Director of Public Prosecutions v Agin

[2019] VCC 383

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR-18-01983

DIRECTOR OF PUBLIC PROSECUTIONS

v

RICHARD ARCAY AGIN

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JUDGE:	HER HONOUR JUDGE CANNON
WHERE HELD:	Melbourne
DATE OF HEARING:	7 February 2019
DATE OF SENTENCE:	6 March 2019
CASE MAY BE CITED AS:	DPP v Agin
MEDIUM NEUTRAL CITATION:	[2019] VCC 383

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW

Catchwords:  Sentence – Pleas of guilty – Traffick drug of dependence commercial quantity (Charge 1) – Possess substance, material, documents or equivalent for trafficking a drug of dependence (Charge 2) – Possess drug of dependence (Charge 3) – Deal with property suspected of being proceeds of crime (Summary Charge 8) – Sole trader drug operation – Short duration of trafficking (Charge 1) – History of drug abuse – Issue of double punishment in relation to Charge 2

Sentence:Convicted and sentence to Total Effective Sentence of 4 years’ imprisonment with a non-parole period of 20 months’ imprisonment – Pre-sentence detention of 321 days declared as already having been served – s.6AAA Sentencing Act 1991 declaration – Ancillary orders Disposal and Forfeiture

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr M. Wilson	Solicitor for Public Prosecutions
For the Accused	Mr T. Kassimatis QC	Pica Lawyers

HER HONOUR:

1Richard Arcay Agin, you have pleaded guilty to one charge of trafficking in a drug of dependence in a commercial quantity, one charge of possession of a substance, material, documents or equipment for trafficking in a drug of dependence and one charge of possession of a drug of dependence.

2The maximum penalty for the trafficking charge is 25 years' imprisonment, for the possession of substance, material or equipment charge, ten years' imprisonment and for possession of a drug of dependence five years' imprisonment unless the court is satisfied on the balance of probabilities that the offence was not committed by the person for any purpose relating to the trafficking in that drug of dependence.

3Further, you have pleaded guilty to a related summary charge of dealing with property suspected of being proceeds of crime which has a maximum penalty of two years' imprisonment.  The maximum penalty in relation to each of the offences is one of the matters I must take into account in sentencing you as these reflect the seriousness with which Parliament regards each of the offences.

4The plea was opened by the prosecution as follows.  On 19 April 2018 at about 7.50 am police arrived at your apartment and executed search warrants.  You answered the door to them and allowed them to come in.  After police gave you copies of the warrants and explained the reason for the search you took them to your bedroom where there were a number of plastic containers of what were described as cannabis toffee chews wrapped in cellophane.

5You were placed under arrest and after your rights were explained to you, you said that you understood these but did not wish to exercise any of them at that time.  Police then carried out a search of the apartment during which a number of items were found and seized being evidence of your trafficking in the cannabis toffee chews and capsules containing tetrahydrocannabinol, that is THC.

6In total the quantity of substances containing THC which were found in your apartment or in your car weighed an estimated 21.6 kilograms.  The commercial quantity for a mixed substance containing THC is 10 kilograms.  The learned prosecutor told me that the threshold for a large commercial quantity of a mixed substance containing THC was 25 kilograms.

716.33 kilograms of that total which was found was made up of 1712 individually wrapped cannabis toffee chews and a further 480.9 grams was packaged in 624 separate capsules.  The items were found in the following quantities in the following areas of your house or in your car.

8In the walk-in wardrobe of the master bedroom four plastic containers of a total of 1304 individually wrapped toffee chews were found.  Subsequent analysis by forensic services of a representative sample from each of the containers indicated that THC was present in the items.  In total, the containers contained an estimated 12.02 kilograms of mixture containing THC.

9On the floor of the master bedroom a further five plastic containers of wrapped cannabis toffee chews were found and representative samples from each of the containers were found to contain THC.  A total of 379 individually wrapped chews were counted with an estimated 3.46 kilograms of a mixture containing THC.  On a desk in the master bedroom a plastic bag containing seven chews wrapped in cellophane was found attached to a piece of paper.

10An analysis of these found that they again were a mixture that contained THC and weighed 64.8 grams.  In a drawer of a desk another 22 chews wrapped in cellophane were found in a DVD case.  Again a representative sample of these was found to contain THC with an estimated weight of 197.5 grams.

11In the kitchen fridge there were three bags containing a brown toffee like substance which upon analysis was found to contain THC.  The total weight of the mixture in the three bags was 482.4 grams.

12A number of capsules that contained a moist yellow substance were found in the front entry area, the master bedroom and in your car.  The substances from these capsules or representative samples from items involving a large number of capsules were analysed and the mixtures in each case were found to contain THC.

13There was a total of 624 capsules of yellow substance which contained THC amounting to an estimated 480.9 grams.  Two plastic containers were found on the bench in the kitchen which contained a bud like substance.  The substance in each of the containers contained THC and weighed 1.58 kilograms.

14A further three containers in the fridge also contained a substance of similar appearance and in each case the substances contained THC and weighed a total of 3.31 kilograms.  A small bottle containing a green liquid was found in a drawer in the wardrobe of the master bedroom.  The liquid contained THC and weighed 17.2 grams.

15Police also became aware that the Victoria Police Drug Taskforce had intercepted three packages in the mail between 28 March 2018 and 12 April 2018 which had been sent by you.  These were packaged in prepaid Australia Post express post envelopes with labels similar to those found in your apartment.

16On 7 May 2018 police took possession of the packages which were subsequently analysed.  The first package contained four capsules of a moist yellow substance which was found to contain THC and amounted to 2.9 grams in total.  The packaged contained 11 toffee chews individually wrapped in cellophane.

17These were found to contain THC with a total weight of the chews weighing 97.7 grams and third containing four capsules of a moist yellow substance which was found to contain THC and amounted to 2.8 grams in total.  The purity of the THC in the substances analysed was not determined and I was told that there was currently no standard method for performing such an analysis for such a quantity of materials seized in this case.

18However, I was also told that during the search of the apartment you told one of the police officers that there was 0.2 of a gram to quote you, "weed", in each of the toffee chews and each capsule and that "weed" was infused in a mixture of buttery coconut.

19At the plea hearing on your instruction your counsel, Mr Kassimatis QC, told me that there was 20 milligrams of THC per 9.5 grams in respect of the red/green chews, 35 milligrams per 9.5 grams in respect of the blue chews and 20 milligrams of THC per one gram in respect of the capsules.

20This meant that there was a percentage of between 1 per cent and 3 per cent THC in the individual items which you prepared and were trafficking.  Ultimately the prosecution indicated that they were not in a position to contradict these instructions but accepted that the levels of purity which were referred to by your counsel were in keeping with what they would expect with items of the nature with which you were concerned.

21The specific basis for Charge 1 is that between 28 March and 19 April 2018 you trafficked in a commercial quantity of THC by (a) on 19 April 2018 having in your possession for sale the various THC products found during the search in your apartment which weighed some 2.1 times a commercial quantity threshold applicable to a mixed THC substance and (b) between 28 April and 12 April 2018 manufacturing THC products of the type referred to in the prosecution opening and (c) between 28 March and 12 April 2018 preparing THC products of the type referred in the prosecution opening for trafficking and (d) between 28 March and 12 April 2018 selling THC products, namely the chews and capsules which you distributed through the postal service.

22In relation to Charge 2, I was told the basis for this charge was the finding of materials and equipment which related to trafficking of the THC.  The following items were found in the master bedroom.  Four plastic bags containing empty plastic capsules of a similar kind of the capsules in which THC was packaged.  Secondly, three boxes containing three different coloured cellophane wrapping of a similar kind to that in which the cannabis toffee chews were packaged.

23Thirdly, five boxes of flattened cardboard packaging boxes.  Fourthly, a box containing rolls of labels and empty plastic sleeves.  Fifthly, two boxes of clear plastic bags.  Sixthly, a THC test kit.  Seven, a large bag of empty capsules and eight, eight rolls of parcel labels.

24In the master bedroom also the following items were found.  Twelve packets of pre-paid Australia Post envelopes of various sizes, two devices for sealing packages, pre-printed return postage stickers, further pre-paid Australia Post envelopes of various sizes.

25Then the following items were found in the living or dining room.  A plastic box containing pieces of cellophane wrap, two bags of empty capsules, a large custom roller cutter for cutting the toffee chews once set, four plastic capsule holders, large plastic syringes and a large vacuum sealer.

26In the kitchen there were other ingredients including containers of coconut oil, vanilla essence, golden syrup and glucose syrup.  In relation to Charge 3, I was told that in addition to the mixtures containing THC two other drugs of dependence were also found in your apartment being 191.4 grams of Cannabis L which was found in a plastic container in the kitchen cabinet and some Cannabis L seeds which were found in a desk drawer in the master bedroom and a plastic bag containing 202.6 grams of a substance including psilocybin known as magic mushrooms which was found in the wardrobe of the master bedroom.  The purity of the psilocybin was not determined.

27I was told that Charge 3 is a rolled up charge which covers both of the drugs and the Crown did not concede that these drugs were in your possession for a purpose not related to trafficking.  The basis for the related summary charge is that $286.50 was found in your wallet and $75,100 was found in a drawer of a filing cabinet in the wardrobe of the master bedroom.

28The Crown allege that in light of the amount of money found and its location as well as the drugs and drug related items which were found at the apartment it was reasonable to suspect that the money was derived from your ongoing business of trafficking THC products.  The defence did not cavil with that allegation.

29Following the search at your apartment you were taken to the Doncaster Police Station but declined to make any comment during the course of a recorded record of interview which was conducted there.  Of course that is your right and I make no adverse finding against you in this regard.

30Mr Agin, your offending is most serious and deserving of a punishment which is just in all of the circumstances and your conduct must be firmly denounced.  You involved yourself in a sophisticated drug manufacturing business where it is evident that you had also embarked upon the distribution of some of your product through the Australia Post.

31The quantity of the substances which were found in your possession and intercepted in the post amounted to a most significant quantity of mixed product being in excess of twice the threshold for commercial quantity and being not far shy of the threshold for a large commercial quantity.

32While it was accepted by the prosecution in effect that the level of purity of the THC in each of the items that you manufactured was low the number of individual items containing THC was very substantial reflecting the scale of your trafficking enterprise.

33You were the principal of that enterprise and therefore you were actively involved in every aspect of it, rather than playing a less central role as one sees in a number of cases.  On the other hand, I accept that you were not the head of a drug hierarchy but in effect a sole trader undertaking the various tasks both menial and otherwise in order to run your business.  I also factor in the period of offending being in the order of about three weeks insofar as the most serious charge, Charge 1, is concerned.

34I take into account your background.  You were 52 years old when you committed the offences and you are now 53 years old.  It is evident that you come from a loving and supportive family, members of which were present at the plea hearing.

35Evidently you were born overseas and moved to Australia with your family in 1983.  You completed your education being Years 11 and 12 at Warrandyte High.  You obtained a bachelor of technology and a graduate diploma in management from Swinburne University of Technology.

36In 1996 you married a person by the name of Megan Ford and you have two children from that union who are now 17 and 21 years old.  They were also in court in support of you.  In 2001 you became an Australian citizen.  You have a solid work history in a number of fields, obtaining management roles with a number of fairly large companies here.

37In 2000 you commenced your own business which was an internet based business which involved encouraging people to join a dating website.  In 2003 you started a car brokerage business which endured for nine years and in 2013 you co-owned a business called Support Media which endured for two years.

38The co-owner of this business took the majority share of income being earnt by it unbeknownst to you.  Rather than take legal proceedings however you were content enough to accept a fairly modest payout from the co-owner when you discovered the inequity.

39You then set up your own call centre in 2015 replicating the business model of Support Media.  However, this business was not very successful and you did not persist with it after the breakup of your relationship with a person by the name of Marisa Rose who you had met following separation from your wife in 2014.

40You have a daughter from that subsequent relationship who is nearly three years old and living with her mother.  I was told that you are highly skilled in IT being self-taught in that area.  I was also told that you fell victim to the global financial crisis as you had tied up all your assets and almost lost everything that you owned in 2008.

41By August 2011 you declared bankruptcy.  Your marriage had been troubled for some time but you and your wife had decided to stay together because of the children.  However, following your financial difficulties you finally separated from your wife and the children initially lived with you.

42You then met Marisa Rose and embarked on a relationship with her which led to your children moving back to their mother as they did not get along with
Ms Rose.  Your relationship with Ms Rose was a volatile one and eventually you separated and moved back to your parents' home.

43Following the breakdown of your relationship with Ms Rose which coincided with difficulties you were having in earning an income, you suffered a good deal of stress and anxiety.  Some so-called friends gave you edible cannabis which you found to be a good means of relieving your symptoms.

44You moved to a flat in Doncaster and were constantly feeling stressed and suffering from insomnia.  This led to an increase in the use of THC to the point where you became a regular user.  You went online and found how to make THC in edible form.  I was told that as the financial strain associated with your failing business increased you turned to alcohol and THC increasingly and then started selling the THC chews and capsules in a bid to make income, but also in the context of you having an addiction to cannabis yourself.

45In terms of your history of drug use I was told that you commenced using cannabis in your late teens and continued using the drug on and off until you met Megan Ford in 1985.  You then stopped using cannabis.  After the breakdown of your relationship with Marisa Rose in early 2016, you commenced using cannabis and alcohol to the point where you were using cannabis daily.

46You withdrew from family and friends and you were trying to keep your failing business afloat.  I was told that you experimented with vaping and eating THC as opposed to smoking cannabis finding that you preferred the edible form.

47This is when you commenced making the product yourself.  I accept that you were addicted to THC at the time that you committed these offences, but it is evident that you were not so enslaved by it that you were not able to think and function rather clearly insofar as the manufacture of the items which were found by police are concerned.

48I was told that your decision to manufacture and sell the drugs enabled you to feed your own drug habit and alleviate the stress associated with your failing business as well as the emotional impact of your failed relationship with
Ms Rose.

49However, it is evident that the scale of what you did far exceeded any bid to simply feed your own addiction and that what you were engaging in was done for the purposes of making a profit in large part.  In this regard I note the significant amounts of cash which were found at your premises apparently derived over the course of several weeks which reflects the degree to which your business was flourishing in my view.

50I do not moderate your moral culpability because you were addicted to the drug you were trafficking, I find that your moral culpability is high.  However, it would have been even higher if you had not been addicted to the drug and engaged in the criminal conduct that you did.

51I come now to the topic of double punishment which was a subject of discussion at the plea hearing.  I have considered the submissions of your counsel and the prosecution concerning the question of double punishment insofar as Charge 2 is concerned.

52Essentially your counsel submits that the possession of the items which forms the basis of Charge 2 is subsumed by the particulars of manufacturing and preparing THC products set out as part of the particulars in respect of Charge 1.

53Your Counsel, Mr Kassimatis QC submitted that if I were against him in relation to his primary submission, his secondary submission was that any sentence imposed in respect of Charge 2 ought be wholly concurrent.  The learned prosecutor submitted that a number of items which were found at the premises were evidently yet to be used and that although there was a degree of overlap with reference to some of these items for the purposes of Charge 1 a good deal of what was found over and above the THC products gives rise to Charge 2.

54He submitted that in the circumstances there should be a degree of cumulation albeit limited with respect to the sentence imposed on Charge 2.  Having considered this matter at some length, I have come to the view that whilst some of the items referred to in Charge 2 may well have been used in the preparation and manufacture of the THC products there are a significant number and quantity of items exceeding the finished product.

55However, in circumstances where there is a degree of overlap between the items found which form the basis of Charge 2 and the items used for preparation and manufacture of the THC product, in my view the most appropriate course is to impose a conviction in relation to Charge 2 but to impose a sentence which is wholly concurrent with the sentence imposed on Charge 1, Charge 1 being by far the most serious matter in any event.

56I now come to the question of whether the five year or one year maximum penalty ought apply in relation to Charge 3 which was another matter for discussion at the plea hearing.  Five years' imprisonment is the maximum penalty in relation to Charge 3 and unless I am satisfied on the balance of probabilities that the offence was not committed by you for any purpose relating to the trafficking in drug of dependence concerned.

57The learned prosecutor conceded that if one of the two drugs found in your possession did not relate to any purpose related to trafficking then the lower penalty would apply.  However, the learned prosecutor pointed to the significant quantities of each of the drugs submitting in effect that the higher maximum applied as I could not be satisfied that the offence was not committed by you for any purpose related to trafficking in either of the drugs.

58Mr Kassimatis pointed to the fact that the purity of the magic mushrooms was unknown and he also pointed to the fact that insofar as this was concerned there was no evidence that you had trafficked in relation to that particular substance.

59Further, he told me that his instructions from you were that you were experimenting with these as an alternative drug for your own ingestion; but had found that it was not to your liking.  I asked Mr Kassimatis whether he intended calling any evidence in relation to this aspect but he declined to do so.

60I make no adverse finding against you because of this bearing in mind that there is absolutely no obligation for you to give evidence or for evidence to be called in relation to this point and that I must decide this matter on the basis of the evidence which is before me, albeit evidence in the form that one often sees at a plea hearing.

61In circumstances where there is no evidence other than the quantity of the magic mushrooms, there is no evidence that these were being sold by you or were contained in any of the products that you were selling and in view of
Mr Kassimatis' instructions from you on this point I am satisfied on the balance of probabilities that the offence which gives rise to Charge 3, at least insofar as the magic mushrooms was concerned was not committed by you for any purpose related to trafficking in a drug of dependence, as I say being the magic mushrooms or the psilocybin.

62Therefore you have the benefit of a one year maximum penalty in relation to Charge 3.  You have been in custody since your arrest and I was told that you work in the kitchen at the prison seven days a week which is a trusted position.  I have since received a letter from the catering supervisor at Corrections confirming this and singing your praises as a leading worker and a role model to others.

63The letter goes on to recommend that you stay in the kitchen at Ravenhall as you are so highly valued there and in order for you to further develop your skills there.  Random drug screens have indicated that you are no longer taking drugs.  You have completed a number of courses in gaol whilst on remand including the course, Cannabis and Me.

64I allow for a significant discount in the sentence that you would otherwise receive because of your early pleas being guilty being entered at the earliest practicable stage.  The course that you have taken has meant that the witnesses have been saved the time and trouble of giving evidence and the community has been saved the time and expense of contested proceedings both in the Magistrates' Court and at trial.

65Further, having considered the large body of character reference material I accept that you are remorseful for your conduct and that you have found gaol and the shame of your position as being a most salutary lesson.  It is evident from some of the character material also that you have appropriate insight into the seriousness of your offending and are aware that the drug that you were prepared to distribute to others is of a pernicious nature.

66Therefore I find that you have appropriate remorse and insight in relation to your offending.  I was told that you have an overwhelming sense of shame about what you have done and you are acutely aware of the seriousness of your offending.  You see yourself as a poor role model for your children and have found it very difficult to speak about your offending to your parents at all.

67You feel that you have gravely let your family down and wish to make amends for this as soon as you are able.  I am satisfied that you are of otherwise good character in view of your lack of prior convictions and the glowing character reference material in support of you.

68I was also told that on release you will be able to take up a job offer with a
Mr Nash who has offered you full time employment and that you will initially live with your parents, but you also have the option to live with your brother or sister as well who are also very supportive of you.

69In view of your offending which is most serious, but also in view of your lack of criminal history, your age, your early pleas of guilty, insight, remorse and supports in the community as well as your solid work history and offer of employment upon release I find that your prospects of rehabilitation are very good and I need place only minimal weight on specific deterrence and protection of the community.

70Your counsel sensibly conceded that because of the seriousness of your offending, especially insofar as Charge 1 is concerned, it was inevitable that you receive a term of imprisonment which involved a head sentence and a non-parole period.

71However, he submitted that a shorter than what might be considered usual non-parole period ought be imposed.  The prosecution agreed with this approach.  I am of the view that in your case in view of all the matters in mitigation it is appropriate to accept your counsel's submission in this regard.

72Would you please stand up?  You are convicted of each of the offences.  Firstly, I make orders for disposal in the terms of the draft order provided to me by the prosecution and I make an order for forfeiture of the sum of money seized by police being $75,386.50.  Neither of these orders are opposed by you.

73Further, I make an order for a forensic sample to be taken by way of a buccal swab from the mouth because I regard it as being in the public interest to do so and because of the seriousness of your offending. I must warn you that if you do not cooperate with the authorities in the obtaining of a sample then reasonable force can be used by the authorised officer or officers in order to secure it.

74You are sentenced to the following periods of imprisonment.  Charge 1, four years' imprisonment, Charge 2, three months' imprisonment, Charge 3, one month’s imprisonment, related summary Charge 8, two months' imprisonment.  I direct that the sentences of imprisonment in relation to Charges 2, 3 and the related summary Charge 8 all be served wholly concurrently with the sentence on Charge 1, producing a total effective sentence of four years' imprisonment.

75I direct that you serve 20 months' imprisonment before becoming eligible for parole.  If not for your pleas of guilty I would have sentenced you to a total effective sentence of seven years' imprisonment with a non-parole period of four years and six months’ imprisonment.

76I declare that you have already served 321 days by way of pre-sentence detention.  Take a seat for a moment please, Sir.  Is there anything arising, counsel?

77MR WILSON:  No, Your Honour.

78MR KASSIMATIS:  No, Your Honour.

79HER HONOUR:  Mr Kassimatis, did you want to have a quick word with your client before he is removed?

80MR KASSIMATIS:  Yes, please.  I am grateful for that.

81HER HONOUR:  Thank you.  Yes, if you could please remove, Mr Agin, thank you?

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