Director of Public Prosecutions v Spark
[2013] VCC 1737
•7 November 2013
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-12-00245
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| PHILLIP SPARK |
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JUDGE: | HIS HONOUR JUDGE MASON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 13 August 2013, (Ballarat) 21 October 2013 (Melbourne) | |
DATE OF SENTENCE: | 7 November 2013 | |
CASE MAY BE CITED AS: | DPP v. Spark | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1737 | |
REASONS FOR SENTENCE
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Catchwords: Plea - sentencing - cultivate a narcotic plant - possess precursor chemical - possess a drug of dependence
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APPEARANCES: | Counsel | Solicitors |
| For the Crown at hearing For the Crown at sentence | Mr D. O’Doherty (Ballarat) Ms S. Flynn (Melbourne) Mr A. Trotman | Office of Public Prosecutions |
| For the Accused | Mr C. Farrington | Patrick Dwyer |
HIS HONOUR:
1 Mr Spark, you have pleaded guilty to one charge of cultivate a narcotic plant, seven charges of possess precursor chemical and one charge of possess a drug of dependence.
2 Cultivate a narcotic plant, when the court is satisfied on the balance of probabilities that the offence was not committed for any purpose related to trafficking in that plant, carries a maximum penalty of one year's imprisonment and/or a fine of up to 20 penalty units.
3 Possess precursor chemical carries a maximum penalty of five years' imprisonment and/or a fine of up to 600 penalty units.
4 Possess a drug of dependence, when the court is satisfied on the balance of probabilities that the offence was not committed for any purpose related to trafficking in that drug of dependence, carries a maximum penalty of one year's imprisonment and/or a fine of up to 30 penalty units.
5 You are presently 51 years of age, having been born on 5 April 1962, and you were aged 47 when this offending occurred in January 2010.
6 You have a short criminal record about which I will go into in more detail later.
7 The circumstances of the offending are as follows.
8 At the time of your arrest you were living in a house that you owned in Spratlings Road, Ross Creek.
9 During 2009 the Victoria Police Clandestine Laboratory Squad conducted an investigation into trafficking generally of methylamphetamine. As a result of that investigation they obtained covert search warrants in relation to premises in Middle Creek Road, Middle Creek. At this time a Mr Ralph Royston Read had been living at the premises by himself for a period of 15 months.
10
Between 12 June 2009 and 29 July 2009 a series of covert search warrants were executed on the Middle Creek Road premises. Whilst executing the covert search warrants, investigators located a trailer, registered E53686, parked on that property. The trailer's registration had expired on
30 September 1997. Its previous registered owner was you.
11 On 21 January 2010 investigators executed further search warrants.
12 At approximately 5.45 am, one member of the Police Clandestine Laboratory Squad and three members from the Ballarat Regional Response Unit attended at the Middle Creek Road premises and executed a search warrant. Read was at his premises at the time.
13 At this time the Clandestine Laboratory Squad member identified the trailer suspected of containing chemicals and glassware used in a clandestine laboratory.
14 At approximately 6.03 am, four members of the Clandestine Laboratory Squad and two members from the Ballarat Regional Response Unit attended your premises in Spratlings Road and arrested you. A search warrant was then executed. During the search six cannabis plants and mixed cannabis were located.
15 At approximately 7.43 am, two of the Clandestine Laboratory Squad members and you arrived at the Middle Creek Road premises.
16 At approximately 8.13 am, another member cut two padlocks off the trailer. The property inside the trailer was then removed from the trailer, such process being videotaped by the attending officers.
17 Investigation officers located a large quantity of scientific glassware, five electric heating mantles, clamps, stands, connectors and stoppers, 200 millilitres of phenyl-2-propanone, acetic anhydride, a Lithgow bolt .22 calibre rifle, a Jelly brand air rifle, a dummy hand grenade, a Sturm Ruger semi-automatic, an air pistol, ammunition and handwritten and printed notes pertaining to drug manufacture.
18 At approximately 11 am, a forensic chemist attended at the Middle Creek Road premises and identified items as chemicals, scientific glassware and other apparatus used in the manufacture of drugs. When he examined these items at the Victoria Police Forensic Service Centre he found phenyl-2-propane, phenylactic acid, acetic anhydride, pseudoephedrine, mercuric sulphate, formamide, dymethylamine and lithium in quantities exceeding the prescribed quantity applicable to each as specified in Column 1 of Schedule 1 to the Drugs, Poisons and Controlled Substances Precursor Chemical Regulations 2007, with the exception of the pseudoephedrine.
19 At approximately 8.05 am, the two Clandestine Laboratory Squad members, who had accompanied you back to the premises, left the premises with you and took you back to the Ballarat Police Station where they commenced a record of interview with you. You exercised your right to make a "no comment" interview. The interview was then suspended and recommenced at 3.10 pm, when you deposed that you had some marijuana at your premises but you declined to say anything about the cannabis plants. The interview was concluded at 3.39 pm and you were released on summons and conveyed home.
20 At approximately 12.45 pm, a Police Constable took a statement from Read. In that statement Read deposed that you had been known to him for a number of years, that he had discussions about you placing the trailer on his property and that you had paid him $200 to leave it on his property. He indicated that the arrangements for the trailer to be on his property were made in his yard with you and another mate, called Ken Jones, was present. His evidence at the committal hearing was that Jones and you attended some weeks before the trailer had been placed there and that discussions were had as to where it was to be placed and the trailer had been on his property since June of 2009.
21 At 4.58 pm Read was shown a photo board and he identified one of the photos as being, as he described it, “Phil”.
22 On 27 January 2010, Elizabeth Morton-Bell received assorted items from exhibit bags VFSC 6070/090. Of these items 36 were examined initially. Of these items fingerprints were located on Items 33, 38 and 49. A computer comparison was then performed three times which failed to provide a match for the developed prints. On 10 February 2010, Morton-Bell conducted testing on a further 42 items in a further exhibit bag and located a further fingerprint on Item 107 which was developed. On 21 January 2010, a set of your fingerprints was received by Morton-Bell and she conducted a visual comparison in relation to the all four fingerprints that had been developed. Morton-Bell matched fingerprints on Items 33, 38 and 107 as belonging to you.
23 I am satisfied on the evidence that for the purposes of Charges 1 and 10 the offence in each case was not committed for any purpose relating to trafficking, that is on the one charge of cultivate a narcotic plant and on the one charge of possess a drug of dependence.
24 I now turn to your personal circumstances.
25 As I noted earlier, you are now aged 51 and you do have some criminal record, albeit for relatively minor offending some 30 years ago when you were aged 17 and 18. I note that the offending did not involve violence to any person or any issues with drugs.
26 You had an unfortunate early life with your parents separating when you were approximately two. You were not originally told the truth about the separation, up to 14 believing that your father was a travelling salesman. You were the youngest of seven children and your mother reared you on her own.
27 You were educated to Year 10, then commenced and maintained three of four years as an apprenticed cabinet maker. From then until 2003 you maintained full employment in a variety of occupations. In 2003 you suffered a crush injury to your heel. This has seriously impacted upon your ability to maintain employment. Since 2005 you have been in receipt of the Disability Pension.
28 You do have a history of illicit drug use, commencing with cannabis at age 18 which developed to a daily habit by age 30. According to what you told your psychologist, in your mid-20s you drifted to amphetamines, cocaine, heroin and LSD into your mid-30s.
29 From 2007 you have been in a relationship with your present partner. She has a 12-year-old son. In 2010, when she was eight months pregnant, the baby was stillborn. You now have a daughter aged 13 months and another child is expected in January 2014.
30 Personality testing from your psychologist, Mr Bernard Healey, provided evidence that you have suffered periods of depression, general and specific anxiety, vulnerability to substance abuse and a measure of introversion and withdrawal.
31 Ordinarily, for this type of offending an offender should expect a sentence of immediate imprisonment and for a substantial period. The charges relating to the possession of precursor chemicals suggest an association with a clandestine amphetamines laboratory and any such association must be sternly dealt with. The tragedy to lives and property brought about by the peddling of such substances is regularly witnessed by these courts.
32 The basic purposes for which a court may impose a sentence are punishment, deterrence (both specific to you and general in the sense of providing you as an example to deter other people), rehabilitation, denunciation and protection of the community. In sentencing I must have regard to a range of matters such as the seriousness of the offences, your culpability for them, your personal circumstances and those of any victim or indeed potential victims. I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that as far as possible offenders are rehabilitated and reintegrated into society.
33 In mitigation I have taken into account the matters urged upon me by your counsel, including
- your mature age and your lack of any relevant prior offending,
- that you have not re-offended in the years since the current offending,
- your commitment to your employment when you could until your physical disability,
- your plea of guilty,
- the delay between your arrest and the resolution of these matters,
- the support you have from your current partner and from your extended family of aunts and uncle,
- your written expression of remorse,
- your community service through the Meals on Wheels program,
- your emotional circumstances following your injury in 2003, which I accept had made you more vulnerable to your participation in these offences, and
- your prospects of rehabilitation which I accept are good.
34 After careful consideration, I have decided that the competing considerations in the particular circumstances of this case are best answered by the imposition of a community correction order which will contain conditions that you undertake unpaid community work and treatment for your current, and indeed vulnerability to, substance disorder. You have been assessed by the appropriate personnel at the Office of Corrections as suitable for a community correction order.
35 On Charges 1, 2, 3, 4, 6, 7, 8, 9 and 10, you are convicted and ordered to serve a community correction order for a period of two years.
36 The community correction order commences today and ends on 6 November 2015. The Corrections Centre you will attend is the Ballarat Community Correctional Service at 206 Mair Street, Ballarat, and you must attend there within two clear working days after the commencement of the order, that is by 4 pm on Monday 11 November 2013.
37 All the mandatory terms of the community correction order apply and the additional conditions I impose are that:
- you be under the supervision of a Community Corrections Officer,
- you perform 100 hours of unpaid community work,
- you undergo assessment and treatment including testing for drug abuse or dependency as directed by the Regional Manager, and
- you undergo any mental health assessment and treatment, and that may include psychological, neuropsychological and psychiatric, in a hospital or residential facility as directed by the Regional Manager.
38 I believe from the pre-sentence report that you have had the mandatory terms of the community correction order explained to you. However, it is appropriate that I briefly summarise them here. The mandatory terms are that:
- you must not commit another offence for which you could be imprisoned during the time that the order is in force,
- you must report to and receive visits from a Community Corrections Officer,
- you must report to the Community Corrections Centre, that is the Ballarat centre, within two clear working days of the order starting, and as I have already indicated, that is next Monday 11 November.
- you must notify a Community Corrections Officer of any change of address or employment within two clear working days after the change.
- you must not leave Victoria without first getting permission to do so from a Community Corrections Officer, and
- you must obey all lawful instructions from and directions of Community Corrections Officers. Such directions may be given orally or in writing.
39 Do you understand and agree to those condition, Mr Spark?
40 OFFENDER: Yes, sir.
41 HIS HONOUR: If you are ill or if there are exceptional circumstances the order may be suspended for a period of time, and if your circumstances materially alter you may apply for a variation or cancellation of the order. In each case you must notify the Community Corrections Centre, that is the centre at Ballarat, and I recommend that you obtain legal advice if any of those things happen.
42 However, I must warn you that if you breach any condition of this order you will be brought back to court, and again that will be before me. One of the options open to me is to cancel the community correction order and re-sentence you on the original charges, and I may also deal with you for the breach by sending you to prison for up to three months.
43 Mr Spark, do you understand the consequences of breaching your community correction order?
44 OFFENDER: Yes, sir.
45 At the plea hearing an order was sought for the disposal of items involved in the commission of the offences and that was consented to and there is no objection to that order being made. I have made that order today.
46 In a moment my associate will pass to your counsel a copy of the community correction order which I will ask you to read and sign. Would you just pass that to Mr Farrington please.
47 (Community correction order signed and acknowledged.)
48 Are there any other matters from either counsel?
49 MR TROTMAN: No, Your Honour.
50 MR FARRINGTON: No.
51 HIS HONOUR: Just as an aside, Mr Spark, this was a dangerous flirtation with some very serious potential offences and consequences. You want to take this circumstance at this point in your life as a warning to keep away from any of that sort of activity, and notwithstanding what the motivations might have been, most likely financial, it is a very poor choice to make to relieve yourself of that sort of circumstance.
52 All right, if there is nothing else, I will be back at 11 o'clock.
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