Director of Public Prosecutions v Tyers

[2022] VCC 114

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

 Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 19-02260

DIRECTOR OF PUBLIC PROSECUTIONS

v

KRIS TYERS

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JUDGE:	HER HONOUR JUDGE KARAPANAGIOTIDIS
WHERE HELD:	Melbourne
DATE OF HEARING:	3 February 2022
DATE OF SENTENCE:	9 February 2022
CASE MAY BE CITED AS:	DPP v Tyers
MEDIUM NEUTRAL CITATION:	[2022] VCC 114

REASONS FOR SENTENCE

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Subject:  CRIMINAL LAW – Sentencing.

Catchwords:  Plea of guilty – Possession of a substance, material, document or equipment for trafficking in a drug of dependence – Possession of a drug of dependence – Good prospects of rehabilitation – COVID-19 pandemic.

Legislation Cited:           Sentencing Act 1991 ss5, 6AAA, 48CA

Cases Cited:Arthars v The Queen (2013) 39 VR 613, Brown (aka Davis) v The Queen [2020] VSCA 60, Boulton v The Queen [2014] VSCA 342, Chenhall v The Queen [2021] VSCA 175, Bradshaw v The Queen [2017] VSCA 273, Djemal v R [2020] VSCA 25, R v Biba [2021] VSC 327, R v Merrett, Piggot and Ferrari [2007] VSCA 1, R v Worboyes [2021] VSCA 169.

Sentence:  Community Corrections Order for a period of 2 years.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Dr J. Harkess	Office of Public Prosecutions
For the Accused	Mr T. Fitzpatrick	Dribbin and Brown

HER HONOUR:

1Kris TYERS you have entered a plea of guilty to the following charges; on 5 March 2019, Charge 1, possession of substance, material, document or equipment for trafficking in a drug of dependence and, Charge 2, possession of a drug of dependence, namely methylamphetamine. The maximum penalty on Charge 1 is 10 years' imprisonment and on Charge 2 is five years' imprisonment.

2In addition, you consented to this court hearing, and you pleaded guilty, to the following related summary offences; possession of a prohibited weapon, which carries a maximum penalty of 240 penalty units or two years' imprisonment and possession of Schedule 4 or Schedule 8 poisons, which carries a maximum penalty of 10 penalty units.

Circumstances of the offending

3The full circumstances of your offending are set out in the prosecution opening for plea dated 8 February 2022 and marked as Exhibit A. 

4In brief, on 5 March 2019, police attended your address at 25 Copper Beach Road, Beaconsfield to execute a search warrant.  Forced entry was gained at 6.45 am.

5You and a female companion were located inside the house. You were escorted outside while police commenced a cursory inspection.  Upon initial inspection, items consistent with illicit drug manufacturing were located and you were both arrested and conveyed to the Narre Warren police station.

6The police then conducted a systematic search of the address and located and seized a number of items.  In relation to Charge 1, items 1 to 40 were located and seized in the bedroom, walk-in robe, chest of drawers and laundry cupboard. These items included a variety of scientific glassware, air purifying respirator, press seal bags and some containing solid materials, containers with grey solids, electric submersible pump, thermometers, plastic tubing, metal retort stands, plastic stopper, several cardboard boxes containing more glassware, bubble wrap and foam beads, plastic and glass containers with liquid and solid.

7The substances, Exhibit 5 and 6, each contained iodine which is listed as a precursor chemical.  The total quantity including iodine was 520.5 grams which was above the prescribed quantity of 25 grams or over 20 times.  Methylamphetamine substances, of very low purity, but over the traffickable amount were found along with residues from used scientific glassware and related laboratory equipment.

8The prosecution allege that you possessed a variety of used and new scientific glassware and related laboratory equipment for the purposes of trafficking in a drug of dependence.  The exhibit log contains scientific glassware and other items that I have just referred to suitable to the manufacture of methylamphetamine, however, key chemicals would be required that were not located.

9In relation to Charge 2, the total quantity of methylamphetamine substances in condensers (Exhibit 39 and 40) was 106.7 grams (mixed) or 0.33 grams (pure).  The traffickable quantity is 3.0 grams (mixed) and small quantity or deemed personal use is (0.75 grams).

10Further relevant to Charges 1 and 2, the total quantity of substances in items 41, plastic bag containing white crystals, and item 45, plastic container with white crystals, including methylamphetamine was 16.4 grams (mixed) or 0.115 grams (pure) being over the traffickable amount of 3.0 grams (mixed).

11In the opening, the prosecution also referred to mobile phone messages that allegedly support other trafficking activities.  I do consider that there is a degree of equivocality to these messages such that I would struggle to make findings based on them to the requisite standard.  On your behalf, it was submitted that they were also consistent with drug use and money owed to you. In any event, at the plea hearing Dr Harkess clarified that these messages were principally relied upon in proof of the charges on the indictment, which had now resolved into a plea. He did not invite the court to make any further findings as to alleged trafficking that falls outside of the charged offences.

Gravity of the offending

12In formulating an appropriate sentence to be imposed, I must have regard to the gravity of your offending.  On your behalf, it was sensibly conceded that the offending is serious.  As the courts have clearly stated, sentences imposed on those who participate in the manufacture of drugs or who possess equipment for the purpose of doing so must reflect the importance of deterrence.[1]

[1]Djemal v R [2020] VSCA 25, [21]

13You have entered a plea of guilty to the charges and by your plea, you accept that the equipment located in your possession was capable of manufacturing a drug of dependence for the purposes of trafficking.  On this basis, you therefore admit that you were in possession of such equipment for the purposes of trafficking.

14Your counsel submits that in assessing the gravity of your offending, it is relevant to take into account the very low strength or purity of the methylamphetamine located, said to be more consistent with a drug that has been 'cut' rather than 'cooked'.  Also, it was submitted that there was essential equipment and necessary ingredients missing to complete or execute such a purpose.

15The prosecution accept that taking into account the relevant circumstances, it is appropriate to characterise your offending as falling within the lower level range.  They submitted it is still an inherently serious offence but accept that it was quite unusual in such a case to have a warrant executed and for such small quantities of manufacturing substances to be located.  I adopt and accept this characterisation of your offending.

16You possessed the weapons, namely the two Sai daggers for ornamental purposes and they were located in your walk-in robe. The charge of unauthorised possession of poison relates to several different poisons that have been rolled up into a single summary charge located during the execution of the warrant.

17You participated in a record of interview with the police. You denied the glassware equipment was for trafficking.  You had a history of drugs but did not know anything about chemistry. You admitted to using ice or methylamphetamine and those found in the house were for your own personal use.  You denied manufacturing drugs.

18In relation to the precursor iodine, you indicated that you had bought it a long time ago for open wounds for you and your dog.  Mr Tyers, you were clearly not entirely upfront or frank with the police during that interview.  You were subsequently released on bail.

Plea of guilty

19I was told that there had been genuine attempts to resolve your case in 2019 but these were ultimately unsuccessful.  Any further progression was interrupted by the unique situation presented by the COVID pandemic.  It was only in more recent times that further consideration was given to this case by the prosecution. This prompted further discussions and ultimately agreement between the parties that the case should progress to a sentencing indication hearing.  Following that hearing, you entered a plea of guilty to the charges.

20In the circumstances, I regard your plea of guilty as an important factor in mitigation.  In light of the negotiations and the resolved charges, I am prepared to accept that your plea to this indictment should be regarded as a relatively early one.  Also, I accept that your plea is particularly valuable in circumstances where it has been entered during the currency of the pandemic and should result in an 'actual and palpable amelioration of sentence'.[2]

[2] R v Worboyes [2021] VSCA 169; Chenhall v The Queen [2021] VSCA 175.

Personal circumstances

21You are now 46 years of age.  You grew up with both your parents who remain supportive of you.  You have three other siblings, two older and one younger.  Your parents recently moved up to Queensland.  You have a close relationship with them and speak regularly.  Your father, Morris Tyers, provided a letter to the court (Exhibit 7) confirming that your family are close.

22You experienced some learning difficulties in high school causing you to leave in Year 9. A mental health assessment report of 2015 by Vicpsychplus indicates that you reported that your reading skills were underdeveloped due to being dyslexic and while you are able to read, it was poor and sometimes 'takes time' (Exhibit 5).

23You then completed an apprenticeship as a painter and decorator.  From around 2010, you owned and operated your own business.  Ultimately, you could not maintain this business because of the pressures and stressors relating to your young son and allegations against you of sexual abuse.

24I was told that for several years these allegations and matters concerning your son proceeded through the various courts and DHHS processes.  Ultimately, while the allegations were unproven, they took a significant emotional toll on you.  I received material relevant to these issues including a letter of 26 June 2015 from Hugh Perera (Exhibit 6), clinical psychologist of Brighter Futures.  He indicated that he had been providing you with psychological assistance and that you had experienced depression, anxiety and stress because of your previous intimate tumultuous relationships and the allegations concerning your son.

25Your father in his letter also refers to the serious impact these events had on you but also describes you as resilient and as a fighter.  Your friend of seven years, Sean Mould (Exhibit 7), in his letter to the court also speaks of the significant impact the whole process had on you.  He, too, describes you as resilient and determined.

26Your youngest son, now aged seven, remains in the care of the Secretary but you have regular unsupervised contact with him twice weekly and talk to him regularly, if not daily.  You have another son who is now aged 21.

27You have also encountered other challenges in life, Mr Tyers, including a diagnosis and a two-year battle with lung cancer from 2002.  While your condition is currently in remission, you are not entirely in the clear and have six-monthly check-ups and regular scans to monitor the situation.

28You have a history of drug use and dependence.  You commenced using cannabis as a teenager but ceased using it when your younger son was born.  This does seem to be consistent with your prior criminal history.  Your use of methylamphetamine commenced in the context of your distress relating to the allegations concerning your son.  You stopped using sometime prior to 2018 but there have been previous relapses and you relapsed also after that date, in the lead up to your current offending.

29Your counsel did not seek to invoke any Verdins[3] principles on your behalf but he did submit that your previous challenges and mental health difficulties should be taken into account. A recent Employment Services Assessment Report (Exhibit 2) states that you regularly see your GP for follow-up care and that you have limited mental endurance associated with the permanent depression and anxiety condition that might impact an ability to work beyond certain hours.  I note that you are currently on 90 milligrams of mirtazapine.

[3]R v Verdins & Ors [2007] VSCA 102.

30After your offending, you were homeless for a period, then lived with a friend and then managed to secure your own accommodation where you currently reside.  You have previously lived in Queensland but since 2010, you have resided in Victoria.  You hope to return and settle in Queensland one day to be closer to your parents.

31I take into account your personal history in sentencing you.

Criminal history

32You also have a relevant, though limited, prior criminal history.  In 2004, you appeared before the courts in relation to cultivate, possess and use cannabis and received a without conviction adjourned undertaking.

33More recently in 2014, you appeared in the Townsville Magistrates' Court for charges of possess property suspected of having been used in connection with the commission of a drug offence and you were sentenced to three months' imprisonment suspended for three years.  I understand this related to methylamphetamine but otherwise no further detail was available.  It was submitted and, I accept as likely or possible, that the penalty imposed was consistent with a lower-level drug offence.

34While your history is limited, it is nevertheless relevant, particularly to considerations of rehabilitation and specific deterrence.

Delay

35A number of important factors were advanced on your behalf in mitigation as follows. It was also submitted that there has been delay in your case. There was an initial directions hearing in November 2019, a further one in December the next year and your trial was then fixed for 1 February 2021. This date was vacated due to the interruptions caused by COVID.

36The justification for taking delay into account as a mitigating factor rests upon the twin considerations of rehabilitation and fairness[4]  Taking all of the circumstances into account in your case, I consider that delay is an important factor.

[4]Arthars v The Queen (2013) 39 VR 613; R v Merrett, Piggot and Ferrari [2007] VSCA 1 at [35]..

37I take into account the stress and uncertainty you have experienced during this period.  I also consider that the delay here is important when considering and assessing your rehabilitation. You have complied with your bail conditions.  There has been no further offending I was told and you have remained drug-free since your offending.  You have also made some efforts to receive help and try and progress your rehabilitation.  I was told that you consulted your local GP who treats methylamphetamine addiction and that you have previously engaged with a drug and alcohol counsellor.

Prospects of rehabilitation

38In terms of prospects of rehabilitation, it is submitted, and I accept, that you have good prospects of rehabilitation.  As noted, this offending is now nearly three years old, you have abided by bail, not reoffended and have made some efforts to try and address your substance issues though this has been more difficult due to the impact of COVID.

39While you have a relevant prior criminal history as I have already noted, I accept that it is limited and now relatively dated.

40The court also received a reference from clinical therapist Quentin Mick Gray undated but likely to have been authored in 2016-17 for the purposes of protection proceedings regarding your younger son.  The letter confirms that: you had regularly engaged in counselling while actively seeking reunification with your son who was in foster care at the time; had been open in relation to your drug use and any relapses; had consulted a psychologist, Hugh Perera; and had undertook a residential parenting program and assessment at the Queen Elizabeth Centre and a 14-week in-home parenting course. This letter, dated as it is, does assist to demonstrate to the court that you are someone with insight who is capable of actively engaging in treatment.  It also indicates, along with other references, including one of 26 September 2016 from Odyssey House, that you have tried in the past to maintain and sustain a substance-free lifestyle.  What these efforts also tell me is that addiction is difficult to overcome and it may, in your case, best be facilitated with an appropriate level of supervision and further treatment and education.

41I also note that you are qualified in your trade and you have previously operated and successfully run your own business.  You are currently in the process of trying to start this up again now that your circumstances have stabilised.  The pandemic has obviously impacted your plans.  Your father states in his letter that he and your mother are assisting you in starting up your own business again.  He also states that you are happier than he has seen you in the past, you are in a positive relationship now, you have visits, as I have already noted, with your younger son and your parents are willing to do anything they can to offer you support.  You clearly have family and friends who are willing to support you.  The court also received another letter from your friend of some 30 years, Shane Pickering (Exhibit 7), to this effect.

42I note here that I have also had regard to the current conditions in custody which are more onerous because of COVID-related restrictions.  If you were placed in custody, you would be subject to an immediate period of quarantine and further restrictions.[5]

[5]R v Biba [2021] VSC 327; Brown (aka Davis) v The Queen [2020] VSCA 60, [48].

Sentencing principles

43The basic purposes for which a court may impose a sentence are punishment, general and specific deterrence, rehabilitation, denunciation and protection of the community. As I have already indicated, general deterrence is an important sentencing consideration. The manufacture and/or distribution of drugs such as methylamphetamine causes great harm to the community. I take into account the sentencing guidelines referred to in s5 of the Sentencing Act where relevant to your case.  I have also had regard to the general sentencing landscape for your offences. 

44Ultimately, the sentencing exercise requires that I balance all relevant factors and make a judgment as to the appropriate sentence in the circumstances of your case.  Your counsel, Mr Fitzpatrick, submits that the court should impose a community corrections order and that such an order is capable of reflecting the relevant sentencing considerations.

45The prosecutor, Dr Harkess, submitted that a combination sentence involving an immediate term of imprisonment followed by a community corrections order was appropriate.

46Following the sentence indication, I had you assessed you for a community corrections order and received both an assessment report and a Forensicare report.  You are assessed as suitable for such an order.  You have not been afforded such an opportunity in the past.  It was noted that you would benefit from having your attitudes challenged and explored during supervision.  It was further noted that you may be restricted in participating in work at certain times but that it was not anticipated that this would be prohibitive of such a condition.

47The Forensicare report recommended that ongoing assessment or treatment of your mental health be a condition of the order given your reported history of anxiety, depression, PTSD and substance misuse.  You reported that you have used methylamphetamine occasionally to assist in self-soothing and managing your emotional state.

48Ultimately, Mr Tyers, balancing all relevant factors and sentencing considerations, I am persuaded that you should be given an opportunity to remain in the community under the supervision of Corrections with conditions.  As the Court of Appeal stated in Boulton v The Queen, a community corrections order provides a flexible mechanism for imposing a sentence that is both punitive and rehabilitative. Such an order is intrinsically punitive and, depending on the length of the order and the nature of the conditions imposed, is capable of being highly punitive.[6]  You have never been the subject of such a supervisory or therapeutic order in the past.  Given the material that I have reviewed, I consider that you are capable of engaging with such an order and benefiting from it which I regard to ultimately be in the community's interests.

[6]Boulton v The Queen [2014] VSCA 342; see also Bradshaw v The Queen [2017] VSCA 273 at [49].

Sentence

49So, Mr Tyers, I am just approaching the actual sentence now.  On all charges, with conviction, I impose a community corrections order of 24 months, so that is two years.  You will need to report to Pakenham Community Correctional Services within two working days. Mr Fitzpatrick will no doubt explain it to you but I understand that because of the restrictions in response to COVID, it may be that the initial contact will be by telephone but it is incumbent upon you to make that contact, do you understand?

50OFFENDER:  Yes, I do, Your Honour.

51HER HONOUR:  Yes.  I am now going to explain to you the conditions of this order.  The mandatory conditions of the order include that you must not commit any offences during the period of the community corrections order, that is 24 months from today, for which you could imprisoned.  You must notify a 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 Corrections officer.  You must obey all lawful directions of a Corrections officer.

52Additionally, you must perform 250 hours of unpaid community work. As recommended and pursuant to s48CA of the Sentencing Act, I direct that 150 hours satisfactorily undertaken for treatment and rehabilitation are to be counted as hours of unpaid community work for the purposes of the unpaid community work condition.

53So what that means, Mr Tyers, is you have 250 hours to complete.

54OFFENDER:  Yes.

55HER HONOUR:  150 hours of drug and alcohol treatment - again this may have been explained to you - if you do it successfully can count towards those hours, do you understand?

56OFFENDER:  Yes, I do, Your Honour.

57HER HONOUR:  You must also be under the supervision of a community corrections officer for the period of the order.  You must also undergo assessment and treatment for drug and alcohol and assessment and treatment for mental health as directed.  You must engage in programs to reduce your risk of reoffending as directed.  They are the further conditions of the order.

58Mr Tyers, do you understand those conditions as I have read them out?

59OFFENDER:  Yes, I do, Your Honour.

60HER HONOUR:  You do?  All right.

61Just for clarity, because I intend that it covers this, but you are also to undergo assessment and treatment for medical issues.  I think it is subsumed by the other conditions but just to be clear.

62Now, I must make sure that you understand the consequences of breaching such an order.  So, first of all, Mr Tyers, you need to ensure that you comply with the order, all right?  If you do not comply with the requirements of the order or if you commit a further offence punishable by imprisonment during the operational period of the order, then you are likely to be breached on your order by Corrections and the matter will be brought back before me.

63You will then be dealt with for breaching the order and you will be exposed to the possibility that you will be resentenced for the original offences and may face a term of imprisonment.

64So, Mr Tyers, do you understand the consequences of breaching the order that I am about to impose?

65OFFENDER:  Yes, I do, Your Honour.

66HER HONOUR:  You do, all right.

67OFFENDER:  Yes.

68HER HONOUR:  All right.  And last of all, Mr Tyers, do you consent to the making of the order?

69OFFENDER:  Yes, I do, Your Honour.

70HER HONOUR:  All right.  Thank you.

71Pursuant to s6AAA, I indicate that but for your plea of guilty, I would have sentenced you to an immediate term of six months' imprisonment with a community corrections order of 30 months.

72I also make the disposal order in the terms sought which I note was unopposed.

73Dr Harkess, Mr Fitzpatrick, is there anything further that I need to deal with?

74DR HARKESS:  Just for clarity, Your Honour, the sentence of 24 months, that is an aggregate sentence covering all four charges?

75HER HONOUR:  Yes, it is.  Yes.

76DR HARKESS:  As the court pleases.  Thank you.

77HER HONOUR:  Sorry.  As I understand it, there was just one charge, the summary charge, that was punishable by a maximum of 10 penalty units.  My reading of the Sentencing Act is if it is above 5 units, ‑ ‑ ‑

78DR HARKESS:  That is correct.

79HER HONOUR:  ‑ ‑ ‑ then a community corrections order can follow.  So I do, I intend that to be an order imposed in relation to all charges.

80DR HARKESS:  As the court pleases.

81HER HONOUR:  All right.

82MR FITZPATRICK:  Thank you, Your Honour.

83HER HONOUR:  Adjourn the court please.

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