Director of Public Prosecutions v Tolmer, Alexander
[2012] VCC 2137
•21 December 2012
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-11-02373
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ALEXANDER TOLMER |
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JUDGE: | HIS HONOUR JUDGE GUCCIARDO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 28 February 2012 | |
DATE OF SENTENCE: | 21 December 2012 | |
CASE MAY BE CITED AS: | DPP v Tolmer, Alexander | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 2137 | |
REASONS FOR SENTENCE
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Catchwords: Attempt to traffic drug of dependence-clandestine lab-
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms J. Harris | |
| For the Accused | Ms M. Walker |
HIS HONOUR:
1 Alexander John Tolmer you have pleaded guilty to attempting to traffic a drug of dependence and to possessing a precursor chemical.
2 Your activities were discovered when police investigated a co-offender Du Ki Trung as a primary target. You were friends and had known each other for some years. In 2010 Trung told you he was about to rent a house at Braybrook and you suggested that it be used to make speed. You told Trung you had some equipment and you would bring it to the house. Over the following weeks after the lease was finalised, you and Trung set up a clandestine lab in the house.
3 In January 2011 police raided the address and located equipment, material and paraphernalia set up as a laboratory. I will append the summary which was tendered to this sentence and it gives all the details of what was found there. While police were present you arrived and though you drove away when you realised that police were present, you were arrested soon thereafter.
4 The large number of exhibits found at the house related to the manufacture of methylamphetamines. A large number of precursor chemicals were found. It was estimated you would have been able to produce up to 400 grams of methylamphetamine. Your DNA and fingerprints were found on items located at the house. Notes handwritten by you about the processes involved, were found.
5 When you were arrested and thereafter you were unfit to be interviewed because you were drug-effected. When you were later interviewed you stated that you had gone to the house to buy speed and use it there. You admitted assisting Trung with information and discussions concerning the manufacture of drugs. You denied attempting to manufacture drugs but accepted you had received drugs in exchange for information.
6 When police searched your home they found precursor chemicals and a quantity of cutting agents in the bedroom cupboard. You said you acted out of peer pressure from Trung.
7 The manufacture of drugs and its trafficking is particularly insidious criminal behaviour which damages the fabric of society. It often destroys lives. It profoundly affects families and the community and the community looks to the court to denounce this behaviour and punish it accordingly. Even an attempt to traffic is a serious offence carrying a maximum of 15 years; here, by way of an attempt at manufacture, thwarted by investigators. The court must consider general deterrence as an important factor in the sentence and I do so.
8 You are 32 years old and have prior convictions going back to the year 2000. Your first appearance was in regard to a hydroponic set-up for cannabis. You were given the choice to avoid conviction and attend drug counselling on that occasion. However in 2004 you were back before the court for trafficking in a drug of dependence and cultivating a narcotic plant. Once again, probably endeavouring to encourage reformation, the court imposed a suspended sentence. I have read His Honour Judge Gullaci's sentence on that occasion. It was said that it was unlikely that you would be able to go back to the conduct that you had engaged in, that is trafficking in drugs and cultivating narcotic plants.
9 At that time , because of your cooperation with police, you had been threatened by others and His Honour considered you a go-between, an assistant engaged in extracting pseudoephedrine. The court sought to encourage your rehabilitation. I repeat that this matter is raised not to punish you again, but to assess the weight to be given to specific deterrence, protection of the community and to assess your prospects of rehabilitation. There is no doubt that your prior history is an important factor in this case. In the next eight years or so your appearances are for dishonesty and mainly for road and driving offences.
10 The recurrence of serious offending involving drugs is an indicator to the court that the court should view your prospects cautiously. I sentenced your co-accused Trung on 16 July this year. In that case the Crown accepted that he was the principal in the trafficking by way of manufacturing of a trafficable quantity from the house. The prosecution also propounded a role for Trung as a facilitator to your plans. It was put that although not highly sophisticated, nevertheless this course of conduct was not amateurish.
11 Trung made a statement in assistance of their investigation and received a discount for his cooperation and his undertaking made before me on oath. This cooperation was valuable and he received a substantial reduction in his sentence. In its absence I would have sentenced him to an immediate gaol term.
12 In terms of parity considerations, Trung not only gave valuable undertakings but had developed good prospects of rehabilitation. I indicated that but for his plea my sentence would have been of 24 months with a non-parole period of 12 months on the basis that he was in effect an assistant to you on the Crown case and not vice versa.
13 However, just like in Trung's case, it must be acknowledged that there was no evidence of a sale or profit from this criminal enterprise and there was no large network of contacts involved. I do bear in mind the principles of parity when imposing your sentence, but it must be understood that Trung's cooperation, beyond the value of the discount assigned to his inevitable plea, was a very significant matter.
14 It is also noteworthy that in both your cases, although you intended to manufacture, you had not produced the finished product, having gone well beyond mere preparation which is the essence of an attempt. I accept that because the evidence of Trung was valuable in the case against you in a largely circumstantial case, and that evidence did not crystallise until the middle of 2012. But in any event I accept yours was a relatively early plea and I will assign it a discount.
15 Leading up to these offences, I was told a long term relationship had finished towards the end of 2010 and you had recommenced drug use. You were significantly so affected when you were arrested. From January to June 2012 you were bailed and I was shown a report in relation to your involvement with the Court Integrated Services Program in that period. You were then a heroin user and had been prescribed Suboxone to deal with that use. But you had an extensive drug history and it was said that you would benefit from counselling and therapy during that period. However you were then exited from that program and the authorities were not able to contact you. You appeared as chaotic and often in crisis. This has meant limited progress in terms of treatment over that period.
16 In January of this year you were also the victim of an assault. You were at your mother's address using drugs when a number of people entered and produced a loaded shotgun and used it to threaten you. You blacked out and an ambulance was called on that occasion. The committal in that matter is to proceed in March of next year. You were prescribed Valium as a result of that incident to deal with your anxiety.
17 In March you were again in custody and you were so until July of this year. Since that time until I remanded you, you remained drug free and apparently offence free. I take that period of some 23 days in account under the totality principle. Though it is unrelated I think it is appropriate to do so. There is a period of pre-sentence detention which I will also have noted in the records of the court which will be taken into account.
18 I have read and taken into account the detailed history in relation to substance abuse, contained in Exhibit 3, the assessment report dated February 2011 from Eastern Drug and Alcohol Services, Dr Candelios, Senior Clinician. This history shows you have blighted your life with drugs from age 14, together with past efforts at rehabilitation and relapses. I also read and considered the report from the emergency department of Box Hill Hospital in relation to an apparent suicide attempt in February 2012.
19 I also received a report from Dr Cidoni, consultant psychiatrist who assessed you whilst in custody. You told him of your relationship and he too reiterated your long history of substance abuse. You described anxiety and history of depression. Antidepressant treatment was recommended and I am confident the Correctional authorities will facilitate such treatment if possible.
20 I take into account your depressive and anxious state. This state will make your reclusion somewhat more difficult. I am doubtful that Mr Cidoni's opinion that you display, "Significant degree of motivation for change" has been demonstrated in a meaningful way. I have read your brief note to the court and I accept you may have insight into the damage done by drugs to your life in the past and you profess a willingness and ability to change. I am also aware that imprisonment can be a blunt instrument which over a long period may be counterproductive and hamper prospects of rehabilitation.
21 I take into account that you have a somewhat difficult background. Your parents separated when you were young and you quickly descended into what is by now, long years of drug abuse. Your mother with whom you have resided in the past is beset by her own alcohol issues, but has provided some measure of support. You have little by way of either education or work achievements.
22 It was conceded that imprisonment was the only appropriate disposition in this case and in my view the sentence must reflect specific deterrence and general deterrence as primary elements which bear upon it. Your prospects of rehabilitation must be guarded because of your long history of substance abuse, but this period of reclusion will perhaps be the catalyst for some future change.
23 Please stand Mr Tolmer. On the attempt to traffic charge, you are convicted and sentenced to 30 months imprisonment. On possession of precursor chemicals you are convicted and sentenced to six months imprisonment. That period will be concurrent. I order a non-parole period of 14 months.
24 I declare 31 days by way of pre-sentence detention to be noted in the record of the court. I have signed disposal orders in this matter in relation to the items attached to the schedule to that order. But for your plea I would have sentenced you to three and a half years with a two year non-parole period.
25 Are there any other orders?
26 MS HARRIS: No Your Honour.
27 MS WALKER: No Your Honour.
28 HIS HONOUR: Yes thank you. Before you take Mr Tolmer, if he can have an opportunity to speak to the people who are in court please. Thank you.
29 MS WALKER: Thank you Your Honour.
30 HIS HONOUR: I will stand down.
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TRANSCRIPT OF PROCEEDINGS
CR-11-02373
COUNTY COURT
CRIMINAL JURISDICTION
MELBOURNE
THURSDAY 28 FEBRUARY 2013
BEFORE HIS HONOUR JUDGE GUCCIARDO
DIRECTOR OF PUBLIC PROSECUTIONS v. ALEXANDER TOLMER
M E N T I O N
MS J. HARRIS appeared on behalf of the Director of Public Prosecutions.
MS M. WALKER appeared on behalf of the Accused.
HIS HONOUR: Now just in relation to this matter, I understand that there was an issue as to the pre-sentence detention that was declared, is that right, Ms Harris?
MS HARRIS: That's correct, Your Honour. When it was declared on the day of the sentencing date we actually hadn't taken into account the further seven days since the plea hearing date. There was also a further day that hadn't been accounted for when Mr Tolmer was given bail on 27 January 2011. So his pre-sentence detention from when he was arrested on 19 January 2011 to 27 January 2011 is nine days. He was then arrested on 21 November 2012 for failing to appear on bail for his plea hearing and he was in custody through till his sentencing date of 21 December 2012, that making a further 30 days. So in all 39 days pre-sentence detention, as opposed to the 31 that was taken into account on the sentencing date.
HIS HONOUR: Yes. Do you agree with that reckoning, Ms Walker?
MS WALKER: I do agree with that, Your Honour.
HIS HONOUR: I don't quite understand how all that came about, I'm usually careful about calculating the days since plea to sentence but obviously I must have overlooked it myself.
MS WALKER: Just one of those things. Your Honour, I would ask, just while I've got you here, and certainly Mr Tolmer's here as well; you will recall that there was a mention of 23 days also which was time that he was held in relation to other matters which were ultimately withdrawn by the police prosecution, and when you sentenced Mr Tolmer you did - and these are just my brief notes - you did say I've taken into account the 23 days - - -
HIS HONOUR: I did that, from memory, under the principle of totality and I did turn my mind to the fact that he'd spent that time in custody.
MS WALKER: Yes.
HIS HONOUR: Yes, sorry, I interrupted you, but just to confirm that that's what I did. Yes.
MS WALKER: So it wasn't a declaration or it's not something that can be a declaration, and just to clarify it for the purposes of Mr Tolmer - - -
HIS HONOUR: Absolutely. It's not a mathematical calculation where a judge in a sentence can say I have necessarily reduced what the sentence would have been by 23 days, but I think Mr Tolmer should understand that it is probably, in this case, likely that when I say I have taken it into account in terms of the totality, that it is likely that I have reduced the amount by that time.
MS WALKER: Yes, that's as I understood it too. Thank you for that clarification.
HIS HONOUR: I think it's important that we get first of all the pre-sentence detention right and that Mr Tolmer understands that when I have spoken about totality, which is just something that a judge turns his mind to when he sentences, that the fact that he had spent 23 days in relation to other matters which then didn't proceed, that I would take that into account, and what that means is that I would effectively discount his sentence by a period of time in this case.
MS WALKER: Yes.
HIS HONOUR: Although I think he should understand - can you hear us all right, Mr Tolmer?
PRISONER:Yes, Your Honour.
HIS HONOUR: Totality doesn't mean that there's an automatic equivalent decrease in the sentence because of that, strictly speaking I don't have to do that if I don't want to, I can take into account three weeks as being something already served without necessarily making it equal to any discount that I apply. I could apply a quarter, a half, another percentage, whatever it is, but I think in this case when I refer to totality, Mr Tolmer should understand that I have taken that into consideration in decreasing his sentence by that amount.
MS WALKER: Thank you, Your Honour.
HIS HONOUR: Do you understand what I've said, Mr Tolmer?
PRISONER:Yes, Your Honour.
HIS HONOUR: Yes, thank you for your assistance. Mr Tolmer's pre-sentence detention will be noted and declared at 39 days and noted in the records of the court and no doubt taken into account administratively by the Correctional authorities.
MS WALKER: As Your Honour pleases.
MS HARRIS: As Your Honour pleases.
HIS HONOUR: Thank you.
PRISONER:Thank you, Your Honour.
HIS HONOUR: Yes, thank you Mr Tolmer. All right, we can cut that link. Any other orders, Ms Harris?
MS HARRIS: No, Your Honour.
HIS HONOUR: Thank you for your assistance and I'm sorry again for the delay.
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