Director of Public Prosecutions v Anderson; Director of Public Prosecutions v Azzopardi
[2016] VCC 2071
•17 November 2016
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
| GENERAL LIST |
Case No. CR-16-01338
Indictment No. G10748439
CR-16-01607
Indictment No. G11112488
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| LUKE ADAM ANDERSON |
| and |
| BRADLEY JOHN AZZOPARDI |
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| JUDGE: | HIS HONOUR JUDGE MCINERNEY |
| WHERE HELD: | Geelong |
| DATE OF HEARING: | 10 November 2016 |
| DATE OF SENTENCE: | 17 November 2016 |
| CASE MAY BE CITED AS: | DPP v Anderson; DPP v Azzopardi |
| MEDIUM NEUTRAL CITATION: | [2016] VCC 2071 |
REASONS FOR SENTENCE
---Subject: CRIMINAL LAW
Catchwords: Sentence – trafficking in a drug of dependence - commercial quantity – trafficking in a drug of dependence
Legislation Cited: Drugs Poisons and Controlled Substances Act 1981 (Vic), s71AA, s71AC; Sentencing Act 1991 (Vic)
Cases Cited:DPP v Duong [2006] VSCA 78; R v Pidoto & O’Dea (2006) 14 VR 269; R v D’Aloia [2006] VSCA 237; R v McLeish (1982) 30 SASR 486; Kapkidis v R [2013] VSCA 35; Haddara v R [2015] VSCA 158; Haddara v R [2016] VSCA 168; R v Mills [1998] 4 VR 235
Sentence:Anderson: Convicted and sentenced to 4 years and 6 months’ imprisonment with a non-parole period of 2 years and 9 months’ imprisonment
Azzopardi: Convicted and sentenced to 2 years and 4 months’ imprisonment with a non-parole period of 14 months’ imprisonment.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms K Swadesir | Solicitor for the Office of Public Prosecutions |
| For Accused Anderson | Mr S J Tovey | Stephen Andrianakis & Associates |
| For Accused Azzopardi | Mr J L Westmore | Mike Wardell Barrister & Solicitor |
HIS HONOUR:
1Mr Anderson and Mr Azzopardi, you can remain seated. So that you both understand the reasons for your sentence, I have to go through a number of details, given the matters that were put by both of your counsel. I will go through those details and then I will ask you each individually to stand when I pronounce sentence.
2Luke Anderson is an electrician, or almost a qualified electrician. He is 25 and was born on 17 March 1991. Bradley Azzopardi is a mechanic/slaughterman. He is 26 and was born on 7 November 1990.
3Each pleaded guilty on 10 November 2016 to separate Indictments in regard to drug offences, involving trafficking of ecstasy and other drugs in the City of Geelong and surrounds. Mr Tovey appeared on behalf of Mr Anderson, Mr Westmore on behalf of Mr Azzopardi and Ms Swadesir on behalf of the Director.
4Mr Anderson’s charges are the more serious, being the two charges set out in Indictment number G10748439. He pleaded guilty, firstly, to having trafficked in a drug of dependence in a quantity being not less than a commercial quantity between the period 13 October 2015 and 16 March 2016. Such is an offence against s71AA of the Drugs Poisons and Controlled Substances Act 1981 (Vic). The particular drugs involved are three types of amphetamine; essentially, the majority was ecstasy. They are set out in the charge itself. The seriousness of this charge is demonstrated by the fact that Parliament prescribed by way of maximum penalty, 25 years.
5The second charge relating to Mr Anderson is under s71AC of the Drugs Poisons and Controlled Substances Act 1981 (Vic). In this instance, the drug of dependence was cocaine. This involved two trafficking simpliciter situations occurring, firstly, on 11 December 2015 and, secondly, on 18 February 2016.
6Both defence counsel accept the prosecution opening, exhibit “A”, as detailing the facts upon which I am to sentence both of you.
7Insofar as Mr Azzopardi is concerned, he pleaded guilty to two charges in Indictment number G11112488, but in his case, such was confined to two charges of traffic simpliciter in a drug of dependence. While not as serious as Mr Anderson’s first charge, the seriousness of these charges is again identified by the fact that Parliament, on behalf of the community and expressing the community’s disdain for this activity, has prescribed a maximum penalty for each of the charges of 15 years’ gaol.
8Both charges breach s71AC of the Drugs Poisons and Controlled Substances Act 1981 (Vic). The first charge involved a period of five months’ trafficking in Geelong between 28 July 2015 and 6 November 2015. Essentially, the product involved methylamphetamine and methoxyamine. The second charge involved trafficking in cocaine on 27 August 2015. As illustrated in exhibit “A”, albeit separate Indictments and though charged separately, the facts are, insofar as Mr Anderson and Mr Azzopardi are concerned, interrelated, certainly in regard to Charge 1 in each Indictment concerning the trafficking as identified.
9Before going to those details I want to congratulate the police on the operation which was conducted insofar as detecting the activities of, firstly, Mr Azzopardi and his associates, whereby the activities of Mr Anderson came to light. I would also praise the Echo Task Force, the undercover agents and the police generally for their skills and their surveillance work that took place in detailing, highlighting and trying to stop this trafficking going on in Geelong. Unfortunately, having been here for five weeks, one gets the impression that it is a little bit like the Dutch analogy of the person who tries to put their finger in the dyke. At any rate, despite such general comments, these two prisoners only come to be sentenced for the criminality of which they are responsible.
10Each offender has priors. Mr Azzopardi does not have any priors for drug matters. Neither has significant priors. Mr Anderson was convicted in this Magistrates’ Court of trafficking in various drugs in July 2013. Mr Tovey was concerned that I should understand how it is that Mr Anderson, a person who got to the age of approximately 23 without any priors, suddenly is involved in criminal activity of this type.
11Mr Azzopardi is slightly older than Mr Anderson. He had previously, in October 2014, been sentenced to a period of gaol for two months, albeit that was suspended. As I point out, Mr Azzopardi has no priors for drug matters.
12There are a couple of general concepts that I want to make clear before I get to the actual offending. Given the seriousness of these charges, there was no argument by either counsel with the fact that a period of immediate imprisonment is the only sentence appropriate for both prisoners.
13It is necessary for me to go to some general legal principles that are applicable to this type of criminality. As detailed by Buchanan JA in DPP v Duong [2006] VSCA 78, where Parliament prescribes a maximum penalty, as in the case of Charge 1 which Mr Anderson faces of 25 years, such a penalty shows unambiguously how seriously the community, through its Parliament, views this particular crime.
14Obviously, to a lesser extent, where the maximum penalty is 15 years, the same can be said insofar as the other charges that Mr Anderson and Mr Azzopardi face. It should, however, not be underestimated that a maximum penalty of 15 years is indicative of a serious charge.
15Insofar as our drug legislation is concerned, it is irrelevant what particular drug is involved. We have, in regard to these criminal provisions in this State, a quantity-based sentencing regime. I should point out however that the quantity as such has no arithmetical relationship to a sentence but, of course, is a significant factor in the total sentencing process. The regime was fully detailed by the Court of Appeal in R v Pidoto & O’Dea (2006) 14 VR 269 at [11] and [34], where four of the Court of Appeal Justices, in a joint judgment, noted the structure the Parliament has adopted was:
“… a hierarchy of seriousness defined by – and only by – the quantity of the drug of dependence which has been trafficked.”
16Further in Pidoto at [62], the Court indicated the ultimate question for a sentencing court given such a structure is:
“… not whether trafficking in one drug is to be viewed more seriously than trafficking in another, but what sentence should be imposed for the particular trafficking, bearing in mind the maximum penalty that may be imposed in dealing in the material involved. … .”
17As I have remarked, the maximum penalty in regard to your first charge, Mr Anderson, is obviously a matter of great significance in sentencing, as also is the penalty in your second offence, and the two offences under s71AC of which Mr Azzopardi faces.
18Nettle JA, as he then was, in R v D’Aloia [2006] VSCA 237 [56], set out the general approach for sentencing judges in these types of cases. He was dealing with MDMA. It does not matter, of course, given the regime, he said:
"… so far as the effects of cannabis and MDMA are concerned, the matter may still be approached on the basis that all of the drugs which are proscribed have deleterious consequences of anti-social proportions and that trafficking in any of them is therefore properly to be regarded as a serious criminal offence. … .”
19That statement applies to each of the trafficking charges in this matter.
20I should also point out that whatever role a person plays, albeit the need for a court to accurately classify same, a person who partakes in trafficking, as I say, in any role, can expect condign punishment.
21These principles have been present in our system of justice for many years and were accurately espoused by Wells J in R v McLeish (1982) 30 SASR 486, 491 and 492:
“… on the whole, persistent, illicit traders, upon the lowest, or on very much lower, levels of the drug trade, without whose aid the more highly organized professionals could never effectively distribute their wares to the customers on the street. The indispensability of these lower echelons makes them important members of the distribution operations as a whole initiated by higher echelons.”
22He went on to say, in talking about the lower echelons, as follows:
“… but it remains true that … [a person] has knowingly entered into an unlawful conspiracy with persons known and unknown to obtain and distribute drugs, and it is only because persons like him are ready, able, and willing, to do such a thing that the entrepreneur is able to ply his nefarious trade on a large scale. If there were no middlemen and underlings, there would be no top men in an organization. If an organization is starved of recruits it must collapse.
It seems to me to follow that after making all due allowances for the personal circumstances and antecedents of the prisoner, the facts of the particular case, and the need to show such mercy as is compatible with the safety of the public, a court should impose such a sentence as will spell out to those minded to establish or continue an unlawful organization for purveying drugs, as well as to potential recruits, the simple truth, that a man who participates in such an organisation at any level – I repeat at any level – must expect, and will receive, a heavy penalty. … .”
23Those are the general principles applicable to the sentencing task that I have to carry out today.
24As I say, coming to the specifics, this operation occurred over some time, and is somewhat detailed. The charges start, firstly, by way of time, with Mr Azzopardi. The first charge involved the on-sale to a fellow co-accused, Solimo, of 500 ecstasy tablets at $9.50 a tablet for a total sum of $4,750. Such trafficking took place on 28 July 2015 in Coburg.
25The second instance of Charge 1 relates to trafficking which took place on 27 August 2015 in Kalkallo. Again, an on-sale of purchases made to co-accused, Solimo, of a thousand ecstasy tablets which had been purchased by Mr Azzopardi for $9.50 a tablet.
26The third instance of trafficking which makes up Charge 1 for Mr Azzopardi brings in his connection with Mr Anderson and also makes up the first part of trafficking of Mr Anderson. Mr Azzopardi had introduced Mr Anderson to undercover operatives on 12 October 2015. The joint trafficking in which they have both been charged and which makes up each of the first charges in their matters involving ecstasy occurred, from that point, that is 12 October 2015 until 26 November 2015. Mr Azzopardi was remanded on other charges on 23 October.
27The first instance of trafficking involving Mr Azzopardi and the third involving Mr Azzopardi occurred on 13 October 2015. It took place in McDonalds Newcomb when 50 ecstasy tablets for the sum of $800 were trafficked to undercover operatives.
28The fourth occasion of trafficking as detailed in Charge 1 in regard to Mr Azzopardi, and the second with Mr Anderson, took place on 21 October 2015, this time at McDonalds Geelong West. On that occasion, a thousand ecstasy tablets were sold for a sum of $1,000 to the undercover operatives.
29The fifth occasion insofar as Mr Azzopardi is concerned and the third in regard to Mr Anderson, took place on 31 October 2015. Mr Azzopardi, on this occasion, was not present at the exchange of the drugs which took place in Geelong with the operatives; however, he did facilitate such sale or exchange. This involved 200 ecstasy tablets which were trafficked for a sum of $2,400.
30The next occasion involving them both again in circumstances which were facilitated by Mr Azzopardi, but the actual exchange which took place in Bannockburn involved 300 ecstasy tablets which were provided to the undercover operatives for a cost of $3,600.
31That completes the instances of trafficking insofar as Charge 1 is concerned, concerning Mr Azzopardi.
32The second charge facing Mr Azzopardi occurred on 27 August 2015 when he sold cocaine to co-offenders, Mr Solimo and Mr Judd. Those co-offenders are yet to be dealt with. I am told that they will be dealt with in the Magistrates’ Court. This charge involved 2 grams of cocaine which was on-sold for $1,000.
33In summary, Mr Azzopardi stands before the Court, insofar as Charge 1 is concerned, for trafficking a total of 2,150 tablets and two grams of cocaine. The percentage of purity of those ecstasy tablets were somewhere on average between 16 and 25 per cent. The street sale purity starts, as I understand it, at about 16 per cent. The relevant quantity for the liability under the quantity-based regime is a mixture, the relevant level for a mixed quantity is 500 grams. Insofar as the ecstasy that Mr Azzopardi was concerned with, the 2,150 tables makes up a total of 147 grams.
34Insofar as the pure mixture, 100 grams is the relevant quantity, the pure amount of ecstasy traded by Mr Azzopardi was 33 grams.
35That then takes us to the continuation of Mr Anderson’s trafficking. The instances that I am about to detail do not involve Mr Azzopardi. The first took place on 19 November 2015. It involved an exchange with the operatives of 500 ecstasy tablets in the sum of $5,500.
36The next took place on 2 December 2015 at the Fyansford Hotel where 300 ecstasy tablets were exchanged for a sum of $3,500.
37The next exchange took place at Werribee on 11 December 2015 where 300 tablets were exchanged for $3,600.
38The next exchange with the operatives took place at Werribee on 18 December 2015 when 270 ecstasy tablets were exchanged for $3,200.
39The final instance of trafficking in 2015, which is all bundled up together in Charge 1, took place at the Fyansford Hotel on 23 December 2015 when 300 ecstasy tablets were exchanged for $3,200.
40The second charge which Mr Anderson faces involves two trafficking instances. As I indicated, both of those concerned cocaine. On 11 December 2015, there was an exchange of a small sample of one gram of cocaine for the sum of $250 and on 18 December 2015, there was again a one-gram exchange for a sum of $350.
41The next exchange took place, insofar as Charge 1 is concerned, on 13 January 2016, that is this year, again, at the Fyansford Hotel in the car park when 300 ecstasy tablets were exchanged for the sum of $3,600.
42The next instance making up Charge 1 took place on 21 January of this year. Again, in the car park of the Fyansford Hotel when 200 ecstasy tablets were exchanged for $2,600.
43The next instance took place on 15 February 2016 when 300 ecstasy tablets were exchanged for $3,600 and, finally, on 7 March of this year at Geelong, 300 ecstasy tablets were exchanged by Mr Anderson with the operatives for $3,600.
44In all, Mr Anderson stands before the Court, insofar as Charge 1 is concerned, being the offence against s71AA, which involved 14 transactions. Predominantly those transactions concerned ecstasy. In total, there were 3,420 tablets of ecstasy and 29 grams of cocaine trafficked.
45Insofar as the relevant level for commercial quantity as I indicated by way of a mixed quantity, the relevant amount to qualify for being charged for trafficking in a commercial quantity is 500 grams mixed. In this charge, the ecstasy trafficked totals 839 grams.
46Insofar as the pure quantities, the relevant figure to make one liable for trafficking in a commercial quantity is 100 grams pure. In this instance, Mr Anderson had trafficked 177 grams pure.
47It is difficult to be certain totally in regard to Mr Azzopardi precisely what he trafficked to his co-offenders. However, as best as can be ascertained, the total sales conducted by Mr Azzopardi and Mr Anderson to the undercover agents was to the volume of $8,150, whereas the sales effected, or trafficking effected, by Mr Anderson only were to the value of $41,130.
48It was accepted as part of the plea in each case that both Mr Anderson and Mr Azzopardi were acting as middle men; that is, supplying street levels of both ecstasy and cocaine to street dealers. Insofar as such role is concerned, I stress the comments I earlier made, and the authorities that I referred to, that condign punishment awaits anyone who trafficks of any level, and such applies when one is a middle man.
49Mr Anderson, as I will make clear when I come to Mr Tovey’s plea, seemed to be involved not only in regard to his prior offence, but certainly throughout the extent of this trafficking, in circumstances where no doubt not only was he obtaining money as a result of this activity, but was thereby serving his own addiction, which was totally out of control.
50When asked about the money he had earned, and what he had done with it during this period of trafficking, to use his words, he said to the police, “I pissed it up against the wall”. Unfortunately, this is very typical of a person who – to use Mr Tovey’s term, makes such a spectacular entry into the criminal world.
51It was put in submission by the learned prosecutor that Mr Anderson said to the operatives that he had spent approximately $50,000 from his drug earnings on lifestyle during that period. Given that he was not working and the lifestyle he was living, that does not seem to me to be unusual or unexpected.
52The objective criminality obviously is very serious in regard to these crimes and the consequences which must be meted out are obvious and were not disputed. However, a sentence is not only determined upon the basis of objective criminality, but it is necessary to take into account subjective factors. I want to go to the plea of each counsel.
53Before that, of course, it is important to stress the comments of the learned prosecutor. In assessing the culpability, it was necessary, as the prosecutor maintained, to remember and take into account the sustained dealing which I have detailed. Also, he stressed the extent of the planning and meeting with the operatives, again, of which I have detailed. He referred to the number of transactions involved in each case. Insofar as Charge 1 is concerned, the number of ecstasy tablets involved, the weights and also the amount of cocaine.
54I was provided with sentencing Statistic 194 to consider. I was given an overview insofar as sentencing statistics is concerned and also provided with Kapkidis v R [2013] VSCA 35, which by coincidence was a case in which I was the sentencing judge.
55In addition, insofar as the charges which Mr Azzopardi faces, I was provided with the Sentencing Snapshot. In fact, I might not have been provided with that; I think I had that in my own records. I was again provided by counsel, the learned prosecutor, with the Sentencing Council statistics by way of an overview dated, well, from the statistics at paragraph 3313.4.1 and summaries at 3313.4.3. I was also referred to two cases of Haddara v R [2016] VSCA 168 and Haddara v R [2015] VSCA 158.
56Coming then to the pleas, Mr Tovey was at pains to stress, insofar as Mr Anderson is concerned, how spectacular his entry into criminality was, indeed this serious criminality.
57He called it a spectacular entry. Mr Tovey submitted that prior to the time that Mr Anderson became addicted to a series of drugs, and lived the life of one in the drug milieu, there was nothing in his background that would indicate that he would take such a path.
58Indeed, it is a very good example to the community of what can happen when one is so spectacularly addicted. Mr Anderson was a good student, he was good at sport, he had the support of both parents, albeit they had had difficulties in their own relationship, but he was a smart boy. He had had accelerated learning at high school. He dropped off fairly early at school. There were issues at home, in particular with his sister, and problems with the stepfather and I understand those issues would have an impact on a young man. However, he still finished his Year 12. As I said, he is a smart person. When his mother moved up to live in Ballarat he was left on his own and subsequently partnered, and had an issue with his partner and the pregnancy that occurred.
59Mr Anderson was very close to his grandfather. His grandfather was a teacher and mathematical engineer, and was affected by dementia and Alzheimer’s which impacted upon Mr Anderson. He was further impacted, I suppose, I don’t make this in any critical way, but his mother moved to Brisbane with a new relationship and he was on his own. However, he did very well on his own and was progressing, as I said, in his apprenticeship and there was no indication that the circumstances that now befall him would come about. In other words, the proposition put by Mr Tovey was whatever his issues he had lived a good and hardworking life up until his 23rd birthday, when he was introduced to ecstasy.
60Mr Anderson then goes “right off the planet” so to speak and is unfortunately involved in these crimes. We then have the first of the matters which was the matter in which he was sentenced in May 2015 for the possession of a series of drugs. He apparently had been selling to friends and as a result thereof a search was effected at his premises and these drugs were found.
61Again, to use Mr Tovey’s words, despite him being treated relatively gently on that occasion, he walks out of Court with a raging addiction and becomes involved in this more serious offending. He is thereafter introduced to Mr Azzopardi and becomes part of the process that I have detailed.
62What was stressed to me is that the impact of that change in his life, and where he has placed himself in his life has now impacted on him. He has now, since he has been remanded, realised that things must change, and must take steps to change his life and there is no excuse insofar as that was concerned.
63Mr Anderson’s mother has come back to Geelong to look after him, has been in Court, and is now. Tendered was a letter from her, she has seen him fortnightly. He has spoken to her of how stupid it was that he was involved in such criminality. He has been taking steps to overcome his issues and has undertaken counselling. He is indeed offering peer support and to quote her, as quoted to me by Mr Tovey, “He is now back to the Luke that she knows”. The steps taken in custody have also been positive. It was those matters that I was asked to take into account when looking at the future of Mr Anderson.
64Also tendered insofar as he was concerned was exhibit T3, the report of Carla Lechner, the clinical psychologist. There is no doubt that he clearly had a Stimulant Use Disorder. I think that is an understatement. However, as she states, he is in remission in a controlled environment.
65Ms Lechner is optimistic about his future. Mr Anderson was quite open with her about his involvement to the degree that he was even embarrassed in describing his criminality. He was aware that he was heading down a very dangerous and self-destructive path and recognised being remanded in prison may well have been his saving grace.
66Mr Anderson needs ongoing involvement and treatment. Clearly, he is a person that has a capacity to be addicted and it is quite clear that all drugs should be basically anathema in the future; he should not be involved in any type of drug.
67Mr Tovey did not gainsay the seriousness of the criminality involved. He stressed the issues of rehabilitation and the steps taken in prison whereby Mr Anderson is now an orientation billet and a peer listener.
68At paragraph 20 of his written submission, Mr Tovey set out these documents, which were tendered as exhibit T4, the various courses that he has undertaken as part of that rehabilitation.
69It is also submitted, albeit in remand, that he is drug free. There are no urine samples to prove that; however, it would appear from the observations made by his mother and the life that he is leading, that there is some positivity and there is no reason why I should not accept that proposition. It is quite clear that Mr Anderson can simply never be involved with drugs again.
70The plea, I accept, was almost at its earliest opportunity. The plea should, when coupled with the admissions, be seen as effecting genuine remorse. Also, as shown by Ms Lechner’s report, there is appropriate remorse and insight as demonstrated by Mr Anderson. While he is not a young offender anymore, he essentially is still a young man and I accept those propositions and the general principles set out in R v Mills [1998] 4 VR 235 are matters that I do take into account.
71I also accept that the prior offence for drug offending must be taken generally to be part of the totality of this raging addiction, as it occurs, to use the words of Mr Tovey, “within the same period of destructive addiction as the current offending”.
72As to his personal circumstances, it would appear on the basis of the statements in support by his family and Ms Lechner, that he has made positive steps as to his rehabilitation, and that I should be positive about that. However all of that, of course, has to be balanced against the serious criminality in this matter. Essentially, Mr Tovey understood that. However, he submitted, in the circumstances, given Mr Anderson’s age and the steps he has taken by way of rehabilitation, I should consider a longer than usual parole period.
73Coming then to Mr Azzopardi and the plea conducted by Mr Westmore. Mr Westmore provided the Court with a chronology. I have detailed the actual offending and Mr Westmore did not gainsay the seriousness of these crimes, nor the obvious consequence. He tried to put the matters in perspective, which I accept. He submitted details as to Mr Azzopardi who is still relatively young, he was 24 years of age at the time of the offending and is now only 26. He is well supported by his family, who live locally. He had various issues with his education and he is unfortunately illiterate. He had particular education difficulties; however, has an excellent work record. He has mechanical skills and has utilised a degree of hard work in his work as a slaughterman, in particular at MC Herd’s Abattoirs in Corio, where he worked until he was remanded on 23 October.
74Mr Azzopardi’s use of drugs, which I accept was facilitated by this offending, and it is partly the explanation. He certainly did not have the serious addiction of Mr Anderson. However, as put, he certainly has a history of recreational drug use. Although it was put by Mr Westmore that such never got to a serious degree.
75I have classified his role. I accept, insofar as sentencing, that he has no priors for drug crimes. Indeed, given his background, he has very limited priors really. I have persons often before me who have had difficulties with their education who have far worse backgrounds than Mr Azzopardi.
76It was submitted to me I should take into account, and I do, the early plea of guilty, the limited history, in particular given his own personal history. His age, the continued family support. Essentially, what was put to me was that I should look at those crimes in totality, given that for unassociated matters he is still serving out his current sentence.
77As I say, the prosecutor, apart from tendering statistics and tendering the two cases that I have referred to, did not really take the matter much further. There was a suggestion that he was somewhat more a middle man, but I find that is the actual category that does apply to Mr Azzopardi. I take all those matters into consideration.
78Sentencing relatively young men is no joy, especially for serious matters such as this. However, the Court’s role, as I have said, is to balance the call from Parliament and the community for appropriate sentences to be passed upon people who commit these offences. I do so as best as I can taking into account all of the factors put to me by both counsel insofar as each individual is concerned.
79Mr Anderson, if you would stand firstly.
80So far as Charge 1 is concerned, you will be sentenced to a period of imprisonment of four (4) years. In regard to the second offence, Charge 2, you will be sentenced to a period of imprisonment of sixteen (16) months. I order that six (6) months of the sentence imposed on Charge 2 be served cumulatively with a sentence imposed on Charge 1, making a total period of imprisonment of which you have got to serve of four-and-a-half (4½) years.
81I set as the period which you must serve prior to being eligible for parole a period of two (2) years and nine (9) months and I declare that pursuant to s18 the - what is the days Madam Prosecutor?
82MS SWADESIR: 246.
83HIS HONOUR: The 246 days you have served to date are to be declared as part of this sentence and a record of such is to be recorded in this Court.
84Mr Anderson, I am required by Parliament to indicate to you, the consequences for you had you not pleaded guilty. As I say, I have sentenced you to a period of imprisonment of four-and-a-half years and you are to serve a minimum of two years and nine months. Had you not pleaded guilty, you would have received a sentence of seven years, with a minimum of four years.
85It should be therefore clear to you the significant discount that has come about from your plea of guilty.
86I have signed a disposal order as sought by the prosecution I have also signed, as I understand, a forensic sample order. There is also a pecuniary penalty order insofar as the profits you have made from your trafficking which I have signed pursuant to a request from the prosecution in the sum of $34,125 and given that that relates to profits you have made or as assessed as being made, s5(2A)(d) applies and I do not take such into account in determining your sentence.
87Insofar as Mr Anderson is concerned, Madam Prosecutor or Mr Westmore, are there any matters that I need to amend or attend to?
88MS SWADESIR: There was just one matter, I think a slip of the tongue more than anything. You referred to one of the transactions on 18 February - the money that changed hands. Sorry, 18 December ‑ ‑ ‑
89HIS HONOUR: 18th of?
90MS SWADESIR: December.
91HIS HONOUR: For Mr Anderson? 18th of?
92MS SWADESIR: Sorry, paragraph 59.
93HIS HONOUR: 18 December, yes.
94MS SWADESIR: You said $3,300 changed hands. It was $3,200.
95HIS HONOUR: Yes, I am sorry. It is not a slip of the tongue, it is my shocking writing. That is why I use a computer.
96MS SWADESIR: Thank you. Early on in the sentence, you also mention 1915 as opposed to 2015 but I am sure we are all clear as to which year the offending occurred.
97HIS HONOUR: Yes.
98MS SWADESIR: And the final thing for Mr Anderson, you also mentioned about that he mentions he'd save $50,000 from the offending. That was something I put to his mother in cross-examination.
99HIS HONOUR: Yes.
100MS SWADESIR: What he said to the covert operative was that he had saved $50,000 from his business, from his employment, and that the drug profits went to maintaining his lifestyle.
101HIS HONOUR: So whatever profits he made went to maintain the lifestyle of the milieu that he was living.
102MS SWADESIR: Yes.
103HIS HONOUR: Yes, thank you. Mr Westmore?
104MR WESTMORE: Your Honour, just one matter which applies to both. There are a couple of other matters which only apply to Azzopardi which I can raise now or ‑ ‑ ‑
105HIS HONOUR: Yes.
106MR WESTMORE: So, just in terms of the ‑ ‑ ‑
107HIS HONOUR: You can take a seat, Mr Anderson.
108MR WESTMORE: Just in terms of the period of joint trafficking, Your Honour said when he first used that term that it was 12 October; it's to the 23rd October when Mr Azzopardi was remanded. Of course the period of joint trafficking was from 12 October until 6 November, which was the last transaction involved.
109HIS HONOUR: Exactly which is what I detailed.
110MR WESTMORE: You then went on to detail. I agree with that. Just in terms of Charge 2 for Mr Azzopardi. Initially, you appeared as a slip of the tongue to say 29 grams of cocaine. You then went on to say two grams which is the correct amount.
111HIS HONOUR: Yes, I did that in summary, I am sorry, I did use 29, it should have been two grams.
112MR WESTMORE: Yes, and I believe it's all that I've picked up.
113HIS HONOUR: Thank you.
114MR WESTMORE: Thank you.
115HIS HONOUR: Yes, take a seat, Mr Anderson. Mr Azzopardi, if you would stand please?
116As I say, as with Mr Anderson, it gives me no pleasure with a person such as yourself who is still relatively young with no drug priors to be involved in a sentence of you; however, I have set out the circumstances why this is necessary. Taking account of all the matters on Charge 1 you will be sentenced to a period of two (2) years’ gaol. On Charge 2, a period of twelve (12) months. I order that the two (2) years be the base sentence and to that I cumulate four (4) months of the second sentence, making a total period of imprisonment to which you have to serve of two (2) years and four (4) months. I order that the period that you should serve prior to being eligible for parole is a period of 14 months. From that 14 months is a period which I think is set, isn’t it? 78 days which is the agreed pre-sentence detention and I declare that that period is to be taken as the period already served and that declaration to be recorded in the records of this Court.
117Pursuant to the provisions of s6AAA of the Sentencing Act 1991 (Vic), as I explained to Mr Anderson also, it is important to explain to you that I have sentenced you to two years and four months with a minimum of 14 months. Had you not pleaded guilty, the sentence that I would have given you would have been three years and seven months with a minimum of two years and five months. I also note that the pecuniary penalty order which has been made against you of $4,075 which again, I do not take into account because of the provisions of s5(2A)(d). Are there any other orders I have signed in regard to Mr Azzopardi?
118MS SWADESIR: Disposal.
119HIS HONOUR: Disposal?
120MS SWADESIR: And forensic.
121HIS HONOUR: And forensic order. Yes, in regard to both of you, this is hardly important given the sentences I have imposed but the forensic orders will be sought from you if you have not given them already and it is important for you to co-operate in regard to those, otherwise you are just dragged back to court and I make an order. So, as I understand it Madam Prosecutor, they will be sought to be obtained in prison, won’t they?
122MS SWADESIR: That’s right, Your Honour.
123HIS HONOUR: Yes, any other matters, Mr Westmore?
124MR WESTMORE: No, Your Honour.
125HIS HONOUR: Yes, well, I thank both counsel and the prosecutor for your assistance in this matter and both prisoners can be removed.
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