Director of Public Prosecutions v Agbayani
[2017] VCC 723
•8 June 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| GENERAL LIST |
Case No. CR-17-00088
Indictment No. G11346487
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ENRIQUE AGBAYANI |
---
JUDGE: | HIS HONOUR JUDGE BROOKES | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 5 May 2017 | |
DATE OF SENTENCE: | 8 June 2017 | |
CASE MAY BE CITED AS: | Director of Public Prosecutions v Agbayani | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 723 | |
REASONS FOR SENTENCE
---
Subject: CRIMINAL LAW
Catchwords: Sentence – trafficking in a drug of dependence (methylamphetamine and heroin) contrary to s71AC of the Drugs, Poisons and Controlled Substances Act 1991 – plea of guilty
Legislation Cited: Drugs, Poisons and Controlled Substances Act 1991, s71AC, Crimes Act 1958; Sentencing Act 1991
Cases Cited:R v Verdins & Ors (2007) 16 VR 269; R v Pantsis [1998] VSCA 134 & NhatHoang v The Queen [2013] VSCA 287
Sentence: Convicted and sentenced to a total effective sentence of 4 years’ imprisonment with a non-parole period of 2 years and 6 months.
---
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr M Regan | John Cain Solicitor for Public Prosecutions |
| For the Accused | Dr G Boas | Emma Turnbull Lawyers Pty Ltd |
HIS HONOUR:
1 Enrique Agbayani, on 5 May 2017, you pleaded guilty to one count of trafficking in a drug of dependence, namely methylamphetamine, between 19 January 2016 and 5 April 2016, and one count of trafficking in a drug of dependence, namely diacetylmorphine (heroin) between 19 January 2016 and 5 April 2016. You admitted your prior convictions.
2 The maximum penalty for trafficking in a drug of dependence is 15 years’ imprisonment.
3 Tendered at the hearing was an agreed Summary of Agreed Facts which sets out as follows:
Charge 1
4 Trafficked in heroin – 203 grams.
Charge 2
5 Trafficked in methylamphetamine – 252 grams.
Background
6 This case stems from a Drug Task Force investigation that spanned six months between October 2015 and May 2016, targeting a suspected Vietnamese drug trafficking network. In the course of the investigation, which came to be known as “Operation Sea Eagle”, investigators recorded over 2700 telephone conversations and SMS messages that were evidentiary with respect to trafficking, relevantly in methylamphetamine and heroin.
7 Network members were identified as seven members, including an alleged syndicate leader and most prolific detected trafficker, and another major trafficker and a number of medium-level traffickers. You were identified as a medium-level trafficker.
8 Mr Agbayani, you participated in common-law trafficking, performing your activities in a commercial setting, participating in the progress of drugs of dependence from source to consumer. The supplier of heroin and methylamphetamine was a person identified as the major trafficker.
Intercepted telephone calls
Transaction 1
9 At 6.15 pm on Tuesday 19 January 2016 you were detected on telephone intercept placing an order with the supplier for ,"The usual. Hot and cold.” It was agreed you would attend at 11.00 pm that night to pick up the drugs. (Warrant D70645-00, Call No 3946).
10 It is agreed between the parties that “hot” was a commonplace reference for heroin, while “cold” was a commonplace reference for methylamphetamine, with references to “hot” and “cold” within the same conversations clearly delineating heroin from methylamphetamine, and vice versa.
11 Call number 3946 (above) was therefore an order for heroin and methylamphetamine, and the prosecution contends that based on the cumulative context of subsequent ordering, as well as from a physical seizure of drugs, that the amounts ordered were 28 grams of heroin and 28 grams of methylamphetamine. (Cumulative Sub-Totals: Heroin: 28 grams. Methylamphetamine: 28 grams).
Transaction 2
12 At 11.26 pm on Thursday, 21 January 2016, you were detected on telephone intercept placing an order with the supplier for, “… same one … the same one … the same one as last time …”. (Warrant D70645-00, Call No 4404). This is an order for 28 grams of heroin and 28 grams of methylamphetamine. (Cumulative Sub-Totals: Heroin: 56 grams. Methylamphetamine: 56 grams).
Transaction 3
13 At 5.4 1pm on Thursday, 28 January 2016, you were detected on telephone intercept placing an order with the supplier for, “… one cold … one piece of cold …”. Your supplier specified that it would be available between 11.00 pm and midnight that night. (Warrant D70645-00, Call No 5762). This is an order for 28 grams of methylamphetamine. (Cumulative Sub-Totals: Heroin: 56 grams. Methylamphetamine: 84 grams).
Transaction 4
14 At 2.56 am on Saturday, 6 February 2016, you sent an SMS order from your 616 telephone number to your supplier, specifying, “28 of hot and 28 cold, … I see you at my sister”. (Warrant D70645, Call No 7790). This is an order for 28 grams of heroin and 28 grams of methylamphetamine. (Cumulative Sub-Totals: Heroin: 84 grams. Methylamphetamine: 112 grams).
Context
15 The context is as follows. At 11.27 pm on Tuesday 16 February 2016, as part of a circumstantial case involving third-party communications, an intercepted conversation between the supplier and another recorded the supplier telling the other that, “... I currently need the paper to get the hot for lad Ricky” and “... Ricky orders me two pieces”.
16 The prosecution contends that the clear context is that you lodged an order for “two pieces” of a drug of dependence with the supplier, and given the earlier reference to “hot” in the same call, that there is a high likelihood that the substance involved was to be heroin. Because the conversation is not satisfactorily definitive that the “two pieces” were heroin, the prosecution uses that conversation as context only (that is, uncharged). (Warrant D70645-00, Call No 10596).
Transaction 5
17 At 3.57 pm on Friday, 19 February 2016, you were detected ordering from the supplier, “… Ah, hot and cold …”. Your supplier specified that you pick up the drugs at 9.00 pm. (Warrant D70645-00, Call No 11042). This is an order for 28 grams of heroin and 28 grams of methylamphetamine. (Cumulative Sub-Totals: Heroin: 112 grams. Methylamphetamine: 140 grams).
Transaction 6
18 At 11.27 pm on Monday, 22 February 2016, you were detected lodging an order with your supplier for “… Hot, yeah, the hot … [and] … I need the other one too … I’m about to finish all of them … I’ve got all the papers here … one each, man …”. Your supplier subsequently arranged to supply you at Blackburn at about 3.00 am on 23 February 2016, with you reconfirming, “… one hot and one cold” in a later call. (Warrant D70645-00, Calls 11632 and 11649). This is an order for 28 grams of heroin and 28 grams of methylamphetamine. (Cumulative Sub-Totals: Heroin: 140 grams. Methylamphetamine: 168 grams).
Context
19 About 19 hours later, at 10.42 pm on Tuesday, 23 February 2016, the supplier is detected telling you “… twelve o’clock, I am … pick up, ah, hot … [and] twelve o’clock … I am …. Um, hot, new, yea …”. You replied, “I don’t use that one mate, it’s a different one”. (Warrant D70645-00, Call No 11779).
20 At 10.14 pm on Monday, 29 February 2016, as part of a circumstantial case involving third-party communications, an intercepted conversation between the supplier and another had the supplier asking him whether “… that piece of gear, have you handed it to the lad Ricky yet?”. The other replied, “Already handed”. The supplier responded, “Already handed the cold to lad Ricky, right?”. The other reconfirmed, “Yes”. (Warrant D70653-03, Call No 1693). The reference to “cold” refers to methylamphetamine.
Transaction 7
21 At 11.24 pm on Thursday, 3 March 2016, you were detected placing an order for “… one each, hot and cold” with the supplier. After checking that you had “the money”, the supplier specified “two hours”. (Warrant D70653-00-03, Call No 2835). This is an order for 28 grams of heroin and 28 grams of methylamphetamine. (Cumulative Sub-Totals: Heroin: 168 grams. Methylamphetamine: 196 grams).
Transaction 8
22 At 5.18 pm on Friday, 4 March 2016, you were detected ordering “one cold” from the supplier, with you specifying that you would “So, can I come see you?” and “I’ll see you soon”. (Warrant D670653-00-03, Call 3004). This is an order for 28 grams of methylamphetamine. (Cumulative Sub-Totals: Heroin: 168 grams. Methylamphetamine: 224 grams).
Context
23 At 8.04 pm on Saturday, 26 March 2016, as part of a circumstantial case involving third-party communications, an intercepted conversation between the supplier and another has the other saying, “Hey dear, you bring the hot for lad Ricky as well”. The supplier replied, “The hot to hand to lad Ricky, huh?” The other responded, “Uh, he will go up there later, he is gathering the paper”. The supplier replied, “Tell him, ah, right”, to which the other responded, “… Go back and forth, you take care of business”. (Warrant D70653-00-05, Call No 8197). “The hot” is a reference to heroin.
24
At 11.23 pm on Sunday, 27 March 2016, you were detected telling the supplier “Yeah. Oh, no, not yet. I’m just waiting for one more man.” You told the supplier you would come to the city in “over one hour”. The supplier told you
“I will see if I have hot available”. This call is included as an example of your being reliant on downstream customers to give you cash to purchase drugs. (Warrant D70653-00-05, Call No 8685).
Transaction 9
25 At 10.09 pm on Thursday, 31 March 2016, you lodged orders with the supplier for “Ah, cold …” [and] “… . Hot too…”, with the supplier responding, “Alright, alright, see you soon”. (Warrant D70653-00-05, Call No 9712). This is an order for 28 grams of methylamphetamine and 28 grams of heroin. (Cumulative Sub-Totals: Heroin: 196 grams. Methylamphetamine: 252 grams).
26 At 3.26 am on Friday, 1 April 2016, as part of a circumstantial case involving third-party communications, an intercepted conversation between the supplier and another has the other saying, “Lad Ricky said, um, now … he now needs ah, one cold, can you thingy him or not?” [and] “One bag of cold, at home … the big bag …”. (Warrant D70653-00-05, Call No 9799). This is so close in time to the earlier 10.09 pm call (above) that it is conceded that it is highly likely to be the other and the supplier discussing where the methylamphetamine you had ordered at 10.09 pm was to be obtained from.
Vehicle Interception of you and your brother in Clifton Hill on Friday,
1 April 2016
27 The supplier was at another’s house at the time of receiving the order from you. The prosecution contends that the supplier bought methylamphetamine from another, then arranged with you to meet him at a property situated in Northcote where he would supply you the drugs.
28
At approximately 10.53 pm, police surveillance observed the supplier park his vehicle outside the said premises in Northcote and enter the premises.
At approximately 11.20 pm, the supplier left the said premises in Northcote, and departed in his vehicle.
29 At approximately 12.13 am on Friday, 1 April 2016, you, in company with your brother, arrived outside the said premises in Northcote in a 2006 Mercedes Benz sedan with the registration XGD564. You and your brother entered the said premises.
30 At approximately 12.29 am, the supplier returned to his vehicle and parked outside the said premises in Northcote. He then went inside.
31 At approximately 1.31 am, you, in company with your brother, departed the said premises in Northcote in your Mercedes Benz sedan.
32 At approximately 1.37 am, investigators intercepted you and your brother as you were travelling along Hoddle Street, Clifton Hill.
33 During the search of the vehicle, Senior Constable Wendy Turner (Hand-Up-Brief [HUB] 772 – 777) located a set of scales inside the passenger cabin (HUB Appendix 2 Log No 2, pp. 193) and then located in the rear boot a grey/black cloth that, when opened up, revealed one “Australia” coin pouch (Log No 3) that contained numerous small snap-lock bags (logged as HUB Appendix 2 Log Nos 4 – 9, pp. 192 – 193). Substances were noted as present in six of the bags, specifically:
(i) Log No 4 – one x snap-lock bag containing a white crystal substance. FSD Item 169 – contained 0.3 grams of methylamphetamine mixture at approximate purity of 84 per cent;
(ii) Log No 5 – one x snap-lock bag containing a white powder substance. FSD Item 170 - 0.2 grams of methylamphetamine mixture at approximate purity of 65 per cent;
(iii) Log No 9 – one x snap-lock bag containing a white crystal substance – FSD Item 174 – 27 grams of methylamphetamine mixture at approximate purity of 79 per cent.
(Methylamphetamine total: 27.5 grams (approx. 0.982 ounce)).
(iv) Log No 6 – one x plastic bag containing a white powder substance – FSD Item 172 – 14.3 grams of heroin mixture at approximate purity of 77 per cent;
(v) Log No 7 – one x plastic bag containing a white powder substance in small blocks – FSD Item 171 – 3.7 grams of heroin mixture at approximate purity of 75 per cent; and
(vi) Log No 8 – one x small snap-lock bag containing a light brown/cream powder substance in block form – FSD Item 173 – 15.5 grams of heroin mixture at approximate purity of 59 per cent.
(Heroin total: 33.5 grams (approx. 1.196 ounces))
34 For the avoidance of doubt and the avoidance of double counting, the prosecution concedes that the drugs in the vehicle intercept seized were those ordered in the intercepted telephone calls detailed as “Transaction 11” (above).
35 Neither man was remanded in relation to this seizure as the entire operation was scheduled for resolution in the following days.
Transaction 10 – final detected transaction – 7 grams of heroin – 5 April 2016
36 At 7.07 pm on Tuesday, 5 April 2016, you were detected telling the supplier via another that “This one’s just a quarter, a small quarter”. You replied, “That’s more than enough for a sample”. You then sought reassurance with, “Is it a good one?” The other replied, “Yeah, yeah, yeah, yeah”. It is agreed between the parties that this is a reference to heroin. (Warrant No D70653-00-05, Call number 10734). (Final Totals: Heroin: 203 grams. Methylamphetamine: 252 grams).
Resolution phase search warrant
37 On Thursday, 19 May 2016, at approximately 8.40 am, investigators executed a search warrant pursuant to the Drugs, Poisons and Controlled Substances Act 1981, at 221 Blackburn Road, Blackburn South. You were present and arrested upon police entry.
38 Investigators seized a quantity of exhibits including a mobile telephone 047#### ##. (Captured on TI calls with your co-accused).
39 You were conveyed to the Melbourne West Police Complex where you were interviewed. During the interview, you stated the following:
40 You were earning approximately $950 per fortnight with Centrelink and part-time work. You claimed you had a drug habit costing approximately $1400 per fortnight.
41 When it was put to you that you trafficked methylamphetamine and heroin to make up the difference between your earnings and your drug habit, you replied “I don’t want to say anything that will incriminate myself, sir”.
42 You were charged and remanded in custody.
Criminal history
43
You were born on 11 November 1973 and are aged forty-three years. On
29 January 2015, you were convicted at the Ringwood Magistrates’ Court of possessing methylamphetamine, possessing heroin and possessing GHB. On that occasion, you were also convicted of failing to answer bail and committing an indictable offence whilst on bail.
44 On 21 September 2012, at the Dandenong Magistrates’ Court, you were convicted of trafficking methylamphetamine, and again, on 4 May 2012 at the Melbourne Magistrates’ Court, you were similarly convicted.
45 On 25 July 2003, in the County Court at Melbourne you were found to have breached the suspended sentence which had been imposed by that Court following your conviction on the charge of trafficking heroin on 15 January 2001.
46 Finally, at Ringwood Magistrates’ Court on 7 August 1998, you were found guilty of possessing heroin.
Personal background
47 You were born in the Philippines and raised in Manila. You have one brother and two sisters, all of whom are younger. Your mother worked in health services and your father was a factory worker. Unfortunately, your father died in the week leading up to 5 May 2017 but your mother was present in Court to support you.
48 You came to Australia with your entire immediate family when you were sixteen years of age. You attended Blackburn High School, following which you studied electronic engineering at Grandville TAFE in Sydney, which was a two-year course. You completed the course. However, it was in this period that you were introduced to recreational drugs.
49 Thereafter, you attended Swinburne University and studied mechanical engineering for three years, but failed to complete your degree. Your counsel advises that you were indulging in recreational drugs at this time. However, you were still living with your parents at home.
50 At the age of twenty-three, you commenced work as mail sorter for Australia Post, which position you held for seven years.
51
Your more serious drug abuse commenced in your early twenties when you developed “a bad heroin addiction”. Since your arrest, and whilst on remand, you have been on a methadone program, and I am told you have put on
20 kilograms in weight. You are working as a cleaner in the gaol and it is your intention that when released from prison, you will live with your mother. You instruct that you have been drug free since being in custody for approximately twelve months and, as already stated, are on a 40-milligram dosage of methadone. You have undertaken three drug tests whilst in custody, all of which have been in your favour.
52 It is accepted by the prosecution that you have entered a plea of guilty at the earliest opportunity and this matter is to be taken into account in your favour pursuant to s.5(2)(e) of the Sentencing Act 1991. I will accept your counsel’s submission that you deserve a full discount available for the utilitarian value that this plea has ensured.
53 On your behalf, it is contended you have a partner of eight years, Melissa, and a three-year-old son, Aaron. I am further told that it is your aspiration to remain off drugs whilst in prison and into the future and, upon release, to seek to live in Adelaide with your partner and son. It is also your intention to seek employment in the electronics field.
54 I am told, without objection, that your involvement in this enterprise was to finance your own drug addiction and that I should not consider you a “high roller”. It is also specifically disavowed that there are any Verdins’[1] principles applying in your case.
[1]R v Verdins & Ors (2007) 16 VR 269
55 I am also advised by your counsel that you are extremely remorseful and deeply committed to changing your life once your period of incarceration is completed.
56 The amounts of drugs of dependence of both methylamphetamine and heroin, although not amounting to commercial quantities, are significantly in excess of the minimum trafficable quantities. The prosecution urges that it be taken into account that in the relevant period you were continuing to order and re-order the relevant drugs and I have done so.
Summary of sentencing principles
57 In sentencing you, I must have regard to a range of different factors. I must give effect to the principles of deterrence, both general and specific. I must deter other people from behaving like you. I must deter you from repeating such behaviour, though, because of the matters put on your behalf, which I accept, with respect to your prospects of rehabilitation, specific deterrence carries less weight here. I must express the community’s denunciation of your conduct and promote your rehabilitation.
58
With respect to general deterrence, I take note of what Tadgell JA said in
R v Pantsis[1998] VSCA 134 at [12]:
“[T]he judge was entitled, as he did, to place considerable emphasis upon the principle of general deterrence. A very, very high proportion of the criminal cases that we see in this court is drug related, whether or not they are cases of offences against legislation relating to drugs of addiction. The fact is that drugs breed crime of all kinds, and heroin is one of the more pernicious of them. It truly poisons society. It is the responsibility of the courts to do what they can – and I fear that it is little enough – to curb this menace. One way open, one of the very few open to the courts, is to emphasise to the community at large, by reference to the principle of general deterrence, that, if legislation is infringed in the way in which the applicant infringed it, the consequences will be dire.”
59 I believe the same can said in relation to methylamphetamine with it becoming more prevalent in our community over the last decade.
60 I must also have regard to current sentencing practices for offences of the kind you have committed and I must balance your personal circumstances. I am also mindful of the materials provided by counsel concerning sentencing snapshots and I must balance submissions made by the prosecution that a sentence higher than the median is required here, because it is not considered that there is low-level offending compared with the submissions made by your counsel that, in effect, you were at the low level of this organisation and you were only involved in order to finance your own addiction.
61 On the latter point, it is recognised that addiction may be a consideration when sentencing offenders for trafficking in drugs of dependence. The addiction may also bear upon the question of rehabilitation, where the prospects of success will often depend upon the likelihood of the addiction being successfully treated.[2]
[2] See Nhat Hoang v R [2013] VSCA 287 at [25]
Sentence
62 I now turn to sentence you.
63 Mr Agbayani, would you please stand?
64 On Charge 1, trafficking in a drug of dependence, being methamphetamine, you are convicted and sentenced to three (3) years’ imprisonment.
65 On Charge 2, trafficking in a drug of dependence, namely heroin, you are convicted and sentenced to three (3) years’ imprisonment. This will be the base sentence.
66 I direct that twelve (12) months’ on Charge 1 be served cumulatively with the sentence imposed on Charge 2.
67 The total effective sentence is, therefore four (4) years’ imprisonment. I direct that you serve two and a half (2 1/2) years of that sentence before being eligible to be considered for parole. Accordingly, you will be required to serve a minimum period of imprisonment of not less than two and a half years, and thereafter, if you are released on parole, the balance of your sentence will be served in the community subject to the conditions of your parole. Any such parole order may be amended or revoked. If you fail without reasonable excuse to fulfil the conditions of your parole, your parole may be revoked and you may be ordered to serve the balance of your sentence in prison.
68 Pursuant to s.18(4) of the Sentencing Act 1991, I declare that you have already served 385 days of the sentence, not including today, that I have just imposed upon you and this is to be noted in the records of the Court.
69 I will make the disposal and forfeiture orders on the terms sought by the Prosecution.
70 Pursuant to s.6AAA of the Sentencing Act 1991, but for your pleas of guilty, you would have been sentenced to a term of imprisonment of six (6) years with a non-parole period of four (4) years.
71 I would like to thank Counsel for their assistance in this matter.
72 Is there anything further gentlemen?
73 MR REGAN: No, Your Honour.
74 MR BOAS: Your Honour pleases.
75 HIS HONOUR: All right. Yes, you may remove the prisoner, thank you.
- - -
0
3
0