R v Clifford
[2013] VSC 252
•10 May 2013
| Do Not Send for Reporting | ||
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2012 0086
| THE QUEEN |
| v |
| SEAN ANDREW CLIFFORD |
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JUDGE: | CURTAIN J | |
WHERE HELD: | Melbourne | |
DATES OF HEARING: | 29 April 2013 and 3 May 2013 | |
DATE OF SENTENCE: | 10 May 2013 | |
CASE MAY BE CITED AS: | R v Clifford | |
MEDIUM NEUTRAL CITATION: | [2013] VSC 252 | |
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CRIMINAL LAW – Sentencing – Trafficking in a not less than commercial quantity of a drug of dependence (Methylamphetamine) – Possession of precursor chemicals – Drugs and precursor chemicals located in a storage locker and offender’s home – Pleas of guilty – Relevant prior convictions – TES: 4 ½ years imprisonment – Non-parole period of 2 ½ years imprisonment.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr B. Kissane | Office of Public Prosecutions |
| For the Accused | Ms M. Fox | Lethbridges Barristers & Solicitors |
HER HONOUR:
Sean Andrew Clifford, you have pleaded guilty to one charge of trafficking in a drug of dependence, namely methylamphetamine, in not less than a commercial quantity and three charges of possession of precursor chemicals, being hypophosphate salt, iodine and phenylamine. You have also admitted prior convictions. The charges arose from search warrants executed at a storage locker, to which you had access, and your home.
On 8 March 2011, the police executed a covert search warrant and video recorded the contents of locker number 134 at Rose’s Storage, Preston. A large amount of scientific glassware was located, a single punch tablet press and, amongst other items, a green bag containing bags of pills and powdered substances. Some of the bags were vacuum sealed, others not. The locker was re-locked at the conclusion of the search. The police re-attended the next day pursuant to another search warrant, and this search was again video recorded. The green bag and its contents were still in place. All the bags were weighed, the total weight of all the pills was 2.55 kilograms. Samples were taken from the unsealed bags and later analysed by forensic chemists and found to contain methylamphetamine of varying but low purity, between .04 and .07 grams, and variously caffeine and morphine. Two of the samples (4(b) and 5(b)) contained such small amounts of methylamphetamine that the purity could not be determined. The weight of the bags containing the pills from which the samples were taken was 1276 grams.
Video surveillance had earlier been set up outside the locker, providing a direct view of those having access to it. On 10 March 2011, you were seen attending the locker, taking items, placing them on a trolley and leaving. You also attended on 13 and 20 April 2011, and were observed to remove a black tub on the first occasion and the green shopping bag on the second. No other persons entered the locker between 9 March and 20 April 2011, when another covert search warrant was executed. The green bag that had previously contained the pills and powdered substance was gone and a ten kilogram plastic container, which had been present on the earlier occasions, was found to hold four vacuum sealed bags containing a white solid, the total weight of which was 3.44 kilograms. Subsequent analysis determined that this substance contained sodium hypophosphite, that is, hypophosphite salts, which is a precursor chemical.
On 11 May 2011, the police executed a search warrant at your home in Hillview Parade, Templestowe Lower. You were arrested, and subsequently made a no comment record of interview. The police searched the house that day and the next, and as a result, various items of glassware equipment and chemicals were located, which included the single tablet press which had previously been seen in the locker and four press stamps, one of them heart shaped, which was consistent with the markings on the pills located in the covert search of the locker. Paraphernalia associated with methylamphetamine production was also located, including a Breville electric grinder, which held 17 grams of a white powder, and a Pyrex dish and metal spoon which contained 0.3 grams of a white solid which was found in the oven. The Pyrex dish bore your left index fingerprint, and it should be noted that the pill press bore your palm print. These substances were later analysed and found to contain pseudoephedrine in the order of 0.28 grams, and pseudoephedrine is a precursor chemical often used in the manufacture of methylamphetamine, but you have not been charged in respect of this substance. Seven items were located containing powder of varying quantities totalling 60.3 grams. They were later analysed and found to contain methylamphetamine of approximately 80% purity.
Charge one, that of trafficking in a drug of dependence in not less than a commercial quantity of methylamphetamine between 8 March and 11 May 2011, relates to the pills in the locker which were weighed, samples taken from them and analysed, and the powders located in your home which were subsequently analysed, so the total weight in respect of charge one is 1336.3 grams, that being the amount which can be proved beyond reasonable doubt to have contained methylamphetamine, the pills never having been recovered. A commercial quantity in respect of methylamphetamine in a mixed substance is not less than 500 grams, so this is more than twice the commercial quantity of a mixed substance.
Other liquids and solids were seized from your home, including 70 grams of a white solid subsequently found to contain hypophosphite, but which does not form the subject of any charge. Phenylalanine was also seized, weighing 1888.9 grams. Phenylalanine is a prescribed precursor chemical in excess of 50 grams, and this forms the subject of charge four. Police also seized a document entitled “My debts” outlining expenses for reimbursement, profit and net figures, a vacuum packing machine, an electronic bank note counter, 11 mobile phones and a key to the locker.
A further search of the locker located a yellow plastic bag containing five vacuum sealed plastic bags of varying weights which contained a purple/black solid material later analysed and found to contain iodine. The total quantity of the iodine seized was 12,353.2 grams, and this is the subject of charge three. A black plastic bag containing four sealed plastic bags of a white crystalline solid was later analysed and found to contain 3,369.9 grams of hypophosphite, that is, hypophosphite salt and this gives rise to charge two, that of being in the possession of a precursor chemical. The prescribed quantity of sodium hypophosphite is 25 grams.
The maximum penalty for trafficking in not less than a commercial quantity of methylamphetamine is 25 years’ imprisonment. For the possession of the precursor drugs, it is five years’ imprisonment. Thus, the trafficking in particular is a serious offence. The Crown puts its case against you in respect of that charge as possession for sale. The methylamphetamine was in tablet form, albeit of a relatively low purity. They were stamped and packaged and, presumably, ready for sale. The pills which were weighed and sampled were in excess of the threshold commercial quantity, and of course they have not been seen since they were videoed in the locker. At your home, and in the locker, precursor chemicals were present in significant quantities, well in excess of the threshold quantities. Methylamphetamine can be prepared by a combination of pseudoephedrine, iodine and hypophospherous acid, and although substantial amounts of methylamphetamine could be produced from the amount of sodium hypophosphate and iodine located if sufficient other precursors were available, the evidence points to small amounts being used to produce drugs of low purity. The tablet press, a note counter, a vacuum sealing packager and the 11 mobile phones which were also located, indicate that the operation was one of some sophistication. It appears that you came to the attention of the police as a result of a broader investigation, but you were the only person to be charged. Indeed, part of the tablet press was found at another person’s house. Your counsel, Ms Fox, has submitted that you became involved in order to support your own drug habit. The Crown contend and it is not disputed that you were operating at a wholesale level.
You are 30 years old, single and, at the time of these offences, you were living at the family home with your mother, stepfather and grandmother; indeed, you were the full-time carer for your grandmother, then in her 80s and said to be suffering from chronic osteoarthritis and bedridden. You have a sister and two brothers, one of whom was violent towards you in your youth. Your parents separated when you were eight, your father remarried and lives interstate and you have had very little contact with him since. You attended Trinity Grammar until Grade 3 when, as a consequence of your parents’ separation, you moved houses and schools, and eventually passed Year 12 at Marcellin College.
A report by Mr Jeffrey Cummins dated 23 April 2013 and tendered in evidence as Exhibit 1 recounts that by the time you left school, you were regularly experimenting with amphetamines and ecstasy, and you first experimented with crystal methylamphetamine when you were 20. After school and some part time work, you obtained employment as a courier with the Royal Bank of Canada in Melbourne. You advanced to an administrative role and then into Treasury, eventually holding a position of a senior associate in that department. You were retrenched after 18 months and relocated to Sydney and there worked with Macquarie Bank. You were eventually promoted to a senior position on the Agricultural Commodities desk. You were also studying part time for a Diploma of Financial Markets with the Securities Institute. Your employment was terminated when you were charged with larceny (theft by finding). You received a bond and returned to Melbourne in 2004, abandoning your studies. You then managed a number of fast food outlets but, by this time, it is said that you were using ice every day. You also reported intermittent use of Valium since you were 18, to the point where, prior to your arrest, you regarded yourself as addicted. You told Mr Cummins that you used Valium to prolong the high from speed or ice. You reported that you were regularly using ice, two to three grams pure a day, and you became involved in the trafficking of methylamphetamines “under circumstances where you had been a daily user of this drug”.
You also expressed to Mr Cummins your regret for your offending, and you are of the view now that you are able to remain drug-free on a permanent basis. Mr Cummins reported that you presented as being at least moderately depressed, and he opined that at the time of the offending, you suffered amphetamine dependence and an amphetamine-induced mood disorder. You told him that you ruminate about the effect of drugs on your life and that of your brothers, in particular your brother David, who is now serving a sentence for murder committed during an episode of drug-induced psychosis.
In Mr Cummins’ opinion, you are suffering from chronic adjustment disorder with mixed anxiety and depressed mood, and that you were rendered vulnerable to self-medicating through the use of drugs as a result of suffering from this disorder. Mr Cummins further opined that your prospects for long-term rehabilitation are “guardedly favourable” and that if you remain drug-free, your prospects for long-term rehabilitation are significantly enhanced. Mr Cummins also regarded you as presenting as of normal and of high average intelligence.
You were released on bail in respect of these matters on 26 August 2011. You were then subject to a curfew and daily reporting, and you also attended upon Mr Lamberti, a drug and rehabilitation counsellor, on 13 occasions and submitted to urine analysis between 7 September 2011 and 15 August 2012, all of which, with the exception of a false positive and a showing for benzodiazepine, were negative. A report from Mr Lamberti dated 30 April 2013 was tendered in evidence as Exhibit 4 and confirms these matters.
While on bail, you have been employed, until recently, in various positions in a number of entities operated by your friend, Demetrios Carakitsos. His testimonial was tendered in evidence as Exhibit 2 and he gave evidence on your behalf. He regards your offending conduct as out of character and otherwise described you as one of the best and most reliable workers he had. In his opinion, you are highly intelligent, sensitive, honest and loyal, and you have now chosen to associate with better people and participate in healthier activities. In his opinion, you are remorseful. He would be prepared to employ you in the future.
A testimonial from your sister, Rachel Clifford, also tendered in evidence as Exhibit 3, refers to your regret and remorse. She regards you as having a strong work ethic and of otherwise “reputable character”. You have been a supportive brother to her and she also regards these offences as out of character.
A testimonial from Nathan Leidaman, who has known you more recently, was tendered in evidence as Exhibit 6. He describes you as hard working and with a bright future.
You have relevant prior convictions and matters dealt with without conviction; a charge of possessing amphetamine in 2007, possessing and using amphetamine in 2008, possession of amphetamine and possession of a drug of dependence being a prescription drug in 2010, and possession of methylamphetamine, ecstasy and pseudoephedrine, in July 2010 for which you were convicted and placed on a six month Community-Based Order on condition that you perform 80 hours community work. On 16 December 2010, you applied for a variation of this order. The order was cancelled and you were convicted and fined $600. It is noted that the offences the subject of this indictment, in particular charge one, occurred three months after this last court appearance.
You were initially charged with trafficking in a large commercial quantity, as well as other charges, and remanded in custody on 12 May 2011. As stated previously, you were bailed on 26 August 2011, the committal took place on 31 July 2012 and the trial was set for 12 March 2013. On 4 March, you were arraigned and pleaded guilty to this indictment. Your counsel, Ms Fox, submitted that you had entered into negotiations to settle the matter after the committal, but the negotiations were delayed because you changed your solicitors twice. Ms Fox placed reliance upon this delay, in particular the period of 14 months between the charging and the committal, which delay was attributable to the delay occasioned by the necessity to have the various substances analysed. Mr Kissane submitted that it appears that the further delay was attributable to your tardiness in giving proper instructions to your solicitors, the Crown having indicated that it would accept the plea, as it has done here, in September 2012, yet such plea was not entered into until 4 March this year, one week before the trial. Mr Kissane submitted that in these circumstances, although the matters have been hanging over your head since May 2011, since September 2012 the earlier resolution of these matters has been in your hands.
Ms Fox submitted that you have used your time on bail productively; you have gained employment, engaged with Mr Lamberti, remained drug-free and otherwise complied with your bail conditions. Therefore, you have taken significant steps towards your rehabilitation. I accept that you have used the time available to you and, in particular while on bail to take steps to enhance your rehabilitation. Ms Fox also relied upon your plea of guilty, your expression of regret, if not remorse, that according to Mr Cummins, you have gained insight into your offending, and you have remained drug-free. All of these matters go in your favour.
Mr Kissane submitted that your offending was the mid range, and Ms Fox submitted that your offending sits at the low to mid range, placing particular relevance on the low purity of the methylamphetamine in the pills and that the pure weight of the methylamphetamine in the mixture would have been in the vicinity of five to six grams. Ms Fox submitted that such a very low purity, in her words, reduced the objective culpability of the offending because it rendered it unlikely to produce the deleterious effects commonly associated with methylamphetamine. The Court of Appeal recently, in Kapkidis v The Queen,[1] held that where the purity of the amount trafficked is de minimus, it may be taken into account, but save for exceptional circumstances, the relative purity of a mixed quantity of a drug of addiction does not bear upon the objective gravity of the offence. The purity of the amount trafficked here was low but was not de minimus. It nonetheless is relevant, but it was not so low as to take this case into the exceptional cases contemplated by Kapkidis.
[1] [2013] VSCA 35.
Other considerations are also here relevant. You were engaged in the conduct the subject of Count 1 over a period of two months. You had numerous items associated with the manufacture of methylamphetamines both in the locker and at your home and the methylamphetamine has been produced into tablet form and was therefore ready for sale.
Ms Fox submitted that the precursor chemicals were held for storage only and that there was not sufficient quantities to produce large amounts of methylamphetamine. Nonetheless, they were present and in circumstances where other items commonly associated with the clandestine production of drugs were also present, and it is not suggested that they were in your possession for any other reason not associated with the manufacture of methylamphetamines. The presence of the pill press, the vacuum bag sealer, the bank note counter, the quantity of the pills and the 11 mobile phones are indicative that this trafficking was indeed conducted at a wholesale level.
At my request, Mr Kissane submitted a sentencing range of four to six years for the head sentence with a non-parole period of 2½ to 4 years. Ms Fox submitted that the appropriate range of sentence fell between three to four years in respect of a head sentence.
In sentencing you, I take into account your pleas of guilty and give you a discount for them. I take into account also that by reason of your pleas, the community has been saved the cost of a trial and the witnesses the inconvenience of one. I take into account that you have expressed regret and remorse and have gained insight into your offending, that you are now drug-free and intend to remain so. I take into account also that you present as a person of high average intelligence, that you have a good work ethic and a history of employment, and that you propose to participate in further studies while in custody; all which are matters which enhance your prospects for rehabilitation. Given that you are an intelligent young man with an ability to apply yourself, then provided you remain drug-free and move away from the drug milleu, your rehabilitation is achievable.
In sentencing you I must take into account, however, the nature and gravity of the offences here committed, and the trafficking in a drug of dependence, being methylamphetamine in not less than a commercial quantity is a particularly serious offence.
Your counsel has submitted that your moral culpability for the offending is reduced because of the low or very low purity of methylamphetamine in the tablets, nonetheless your culpability is still significant. The total weight of the tablets that were sampled involved an amount well in excess of the commercial quantity, but having said that I do proceed to sentence you on the basis that I am sentencing you for this offence and no other.
In sentencing you, I must take into account the need to pass a sentence which will act in denunciation of your conduct and serve to punish you. Any sentence imposed must give due regard to specific deterrence, which carries particular weight in this instance because of your relevant prior convictions and because these offences appear to represent an escalation in your offending conduct.
Any sentence imposed must also give due regard to general deterrence, so that like-minded members of the community will know that if they offend as you have here, they can expect condign punishment.
Accordingly, for the offence of trafficking in a drug of dependence, being methylamphetamine, in not less than a commercial quantity, you are convicted and sentenced to four years’ imprisonment. In respect of charge two, being in possession of a precursor chemical, namely hypophosphate salt, you are convicted and sentenced to 12 months’ imprisonment. In respect of charge three, possession of a precursor chemical, namely iodine, you are convicted and sentenced to 12 months’ imprisonment. In respect of charge four, possession of a precursor chemical, namely phenylalanine, you are convicted and sentenced to 12 months’ imprisonment.
As charges two, three and four each relate to different precursor chemicals and are therefore discrete offences it is appropriate to order partial cumulation. Accordingly, I propose to order that two months of the sentence on charge two, two months of the sentence on charge three and two months of the sentence on charge four be served cumulatively with each other and with the sentence imposed on charge one. That is a total effective sentence of four and a half years and I propose to order that you serve a non‑parole period of two and a half years. I declare that you have already served by way of pre‑sentence detention a period of 119 days, and I declare pursuant to s.6AAA of the Sentencing Act 1991 (Vic) that but for your pleas of guilty I would have sentenced you in the vicinity of six and a half years with a non‑parole period of four and a half years.
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