Director of Public Prosecutions v Spencer
[2015] VCC 224
•13 February 2015
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-13-01450
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| GAVIN SPENCER |
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JUDGE: | CHIEF JUDGE ROZENES | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 12 December 2014 & 13 February 2015 | |
DATE OF SENTENCE: | 13 February 2015 | |
CASE MAY BE CITED AS: | DPP v SPENCER | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 224 | |
REASONS FOR SENTENCE
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Catchwords: CRIMINAL LAW – Trafficking in a drug of dependence in a commercial quantity – Trafficking in a drug of dependence – Possessing substance, material, documents or equipment for trafficking in a drug a dependence – Possession, carriage or use of a firearm whilst prohibited – Possessing a Schedule 9 poison – Extensive prior criminal history – Cooperation with authorities
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr P Stefanovic | Office of Public Prosecutions |
| For the Accused | Mr D Dann | Balmer & Associates |
HIS HONOUR:
Gavin SPENCER, you have pleaded guilty to one charge of trafficking in a drug of dependence in a commercial quantity, charge one. One charge of trafficking in a drug of dependence, charge two. One charge of possessing substance, material, documents or equipment for trafficking in a drug a dependence, charge three. Three charges of possession, carriage or use of a firearm whilst prohibited, charges four, five and six. You have also pleaded guilty to two uplifted summary charges of possessing a Schedule 9 poison, charges 14 and 15.
You have admitted to an extensive criminal history commencing with driving charges in 2008, but more significantly, with possession and trafficking in drugs which resulted in a prison sentence of six months in 2008. You also have convictions for dishonesty and public order offences.
The facts were opened by Mr Stefanovic on behalf of the prosecution and are contained in the Summary of Prosecution Opening, Exhibit A.
In brief summary, when police effected a search warrant on your premises in Beaconsfield on 16 November 2012, they discovered a clandestine laboratory used for the manufacture of methylamphetamine. Charge one deals with a commercial quantity of pseudoephedrine located at the premises. Pseudoephedrine is a precursor chemical used in the manufacture of methylamphetamine. Charge two deals with a quantity of methylamphetamine actually produced located at the premises which, although falling slightly above the commercial quantity, is nevertheless charged as trafficking simpliciter. Charge three and summary charges 14 and 15 deal with the possession of various precursor chemicals and other substances, and equipment used in the manufacture of methylamphetamine. Charges four, five and six deal with the possession of three firearms whilst you were a prohibited person. You were arrested at the scene and made a no comment record of interview. Full details of the chemicals discovered and the manufacturing processes deployed are contained in the Summary of Prosecution Opening. I shall not repeat them.
By way of background, you are 33 years of age, having been born in the UK. You came to Australia when you were two years old. You lived in Queensland until the age of six and then came to Melbourne. You completed Year 9 and undertook an apprenticeship as a fitter and turner. After a workplace accident which was quite serious, you became a sales representative and then worked with your father who operated a plastering company for a period of two years. It was in the context of unemployment that you resorted to drugs. You commenced with cannabis at the age of 20 and graduated to methylamphetamine. You were in a relationship for some seven to eight years and there are three children from that relationship, a four and a half year old and a set of twins aged two. You separated from your partner in February 2013.
In September 2013, you were shot at close range following a demand for money. Apparently, you were suspected of being an informer. You made a statement to police after discharge from hospital, made a photo board identification and were then put into the witness protection scheme by the police. You have not offended since. The trial of the shooters is to take place in May 2015 and it is quite clear that any detention in custody will have to be, at least in the beginning, in secure circumstances as the persons involved in the shooting have friends in the prison system.
Mr Cummins diagnosed you as having an adjustment disorder brought about by the accident at work and the period of detachment from your parents. No attempt was made to link your condition with the offending although Mr Dann correctly submitted that your condition would be aggravated in the prison environment having regard to the circumstances under which you would have to be managed.
On your behalf, Mr Dann submitted the following matters by way of mitigation:
(1) That you plead guilty as soon as practicable when the appropriate charges were prepared. He said that the contested committal was only to do with establishing the quantities involved. He said the matter was always going to resolve into a plea.
(2) You have cooperated with law enforcement agencies. You have given evidence at the committal of those who shot you and will again give evidence at the trial in May 2015. He said you have provided ongoing assistance in the matter.
(3) That you will have difficulty in custody. He said the background to the shooting was that you were suspected wrongly of being an informer and you will be targeted in the prison system for that reason. He said accordingly your time in custody will be difficult and burdensome.
(4) That you have good family support again and that you have some prospects of rehabilitation notwithstanding the fact that Mr Cummins in his report said that, given your recent difficulties in separating yourself from a criminal lifestyle, your prognosis is now guarded. He did have a comment that you have remained drug free since January 2013 and he did not assess you as having an anti-social personality disorder or an anti-social personality style which means that your prospects of long-term rehabilitation should increase significantly. In this context Mr Dann pointed out that you have previously satisfactorily completed a community-based order for drug trafficking in 2004 and a suspended sentence for driving matters in 2006, although there was a breach of an intervention order and an assault of police in the presence of your wife with respect to that matter.
(5) Finally, Mr Dann said that you were wanting once again to play a meaningful role in your family.
The basic purposes for which a court may impose a sentence are punishment, deterrence (both specific and general), rehabilitation, denunciation, and protection of the community. In sentencing, I must have regard to a range of matters such as the seriousness of the offence, your culpability for it, your personal circumstances and those of the victim, if any. 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.
Trafficking drugs is a serious offence evidenced by the substantial penalties imposed by the legislature. It is quite clear that drugs affect the health and lives of many and are often found as the cause of other serious offending. Trafficking in methylamphetamine is particularly pernicious and its use is prevalent. Its impact on the community is perceived as very significant because of its addictive qualities and the fact that it is productive of extreme violence and dangerous behaviour.
Your operation was extensive and capable of producing substantial quantities of methylamphetamine. Whilst you were a daily user, there was no suggestion that you were producing the drug for the purpose of feeding your own habit and perhaps trafficking small quantities to friends. Quite the contrary. You not only had in your possession a commercial quantity of the precursor substance, pseudoephedrine, but had manufactured a commercial quantity of methylamphetamine and were capable of producing more. The fact that you are only charged with trafficking simpliciter with respect to the methylamphetamine is highly fortuitous for you. Whilst I must only sentence you consistently with the charge, I cannot fail to take into account the surrounding circumstances, the fact that there was methylamphetamine in various forms, purity and apparently at different stages of production (although the expert evidence was not conclusive on this last issue) and in particular the presence of the commercial quantity of pseudoephedrine, all of which points to a context in which to view the totality of the offending. On the basis of quantities alone it was said that the offending in this case with respect to charge one, is at the lower end of the commercial range and with respect to charge two, at the upper end of the simpliciter range. There is no evidence of the manner in which it was intended that the drugs find their way into the community and what role you had to play in that regard. What is clear that you were a critical component in the operation – what is commonly called the cook – and therefore directly involved in the manufacturing process. I am unable to discern the benefit you were to gain. It is sufficient that I find that the operation was commercial in nature and that you stood to gain from it. Your level of culpability is high.
The presence of weapons is always dangerous, but in the drug scene much more so. Although I have not been persuaded that the possession of the two handguns in particular had anything to do with your drug trafficking operation, it is nevertheless the case that the possession of two revolvers with live ammunition is serious offending.
I take into account your plea of guilty and am satisfied that it was offered at an early point in time when appropriate charges were proffered. The contested committal hearing was confined to the question of quantities. The matter was always going to resolve into a plea. You are accordingly entitled to a proper discount as your plea not only has saved time and money but evidences an acceptance of responsibility and a desire to advance the course of justice as does your cooperation with authorities with respect to the shooting incident that I have already described. I take into account that any sentence you serve will be attended, at least in the immediate future, by heavily secure conditions and accordingly your time in custody has been and will be the more difficult and burdensome. The sentence was adjourned until a further plea could be made today to possibly take into account proceedings under the Confiscation Act 1997 with respect to your house. I have not been informed that those proceedings are unlikely to be concluded in the foreseeable future and accordingly I do not take that into account. Today I was also informed by Mr Dann that one of your twin boys has severe neurological deficiencies which require intensive care (see exhibit 3). I propose to take into account the fact that your concern for him will add a further burden to your time in custody.
I am satisfied that charges one, two and three are all charges of the same or similar character or form part of a single operation and accordingly I propose to impose an aggregate sentence on those charges.
Would you please stand Mr Spencer. You are convicted on each charge and on charges one, two and three are sentenced to be imprisoned for an aggregate period of three years; on each of charges four, five and six to 2 months’ imprisonment. I make no order as to cumulation. The Total Effective Sentence is 3 years’ imprisonment. On the uplifted summary offences, charges 14 and 15, to pay on each charge a fine of $100.
I direct that you serve 18 months before you are eligible for parole.
l declare that 63 days of pre-sentence detention be reckoned as having been served under the sentence and I direct that a declaration to that effect be recorded in the records of the court.
I make a firearms forfeiture and disposal orders in the terms of the drafts, noting that they are not opposed.
I make an order pursuant to s.464ZF of the Crimes Act 1958. I do so because of the seriousness of the circumstances of the offending, and because the application is by consent. I am obliged to tell you though that notwithstanding that you have consented to the procedure, I am obliged to inform you that if you resist the taking of the sample, reasonable force may be used.
Section 6AAA of the Sentencing Act 1991 requires me to state the head sentence and non-parole period that I would have imposed had you pleaded not guilty and ben convicted. Had you been convicted after a trial I would have sentenced you to five years and six months’ imprisonment with a non-parole period of three years.
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