination sentence; that is, a term of imprisonment in combination with a community corrections order.  I have had you assessed as to your suitability for a corrections order.  That report tells me that you present with low risk of
re-offending, that you have previously successfully completed community corrections orders, that you present as coherent and concise and answered all questions in a clear and open manner, and expressed a willingness to comply with a corrections order.

41Further, the report tells me that you felt ashamed and embarrassed by your actions and for letting your family down.  You described to the assessor your strong family network, with both parents and your brother all being very supportive.  The recommendation was that you were suitable for a corrections order and I accept that recommendation.

42I make the ancillary orders as sought for forfeiture and disposal. 

43The basic purposes for which a court may impose a sentence are punishment, general and specific deterrence, rehabilitation, denunciation and protection of the community. 

44In sentencing you, I must have regard to a range of matters, such as the seriousness of the offending, your culpability for it, your personal circumstances and those of any victim.  I am also required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure, as far as possible, that offenders are rehabilitated and are reintegrated into society. 

45I have taken into account the relevant sentencing guidelines referred to in s.5 of the Sentencing Act, where relevant to your case.  I have taken into account current sentencing practices for the offences to which you have pleaded guilty. 

46I was assisted by the reference by the Crown to a decision of Her Honour Judge Cannon in relation to a similar offence, where the accused was one Vincent Defrenza. That decision appears at [2016] VCC 990.

47In relation to Charges 2, 3, and 4 on the indictment, accepting that each of those drugs were for your own use, you are convicted and fined an aggregate of $1,000. 

48In relation to Charge 1, possession of substances and items for trafficking in a drug of dependence, you are convicted and placed on a corrections order for a period of 20 months.

49During that time you are to complete 175 hours of community work. 

50You are to be supervised by the Office of Corrections and undergo treatment and rehabilitation in relation to your use of both drugs and alcohol. 

51You are also to submit for offence-specific programs to see if there are other programs that might assist you. 

52I will offset 50 hours of treatment against the requirement for community work.  So 50 hours of treatment will come off the 175 hours.

53OFFENDER:  Thank you, Your Honour.

54HER HONOUR:  I see punishment and deterrence and the duration of the order and the requirement to undertake community work, however this order is clearly designed to foster your positive changes in the context of your assessed prospects for rehabilitation and the other factors to which I have referred.

55As you are well aware, in addition to the conditions that I have imposed, there are standard conditions. 

56The first and foremost of those is, you must not commit any offences during that 20 month period which could be punished by imprisonment.

57You have to report to the Office of Corrections within two working days.

58You are also required to advise your Corrections officer if you change work or your home address within two working days of any change.

59It is a term of all community corrections orders that you must submit to visits as directed and obey all lawful instructions and directions of your Community Corrections officer.

60You are also not to leave the State of Victoria without their prior permission. 

61You should be under no illusion that this outcome presents you with an opportunity to further change your life in a positive fashion, should you choose to take up that opportunity. 

62This order can be breached if you do not comply.  It can be breached if you
re-offend during its operation.  Should you do so, you could be required to appear before me for a contravention hearing, which may require me to
re-sentence for that charge, as well as considering the actual breach.

63In the nicest possible way, Mr Rae, I simply do not want to see you again.

64OFFENDER:  You will not.

65HER HONOUR:  Section 6AAA does not apply to a corrections order under a period of two years, so I do not need to resort to that.

66Do you have any questions?

67OFFENDER:  No, Your Honour, thank you.

68HER HONOUR:  All right.  Are you prepared to sign an order to the effect that
I have announced?

69OFFENDER:  Yes.

70HER HONOUR:  All right, well that will be forthcoming.  Anything I have forgotten, Ms Baxter?

71MS BAXTER:  No, Your Honour.

72HER HONOUR:  That is reassuring.  Just a slight correction needs to be made to that order.  A copy will be provided to you, Mr Rae, so you can take that to the Office of Corrections and stick it on the fridge. 

73OFFENDER:  Thank you very much.

74HER HONOUR:  Ms Baxter, can I thank you for your assistance on this occasion and the other occasion.  It is also made more difficult for someone in your position when we do have a self-represented accused.    

75MS BAXTER:  That is fine, Your Honour. 

76HER HONOUR:  So I appreciate all your assistance.  All right.  Well, thank you, and we will close the court until 9.30 tomorrow.  Thank you. 

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