Director of Public Prosecutions v Sinclair

[2017] VCC 570

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-17-00009

DIRECTOR OF PUBLIC PROSECUTIONS

v

JACK SINCLAIR

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JUDGE:	HER HONOUR JUDGE CANNON
WHERE HELD:	Melbourne
DATE OF HEARING:	27 April 2017
DATE OF SENTENCE:	11 May 2017
CASE MAY BE CITED AS:	DPP v Sinclair
MEDIUM NEUTRAL CITATION:	[2017] VCC 570

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW

Catchwords:  Sentence – Plea of guilty – Traffick drug of dependence – Possess substance, materials, documents or equipment for trafficking drug of dependence – Possess precursor chemical – Attempt to commit indictable offence – History of drug abuse – Extensive criminal record mainly dishonesty offences

Legislation Cited: Drugs, Poisons and Controlled Substances (Precursor Chemicals) Regulations 2007

Sentence:Convicted and sentenced to Total Effective Sentence of 3 years’ imprisonment with 18 months’ imprisonment to be served before being eligible for parole – 14 days pre-sentence detention declared as having already been served - s.6AAA Sentencing Act 1991 declaration – Ancillary orders – Disposal and Forensic Sample

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms D. Guesdon	Solicitor for Public Prosecutions
For the Accused	Mr R. Stary	Starylaw

Pages 1 - 12

 

HER HONOUR: 

1Jack Sinclair, formerly known as Jakov or Jack Kristo, you have pleaded guilty to the following charges:

a.  Charge 1:  Trafficking in a drug of dependence;

b.  Charge 2:  Possess substance, materials, documents or equipment for trafficking in a drug of dependence;

c.  Charge 3:  Possessing a precursor chemical; and

d.  Charge 4:   Attempting to commit an indictable offence, namely, to possess a precursor chemical.

2Charge 1 has a maximum penalty of 15 years' imprisonment; Charge 2 has a maximum penalty of ten years' imprisonment; Charge 3 has a maximum of five years’ imprisonment and Charge 4 two years' imprisonment as maximum penalty.

3The maximum penalties reflect the seriousness with which Parliament regards these offences and is one of the matters that I must factor in when sentencing you.

4The prosecution opening is an agreed summary of facts and I sentence you on the basis of this.

5At the time of the offending, you were living at your parents' premises in Richmond.  These premises comprised a main residence at the front and two townhouses at the back.  Your parents, your sister, your wife and your two teenage children lived in the main residence.  You told police that you slept in one of the townhouses, being Unit 3, although Mr Stary, in contradiction of this, said that you were also living and sleeping in the main residence.

6In June 2015, you placed an order with a UK online company for a scheduled precursor chemical, being 1-Phenyl-2-Nitropopene (referred to in short as 1P2NP).  You provided the name, Jack Kristo, which was your birth name which you had later changed by deed poll.  You gave your parents' address.  On
7 June 2015, a package which contained 1P2NP was posted to you with its true contents concealed by being labelled "Two books".

7On 17 June 2015, this package was intercepted by Australian Customs, and the true contents were discovered in two foil sachets, which, on analysis, amounted to 994 g of the precursor chemical to which I have just referred.

8In September 2015, police from the Clandestine Laboratory Squad commenced investigating you.

9On 18 September 2015, you registered an account with a company known as Science Supply Australia, which specialised in laboratory equipment.  You registered your account in the business name of Eppendorf Automotive, with your current name and parents' address.  You placed an order for various types of litmus paper, three conical stoppers, and three thermometers for use in a clandestine laboratory.  You collected these items in person, three days after placing the order.

10On 29 September 2015, you placed an online order with a US company for two 240ml bottles of sassafras oil, which is a scheduled precursor for the manufacture of MDMA.  You gave your birth name for this order with your parents' address.  The company mailed you a package in response with its true contents concealed by labelling the parcel "a gift".

11Again, your parcel was intercepted and the contents were substituted with an inert liquid, then sent on their way.  However, when analysed the substance that was intercepted did not contain any precursor chemical.

12On 30 September 2015, you placed an online order with a German company for two 250 ml bottles of Benzaldehyde which is a scheduled precursor chemical.  You gave your name as Jack Kristo and gave your parents' address.  The parcel was falsely labelled "Prumus Oil".  

13Again, the parcel was intercepted and the contents were seized with bottles being refilled with an inert substance and sent on their way.  Forensic testing revealed that the bottles had contained 446mls of Benzaldehyde.  The scheduled precursor amount for this substance is 50mls.

14On 5 November 2015, police executed a covert search warrant when you were not at home.  An extensive clandestine laboratory was found in the townhouse where you subsequently told police you had slept.  

15The garage housed a number of benches which were littered with chemical solvents, acids, bases and waste product.  A storage room on one side had been modified into a laboratory room, with benches, a homemade fume hood and extraction vent.  The fume cupboard contained a homemade steel condenser, a heating stove, tubing and glass vessels.  There were also further chemicals and waste. 

16A large amount of staining from chemical spills was evident as well as evidence indicating that a fire had taken place in the fume hood.  The extraction vent from the fume hood exited through the floor of the upstairs balcony, next to the next door neighbour's balcony. 

17The garage of the adjoining townhouse, referred to as Unit 4, also contained glassware, chemicals and chemical waste.  In all, 400 items were seized from the two townhouses. 

18Police also found "a large number" of notes and literature relating to the manufacture of different drugs of dependence including a catalogue for Science Supply Australia, empty post packages addressed to you and a copy of the Drugs, Poisons and Controlled Substances (Precursor Chemicals) Regulations 2007, as well as computers and storage media.

19Forensic analysis of precursor chemicals which are used for manufacture of methylamphetamine, amphetamine, MDMA, and/or GHB which were found at your premises were as follows:

·Firstly, nitromethane.  There was 4100mls, where the precursor schedule for this substance has a threshold of above 50mls.

·Secondly, mercuric chloride, 48.9gms, where the precursor schedule for this substance is above 0.1 gm.

·Lithium aluminium chloride, 359.9gms, where the precursor schedule for this substance is above 5gms.

·4-Amino-butanoic acid known as GABA, there was 1115.8gms, where the precursor schedule for this substance is above 150gms. 

·Further, 4-Hydroxybutanoic acid known as GHB, there was 570mls, where the precursor schedule is above 150mls.

20Forensic chemist, Dr Ian Neely, was of the view that you had sufficient equipment, chemicals and knowledge to produce methylamphetamine and amphetamine by different methods.  There was in excess of 1 kg waste material which contained low purity amphetamine and P2P.  The amount of chemicals, washings and waste material present indicated two instances of actual or attempted manufacture of amphetamine and methamphetamine.  The evidence to which I have previously referred gives rise to Charge 1 which is a rolled up charge of trafficking in methylamphetamine and amphetamine.  

21Dr Neely also opined that provided that there were sufficient quantities of other key chemicals, 994gms of 1P2NP which was intercepted by Customs, would be capable of ultimately producing either 520gms of methylamphetamine or 500 to 660gms of amphetamine.  

22Further, he was of the view that you had all of the precursor and other chemicals needed to convert GABA into GHB.  He stated that the quantity of GHB that could be produced from 1115.8gms of GABA was approximately 1017gms –that is 1.017kgs.  If sassafras oil had been available, he opined that you had the required chemicals, equipment and knowledge available to convert sassafras oil or its component, Safrole, into MDMA.  

23The evidence to which I have just referred gives rise to Charge 2, a rolled up charge of possessing substances, material, documents and equipment to manufacture MDMA and GHB. 

24The basis for Charge 3, a rolled-up charge of being in possession of precursor chemicals, is that in the garage, there were found other precursor chemicals as follows:

a.    Firstly, 100.9gms magnesium where the precursor schedule for this substance is above 25gms.

b.    Secondly, 44.7gms iodine where the precursor schedule for this substance is above 25gms.

c.    And thirdly, 2023.7gms ammonia where the precursor schedule for this substance is above 150gms.

25You were arrested on 6 November 2015 after being contacted by police.  You attended Crime Command for an interview and made a largely “No comment” Record of Interview.  However, you told police that you slept in the Unit 3 townhouse which you accessed via the laneway and that you had been a carpenter in the past with some 21 years building experience.  

26You indicated an intention to plead guilty to the charges on the indictment at the Committal hearing on 10 January this year.  It is accepted by the prosecution that you pleaded guilty at an early stage although not the earliest possible stage.  No witnesses were called at the Committal hearing.

27Mr Sinclair, I regard your offending as most serious.  You involved yourself in the evil trade of drug trafficking by means of manufacture in respect of methamphetamine and amphetamine over a period of seven months.  You engaged in this offending in a clandestine laboratory, facilities which are notoriously volatile, and were prepared to funnel the fumes in the direction of your next door neighbour’s balcony.  The quantities of precursors were significantly in excess of the designated thresholds, and when one looks at the entire picture, it is clear that the scope of what you were doing or trying to do was quite substantial.

28You engaged in the offending for commercial purposes, although I was told that you were also wanting to feed your own addiction to methamphetamine.  
Mr Newton, psychologist, assessed you on 3 and 10 April 2017 and diagnosed you as suffering from a severe methamphetamine use disorder which was in remission.  A character witness, Mr Grant, from Narcotics Anonymous gave evidence that you had attended Narcotics Anonymous for the past two and a half months, so since about the end of January this year.  This was not long after the matter resolved into a plea. 

29Judging from the quantities of chemicals, literature and activity that you had engaged in, it appears to me that, in spite of your drug use, you were able to function well enough to be able to engage in the offending before me.  Further, it appears that you expended a good deal of money on setting up the laboratory, albeit that it was rather chaotic, and on the precursors and equipment that were found by the police.  In the end, while I accept that you had a drug addiction, I am of the view that your overriding motivation in committing these offences was to make money.  Mr Stary on your behalf accepted that there was a commercial tenor to your offending. 

30Having said this, I accept that there was no evidence of a lavish lifestyle having been established by you, and I also accept that there was a lack of sophistication associated with your offending - you used one or other of your actual names and your home address to have the various chemicals and equipment delivered to you and on one occasion, you attended personally to collect items. 

31I accept that the laboratory that you set up was not of a highly sophisticated nature.  It was accepted by the Crown that you had manufactured or attempted to manufacture methamphetamine or amphetamine on two occasions, and again, I sentence you on this basis.  There is no evidence indicating that you acted in conjunction with others or had been delegated the task of being the cook.  You acted alone as a principal in the offending.  I was not told who your intended customers would be.

32You have a rather extensive criminal history dating back to 1991.  Your past offending has largely been comprised of dishonesty and driving offences.  Your last court appearance was in September 2006 where you were dealt with in the Magistrates Court for driving offences including driving whilst in excess of the prescribed blood alcohol limit.  Your last priors for dishonesty matters date back to April 1995.  Therefore, there has been a significant period since you last offended, and even longer since you committed offences other than driving offences.

33I take into account your background as set out by Mr Stary on the plea hearing and in his written submissions.

34You are now 44 years old.  You were 42, then 43 during the period of offending.  You are the oldest of four children.  Your parents, who are originally from Croatia, migrated to Australia when you were three years old.  

35Unfortunately, your mother and you were subjected to domestic violence at the hands of your father during your childhood.  However, your parents have remained together, and you were prepared to live with your parents at the time these offences were committed.  However, I was told that you and your father are completely estranged.   

36You attended four different secondary schools and often gravitated to the wrong crowd during that period.  You are educated to Year 12, although you failed to attend your final exams, then discontinued a repeat attempt.  Ultimately, you did some training as a carpenter, although you did not complete your apprenticeship.

37You have worked in the construction industry for over 20 years, and have been employed by a labour hire company for over three months as at the time of the plea hearing.  I have taken into account your resume which was tendered on the plea.  I accept that you have the capacity to engage in honest, hard work if you set your mind to it. 

38You are married and have two children who are 15 and 16 years old.  They are both at school, and are well adjusted.  Fortunately, they have not been "contaminated" by your offending.  Despite your drug abuse and the offending before me, I was told that you have been a good father.  This is confirmed by your close friend, Mr Raic, who spoke very highly of you in the character reference which he wrote in support of you.

39Mr Stary did not submit this on your behalf, however, I factor in that because of your concern for your children, time in gaol will be harder for you than it would otherwise be.

40I allow for a significant discount in the sentence that I would otherwise impose because of your pleas of guilty which were entered at a fairly early stage.  Although the matter was listed for a Committal hearing, I was told that you were always prepared to plead guilty to appropriate charges and that the matter resolved without the witnesses being required to give evidence.  Therefore, you have saved the witnesses the time and trouble of giving evidence and have saved the community the time and expense of contested proceedings.  

41Mr Stary submitted that your pleas of guilty are also indicative of remorse, also pointing to your expressions of remorse which were made to your family,
Mr Newton, Mr Grant from Narcotics Anonymous, and Mr Raic.  

42Mr Sinclair, you engaged in deliberative criminal conduct over a number of months, albeit in an apparent haze of drug addiction.  This was no spur of the moment decision to behave in a criminal fashion which you subsequently thought better of.  However, in the end, I accept that now, in the clear light of day, you have a measure of remorse for what you have done and some developing insight into its wrongfulness not only as it impacts on you and yours.

43I take into account in a general sense the report of Mr Newton who saw you on two occasions.  I am not sure as to why a report was not obtained, or if obtained, not tendered, from Dr Barth, as I understand he has actually being treating you for some time.  

44In any event, I take into account Mr Newton's opinion that you are suffering from an adjustment disorder with mixed anxiety and depressed mood which is said to be largely attributable to being prosecuted for these offences and the shame you have felt about this.  He also took the view that in view of your clear urine screens, you are in early remission of a severe methamphetamine-use disorder.

45On the basis of the clear urine screens tendered, the evidence of Mr Grant and the report of Mr Newton, I accept that you are now abstaining from drugs, which is to your credit.  It is still early days but it is to be hoped that you can maintain this.  

46As was evident from the presence of family members and Mr Grant at the plea hearing, you have good family and friendship support.  On the other hand, your family was also there for you in 2015, but this was not enough to prevent you from committing offences.

47In view of your offending on this occasion and your criminal history, bearing in mind my observations about it, but also taking into account your developing remorse and insight, your work capacity, your family and friendship support and abstention from drugs over recent months, I rate your prospects of rehabilitation as fair. I place moderate weight on specific deterrence.

48However, offending of this nature calls for strong weight to be placed on general deterrence and your offending must be strongly denounced.  I must impose a punishment which is adequate in all of the circumstances.

49As the courts have said on so many occasions, illicit substances are a scourge to our community.  They cause untold damage to those who take them and inflict misery, heartache and often danger to their loved ones and the broader community.

50Mr Stary submitted that a community corrections order was an appropriate penalty in your case, or that failing that, a gaol term in combination with a community corrections order.  He submitted that you have turned a corner and that, in effect, a community corrections order would assist you to continue on the path of rehabilitation which would be a win for you and for the community.  

51The Crown submitted that a gaol term was appropriate and that a term of twelve months in combination with a community corrections order would not be appropriate in your case.

52In a bid to address current sentencing practice, Mr Stary provided me with a table of some cases dealt with in this court.  After some prompting through my associate, he provided me with some further material, although not in the form that I had required.  In any event, as he indicated, the cases are of limited assistance as they are not of the nature of your case in some important respects.  

53However, they give me some broad guidance as to current sentencing practice in respect of the offence of trafficking.  I have also considered recent Court of Appeal cases referred to in the Victorian Sentencing Manual in a bid to obtain further guidance. 

54As I indicated at the plea hearing, I did not consider that a community corrections order on its own was adequate, nor did I consider a term of twelve months in addition to a suitably crafted community corrections order would be adequate.  Having considered your case at some length, I am afraid that I am still of that view.

55Would you please stand up, Mr Sinclair?

56You are convicted of each of the charges.

57I make a disposal order in the terms set out in the draft orders which is not opposed by you.

58I make an order for a forensic sample to be taken by way of buccal swab from the mouth.  I make the order because of the seriousness of the offending, because of your prior convictions, because you do not oppose the order, and because it is in the public interest to do so.  If you do not cooperate with the authorised officer in the taking of this sample, I warn you that he/she may use reasonable force in order to secure the sample.

59You are sentenced to the following terms of imprisonment: 

60Charge 1          Two years, six months' imprisonment which will be the head sentence.

61Charge 2          One year imprisonment.

62Charge 3          Six months' imprisonment.

63Charge 4          Three months' imprisonment.

64I direct that five months from the sentence on Charge 2 and one month from the sentence on Charge 3 be served cumulatively with each other and the head sentence, but that otherwise the sentences be served concurrently.  This produces a total effective sentence of three years' imprisonment and I direct that you serve 18 months' imprisonment before becoming eligible for parole.

65If not for your pleas of guilty, I would have sentenced you to a total effective sentence of five years' imprisonment with a non-parole period of three years’ imprisonment. 

66I declare that you have already served 14 days of this sentence by way of pre-sentence detention.  Take a seat for a moment please.  Is there anything further?

67COUNSEL:  No, Your Honour. 

68HER HONOUR:  All right.  Yes, thank you.  If you could remove Mr Sinclair.  We will now adjourn.

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