Director of Public Prosecutions (Cth) v Galea
[2014] VCC 1560
•16 September 2014
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-14-01256
| DIRECTOR OF PUBLIC PROSECUTIONS (CTH) |
| v |
| ALFRED RAYMOND GALEA |
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JUDGE: | HER HONOUR JUDGE PATRICK | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 4 September 2014 | |
DATE OF SENTENCE: | 16 September 2014 | |
CASE MAY BE CITED AS: | DPP (Cth) v Galea | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 1560 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | ||
| For the Accused |
HER HONOUR:
1 Alfred Raymond Galea, you have pleaded guilty to five charges of importing a marketable quantity of a border-controlled drug. The border-controlled drug in question is gammabutyrolactone (“GBL”).
2 The circumstances of your offending are set out in detail in the Summary of Prosecution Opening which was tendered as Exhibit A. The charges all concern the importation by you into Australia by mail on five occasions of an amount of GBL. GBL is widely used in the industrial manufacture of a wide range of chemicals, including pesticides and herbicides. GBL has many industrial uses but no clinical/therapeutic use in humans and is not a prescribed medication either in Australia or overseas.
3 When ingested GBL is metabolised in the body and becomes GHB. The primary effects of GHB are those of a central nervous system depressant, commonly causing relaxation, euphoria, increased sex drive, confusion, dizziness and drowsiness. Regular use of GBL or GHB can cause severe dependence and serious withdrawal symptoms. Tolerance can develop in regular users. Used in combination with other drugs such as alcohol GBL and GHB can cause nausea and breathing difficulties.
4 On 9 September 2013, you placed an order for 1 litre of GBL with an overseas supplier with the purported purpose of being used for cleaning. That amount was delivered on 17 September 2013. That is the subject matter of Charge 1.
5 On 5 December 2013, you placed an order for GBL with an overseas supplier. Again, the purpose for use was listed as cleaning. The product arrived in Sydney on 10 December 2013 but was held by Customs. That importation is the subject of Charge 2. In email correspondence dated 9 and 10 January 2014, you complained that you had not received the order as it was held by Customs and enquired about whether or not you could reorder.
6
On 15 January 2014, you placed an order for 3 litres of GBL. As you had done on the two earlier occasions, you provided your own details. The item with the tracking order number that you were given arrived at Sydney on
21 January 2014 but was held by Customs. That importation is the subject matter of Charge 3. On 4 February 2014, you again emailed the supplier saying that the order was stopped by Customs and that this was the second one that was stopped. You asked if you ordered a litre to a different address, whether it might be delivered.
7 On 20 February 2014, you placed a further order for 1 litre of GBL. You gave your own name and address and again said that the purpose of use was for cleaning. Subsequent to the order being made, you asked if the mailing address could be changed to the “Director of e-Learning” at the school at which you were employed in that capacity. That order arrived in Sydney on 28 February 2014 but was held by Customs. That importation is the subject matter of Charge 4. On 27 March 2014, you emailed the supplier saying that this was the third time that the order had been stopped by Customs and asking whether you could get the order delivered another way, perhaps being posted to another country. You said, “I only like your product and am trying everything to get it to me.”
8 On 27 March 2014, you placed an order for 1 litre of GBL and asked that it be sent to your own name at an address in Belgium. Records indicate that you paid USD $132.80 for the purchase. That order arrived in Belgium on 2 April 2014 and was redirected through a forwarding service to an address in Australia. The parcel arrived on 27 April 2014 and was intercepted by Customs. The consignee was given as your mother at your mother’s address in Sunshine North. That importation is the subject matter of Charge 5.
9 The substance in the packages in the fourth and fifth importations was weighed and analysed. The package relating to Charge 4 contained 952.9 grams of pure GBL. The package relating to Charge 5 contained 997.07 grams of pure GBL. The substances in the other packages were not analysed. You are charged in relation to Charges 1 to 3 on the basis that the amount imported was approximately 1 litre on each occasion. A marketable quantity of GBL is 2 grams. A commercial quantity is 1 kilogram.
10 Police executed search warrants at your last known address and at your workplace on 3 April 2014. You said you had ordered cleaning products from Poland and did not know that it was drugs. You were committed for trial on 14 July 2014. The matter proceeded by way of straight hand-up brief and you entered a plea of guilty to each of the charges.
11 A folder of documents relied upon by defence was tendered as Exhibit 1. You also gave evidence in the plea hearing. Your personal circumstances were outlined in the material provided including in the psychological report of Dr Gabriel Phillips dated 29 August 2014.
12 You are currently forty-four years old. You grew up in a relatively stable family environment. You had a good relationship with your father but a more difficult relationship with your mother. You had particular difficulties with one of your older brothers, who is now deceased, because of your homosexuality. You have qualifications as a secondary school teacher and have also completed a carpentry apprenticeship. You have held senior positions in a range of schools and in the Victorian Department of Education. You have been an enthusiastic and committed sportsman for most of your life. You have been a successful runner and have had a long career in umpiring Australian Rules Football including 16 years as an umpire with the Australian Football League.
13
Dr Phillips explains that you have been provided with psychological therapy by him during four periods. Between October and September 2001, you attended Dr Phillips for 25 sessions in respect to problems that you were having with your then partner. You again attended for therapy between
19 July 2001 and 22 March 2004 which included 35 sessions of counselling. The relationship with your first significant partner had broken up. In February 2004 you were diagnosed as being HIV positive. At around March 2004 you had met your second significant partner. Between April 2008 and August 2008 you attended Dr Phillips for nine sessions. Dr Phillips says you presented with a severe major depressive episode and had a number of stressors in your life including problems with your partner, your brother’s illness and your father’s Alzheimer’s disease. Therapy ended when you bought a new home and moved to country Victoria with your partner.
14 You again attended Dr Phillips between 15 May 2014 and the time of the report, for 12 sessions. You presented with a Major Depressive Disorder and Generalised Anxiety Disorder with panic attacks after being arrested and charged. Dr Phillips said you were experiencing considerable stress at being suspended from your employment as a school administrator/teacher. You were also suffering grief associated with the end of your relationship with that second partner.
15 Dr Phillips says that the relationship with your second partner was violent and emotionally abusive. That person threatened to disclose your HIV status. According to you, that partner regularly used drugs. You said that during that relationship, you were not a regular drug user but had smoked marijuana to reduce symptoms of your severe sleep apnoea and thyroid disorder. You told Dr Phillips that you commenced using drugs regularly only from June 2013 and up to April 2014. You told him that your drug use was to manage your distress while the relationship was breaking down, especially your increased feelings of loneliness and inadequacy. You told Dr Phillips that you used GBL from August 2013 to more effectively manage the side effects, especially nausea, from the anti-retroviral medications prescribed to treat your HIV infection.
16 You told Dr Phillips that you had had an adverse reaction to your medication suffering intense nausea. In June 2013, you were travelling in Holland and were told by another person that using GBL would help relieve the symptoms of nausea. You were also told that you could order it on-line and get it delivered to Australia. That is what you did on returning to Australia.
17 You told Dr Phillips that in the second half of 2013 and first half of 2014, that in addition to relieving your nausea, you used GBL to make yourself feel better. It appears that the use of GBL made you feel more confident in respect of sexual behaviour which Dr Phillips has indicated is important to you as a coping strategy. Dr Phillips says:
“In my view, this mix of drugs and sex provided an ideal escape for Mr Galea from the distress of his disintegrating life and the side effects of his anti-retro viral medication.”
18 It is Dr Phillips’ opinion that at the time when your relationship came to an end, you were demonstrating impaired judgment by acting out and putting yourself at risk. He says that this occurred at the time you became infected with HIV and that in his view a similar pattern has occurred with this drug offending behaviour. Dr Phillips describes as you as “having over time quite self-destructive and naïve patterns of behaviour”. He says you told him that you never received any money for any of the GBL but rather gave some away to other people in sexual situations for no payment. He suggests that you received sex and attention, not money or other goods or services.
19 Dr Phillips says that you have been treated by him over an extended period for mental health issues including Major Depression and Generalised Anxiety Disorder with panic attacks. He says you tend to make significant progress in treatment but are vulnerable to relapse when stressed. It is his view that your substance use has on some occasions been an attempt to self-medicate to manage your anxiety.
20 Dr Phillips is of the opinion that what he describes as traumatic states of mind contribute to your “common flight and freeze responses, impaired judgment and reduced capacity to protect yourself.” He is of the opinion that while your condition has improved through June and July 2014, you are vulnerable to relapse. He considers that a custodial sentence would significantly and adversely affect your “precarious mental health”.
21 In respect of the effect on your physical health, Dr Phillips says:
“In my view, a custodial sentence would significantly and adversely affect Mr Galea’s mental health by creating extreme stress, exposing him to traumatic events, heightening his anxiety and increasing the probability of further major depressive episodes; all of which may adversely affect his physical health in relation to his HIV disease.”
22 Dr Phillips’ opinion is that you have excellent prospects for rehabilitation, given your attitude to treatment. He says you have demonstrated greater insight and indicated significant and genuine remorse in relation to your behaviour. Dr Phillips says you have recently commenced a new relationship which is supportive. Your new partner was in Court to support you as were a number of friends, your mother and two brothers.
23 Two letters were provided from your treating General Practitioner, Dr Norm Roth. Dr Roth says that you suffer from depression, sleep apnoea, HIV infection and a thyroid disorder. You are on antiviral medication for the HIV infection and thyroid replacement medication. A letter from Epworth Sleep Centre confirms that in 2012 you were assessed as having severe obstructive sleep apnoea and a trial with a CPAP machine was recommended. You purchased that machine in 2102 and have used it since.
24 Dr Roth has considerable experience in treating persons with HIV and agrees generally with Dr Phillips' opinion with respect to the potential negative impact of stress and impaired mental health on someone living with HIV. He also stresses the importance of HIV patients not missing any daily doses of antiviral medication. He does say that one or two days’ omission is not likely to result in the development of viral resistance but repeated or prolonged missing of doses would have such an effect.
25 In sentencing submissions, your counsel relied on a number of matters including:
(a)your lack of prior criminal history;
(b)the plea of guilty at the earliest opportunity;
(c)co-operation given to the police;
(d)your motive for importation;
(e)the application of Verdins principles;
(f)the serious risk of imprisonment having a gravely adverse effect on your physical health; and
(g)your excellent prospects of rehabilitation.
26 Your counsel submitted that the offending with which you have been charged is at the low end of the scale for this type of offending. She referred to the market value of GBL of this quantity being between two and three thousand dollars which she submitted was of low value compared to other drugs of dependence which are imported; the lack of sophistication and lack of attempt to disguise your importation; as well as your motive for importation. It was submitted that your principal purpose was for personal use.
27 Your counsel submitted that it should be taken into account that your only obtained the drugs in the first importation and then afterwards were trying to replenish your stock of GBL. She submitted that there should be total concurrency and if not total concurrency, substantial concurrency between the sentences imposed to reflect that fact.
28 Your counsel addressed a number of factors which she said supported the conclusion that you had excellent prospects of rehabilitation. She said that being detected has had a salutary impact on you and you have suffered extracurial punishment in the loss of your job.
29 A table of cases was provided by the prosecution and tendered as Exhibit C. Your counsel sought to distinguish some of those cases and addressed similarities with other cases. Your counsel again submitted that where there was a relatively small likely financial reward that should have impact on sentence and would also relate to the question of the application of general deterrence.
30 Your counsel argued that the appropriate sentence would be a Community Correction Order as you would be able to continue your treatment for HIV status and also continue your treatment for your sleep apnoea. She submitted that such a sentence would meet the sentencing requirements of specific deterrence and general deterrence. If I did not accept that argument, your counsel submitted that I should impose a term of imprisonment with immediate release on a recognisance release order.
31 Your counsel submitted that in your case it should be taken into account there was no involvement of third parties. In respect of specific deterrence, your counsel submitted that it should be taken into account that you had lost your employment and your career; that you had re-engaged in counselling; you had disclosed your offending and HIV status to your family. She submitted that less weight need be placed on specific deterrence.
32 The prosecutor in sentencing submissions relied on a number of matters including:
(a)the importance of general deterrence;
(b)your attempts to evade detection, including using the school’s address;
(c)the limited application of Verdins principles; and
(d)the amount of GBL imported.
33 The prosecutor conceded that there was no evidence that you received any monetary reward for providing GBL to others. The prosecutor also accepted that your mental health difficulties would make prison more difficult, as would your HIV positive status and the necessity for treatment for that condition.
34 The prosecutor made submissions in respect of various cases that were included in the table provided as Exhibit C. The prosecutor noted that this was first time that a charge had been brought in respect of the importation of GBL of a marketable quantity, as usually a commercial quantity was imported because the product is sold in litre amounts. The prosecutor submitted that the imposition of a Community Correction Order would be outside the reasonable exercise of the Court’s sentencing discretion but that submission could not be made in respect of a sentence of imprisonment with immediate release on a recognisance release order. The prosecutor also submitted that a degree of cumulation between sentences would be desirable.
35 Alfred Galea, you have committed an offence for which the maximum penalty is 25 years' imprisonment. That maximum penalty indicates the seriousness with which Parliament regards the importation of illegal drugs into Australia. You imported these drugs knowing that it was illegal. Even when you realised that Customs had stopped the importation, you took steps to try and evade Customs. Those steps included using your mother’s name and address and using the school address. I am satisfied that you were engaged in these activities in order to try and evade detection by the Customs authorities. On the last occasion you took the step of having the drugs sent to another country and then to you in order to get through Customs.
36 The importation of illegal drugs through using the mail service is one that it is difficult to detect. General deterrence is the chief sentencing consideration in such situations. The impact of the use of illegal drugs on the community and individuals in the community is obvious. Your offending went over a period of time and involved a degree of planning and organisation.
37 You imported a total of almost 5 litres of GBL. The sentencing regime in respect of the importation of border-controlled drugs is quantity-based. You have imported on each occasion an amount which is almost a commercial quantity and far in excess of the marketable quantity level. The value of the drug is of relevance. I accept that in comparison to other illegal drugs, the value of the drugs imported by you was very low.
38 The purpose of the importation is also relevant for sentencing purposes. I accept that you imported the drugs for your own personal use. I accept that use was in part due to your wish to deal with your nausea but I consider that it was also a significant part of your wish to import the GBL that it assisted you in obtaining attention, whether sexual or otherwise, in the “party scene”. I accept that you did not obtain any monetary benefit from sharing the drugs and that you never had any intention of doing so. I accept your evidence that you were for a period using a large amount of the drug on a daily basis and that only a relatively small proportion was shared with others.
39 It is also of relevance that you only actually obtained the first amount imported and that whilst the other amounts were imported, you did not obtain any part of those amounts. You continued to organise importations but were aware that you would not be able to put your hands on the drugs which had been intercepted by Customs.
40 I have taken into account that you co-operated with investigators to a degree but note that you denied any knowledge of GBL and were not truthful with police about the purpose of your importation.
41 You are entitled to a significant discount in sentence because of your plea of guilty. By that plea you have saved the community the expense of a trial. I accept that that plea was made in the light of a strong Crown case. I consider that the plea of guilty is evidence of your remorse. Your evidence to the Court suggested that your feelings of shame were concentrated on the consequences to you of being caught and punished. Further statements by you and the references provided, however, indicated that you are genuinely remorseful about your behaviour. I accept that in your case there is genuine contrition.
42 I do not consider that the principles of Verdins apply to your situation in reduction of your moral culpability. In view of your offending conduct, I do not consider that your difficulties with depression and General Anxiety Disorder were such that it had the effect of impairing your ability to make calm and rational choices or to think clearly at the time of the offences. I consider that your mental state would make imprisonment more difficult for you than for others without those mental conditions. In that sense, I accept that Verdins principles five and six apply to your situation.
43 I accept the evidence of Dr Roth as to your difficulties with sleep apnoea, HIV infection, thyroid disorder and the difficult treatment regime as well as your problems with depression. I accept that there could be some disruption from time to time in your medication regime if you are incarcerated. The Department of Justice has only been able to provide general information about medical services provided in gaol. If you are held in police cells awaiting transfer to gaol there may be further problems in obtaining medication. It is not possible for me to assess the degree to which such difficulties could occur but I accept the medication regime is likely to be more difficult than in the community and that your concern about receiving medication in a timely fashion would make imprisonment more onerous for you.
44 I consider that you have very good prospects for rehabilitation. That conclusion is supported by Dr Phillips’ opinion as well as references provided and your own evidence. You have no prior criminal history and are entitled to credit for the positive community contributions you have made in the past. I consider that you have learnt a very harsh lesson and that it is unlikely that you would ever offend in this way again. You have had, as described by your counsel, a spectacular fall from grace. You have suffered significant extracurial punishment. It appears from your evidence that the disclosure to your friends and family of your HIV status and offending has been of some relief to you and that you are grateful for their continued support. That bodes well for your prospects of rehabilitation as does your demonstrated past and present willingness to engage in psychological therapy with Dr Phillips.
45 I have considered the table of cases provided by the Commonwealth. I accept that there are matters of relevance amongst them, despite them involving the importation of commercial quantities with a higher applicable maximum penalty. The decision in DPP (Cth) v Maxwell [2013] VSCA 50 has been of considerable assistance in considering sentencing principles and current sentencing practices and trends in relation to the drug GBL.
46 I note that in Maxwell at paragraph 21, the Court of Appeal said:
“In addition to the weight of the drugs imported (or trafficked), the financial reward received or anticipated by the offender is relevant to the objective gravity of the offence. Other things being equal, an importation which is undertaken because it will bring — or is expected to bring — a large financial reward to the offender will be more serious than one where the expected reward is small or non-existent. The underlying proposition is that the greater the (anticipated) reward of criminal conduct such as this, which inflicts such harm on the community, the higher the offender’s moral culpability.”
47 It is clear that those matters are relevant when considering the objective seriousness of your offending. Your offending is clearly serious as indicated by the maximum penalty, the amount involved which on each occasion was very close to a commercial quantity and your repeated efforts to avoid detection but, in my view, your offending is objectively towards the lower end rather than the middle range because you were making on-line purchases at low cost with no expectation of any monetary return. It is also relevant to that consideration that the importations after the first importation were made in the context where you understood that Customs had stopped some importations and you would not get access to those drugs. I accept the proposition that you were effectively trying to replenish your supply of the original 1 kilogram.
48 I note that the Court of Appeal in Maxwell was of the opinion that the consistently lower sentences imposed on importers of GBL could reasonably be justified by the “enormous reward differential”. The Court of Appeal also said that the matter of potential reward was relevant to considerations of specific and general deterrence.
49 I take into account that while you were the principal in this offending, you imported the drugs directly and without the involvement of any other person apart from your overseas supplier. I accept, whilst you understood that it was illegal to import this drug, that you did not understand the seriousness of your offending.
50 The sentences imposed as set out in the table provided as Exhibit C and in the table included in the decision in Maxwell indicate that a range of sentences have been imposed for the importation of commercial quantities of GBL. It is clear that that range is in part due to the consideration of the objective seriousness of the offending, together with the particular circumstances of the offending and the offender. You have been charged with lesser offences of importation of marketable quantities of a border-controlled drug but that is still a very serious offence.
51 After considering the authorities to which I have been referred, the circumstances of your offending and your personal circumstances, I do not consider that a Community Correction Order would give adequate weight to the relevant sentencing purposes of general deterrence, denunciation and just punishment. General deterrence is of paramount importance. Although you had no commercial intent there is still the need to impose a sentence which would serve to deter others from importing border-controlled drugs for their own use or the use of themselves and their social circle.
52 You knew what you were doing was wrong and illegal and you continued despite the warning of packages being detained by Customs authorities. Your conduct must be appropriately punished in addition to the extracurial punishment you have received. I consider that specific deterrence need be given little weight in your sentence.
53 The only sentence which would adequately meet the sentencing purposes of general deterrence, denunciation and just punishment is a sentence of imprisonment. In view of the lack of commerciality in your offending, your mental and physical health issues and the difficulties you are likely to face in custody, your previous good character, remorse and very good prospects of rehabilitation, I consider that it would be appropriate to release you immediately upon you entering into a recognizance release order.
54 I consider it appropriate that there be substantial concurrency between the sentences to be imposed to reflect the nature of your offending and the time period over which you offended. I have also applied the principles of totality and proportionality.
55 Charge 1, you are convicted and sentenced to 13 months' imprisonment to commence today.
56 Charge 2, you are convicted and sentenced to 11 months' imprisonment to commence on 16 December 2014.
57 Charge 3, you are convicted and sentenced to 12 months' imprisonment to commence on 16 December 2014.
58 Charge 4, you are convicted and sentenced to 12 months' imprisonment to commence on 16 January 2015.
59 Charge 5, you are convicted and sentenced to 13 months' imprisonment commencing 16 February 2015.
60 The total effective sentence is 18 months' imprisonment. You are to be released forthwith upon entering into a recognizance release order with a surety of $1,000 and an undertaking to be of good behaviour for a period of 18 months.
61 Mr Galea, I am required to explain to you the consequences to you if you do not comply with your recognizance release order. If you do not comply and are brought back to court on breach of that order, a monetary penalty of not more than $1,000 can be imposed on you, or the order can be amended to extend the period of time, or the order can be revoked and another order can be made of another type of recognizance release order, or the order can be revoked and you can be dealt with in respect of these offences, or no action can be taken. I warn you that if you breach this order by any further offending and are brought back before me then it is likely that I would impose sentences of imprisonment in respect of these offences for which I am sentencing you today. You understand that there are serious consequences for you if you breach the order by further offending.
62 But for your plea of guilty I would have sentenced you to a term of imprisonment for 27 months with a non-parole period of 18 months.
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