Director of Public Prosecutions v Winiecki
[2022] VCC 1844
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-20-01275
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| WILLIAM WINIECKI |
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JUDGE: | Karapanagiotidis | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 9 September 2022 | |
DATE OF SENTENCE: | 27 September 2022 | |
CASE MAY BE CITED AS: | DPP v WINIECKI | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1844 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW - SENTENCING
Catchwords: Possession or substance, material, documents, or equipment for trafficking in a drug of dependence – Possession of a drug of dependence – Plea of guilty – Verdins – Worboyes – COVID-19 pandemic – Guarded prospects of rehabilitation.
Legislation Cited: s6AAA Sentence Act 1991 (Vic)
Cases Cited:Boulton v The Queen [2014] VSCA 342; Djemal v The Queen [2020] VSCA 25; DPP v Defrenza [2016] VCC 990; DPP v Edwards [2019] VCC 2120; R v Verdins [2007] VSCA 62; Worboyes v The Queen [2021] VSCA 169.
Sentence: Two-year Community Corrections Order and $500 fine.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | J. O’Toole | The Office of Public Prosecutions |
| For the Accused | C. Oldham | Balmer & Associates |
HER HONOUR:
1William Winiecki you have pleaded guilty to the following charges:
(a) Possession of substance, material, documents, or equipment for trafficking in a drug of dependence (Charge 1); and
(b) Possession of a drug of dependence (Charge 2).
2You have also agreed to and pleaded guilty to summary charges relating to:
(a) Possession of a Schedule 4 poison (Summary Charge 4); and
(b) Possession of a prohibited weapon without exception or approval (Summary Charge 7).
3The maximum sentences for the charges are as follows:
(a) Possession of substance, material, documents, or equipment for trafficking in a drug of dependence – ten years’ imprisonment;
(b) Possession of a drug of dependence – 30 penalty units or one year imprisonment, or both;
(c) Possession of a Schedule 4 Poison – 10 penalty units; and
(d) Possession of a prohibited weapon without an exemption – 240 penalty units or two years’ imprisonment.
Circumstances of the offending
4The full circumstances of your offending are set out the in the agreed prosecution opening dated 6 September 2022 and marked as Exhibit A.
5On 16 May 2020, at approximately 11.00am, a member of the public noticed a mobile telephone jammed into a hedge at the front of her property in Eltham. She retrieved the phone and handed it to Senior Constable Mitchell Hooke at the Eltham Police Station.
6Senior Constable Hooke was able to access the mobile phone without the use of a security pin code. He was then able to ascertain the following as he searched through the telephone: the telephone number, identity numbers linked to the phone and numerous messages, and photos which appeared to relate to the establishment of a clandestine drug laboratory.
7The messages and photos were exchanged with another phone number, belonging to a male named Mr James Auliso. These messages illustrated your intention to manufacture drugs of dependence, which included the following:
(i)“2 and a half kilos of meth can be made from this 5 litre bottle it’s also watch precursor I have 2 lites of benzalehyde just need no N-butylamine and we can make p2p”.
(ii)“Not many people know this old school method but it’s designed for large scale you’ll be the n3ct mokbel and I’ll be your penguin that kills cunts with chloroform”.
8Multimedia messages sent from you to Mr Auliso depict the manufacturing of methyl-amphetamine, pseudoephedrine in the form of Demazin Six Hours Relief medication, scientific glassware and chemicals used in the manufacturing of drugs of dependence.
9At 10.15am on 2 June 2020, a search warrant was executed by members of Victoria Police at your address in Milborne Crescent, Eltham.
10You were placed under arrest by Senior Constable Benjamin Owen. During a search of the premises, Senior Constable Owen located within your bedroom a collection of drugs and weapons, including small quantities of the drugs the subject of Charge 2, namely methylphenidate (Ritalin), Alprazolam and cannabis seeds. Also located was Sildenafil (or Viagra) (Summary Charge 4 - Possession of a Schedule 4 Poison) and knuckle dusters, (Summary Charge 7 - Possession of a prohibited weapon without an exemption).
11Police then searched your bedroom wardrobe whereupon they located several shopping bags, polystyrene containers and a box within which a number of items were stored, as outlined at paragraph [7] of the prosecution opening, including: scientific glassware and various chemicals including Toluene, Acetone, Hydrochloric Acid and Potassium Hydroxide.
12Police then contacted the Victorian Police Clandestine Laboratory Squad ("CLS") and was advised to evacuate everyone from the house as the chemicals were highly dangerous. The CLS later attended and identified 58 property items inside the residence which were consistent with that required to manufacture drugs of dependence. These items were photographed and as requested, I have viewed the photographs in the depositions.
13You were transported to the Mill Park Police Station where at approximately 2.25pm you were interviewed by police and made a number of admissions, as outlined at paragraph [10] of the opening. As discussed at your initial plea hearing, I have read the transcript of your record of interview ("ROI") with the police.
Gravity of your offending
14The seriousness of your offending on Charge 1 is reflected by the maximum penalty set by Parliament. The offence targets preparatory conduct and seeks to prevent and disrupt the manufacture and distribution of drugs which cause great harm to the community. The principles of general and specific deterrence are therefore prominent considerations in cases such as yours.[1]
[1] Djemal v The Queen [2020] VSCA 25 at [21].
15On Charge 1 you have pleaded guilty to possessing assorted chemicals, containers, glassware, documents, and miscellaneous items with the intention of using those items for the purpose of trafficking in a drug of dependence. By your plea of guilty, you have admitted that you were in possession of the equipment and materials seized by police for the purpose of manufacturing a drug of dependence – that, is for the purposes of trafficking.
16Counsel on your behalf submitted that your offending in relation to Charge 1 falls at the lower end of the spectrum of seriousness and that any drugs to be manufactured using the equipment was intended only for your personal use. It was submitted that there were no quantities of methylamphetamine found as a result of testing, although washing quantity was found. There was no related charge of trafficking and no items or drugs located, in any type or quantity, that would support such a charge. While the text messages may indicate that there was some level of organisation, the charges before the Court do not indicate that this was a sophisticated operation.
17The prosecution submit that this is not a ‘lower end’ example of this charge but instead objectively serious offending. They rely upon the following factors: the relevant material and equipment you possessed was not insignificant in quantity; while it was not set up in a functioning laboratory at the time of the warrant execution, you had previously manufactured your own methylamphetamine; you possessed a sufficient level of knowledge as to how to use the relevant material and equipment for an illegal purpose; and the evidence, including the text messages, demonstrates a finding that you intended to manufacture beyond your personal use.
18The agreed position of the parties was that it is for you to satisfy the Court, on the balance of probabilities that your intention was to manufacture for personal use only. The prosecution submit that the Court should not be so satisfied in the face of the differing accounts you’ve given about your drug use and more significantly the text messages.
19In relation to the text messages, your Counsel submits, consistent with your account in your ROI, that they should be viewed as exaggerated, and drug fuelled banter and not as evidencing an actual intent on your behalf.
20After a close consideration of the text messages, I accept that there’s a likely element of grandiosity to them. I also accept that at times during this period you may have been drug affected, which is consistent with your hospital admission in May 2020 for what was likely to be drug induced psychosis. I also accept, consistent with your ROI, that you appear keen to boast of your interest and knowledge of science, for example in one message you wrote ‘I cook not for the money just the luv of science but I’ll teach u I’m no scum bag’. And in another ‘if I had more money and knowledge of your glassware I’ll be laughing took 3 days to cook this just like in breaking bad it possible and I know how to do it we can skip certain synthesis and it will still come out good.’
21Based on my assessment of these messages, along with the other evidence, including the absence of evidence, I am left in a state of some uncertainty, unable to draw confident inferences or make findings beyond reasonable doubt as to your precise intentions and the scale of any intended venture. I have had regard to such matters as the nature and volume of equipment and items found and also the absence of any indicia ordinarily associated with trafficking. However, I am not satisfied on the balance of probabilities that your intention was to manufacture solely for your personal use. Having regard to the content and context of the messages – even after making allowances favourable to you - they are not consistent with, and do not support, such a finding. While there are parts of your ROI that I do accept, and I note that you made some significant admissions in that interview, I don’t accept that the messages can be dismissed as ‘just a bunch of junkies high on drugs talking shit’.[2]
[2] Record of Interview dated 2 June 2020, [338].
22In relation to Charge 1, while I do not accept it is at the lower end of the spectrum, as submitted by your counsel, nor do I accept that it approaches the higher end of objective seriousness. The prosecution do not submit that this a larger scale operation or an extravagant laboratory looking to produce large methylamphetamine. Also, I do not consider that there is evidence to support a conclusion that the equipment and items located involved considerable investment or planning, or would have permitted an operation of some scale and sophistication. The items located were confined or reduced to what was located in a cupboard in a room in the house you were sharing with your aunt, uncle, and grandmother.
23As to your motive, while I have not made a finding that your intention was solely to manufacture for your personal use I’m prepared to accept, as you state in your ROI, that your ambition was not to become a ‘big meth dealer’ and that you were also a user of drugs at the time. Also, while there is context to your offending, as suggested by your admissions and other references in your ROI to previously manufacturing your own methylamphetamine, your offending is charged on a single date, 2 June 2020.
24In relation to Charge 2, I accept that the possession charge falls at the lower end of seriousness for such offending. It is constituted by your possession of prescription drugs in small quantities, along with a small amount of cannabis seeds. I accept that the lesser sentencing regime, not connected for any purpose related to trafficking, applies here.
Plea of guilty
25Your case was originally listed for trial but resolved after pre-trial rulings were finalised. While your plea was not entered at the earliest opportunity, as the prosecution accept, it is also not a ‘late plea’. It entitles you to a substantial discount in sentence.
26Your plea represents an acceptance of responsibility on your part and a willingness to facilitate the administration of justice. I also recognise the utilitarian benefit of your plea, the value of which is heightened in light of Worboyes considerations.[3]
[3] Worboyes v The Queen [2021] VSCA 169.
Personal circumstances
27Your personal circumstances were outlined by your counsel Mr Oldham and were also canvassed in Ms Lechner’s psychological report of 20 August 2022.
28You were 35 years old at the time of the offending, and you’re now aged 38.
29Your parents separated when you were very young. Your mother re-partnered and had two other sons. You report not getting along with your stepfather and of being bullied and at times, physically abused by him. Your mother passed away a number of years ago and you have little contact with your biological father. You currently live at your aunt’s house, and you have been in a ‘on and off’ relationship with a woman who is older than you and who has three adult children.
30You grew up in the eastern suburbs of Melbourne though you moved frequently in your younger years which disrupted your education. You attended secondary school until Year 11. You had started smoking cannabis earlier and started getting into trouble. To try and curb your problem behaviour your mother took you to Chile for 18 months where you stayed with extended family and completed your Year 12. While overseas you were exposed to a number of violent incidents, including one where your friend was murdered. Upon returning to Australia, you soon learnt that your mother had been diagnosed with cancer and she died after some 12 months. This profoundly impacted you and you report going off the rails at the time. Your life has been quite unstable since that time, characterized by drug use, parlous mental health, and time in prison.
31You have a limited work history. You have mostly worked in labouring but usually have not held a job for more than five months. You report being employed some 40% of the time since leaving school. You now receive the Disability Support Pension. For the last several years you have been studying to become a laboratory technician.
32You started smoking cannabis at the age of 15 and this was a problem until your late twenties. At the age of 22 you started using heroin and soon became addicted. You also report occasional ice and a history of cocaine, mushrooms, and Xanax.
33You report to Ms Lechner being mentally unwell since the age of 17 and that you were diagnosed with bipolar mood disorder whilst at the Malmsbury Youth Justice Centre. You indicate that you’ve struggled over the years to accept that diagnosis, which has contributed to your non-compliance with medication and illicit drug use.
34You report to Ms Lechner having had a ‘huge wake-up call’ last year, as you ‘almost died’. As you couldn’t access heroin you injected a large volume of tablets which led to a blockage of your veins and a severe bacterial infection. You spent two months in hospital and underwent surgery.
Prior criminal history
35You have admitted a relevant criminal record dating back to 2005. It includes in particular a number of convictions relating to possession and use of various drugs of dependence including methylamphetamine, heroin, cannabis, and prescription drugs. You have received a range of dispositions in the past including fines, community correction orders ("CCO") and imprisonment.
36Your history is particularly relevant to an assessment of your prospects of rehabilitation and to specific deterrence as a sentencing factor. The prosecution submit, and I take into account, that you have been afforded opportunities in the past to rehabilitate.
Factors in mitigation
37A number of additional factors were relied upon by your Counsel, Mr Oldham, in mitigation on your behalf.
38According to Ms Lechner you present with Bipolar Mood Disorder and Opioid Use Disorder, which is being managed with a replacement program, as well as amphetamine abuse which is in partial remission. You also present with symptoms of Post-Traumatic Stress Disorder.
39You are currently under the care of your general practitioner Dr Michaelson. You apparently used to attend upon a psychologist, but it became too costly.
40Ms Lechner opines that an immediate term of imprisonment would be detrimental to the stability of your mental health. I take into account your mental health conditions in sentencing you and I accept that the sixth limb of Verdins[4] has some application in your case.
[4] R v Verdins [2007] VSCA 62.
41I also take into account that the current custodial conditions are more burdensome due to the ongoing and fluid Covid-19 restrictions.
42Also, this offending is now more than two years old, and I take into account that there has been some delay in the finalisation of your case. In particular, this means that you have been able to demonstrate to the Court that you are engaging in rehabilitative efforts. You have been on bail for over two years, and it is not suggested that you’ve reoffended in the same way. You are currently compliant with psychotropic medication and have substantially reduced your illicit drug use. You are currently engaged in academic studies. You completed your diploma of Laboratory Technology in August 2021 at Box Hill Institute[5] and have received a recent offer to continue your science-based studies at RMIT. Subject to the outcome of this hearing, your intention is to engage undertake on a part time basis the three-year full time Associate Degree in Applied Science.[6]
[5] Exhibit 4.
[6] Exhibit 6.
Prospects of rehabilitation
43As for your prospects of rehabilitation, I consider that they are guarded. I agree with your Counsel that they are linked to your capacity to abstain from drug use. While you report significantly reducing your drug use it is a concern to the Court that you admit to still using on a fortnightly basis.
44What weighs in your favour, are the recent efforts you have made and your current stability. I’ve already noted, you’re committed to, and motivated by, your studies and you are currently compliant with your anti-psychotic medication, Zyprexa or Olanzapine, and your mood stabiliser, Epilim.
45You also continue to have family support and you are trying to foster relationships with non-drug using friends.
46You impressed Ms Lechner as capable of reflective and consequential thinking under optimal conditions. Your drug use and mood swings tend to undermine your capacity for reasoned judgement and decision making as well as impulse inhibition. Ms Lechner considers that you would benefit most from remaining compliant with your medication under supervision and that you would benefit from drug and alcohol counselling.
Sentencing principles
47Sentencing in this case requires the Court to impose a sentence which reflects just punishment, deterrence, both general and specific, denunciation and rehabilitation. In sentencing you, I must have a regard to a range of factors including the seriousness of your offending, your culpability, your prior criminal history, and your personal circumstances.
48Your counsel submits that a CCO is capable of reflecting all relevant sentencing considerations. The prosecution submits that combination sentence of a term of imprisonment followed by a CCO is within range.
49I am required to take into account the current sentencing practices in fixing your sentence. I have considered and have been guided by the cases the parties referred me to and other relevant authorities, mindful that each case must be considered in light of its own particular circumstances.[7]
[7] DPP v Defrenza [2016] VCC 990; DPP v Edwards [2019] VCC 2120; Djemal v The Queen [2020] VSCA.
50In sentencing you I have also taken into account the principles of proportionality and parsimony. I have been guided by the Court of Appeal in Boulton v The Queen[8] case as to the capacity of a community corrections order to be rehabilitative, but also highly punitive. The conditions that can attach to such an order are capable of being coercive, restrictive, and prohibitive.
[8] Boulton v The Queen [2014] VSCA 342.
51I had you assessed for a CCO, and you were deemed suitable. You were assessed as a medium risk of re-offending. You were considered to have protective factors in the nature of family support and stable accommodation. Corrections endorsed a number of conditions, including drug and alcohol treatment, which will also involve random urinalysis screens for the duration of the order, and mental health treatment. I note that the Forensicare report of the 15 September 2022 also recommended mental health conditions and considered that you presented as manic at the time of the assessment.
52I have considered all of these matters and have ultimately concluded that a term of imprisonment is not required in your case but that all sentencing considerations, including punishment and specific and general deterrence, can be accommodated, and reflected in a lengthy CCO with onerous conditions. Such an order will also allow for you to continue in your rehabilitative efforts and will attach conditions that will minimise the risk of re-offending and best serve the purpose of protecting the community. Also, such an order will carry with it potentially severe consequences should you breach it.
Sentence
53Arriving now at the sentence, Mr Winiecki you are convicted and sentenced as follows:
54Charge 1, possession of substance, material, documents, or equipment for trafficking in a drug of dependence, you are convicted and sentenced to a CCO of two years.
55On Charge 2, possession of a drug of dependence and Summary Charges 4 and 7, you are convicted and fined an aggregate amount of $500. In fixing this amount I have had regard to your income and that you are currently the recipient of the Disability Support Pension.
56The conditions of the order are as follows:
(a) Supervision;
(b) Treatment and rehabilitation for drug abuse or dependency;
(c) Medical assessment and treatment;
(d) Mental health assessment and treatment;
(e) Community work of 160 hours and I offset 100 hours of treatment against the work hours; and
(f) Judicial monitoring, with the first date being 7 December 2022 at 9.30am.
57Pursuant to s6AAA, I declare that but for your plea of guilty I would have sentenced you to seven months' imprisonment and a CCO.
58I make the disposal order in the terms sought.
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