STATE OF TASMANIA v MICHAEL JOHN BOULTON 13 SEPTEMBER 2023
COMMENTS ON PASSING SENTENCE WOOD J
The defendant Michael John Boulton has pleaded guilty to one count of trafficking in a controlled substance, namely methylamphetamine, and one count of possessing thing intended for use in manufacture of controlled substance for sale. The defendant has also pleaded guilty to two charges on complaint, namely attempt to unlawfully import a controlled substance, being pseudoephedrine, and unlawfully importing a controlled substance, being pseudoephedrine.
A police operation detected that the defendant had ordered numerous international consignments, including Allegra tablets which contain pseudoephedrine on two occasions. One package was intercepted by Australian Border Force on 4 January 2022, containing 240 x 120 mg tablets in 8 boxes, amounting to 28.8 grams in total. These were seized by police and give rise to the charge of attempting to unlawfully import a controlled substance.
The other package containing pseudoephedrine was delivered to Bethlehem House where the defendant was residing and was seized by police on 8 February 2022. It contained 300 x 120 mg tablets in 10 boxes, totalling 36 grams and gives rise to the charge of unlawfully importing a controlled substance. In total the two packages contained 64.8 grams of pseudoephedrine. A traffickable quantity of pseudoephedrine is 200 grams, considerably more than the amount in the two packages. However, the defendant was not intending to traffic in pseudoephedrine, he was intending to use it to manufacture methylamphetamine.
During the period between 31 October 2021 and 27 January 2022 the defendant received packages containing various items commonly used in the manufacture of methylamphetamine, including a glassware kit and induction cooker.
On 20 January 2022 a parcel addressed to the defendant was detected by Australian Border Force. The parcel was sent from Poland and contained 2.23 kilograms of sodium hypophosphite, which is not a prohibited import however it is listed as a controlled precursor in the Misuse of Drugs Act 2001. Hypophosphite salts are used to convert pseudoephedrine into methylamphetamine.
A trafficable quantity of hypophosphite salts is .25kg. The contents of the parcel were almost 9 times the trafficable quantity.
In the morning of 27 January 2022 the parcel was delivered to Bethlehem House and the defendant collected it from reception and took it to his room. Later that day Tasmania Police searched the defendant’s room under a search warrant. The defendant was present. He admitted to police that he had ordered the sodium hypophosphite via the internet about a month before. At that time he denied it was an ingredient to manufacture methylamphetamine and said it was used for preparing metal for electroplating.
The police searched his room and found the quantity of sodium hypophosphite, a glassware kit, water distiller, and a locked Renengade case containing various items such as a used ice pipe, snap lock bags, digital scales, hot plate, glassware, condenser, blow torch, pH meter kit, electric grinder with traces of pseudoephedrine, metal spoons, magnetic stirrer, packet of magnets, hydrocholoric acid, hypophosphorous acid, iodine, and a tub containing traces of methylamphetamine hydrochloride. Police also seized an eski of iodine crystals and iodine, an envelope containing $1700 and two mobile phones.
Pseudoephedrine, hypophosphorous acid, iodine, and the various equipment mentioned are necessary items in the manufacture of methylampetamine using a method whereby pseudoephedrine, hypophospherous acid and iodine are mixed together, known as the “hypo” method.
The defendant was arrested and interviewed by police. He admitted the sodium hypophosphite was a precursor for “cooking” methylamphetamine and the hydrochloric acid was needed as well. He admitted the glassware was used for steam distillation in the process of manufacturing methylamphetamine. He admitted the contents of the Renegade case, including the iodine and the equipment such as the condenser, which was used as part of the steam distillation process, were used in the manufacture of methylamphetamine. He admitted the grinder has been used to grind pseudoephedrine tablets, the hotplate was used to manufacture ice, and the pH meter is used to check the pH level of the methylamphetamine. He admitted he has made methylamphetamine before and that he has done this two or three times, but not sold it.
His past involvement in manufacturing methylamphetamine is revealed in his prior convictions and indeed, he was on parole at the time for the minor offence of manufacturing controlled drug and a controlled precursor. I emphasise that in relation to the charges before the Court today he is not charged with or to be sentenced for actually manufacturing methylamphetamine.
One of the mobile phones in the locked case contained a number of messages that demonstrated the defendant’s involvement in selling methylamphetamine. There are messages during the period 7 December 2021 and 22 January 2022 which involve the defendant discussing selling methylamphetamine with six individuals, and messages which demonstrate he actually sold methylamphetamine to two of those six people. There are instances of him offering to sell amounts such as 2 points being 0.2 of a gram, half a gram and 1, 2 and 3 grams. The messages reveal he was selling methylamphetamine for approximately $800 a gram. Commonly 0.1 gram is sold for $100.
The defendant admitted to police that he sold methylamphetamine for $800 a gram. He sold 6 grams for $800 a gram and his profit was $2400.
In some of the messages I have mentioned he shares information about how to manufacture methylamphetamine using the “hypo” method. This sharing of information is an aggravating factor of the crime of possession of the equipment intended to be used for the manufacture of a controlled substance.
He admitted to police in his interview that he sent one person iodine and hypophosphite which again, is an aggravating factor.
At the time of his offending in December 2021 and January 2022 the defendant was in the community subject to parole. He had been released on parole on 27 September 2021 with respect to a lengthy gaol sentence of 26 months imposed by the Magistrates Court on 6 November 2020 for a significant number of offences which included manufacturing a controlled drug (minor offence), manufacturing a controlled precursor (minor offence), and supplying controlled drug. Once his offending before the Court came to light, his parole was revoked and he has been in custody serving the sentence until 5 September 2022. Since then his period in custody is attributable to his remand on these matters.
The defendant has a history of poly-substance abuse as a young adult. He came to Tasmania hoping for a fresh start, and he completed the Holyoake Gottawanna programme approximately one and a half years ago. His choice of associates has been a factor in his return to old habits. At the time of these crimes, he was using methylamphetamine at a rate of approximately half a gram every two weeks.
The defendant did not make a lot of money from his enterprise of trafficking. Some of the proceeds were expended on the purchase of materials to make methylamphetamine and as I have mentioned, he consumed some of what he had in his possession.
Before moving to Tasmania the defendant lived in New South Wales and he has relevant prior convictions for offending in that jurisdiction and in Queensland. His history in New South Wales includes supply a prohibited drug in 2003 for which he received a 12 month suspended sentence; and manufacture prohibited drug dealt with by the local court in 2005, which attracted a 12 month suspended term of imprisonment with drug rehabilitation as a condition. In 2012 he was sentenced to terms of imprisonment amounting to 15 months’ imprisonment for summary offences of possess precursor, possess drug manufacture apparatus to make a prohibited drug, and manufacture prohibited drug. The defendant’s convictions also include a sentence of 18 months’ imprisonment imposed by the Brisbane Supreme Court in 2009 for producing dangerous drugs and possessing anything for use in the commission of crime.
The defendant is a serial offender in terms of his manufacturing of drugs. His recent offences in Tasmania, particularly his offending before the Court today committed while on parole for similar offences, reveal an entrenched and determined attitude to continue on this path. Presently his motivation to address his drug abuse and other reasons for offending is low.
It is for these reasons that I consider personal deterrence to be an important sentencing goal.
In terms of his personal circumstances, the defendant is 47 years of age. He has an adult son with whom he is in contact. The defendant was sexually abused while at boarding school and is said to suffer from long-standing symptoms such as depression and post-traumatic stress disorder. I have not been provided with any supporting medical opinion, although there is some support for these diagnoses in the report from Community Corrections of 14 August 2023 which refers to a previous report that mentioned him being diagnosed with post-traumatic stress disorder, paranoid psychosis, and major depression by psychiatrist Dr Ross Kirkman in April 2019, and for which he was prescribed medication. These factors and mental health conditions are relied upon as part of his personal circumstances not as reducing his criminal responsibility or as operating in any other mitigatory respect. These matters are worth noting though, because it suggests a link between these conditions and his drug use, and relevantly to his rehabilitation, that he may benefit from psychological or psychiatric treatment. It must also be acknowledged that an explanation for his personal drug use does not mitigate the seriousness of the crimes before the Court today, which are crimes that inflict harm on others and on society.
The sentences must be just and proportionate to the nature of the offending. I note that the conduct of trafficking is not extensive. As noted, there were messages with six individuals and actual sales with two of those six during a period of approximately six weeks. It was not a particularly lucrative enterprise.
The crime that Mr Boulton committed of possession of equipment with the intention of making a controlled substance to sell is a serious example of such a crime. It was a complete kit containing all the ingredients. Mr Boulton was equipped with both the knowledge and experience to make methylamphetamine, and he shared his knowledge with other would-be chemists, showing no remorse or consideration for the impact that the manufacturing of methylamphetamine would have on our society.
The offences of trafficking and the possession of the equipment are indictable crimes with a maximum sentence of 21 years. The maximum penalty for the offences of importing and attempting to import pseudoephedrine is two years’ imprisonment. I note in relation to those summary offences that the ingredient was ordered in his name and there was no attempt to conceal his conduct. I have taken into account that the defendant pleaded guilty at a relatively early stage.
In fixing the sentence there is the particular need I have mentioned for personal deterrence. General deterrence is also an important sentencing consideration. The destructive harm done to our society by manufacturers of methylamphetamine and drug traffickers is undeniable. Mr Boulton’s rehabilitation remains important and there are still prospects that he may reform but this will turn on his attitude and presently, according to the pre-sentence report, he is not motivated to address the personal factors that have led to his offending.
The defendant is assessed by Community Corrections as requiring a high level of supervision and support and that he would benefit from a “higher intensity drug related rehabilitation intervention”. He should be given an incentive to reform and co-operate with such intervention but it should be provided under the parole regime; presently, his poor commitment to reform and history of determined offending does not allow consideration of a partially suspended sentence. Of course, that lack of commitment may change and the prospect of parole provides an incentive for him to take steps towards that positive change.
Finally, I have taken into account the time he has been in custody to date and the combined effect of the terms of imprisonment I shall impose today together with the time he has spent in prison since his parole was revoked to ensure the aggregate of those terms is just and proportionate to the totality of his offending.
Mr Boulton, I record convictions on the two indictable and two summary offences. For the crime of trafficking in controlled substance, I impose 12 months’ imprisonment backdated to 5 September 2022 and you are not eligible for parole until you have served seven months. For the crime of possessing thing intended for the use in manufacture of controlled substance for sale, I impose a cumulative sentence of imprisonment of 13 months’ and you are not eligible for parole until you have served seven months of that term of imprisonment. For the summary offences, I impose a single global sentence of five months’ imprisonment to be served cumulatively and you are not eligible for parole until you have served three months of that sentence.
The combined effect of these terms of imprisonment is 30 months’ imprisonment backdated to 5 September 2022 with eligibility to apply for parole after 17 months.
I make the following consequential orders:
Order pursuant to s 38B of the Misuse of Drugs Act 2001, that defendant pay the costs of analysis in the sum of $2758.
Pursuant to s 38 of the Misuse of Drugs Act 2001 I order forfeiture of all of the items on property seizure record receipt at pages 19 to 20 of the Crown papers, except for the water distiller (exhibit 2), 2 x torches (exhibit 4), 2 yellow sim cards (exhibit 13), Oppo mobile phone (exhibit 14) and Microsoft Tablet (exhibit 16).
The sum seized of $1700 is forfeited pursuant to s 11(1)(a) and s 16 of the Crime (Confiscation of Profits) Act 1993.