R v Stanley Hou
[2016] ACTSC 124
•14 June 2016
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Stanley Hou |
Citation: | [2016] ACTSC 124 |
Hearing Dates: | 1 – 2 March 2016, 27 May 2016 |
DecisionDate: | 14 June 2016 |
Before: | Robinson AJ |
Decision: | See [68]–[72] |
Catchwords: | CRIMINAL LAW – PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – drug offences – manufacture a controlled drug – MDMA CRIMINAL LAW – PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – drug offences – possess controlled precursor – nitromethane CRIMINAL LAW – PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – drug offences – trafficking in a controlled drug other than cannabis – MDMA |
Legislation Cited: | Crimes (Sentencing) Act 2005 (ACT) s 7, s 33 Crimes(Sentencing Procedure) Act 1999 (NSW) s 10 Criminal Code 2002 (ACT) s 603(7), s 607(5), s 612(1), s 607(3) Dangerous Substances Act2004 (ACT) s 151 Evidence Act 2011 (ACT) |
Cases Cited: | Mill v The Queen (1988) 166 CLR 59 Pearce v The Queen (1998) 194 CLR 610 R v Cousins (2002) 132 A Crim R 444 Markarian v The Queen (2005) 228 CLR 357 Walsh v The Queen (2006) 168 A Crim R 237 R v Zdravkovic [2015] ACTSC 393 Nguyen v The Queen [2016] HCA 17 |
Parties: | The Queen (Crown) Stanley Hou (Offender) |
Representation: | Counsel Ms S Gul (Crown) Mr D Dalton SC on 1 – 2 March 2016, Mr M Kukulies-Smith on 27 May 2016 (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Kamy Saeedi Lawyers (Offender) | |
File Number(s): | SCC 82 of 2015 ; SCC 84 of 2015 |
ROBINSON AJ:
On 12 August 2014, Mr Stanley Hou, “the offender” was arrested in consequence of the discovery of a clandestine laboratory used to manufacture Methylenedioxymethylamphetamine (MDMA), commonly known as Ecstasy.
The offender was subsequently charged with a number of offences arising out of the manufacturing of the drug, possession of the drug and possession of its precursors. He entered a plea of not guilty to these charges before the Magistrate and was committed to the Supreme Court for trial.
The trial was fixed to commence before me on 1 March 2016. After some negotiation, on 2 March 2016, the offender pleaded guilty to three counts in the indictment and asked that a further count be taken into account. The Crown accepted those pleas in full satisfaction of the indictment. I set out those counts below.
After the offender had entered his pleas of guilty, I remanded him in custody. He had earlier spent 11 days in custody in relation to these offences. I propose to backdate any sentence to 20 February 2016 to take account of presentence custody.
Pleas of guilty
The offender pleaded guilty to-
(Count 2) Manufacturing a controlled drug, namely 3,4-Methylenedioxymethylamphetamine (MDMA).
(Count 5) Possessing a large commercial quantity (>1 Litre) of a controlled precursor, namely 32.1 litres of nitromethane, with the intention of using any of it to manufacture a controlled drug, namely MDMA, with the intention of selling any of the manufactured drug or believing that someone else intends to sell any of the manufactured drug.
(Count 8) Trafficking in a controlled drug other than cannabis, namely 71.223 grams of MDMA.
The offender asks the Court to take the following additional offence into account in sentencing him, on Count 5 above, the offence of possessing a large commercial quantity of a controlled precursor:
(Count 6) Possessing a large commercial quantity (>2 grams) of a controlled precursor, namely 800 grams of mercuric chloride, with the intention of using any of it to manufacture a controlled drug, namely MDMA, with the intention of selling any of the manufactured drug or believing that someone else intends to sell any of the manufactured drug.
It must be noted that in the course of the negotiations, referred to above, the offender was able to avoid facing the further charges in the indictment including a second charge which carried a maximum penalty of 25 years imprisonment, that of manufacture a commercial quantity of MDMA (s 607(3) of the Criminal Code 2002 (ACT)). I wish to record the course of the negotiations as they were the subject of some submissions concerning the appropriate discount to be given for the pleas of guilty.
I propose to allow a discount of approximately 10% for the utilitarian value of the pleas.
Penalties
The maximum penalty for the offence of manufacturing a controlled drug for selling, contrary to s 607(5) of the Criminal Code 2002 (ACT), is 15 years imprisonment, a fine of $225,000, or both.
The maximum penalty for the offence of possessing a large commercial quantity of a controlled precursor to manufacture a controlled drug for selling, contrary to s 612(1) of the Criminal Code 2002 (ACT) is 25 years imprisonment, a fine of $225,000 or both.
The maximum penalty for the offence of trafficking in a controlled drug other than cannabis, contrary to s 603(7) of the Criminal Code 2002 (ACT), is 10 years imprisonment, a fine of $225,000 or both.
The maximum penalty for the additional offence of possessing a large commercial quantity of a controlled precursor to manufacture a controlled drug for selling, contrary to s 612(1) of the Criminal Code 2002 (ACT), is 25 years imprisonment, a fine of $375,000 or both.
I have had regard to those maximum penalties in accordance with Markarian v The Queen (2005) 228 CLR 357 at [30–31].
The discovery of a clandestine laboratory
In 2014, ACTEW Water began an investigation into a possible chemical spill. The investigation included door knocking at business premises’ in Hume.
About 8:30 am on Tuesday 12 August 2014, ACTEW Water, Trade Waste Officer, Jason Campbell was door knocking the industrial units at 88 Sheppard Street, Hume ACT.
The units situated at 88 Sheppard Street are accessible via a driveway of approximately 100 metres. There are two buildings. They are on either side of the driveway. There are a total of 11 units. Each is separated by concrete walls. Each unit consists of two spaces, an office area and a warehouse area. Access can also be gained to the warehouse area via a roller door and a rear door. Car parking is available near the units.
Mr Campbell had a conversation with Peter Laurent at those units where Mr Laurent explained that there were chemical odours in his unit and the surrounding units. Mr Laurent led Mr Campbell to the rear of the units. Mr Campbell observed that the window flyscreen at the rear of unit 10 had a residue on it that wasn’t on the surrounding units. Mr Campbell then continued his door knock of the units at 88 Sheppard Street.
About 9:00 am or 9:30 am, Mr Campbell observed the offender drive a Honda into the car park of 88 Sheppard Street, Hume. Mr Campbell saw the offender enter the office door of unit 10. Mr Campbell knocked on the office door of unit 10 and that knock was answered by the offender. The offender exited the office and closed the door behind him in order to speak to Mr Campbell. Mr Campbell observed that the lower white parts of the offender’s eyes were red in colour. They had a conversation.
Mr Campbell rang his supervisor to request ACT WorkSafe and the police to attend. Mr Campbell then waited on the driveway of 88 Sheppard Street out of view from unit 10.
About 9:20 am, Mr Campbell's supervisor, Chris Dole arrived at the location. About 10:55 am, ACT WorkSafe Inspectors, Stuart Mackenzie and Richard Muir arrived at the location. Mr Campbell gave the ACT WorkSafe Inspectors and his fellow ACTEW Water employees briefings of what he had seen and heard that morning.
About 11:30 am, ACT WorkSafe members requested the assistance of police.
About 12:32 pm on Tuesday 12 August 2014, ACT Police arrived. ACT WorkSafe members requested police assistance to enter the premises of unit 10/88 Sheppard Street, Hume and conduct an inspection.
About 12:45 pm, whilst police were speaking to the ACTEW Water employees and the ACT WorkSafe Inspectors, they saw the offender driving the Honda, apparently leaving the property. Police stopped the vehicle on the driveway of 88 Sheppard Street, Hume and had a conversation with the offender. The offender produced ACT drivers licence number 2042222 in the name of Stanley Hou, born 9 June 1979. The offender told police he was leaving to get some lunch and that he would return and he was the occupier of unit 10. Police advised the offender that it would be in his interest to stay at the location while ACT WorkSafe conducted their inspection. The offender parked his car and got out.
The offender was advised by Inspector MacKenzie that an inspection would be conducted pursuant to s 151 of the Dangerous Substances Act2004 (ACT). The offender was reluctant to comply with ACT WorkSafe directions however, after Inspector MacKenzie reiterated their purpose, the offender removed a set of keys from his pocket and opened the front door to unit 10/88 Sheppard Street, Hume. Behind the front door was a steel door with a locked padlock which the offender opened with a key.
ACT WorkSafe inspectors, police and the offender entered unit 10 to conduct an examination of the premises pursuant to s 151 of the Dangerous Substances Act 2004 (ACT).
The offender, police and ACT WorkSafe inspectors entered into the office area of the unit. Inside the office area there was a desk, shelving, office chair, a laptop, food wrappers and various office supplies. There was a strong odour of chemicals, however nothing of interest. Police and the inspectors observed a door to the right of the entrance door which read 'staff only'. The offender positioned himself in front of the door and said he wanted to talk to his lawyer now.
ACT WorkSafe inspectors told police they would need access. The offender was moved aside and the unlocked door into the warehouse area was opened. As soon as entry was gained, police and inspectors could smell a very strong odour of chemicals. Immediately observable were glass beakers, drums of chemicals, a heating element, a small work station and equipment that appeared to be for a laboratory.
Police left the premises with the offender and requested further assistance from ACT Fire Brigade and Police Clandestine Laboratory Team. WorkSafe inspectors entered the warehouse area to conduct an inspection. During the inspection conducted by WorkSafe they could smell a strong odour in the warehouse area of the unit. They observed a number of 5 to 10 litre round-bottomed glass flasks on shelves. Located behind a partition at the rear of the unit were a large number of chemical drums. Behind the office they observed an esky with several tubes coming out of it which were attached to a device in the corner of the room which was covered in aluminium foil. This appeared to the WorkSafe inspectors that a chemical process or reaction was taking place.
The WorkSafe inspectors reported to police that they believed there was a large quantity of dangerous substances and that it appeared as though there was the manufacturing of a chemical taking place.
Police established a crime scene with an inner and outer cordon. The offender remained in police custody as he, along with all persons who had been inside the premises, required decontamination and medical assessment due to the health risks associated with the chemicals in the premises.
About 2.30 pm on that day, Police Clandestine Laboratory Team attended and entered the unit to conduct an appraisal of the unit to ensure there was no risk to the general public, as there were a number of businesses in the area being operated and used by the public.
Soon after leaving the unit, the offender was asked if there was any immediate danger presented by the now unattended chemicals and equipment. The offender stated he was manufacturing MDMA not meth, using heat elements and a cooling system and that a power point needed to be turned off.
A short time later, members of the ACT Police Clandestine Laboratory Team, ACT Government Laboratory (ACTGAL) scientists and ACT Fire brigade Hazardous Materials (HAZMAT) arrived.
About 3.35 pm, the offender was asked what was in the reaction vessel to which he replied ‘nitromethane’. He was asked if he was distilling nitromethane and he said ‘yes’.
About 4:00pm, the offender was decontaminated and medically cleared by ACT Ambulance Service, arrested and taken to the ACT Watch House.
Criminal history
The offender, as an adult, has a possess prohibited drug offence in 2010 for which he received a discharge under s 10 Crimes (Sentencing Procedure) Act 1999 (NSW). I will approach the matter on the basis of the offender having no criminal record.
Objective seriousness
On 25 September 2013 the offender, after having inspected the unit at 10/88 Sheppard Street expressed his desire to the agent to lease those premises. The offender ceased working at Mezzanine Financial as a financial planner on 4 October 2013, a position he had held from 2 June 2012. The offender leased the premises for the period 14 October 2013 to 13 October 2014. The offender “operated the laboratory from October 2013, until the date of his apprehension 12 August 2014” (Exhibit 3 at page 1).
The activities concerned in the manufacture of drugs ceased only when the laboratory was discovered. The premises were well set up and well resourced.
There is some evidence suggesting that others may have played some part in the manufacturing process; however, I find that the offender was, at least, a principal if not the principal player in that manufacturing process.
The following is a description of the items found on 12 August 2014 at the premises taken from the Statement of Facts, Exhibit 3. The description gives some idea of the scale of the business being conducted by the offender.
Police seized the following items that were analysed by ACTGAL scientists (Count 2):
· 5 x clear plastic five litre containers containing yellow liquid residues of chemicals that can be used as precursors for synthesis of MDMA;
· A large glass bottle with round glass stopper containing liquid residue of chemicals that can be used as precursors for synthesis of MDMA;
· 4 x large heating (hot) plates/stirring plates with visible powder residues of chemicals that can be used as precursors for synthesis of MDMA;
· 5 x round glass elbows containing liquid residue consistent with processes in the manufacture of MDMA;
· 4 x black plastic buckets, each containing a large glass separating funnel. MDMA was detected in residue from the funnels;
· 6 x large foil trays containing powder residue in which MDMA was detected; and
· 9 x large foil trays containing powder residue in which MDMA was detected.
Chemicals seized from the premises and subsequently confirmed via testing:
· A large black garbage bag containing metallic pellets - aluminium (Count 2).
· 58.243 grams of white powder - Methylenedioxymethylamphetamine (MDMA) (Counts 2 and 8);
· 12.98 grams of white powder - MDMA (Counts 2 and 8);
· A red 5 litre jerry-can containing 4.4 litres of a clear yellow liquid - Safrole and 3,4-Methylenedioxyphenylpropan-2-one (PMK) (Count 2);
· A 25 litre clear plastic drum labelled "Nitro Methane" containing 21 litres of clear liquid - Nitromethane (Count 5);
· A 25 litre clear plastic drum labelled "Nitro Methane" containing 11.1 litres of clear liquid - Nitromethane (Count 5);
· A white plastic container with blue lid commercially labelled "Mercury (II) Chloride powder 500g" containing 300 grams of white powder - Mercury (II) Chloride (Count 6);
· A white plastic container with blue lid commercially labelled "Mercury (II) Chloride powder 500g" containing 500 grams of white powder - Mercury (II) Chloride (Count 6);
· A white plastic container with blue lid commercially labelled "Mercury (II) Chloride powder 500g" containing traces of white powder - Mercury (II) Chloride (Count 6);
· Two glass bottles containing 1.4 litres of clear yellow liquid which was decanted from a large round bottom flask - Nitromethane (Count 2 and 5);
Police seized and took samples from a number of chemicals located in containers (Count 2) including:
· A 'Round White Bucket - No Label' containing liquid from a white bucket of approximately 20L capacity partially filled with clear liquid being methanol;
· A '5L Container - No Label' containing liquid from a clear container of approximately 5L capacity containing approximately 1 litre of clear liquid being isopropanol;
· A white plastic drum of approximately 25L capacity containing approximately 5 litres of clear liquid being methanol;
· A white plastic drum of approximately 25L capacity containing approximately 5 litres of clear liquid being toluene;
· 5 x white plastic drums of each approximately 25L capacity hand labelled 'DCM' containing approximately 97 litres of clear liquid being dichloromethane (DCM);
· A white plastic drum of approximately 25L capacity with no label containing approximately 25 litres of clear liquid being methanol;
· 2 x black plastic drums of each approximately 25L capacity hand labelled 'Toluene' containing approximately 50 litres of clear liquid being toluene;
· A 250kg grey metal drum commercially labelled 'Methylene Chloride' estimated to contain less than 5 litres of clear liquid being methylene chloride (also known as dichloromethane);
· An open 250kg blue metal drum commercially labelled 'Methanol' estimated to contain approximately 150 litres of methanol;
· 2 x unopened and sealed blue 250kg drums labelled 'Methanol';
· 8 x empty green and yellow 250kg drums labelled 'Methanol';
· An open 250kg green and yellow metal drum commercially labelled 'Toluene' estimated to contain approximately 150 litres of toluene;
· 2 x unopened and sealed green and yellow 250kg drums commercially labelled 'Toluene';
· 2 x unopened and sealed blue 250kg drums commercially labelled 'Toluene';
· 5 x empty green and yellow 250kg drums commercially labelled 'Toluene';
· 3 x 25 litres hydrogen peroxide;
· 2 x 25 litres of hydrochloric acid;
· 9 x bags of caustic soda;
· 6 x 25 litres of formic acid; and
· 5 x containers labelled acetone.
Police seized a number of property items from within the premises:
· Apple Mac book laptop (user Mai Do);
· Numerous pieces of commercial laboratory glassware, (including 20 litre beaker, 3 x plastic funnels, 2 x measuring cylinders, 4 x single neck reaction vessel, 1 x flask, 1 x 20 litre reaction flask with 3 neck adaptors, 1 x double neck reaction vessel, 1 x glass beaker with stand, 4 x 5 litre Pyrex beakers, 1 x large beaker with funnel and 4 x 3 neck adaptors; (Count 2)
· 2 x commercial grade laboratory heating mantles; (Count 2)
· 4 x commercial stirrers; (Count 2)
· Breathing apparatus face masks; (Count 2)
· 3 x food processors; (Count 2)
· Vacuum sealing machine; (Count 2)
· 1 x box containing documents, (including - bank statements in the Stanley Hou, Mai Do and Designer Lane Pty Ltd, Thrifty truck rental in the names of Stanley Hou, Ray White lease documents in the name Designer Lane and Stanley Hou for premises unit 10 of 88 Sheppard St, Hume, ACT and business documents for Designer Lane Pty Ltd;
· $2,400 in Australian dollars; and (Count 8)
· 2 x Tyvek chemical suits. (Count 2).
I was not able to obtain much further indication of the scale of the business conducted from the premises from an analysis of the offender’s and his family’s banking records. Although there was financial information tendered on the sentencing hearing, it was not in a form where confident findings could be made.
An examination of the offender’s computer reveals that the computer was used to access numerous sites concerning chemicals and the manufacture of MDMA. Police also located at the house, at which the offender was residing prior to his arrest, a document “Complete MDMA synthese”. It consisted of 28 pages and bore the fingerprints of the offender.
Count 2 – Manufacturing a controlled drug – MDMA
No quantification of the amount of MDMA manufactured was given in the evidence.
Count 5 – Possessing a large commercial quantity of a controlled precursor
The offender possessed 32.1 litres of nitromethane, with the intention of using any of it to manufacture a controlled drug, namely MDMA, with the intention of selling any of the manufactured drug or believing that someone else intends to sell any of the manufactured drug.
A large commercial quantity of this precursor is taken to be 1 litre.
Count 8 – Trafficking in a controlled drug other than cannabis
The trafficking was in 71.223 grams of MDMA.
A trafficable quantity is taken to be 10 grams.
It is not alleged by the Crown that the offender intended to sell the MDMA himself.
Count 6 – Possessing a large commercial quantity of a controlled precursor
The offender possessed 800 grams of mercuric chloride, with the intention of using any of it to manufacture a controlled drug, namely MDMA, with the intention of selling any of the manufactured drug or believing that someone else intends to sell any of the manufactured drug.
A large commercial quantity of this precursor is taken to be 2 grams.
I have kept firmly in mind in evaluating the criminality:-
(a)The role performed by the offender in planning and then setting up the well-equipped laboratory and his role as a cook or chemist in relation to the manufacturing process. See Walsh v The Queen (2006) 168 A Crim R 237 at [63];
(b)The fact that it is not proved that the offender himself sold any drugs;
(c)That the operation was on foot for some 10 months;
(d)I infer that the offender was motivated by financial gain in resigning from his full time position to take up the manufacturing process shortly thereafter; and
(e)The fact that no specific amount of MDMA is alleged to have been manufactured by the offender although the plea of guilty to counts 5 and 6 include an admission of the intended use of the precursors. See R v Cousins (2002) 132 A Crim R 444 at 450 and this is relevant to assessing criminality.
Subjective circumstances
It is convenient to first have regard to the Pre-Sentence Report in this respect. The author, Ms Maxwell, wrote in part:-
Family/Marital
Mr Hou was born and raised in Sydney and is one of four children. He described difficult and traumatic childhood experiences and stated his mother and siblings relocated to Canberra after the murder of his father in 1986. Mr Hou stated his father’s murder remains unsolved and this circumstance continues to negatively impact his whole family.
Mr Hou advised his mother suffered from an acquired brain injury after contracting meningitis as a child and this significantly impacted on her areas of intellectual development. Mr Hou was required to assist his mother with the care of his siblings due to his mother’s limited functioning and described the financial difficulties his mother experienced particularly upon the death of his father.
Mr Hou is married and described is wife as supportive and encouraging. He has two daughters with his wife and enjoys positive relationships with his immediate and extended family members.
Education/Employment
Upon completion of Year 12, Mr Hou continued his education and completed tertiary qualifications in the mathematics and finance fields. Upon completion of his degree, Mr Hou had been employed in the banking and construction industries in financial advisory and administrative positions. In the six months prior to his remand to custody, Mr Hou was employed in the construction industry and spoke positively of his experience stating promotion had been made available to him. Mr Hou claimed that this employment would continue to be available to him upon his eventual release. This information was unable to be verified.
During his current custodial episode, Mr Hou has been employed as a cleaner and AMC service records indicate he is consistently thorough when carrying out his duties.
Financial situation
Mr Hou reported to have been adequately managing his financial debts and commitments in the 12 months prior to his arrest, however disclosed a problem gambling addiction which resulted in a significant amount of debt being owed to family, friends and associates. He stated this had been an issue for most of his life, however claimed to have let his addiction spiral out of control in the months immediately prior to his offending. Mr Hou reported an inability to service this debt resulted in the circumstances currently before the Court and acknowledged the impacts his gambling addiction have had on his wife, children, family and local community.
Attitude to offences
Mr Hou agreed with the Statement of Facts and attributed his behaviour to his desperation and fear of being unable to service his gambling debt. He acknowledged the impact his behaviour may have had on the victims of his crime and stated he was ashamed and disappointed in his actions. He expressed regret for his decision to manufacture illegal substances and spoke of the negative consequences that illicit substance use had on society. Mr Hou stated he accepted full responsibility for his offending behaviour and is prepared to accept the consequences of his actions.
Opinion
Mr Hou is a 36 year old man who has experienced traumatic and difficult childhood experiences. Despite the presence of these challenges, Mr Hou enjoys the protection of rewarding familial relationships, stable accommodation and a history of steady employment after completion of tertiary level qualifications. Mr Hou appears to have significant difficulties managing his problem gambling behaviour. He is assessed as a low risk of general reoffending and may benefit from engagement with service providers in order to address his gambling issues. Should he demonstrate commitment to addressing this area of criminogenic need his risk of reoffending may be further reduced.
Ms Maxwell was cross-examined on 27 May 2016 by the counsel then appearing for the offender. The cross-examination centred on what the offender had told Ms Maxwell concerning his gambling and the consequential opinion she formed on what she had been told of that gambling. Other than what the offender told Ms Maxwell about his gambling, Ms Maxwell was not in receipt of any further information. It is desirable to set out the relevant portions of Ms Maxwell’s cross examination commencing at page 5 of the transcript:-
MR KUKULIES-SMITH: What was the nature of gambling that he disclosed to you and please feel free to refer to your notes as you're answering the question?---The discussion was that Mr Hou initially was gambling through poker machines, accessed through clubs in the community and also through casinos and he indicated his problem gambling escalated to betting on horses and sporting which he accessed through applications on his mobile phone.
Did he indicate time frames? Firstly in relation to the poker machines, did he indicate to you any time frame when that occurred?---From what age? Is that what you mean?
Yes, from what age?---Okay, so his gambling started from age 18 and began with accessing poker machines and gaming and he indicated that in the months prior to these offences being committed he was accessing gambling more through applications on his mobile telephone device.
Did he indicate to you the sorts of activities he was gambling upon through those applications?---He indicated that gambling was readily available to him all hours of the day and night through the applications that he was using on his telephone and made reference to the fact that sports are being played throughout the world and you're able to access gambling through the applications at any hour of the day or night.
Did you recall one of those applications being Sportsbet? Does that sound familiar?---He made reference to sporting application; not specifically Sportsbet, but yes.
In terms of the events that he was betting on, did he identify any particular sports or did he just talk generally about those sports?---Generally about sporting.
You've discussed it being pokies I think at clubs and at the casino and then in the months before there being use of this application or "applications" I think you said?---Yes.
Were there any other methods of gambling that he discussed with you?
---Mr Hou made reference to accessing a bookie to facilitate his gambling, but provided very little detail other than that.
In terms of the little detail that he did provide, what was it in relation to the bookie?---I asked what a bookie was and he explained that it was somebody who was able to take bets on different things. So again we spoke of horses and sporting and other gambling and that it was a matter of contacting that person and placing a bet and the gambling debt grew from there.
When you said the gambling debt, did you understand to whom that debt was owed from what he told you?---He provided very limited information about the bookie and the debt, the debt that was owed, and - and who that debt was owed to.
Okay. Did you get the impression the debt was owed to the bookie?---Yes, I did.
........
MR KUKULIES-SMITH: Now, if you can turn over the page to page 3 of your report, you’ve got a heading in the middle of the page, or just above the middle of the page, “Attitude to Offences,” you see the paragraph that that’s above?---Sure.
And you’re talking there, in the first line, about Mr Hou attributing his behaviour to desperation and fear of being unable to service his gambling debt; in relation to the desperation, did he discuss with you what the source of that desperation was?---Mr Hou indicated that associates of the bookie he had accessed had made attempts to seek an amount of money from him, in order to service the debt that he owed, and at the time that those attempts were made, he did not have the funds to service the debt that was there.
Did he describe to you any consequences that he believed flowed from that?---Mm - - -
Or could flow from that?---He indicated that he felt threatened, but did not provide any further details as to why, or what the consequences may be.
And did he discuss with you any actions he took, as a result or in response to those threats?---He indicated, due to fear of the consequences of being unable to service his debt, he did - complied with the direction of the associates of the bookie to utilise his space in order to manufacture illicit substances to service his debt.
In re-examination of Ms Maxwell the Crown asked the following at page 8 of the transcript:-
MS GUL: Can you recall whether there was any numerical figure put on that debt?---In the vicinity of 60 and $70,000.
Now, in terms of this issue of him setting up his manufacturing arrangement, apparently to service this debt, did you and he go into any real details of what it was that that arrangement - the manufacturing arrangement involved?---No, we didn’t.
And so effectively it was the case that you took his word for his version of why he committed the offences?---That’s correct.
And that in your course as the pre-sentence report author, you didn’t have any cause to delve deep into the details of the actual facts?---Mr Hou was reluctant to provide specific detail in relation to the bookie that was referred to, or the associates that had come to collect the debt, and our conversation in relation to the statement of facts was - was limited.
So for example, you didn’t go into any detail as to the preparation or the timing, or the length of time that this manufacturing arrangement was engaged in for?---No, we didn’t.
Ms Lindy Hou gave evidence. She was the aunty of the offender. Ms Hou had intermittent contact with the offender throughout his life. In the six month period prior to March 2016, she had seen the offender a few times over coffee, lunch and family functions. Ms Hou had lent the offender money. The loan at one stage reached $50,000. To date, the offender has repaid $30,000. Ms Hou suspected her nephew was gambling and the offender later confirmed that fact to her.
In cross-examination the Crown took up the issue of the offender’s gambling starting page 21 of the transcript:-
MS GUL: He repaid you about 30,000 but 20,000 was outstanding?---Yeah.
Are you aware that in July 2012 Stanley and Ms Doh purchased another property at the Altitude Apartments in Belconnen?---Yeah, I know they'd purchased something, well, they had to pay something off the plan that they'd put the money down on much earlier. So I don't know. I can't verify the exact date or exact apartment, so I can't verify either of those.
All right, but would you agree to your knowledge by 2012 they had two properties?---I guess so, yeah.
And in terms of him needing money from you to pay I think it was your words "bad people" that he owed gambling money to, did you discuss with him the fact that he was trying to repay these debts whilst he had two properties?---No, I didn't discuss that.
So if you didn't discuss it, presumably then it follows that you didn't have a discussion about him perhaps remortgaging or selling them to meet his debts rather than asking you?---I think they were trying, actually.
During the course of the evidence and cross examination of Ms Maxwell and Mrs Hou, I enquired of counsel several times whether he was seeking a finding, on the balance of probabilities, that the offender’s gambling addiction had led to the setting up or operation of the clandestine laboratory. I drew to counsel’s attention to the fact, that although the provisions of the Evidence Act 2011 (ACT) do not automatically apply to sentencing proceedings, there still needs to be firm foundations to make findings of fact. What is a firm foundation will vary with the nature of the fact to be proved. I have previously set out my views on this matter in R v Zdravkovic [2015] ACTSC 393 at [29]–[36].
In this case the offender elected not to give evidence, as was his right. Nor did his wife give evidence and no documentary evidence was tendered to confirm issue of gambling and, importantly, its nature. The offender’s brother provided a character reference but no mention was made of gambling in it. I was left to assess, (a) whether the offender had a gambling addiction or problem and (b) whether any such addiction or problem had a relationship with the setting up or operation of a clandestine laboratory to manufacture drugs, upon the evidence of Ms Maxwell and Mrs Hou.
There was documentary evidence as that the offender attended counselling sessions conducted by Relationships Australia commencing on 15 January 2015 (Exhibit 10). This document made no specific mention of gambling but did refer to an obligation of confidentiality to the client. There was also documentary evidence that the offender had completed, on 10 May 2016, an assessment conducted by the Salvation Army assessing him as suitable to be put onto a waiting list for bed availability to undertake a Bridge Program (Exhibit 7). That program is a rehabilitation centre for the treatment of drug, alcohol and gambling problems. The evidence did not identify the nature of the service offered to the offender.
After the hearing on 27 May 2016, I received into evidence an addendum to Exhibit 10. That was a more specific report on the nature of the counselling provided to the offender by a psychologist from Relationships Australia. In it, the author sets out what the offender told her concerning his gambling and also what he told her of the stressors in his life. It was properly conceded by counsel for the offender that the author of the addendum “had no independent knowledge of the defendant’s gambling beyond his disclosures”.
It may well be that, on the balance of probabilities, the offender has a gambling addiction or material problem with gambling. It may well be that the offender gambles. However, the extent of any addiction or problem is not clear, nor the extent of its impact on the offender.
More relevantly for sentencing purposes, I am not satisfied, on the balance of probabilities, that there is any causative relationship between the offender’s gambling and the manufacturing of drugs. Even if there were such a causative relationship, it is not clear that it would assist the offender outside of its being an explanation for his criminal conduct.
I am satisfied that the offender had a very difficult start to his life. To his credit he overcame that start and obtained a university degree, professional employment and what would appear to be a prosperous life.
The offender is now 37 years of age, has a wife and two very young children. He has made some contributions to the community and references from both Alexander Maconochie Centre regarding his employment and from Kostinken Pohorukov show his ability to successfully adapt to difficult and different circumstances.
I find that the offender has good prospects of rehabilitation and the chances of reoffending are limited. Even if the offender has a gambling problem, the offender has the capacity to overcome this and is taking steps to do so. I accept that he is remorseful for what he has done, but it must be reiterated that the manufacturing operation was very much on foot until the moment of its discovery. The motivation for this remorse is unclear, however, the offender does not lack an insight into his own behaviour nor its effect on others. Apart from the incursion into drug manufacturing the offender has lived a good and useful life.
Crimes (Sentencing) Act 2005 (ACT)
The Crown drew my attention to s 33 (a), (b) (c) and (i) of the Crimes (Sentencing) Act 2005 (ACT) as being the most important factors to be considered in the proceedings. The Crown also drew my attention to s 7 of that Act. I have had regard to those matters and the additional matters in s 33 (j), (m), (v) and (w).
Totality
In this case, it is obvious that there is a degree of overlap between the possession of precursor chemicals, the manufacturing process and the possession of the finished product. That will be so in any integrated system of manufacturing a product.
I bear in mind the recent statement of the majority in Nguyen v The Queen [2016] HCA 17 at [61]–[65], drawn from the familiar underlying cases of Mill v The Queen (1988) 166 CLR 59, [62]–[63] and Pearce v The Queen (1998) 194 CLR 610, [623]–[4].
Order
I find that there is no other penalty appropriate other than a sentence of imprisonment.
On Count 2, I sentence you to imprisonment for 2 years. I reduce that sentence to 1 year and 10 months on account of your plea of guilty. That sentence is to commence on 20 February 2016.
On Count 5, taking into account Count 6, I sentence you to imprisonment for 3 years and 3 months. I reduce that sentence to 3 years on account of your plea of guilty. That sentence is to commence on 20 February 2017.
On Count 8, I sentence you to imprisonment for 4 months. I reduce that sentence to 3 months on account of your plea of guilty. That sentence is to commence on 20 February 2017.
In respect of the aggregate sentence, you will not be eligible for parole prior to 19 February 2018.
| I certify that the preceding seventy two [ 72 ] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Acting Justice Robinson Associate: Date: 16 June 2016 |
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Amendments
| 16 June 2016 | Replace first sentence of paragraph [36] with: ‘the offender, as an adult, has a possess prohibited drug offence in 2010 for which he received a discharge under s 10 Crimes (Sentencing Procedure) Act 1999 (NSW)’ | Paragraphs: [36] |
| 16 June 2016 | Replace the word ‘accused’ with ‘offender’ | Paragraphs: [18], [41] |
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