Director of Public Prosecutions v Thompson

[2022] VCC 311

IN THE COUNTY COURT OF VICTORIA

AT BALLARAT

CRIMINAL DIVISION

Revised

Not Restricted

Suitable for Publication

CR-19-01741 & CR-21-00319

DIRECTOR OF PUBLIC PROSECUTIONS

v

MARK THOMPSON

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JUDGE:	HIS HONOUR JUDGE WRAIGHT
WHERE HELD:	Ballarat
DATE OF HEARING:	16 March 2022
DATE OF SENTENCE:	18 March 2022
CASE MAY BE CITED AS:	DPP v Thompson
MEDIUM NEUTRAL CITATION:	[2022] VCC 311

REASONS FOR SENTENCE

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Subject:   CRIMINAL LAW - Sentencing.

Catchwords:             Plea of guilty – Trafficking in a drug of dependence – Prohibited person in possession of firearm – Relevant prior criminal history – Delay – Time served – No non-parole period fixed - COVID-19 pandemic.  

Legislation Cited:    Drugs Poisons and Controlled Substances Act 1981 s 71AC; Firearms Act 1996 ss 3(1), 5(1); Sentencing Act 1991 ss 6AAA, 11, 18.

Cases Cited:DPP (Cth) v Maxwell [2013] VSCA 50; The Queen v Pidoto & O’Dea (2006) 14 VR 269; DPP v Weybury [2018] VSCA 120; Worboyes v The Queen [2021] VSCA 169.

Sentence:                 Imprisonment for a period of 3 years and 5 months.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr T Wallwork	Office of Public Prosecutions
For the Accused	Mr J Portelli	Balmer & Associates

HIS HONOUR:

Introduction

1Mark Thompson, you have pleaded guilty to one charge of trafficking in a drug of dependence, namely 4-hydroxybutanoic acid (also known as GHB), contrary to s 71AC of the Drugs Poisons and Controlled Substances Act 1981, which carries a maximum penalty of 15 years imprisonment (Charge 1), and one charge of being a prohibited person in possession of a firearm, contrary to s 5(1) of the Firearms Act 1996, which carries a maximum penalty of 10 years imprisonment (Charge 2).

2You have also admitted to your prior Criminal Record.

Circumstances of the offending

3An document titled Amended Summary Prosecution Opening was tendered on the plea and may be summarised as follows:

4On Wednesday, 10 October 2018, police executed a search warrant at a rural property located at 400 Vaughan Springs Road, Drummond North.  As police drove up the driveway of the property, they observed a person by the name of Robert Pratt at the back door of the residential house putting his shoes on.  He was apprehended and arrested by police.  Upon entry into the house, police observed you at the kitchen sink pouring liquid down the sink and causing it to steam significantly.  A large quantity of chemicals, bottles and glassware were observed around the kitchen.  You were directed to leave the kitchen sink area and were arrested. 

5The house was evacuated as a suspected clandestine drug laboratory was found. The property was searched by police with the assistance of forensic scientists and the specialist clandestine laboratory unit.  The search resulted in the location of the following drugs of dependence:

(a)   2.297 kilograms of mixed substance containing 4-hydroxybutanoic acid (also known as GHB); and

(b)   7.39 kilograms of mixed substance containing gamma butyrolactone (also known as GBL). The prosecution case is that this chemical is a precursor substance used in the manufacture of GHB.

6The police also located in the house a quantity of scientific glassware, equipment, handwritten notes containing drug making information, solvents and chemicals, including the prescribed precursor chemical 4-amino-butanoic acid (also known as GABA).

7Other items located in the house indicated that you were engaged in a drug trafficking undertaking or business at the house, including the following:

(a)   security CCTV cameras on the approaches to the house which transmitted a live feed of images to a monitor in the house; and

(b)   four mobile phones.

8Further in the course of conducting the search of the dining room of the premises, police located in the bottom middle drawer of a television unit a Holloway & Naughton 12 Gauge shotgun. The firearm had been broken down and was contained within a wooden storage box. You did not hold a firearms licence and the firearm was not registered in your name. At the time of your arrest, you were a ‘prohibited person' within the meaning of s 3(1) of the Firearms Act 1996, because not more than five years had expired since you finished serving a term of imprisonment of less than five years for an indictable offence.

9In a record of interview you provided your address as 400 Vaughan Springs Road Drummond North and stated that you had been living at that address for approximately eight weeks.

10The prosecution opening exhibited on the plea provides further detail in relation to the search and where specific chemicals and other items were located within the house. The opening also summarises the evidence of the scientific expert in relation to the various substances found and how the total amount of GHB was determined. I will not reproduce those details in these reasons.

Nature and gravity of the offending

11Trafficking in a drug of dependence is, by its nature, a serious offence, recognised by Parliament in the maximum penalty of 15 years imprisonment. In this instance the prosecution case is put on the basis of trafficking by way of manufacture. The house you were living in was self evidently a makeshift drug laboratory containing a large number of items connected with the manufacture of GHB including precursor chemicals, equipment and notes with information on manufacture of the drug.

12Mr Portelli who appeared on your behalf, submitted that trafficking in GHB is able to be distinguished as the profits are generally considered to be less when compared with other drugs of dependence. As has been recognised in cases such as DPP (Cth) v Maxwell,[1] the greater the anticipated reward, the more powerful the general deterrent message must be.

[1][2013] VSCA 50 at [34]-[35].

13While Maxwell remains good authority, it must not be forgotten that trafficking offences in Victoria are classified by quantity and not on a harm-based classification. As noted in The Queen v Pidoto & O’Dea,[2]  without a harm-based classification of drugs, it is difficult for a court to evaluate the relative harmfulness without some form of specialist expertise.

[2] (2006) 14 VR 269.

14The commercial quantity of GHB is 2 kilograms however the matter settled on the charge of trafficking simpliciter. 2.297 kilograms is just over the commercial quantity and I was told at the plea that the matter settled on the basis that the prosecution accepted that you did not have the intention to traffick in a commercial quantity. While the charge to which you have pleaded guilty to is trafficking simpliciter, in all the circumstances including the nature and extent of the equipment and chemicals found, in my view still represents a serious example of that offence.

15Charge 2 is also a serious offence. It is not uncommon to find firearms associated with drug businesses of the level you were involved in. At the time of your arrest, you were a ‘prohibited person' within the meaning of the Firearms Act. Relevantly, the last sentence you received in 2016 was in relation to charges of trafficking in drug of dependence and being a prohibited person in possession of a firearm.

16It was submitted by Mr Portelli that in this instance the firearms offence lacks features of aggravation as the firearm was broken down and contained in a wooden storage box, which was in a TV unit drawer. Thus it may be compared with a weapon that is loaded and easily accessible. In this case the weapon was not loaded and was not readily accessible. In those circumstances it was submitted that the offence falls towards the ‘lower or middle end’ of seriousness. Each case must turn on its own facts and while using terms such as ‘mid-range’ or ‘lower range’ is intended to assist the court, they have limitations.  As the Court of Appeal noted in DPP v Weybury[3], classifications in terms such as 'mid-range', carry a risk that they will attract reference to current sentencing practices for offences previously categorised in a particular range, thus bringing the risk of limiting the instinctive synthesis. 

[3] [2018] VSCA 120 at [54] (Priest JA).

17While I accept that the offence in this instance lacks features of aggravation it is nonetheless, in my view, a relatively serious example of the offence as you were a prohibited person with access to a weapon in the context of a drug manufacturing business.

Personal circumstances

18You are 48 years of age. You are one of four children. You have two sisters and a brother. Your two sisters are both tertiary educated. One completed a law degree and the other a psychology degree and they are working in those respective fields. Further, all three of your siblings are settled with their own families.

19Your mother died in 1999 as a result of cancer. Your father has remarried and lives in Sydney where your other siblings also now reside. You have regular contact with your family via phone and email. You have a daughter who is now 20 years of age and completing a Bachelor of Arts degree. You have also remained in contact with her during your time in custody.

20You left school after year 11 and completed an apprenticeship as a carpenter. You have worked since within the building industry predominantly in carpentry and in concreting. You have a desire to commence work as soon as you are released and have been told there is work for you on a major public infrastructure project which is where you have experience.

21In terms of your physical health, you suffer from a decreased lung capacity which manifests in asthma like symptoms for which you use an inhaler. It was submitted that this caused you some psychological stress in the early stages of the pandemic when little was known about the effect of the virus and the available treatments.

22In 2015 you were involve in a serious car accident, sustaining head and other physical injuries. You have continued to take anti inflammatory medication and you have ongoing psychological symptoms stemming from the accident which has been diagnosed as chronic depression. These ongoing symptoms have meant that you have been classified as a medical classified prisoner within the prison system.

23Since being on remand you have not been involved in any adverse incident and have consistently worked in custody as a billet. You have also been a mentor for new prisoners.

24You have an extensive criminal history with prior matters in five states. Your more recent history is relevant. In 2014 you have a conviction for possession of a category A longarm together with ammunition charges. In 2016, as mentioned above, you served a term of imprisonment for being a prohibited person in possession of a firearm and for trafficking in a drug of dependence. I was told that this offending was in very similar terms to what you have pleaded guilty to today; you were located in a stolen car with clandestine laboratory equipment, drugs, stolen property and firearms.

Sentencing considerations

25Mr Portelli outlined a number of matters in mitigation.  First and foremost, is your plea of guilty.  A contested committal hearing took place in August 2019 and the matter was to proceed in this court as a trial.  On the first day of trial further discussions took place and the matter resolved.

26Whilst it is not an early plea, your plea has significant utilitarian value, sparing the time and expense of a jury trial and saving witnesses from having to give evidence. I was told that the basis of resolution was only considered to be acceptable on the day of trial and had not been considered to be appropriate by the prosecution at the committal stage. The sticking point has always been whether the prosecution was able to prove the commercial quantity charge in circumstances where the weight alleged was just of the commercial quantity threshold. Your plea carries additional weight which must be reflected in a further amelioration in sentence, as the plea has been entered in circumstances where the pandemic has created a substantial backlog of cases in the criminal justice system.[4]

[4]Worboyes v The Queen [2021] VSCA 169 at [39].

27You have been on remand for 1255 days which equates to approximately 3 years and 5 months. I was told that your trial was not reached on a number of occasions on circuit as a result of the pandemic. Whatever the reason, in my view the delay is inordinate and is not attributable to you. Further, a significant part of your time on remand has been served while the COVID 19 restrictions have been in place within the prison system making your time on remand more burdensome. Nonetheless you have served your time constructively working in the prison and assisting new prisoners. These matters in combination in my view should be given weight in the sentencing calculus in your favour.

28Undoubtedly general deterrence is one of the primary sentencing considerations. The manufacture of drugs which causes harm in the community must be deterred. In your case, you have a recent prior for very similar offending and as such, specific deterrence must also carry weight. As to your prospects of rehabilitation, while you are clearly a resourceful man and have demonstrated that you can be a contributing member of the community, the fact that you have offended in a similar manner in my view casts some doubt in relation to your prospects of rehabilitation. Nonetheless you are a mature man, you have a supportive family and you have the capacity to work. In those circumstances your prosects are entirely subject to the choices you make.

29Mr Portelli submitted that the time you have served is sufficient. As noted you have served over 3 years and 5 months. Mr Wallwork who appeared on behalf of the Director of Public Prosecution submitted that the offending calls for a term of imprisonment but otherwise remained neutral as to the submission of time served.

Sentence

30Mr Thompson would you please stand.

31Mark Thompson, on Charge 1, trafficking in a drug of dependence, you are convicted and sentenced to 3 years imprisonment. On Charge 2, prohibited person in possession of a firearm, you are convicted and sentenced to 2 years and 6 months imprisonment.

32I direct that 5 months of the sentence on Charge 2 be served cumulatively on the sentence imposed on Charge 1 making for a total effective sentence of 3 years and 5 months.

33Section 11 of the Sentencing Act 1991 states that if the court sentences a person to a term of imprisonment of 2 years or more ‘the court must, as part of the sentence, fix a period during which the offender is not eligible to be released on parole unless it considers that the nature of the offence or the past history of the offender make the fixing of such a period inappropriate’.

34In this instance I decline to fix a non-parole period. Given the long delay in this matter coming to trial together with the fact that you have already served the total effective sentence I have imposed, in my view makes the fixing of a non-parole period in those circumstances, inappropriate.

35Pursuant to s 18 of the Sentencing Act 1991, I declare that 1255 days be reckoned as the period of imprisonment already served under the sentence I have imposed.  That does not include today.

36Pursuant to s 6AAA of the Sentencing Act 1991, if not for your plea of guilty, I would have sentenced you to 4 years and 6 months imprisonment with a non-parole period of  3 years and 6 months.

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