Director of Public Prosecutions v Avignone-Green
[2018] VCC 755
•25 May 2018
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR 16-01681
| THE QUEEN |
| v |
| ADAM AVIGNONE-GREEN |
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| JUDGE: | HIS HONOUR JUDGE COISH |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 8 & 16 May 2018 |
| DATE OF SENTENCE: | 25 May 2018 |
| CASE MAY BE CITED AS: | DPP v Avignone-Green |
| MEDIUM NEUTRAL CITATION: | [2018] VCC 755 |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For The Queen | Mr A. Schwartz | Commonwealth Director of Public Prosecutions |
| For the Accused | Ms D. Markotich | Markotich Lawyers |
HIS HONOUR:
1Adam Antony Avignone-Green, could you stand up please. You have pleaded guilty to one charge of traffic in a controlled drug contrary to s.302.4 of the Criminal Code (Commonwealth), two charges of possess a drug of dependence contrary to s.73(1) of the Drugs, Poisons and Controlled Substances Act 1981 Victoria, one charge of traffic a commercial quantity of a controlled drug contrary to s.71(A)(A) of the Drugs, Poisons and Controlled Substances Act 1981 Victoria, and one charge of possess a controlled drug contrary to s.308.1 of the Criminal Code (Commonwealth).
2These offences carry the following maximum penalties. Charge 1, the Commonwealth trafficking simpliciter charge, maximum penalty ten years imprisonment and or 2000 penalty units;
3Charge 2, the trafficking in a commercial quantity of a drug of dependence, a state charge, maximum penalty 25 years imprisonment;
4Charge 3, possession of a drug of dependence, a state charge, maximum penalty one year imprisonment or 30 penalty units;
5Charge 4, possession of a controlled drug, a Commonwealth offence, maximum penalty two years imprisonment and or 400 penalty units;
6Charge 5, possession of a drug of dependence, a state charge, maximum penalty one year imprisonment or 30 penalty units.
7It is unnecessary for me to recount the facts of the matter in detail as they are on transcript and contained in Exhibit 1, the Crown opening for plea. That opening was accepted by you through your counsel. I proceed to sentence you on the basis of the facts as opened by the prosecutor which I shall now summarise.
8The offending in respect of Charge 1 occurred between 1 June 2014 and
31 March 2015. During this time you sold the following drugs to another related offender, Luke Milanovic. I quote from paragraph 22 of the Crown opening.9"On 22 July 2015, police arrested Milanovic for drug possession offences. Milanovic has already pleaded guilty to this offence and has been sentenced.
10"Milanovic made a statement to police on 27 July 2015 in which he admitted to purchasing the following drugs from the offender:
11"(A) One capsule of MDMA in June 2014, a purchase for approximately $30;
12(B) Three to four capsules of MDA in about September 2014, purchased for approximately $30 each;
13(C) Ten capsules of MDA in October 2014, purchased for approximately $30 each;
14(D) Three grams of cocaine in November or December 2014, purchased for approximately $1050;
15(E) Twenty tablets of MDA in December 2014, purchased for approximately $25 each;
16(F) Twenty eight grams of MDA in March 2015, purchased for $3000.
17"(23) The 26.2 grams located by police in Milanovic's coat pocket was the remainder of the 28 grams purchased from the offender in March 2015."
18Charges 2 to 5 were committed on 23 June 2015. An AFP police investigation revealed that you had utilised on mobile phone in your own name and four other mobile phones in false names. As a result of intercepting phone calls and SMS messages over five days between a mobile phone you used and one used by the co-offender Shane Wake in a false name, police discovered that you were making arrangements for a significant drug transaction with Wake.
19You were to pay for Wake to fly from Perth to Melbourne so he could meet you and you could supply him with methamphetamine. He would pay you for the drugs.
20He flew to Melbourne on 23 June 2015. He planned to meet you on Kavanagh Street, Southbank. The AFP attended at the meeting place. When Wake arrived he was intercepted by police. He tried to run away but he was apprehended. He was in possession of $120,050 cash and a mobile phone he had been using to communicate with you.
21You were at the meeting place and you were also simultaneously arrested. You had a knife clipped to the inside of your trousers and $2,700 in cash.
22There were drugs seized from your car. In relation to those drugs, and I quote from the Crown opening:
23"Forensic analysis of substance:
24"(14) This crystalline substance from the suitcase located in the car was subsequently analysed and identified as being 501.8 grams gross of methylamphetamine at 80.1 per cent purity, leaving a total net weight of 401.9 grams of pure methylamphetamine.
25"Avignone-Green's fingerprints were identified on the plastic wrapping.
26"(16) The estimated value of the methylamphetamine is as follows:
27"Wholesale value between $121,720 and $196,900 and street value between $376,350 and $501,800."
28This forms the basis of Charge 2, trafficking in a commercial quantity of a drug of dependence.
29Charges 3 to 5 concern possession of various drugs located at your unit in Essendon when police executed a search warrant at that address on 23 June 2015.
30Again, quoting from the Crown opening.
31"(17) On 24 June 2015, a search warrant was executed at Avignone-Green's residential address unit, 3/8 Scofield Street, Essendon which located a small amount of cocaine Charge 4, eight tablets of MDMA Charge 5, small amount of methamphetamine Charge 6.
32"Electronic scales, glass smoking pipe, 50 x 9 millimetre Ruger handgun ammunition, Taser, a number of mobile phone handsets including a smashed mobile phone located in various places in the house and also in the rubbish bin in the driveway outside the unit a number of SIM cards and packs.
33"The forensic analysis of those substances was undertaken and the results are set out in paragraph 18 of the Crown opening."
34I state to you that I have taken into account the following matters in mitigation of sentence. You have pleaded guilty. You are entitled to have that fact taken into account in your favour and I do so. The community has, by your plea, been spared the time and cost of a trial. Witnesses have been spared the ordeal of giving evidence upon your trial.
35You pleaded guilty at a late stage in terms of the chronology of proceedings, although it is relevant that you had made plea offers on 10 November 2015 and 17 July 2017. I have taken this into account.
36I accept on the basis of the plea of guilty and all the material before me that you are genuinely remorseful. You have no prior convictions. I sentence you as a person of previously good character.
37I have been told something of your personal circumstances and these matters are set out in detail in the outline of plea submissions and reports of Jeffrey Cummins, psychologist.
38You are 26 years of age, having been born on 11 January 1992. You are a single man with no dependents. You were educated to Year 12 level and you undertook tertiary studies.
39You commenced but did not complete courses in building surveying and business information systems. You worked as a casual employee at the MCG when aged 19 to 22 years.
40You then worked developing mobile phone apps and trading in Bitcoin. You are now engaged in currency trading and app development.
41You had a disrupted childhood having been exposed to family violence and you suffered from anxiety and depression. You started using recreational drugs when at university however your drug use spiralled out of control and you also abused prescription medication. You began to associate with older, more experienced drug users and by late 2014 you had drifted away from your family and you were mixing with bad company.
42This offending occurred in the context of your escalating drug use, estrangement from family and involvement with others in the drug world such as Troy Best and the co-offender Wake. Details of Best's criminal history were tendered in evidence on the plea.
43Two detailed psychological reports from Jeffrey Cummins dated 1 September 2015 and 15 May 2018 were tendered on your behalf and Mr Cummins gave evidence at the plea hearing.
44It is not submitted that any of the well-known principles enunciated in Verdins' case apply however Mr Cummins' opinions at pp.9 and 10 of his second report are relevant to your personal circumstances, the context in which the offending occurred and your prospects of rehabilitation.
45Mr Cummins has provided psychological treatment to you. He has seen you 54 times since 14 September 2015. You now appear to be drug-free.
46You told Mr Cummins you felt pressured by Best into committing the trafficking offence at Southbank on 23 June 2015. You were fearful of Best and Wake and their associates. Whilst I accept Mr Cummins' opinion about your psychological state these matters do not reduce your moral culpability.
47I assess your prospects of rehabilitation as being good. It is to your credit that you have stopped taking drugs (see negative urine drug screen test results), withdrawn from the drug world, reconnected with your family, undertaken treatment and work. You have endeavoured to rehabilitate yourself.
48Your family and many friends remain very supportive. This is evidenced by the many references and testimonials tendered on your behalf which I have taken into account.
49Your family has suffered greatly as a result of your actions. You have adhered to strict bail conditions since your release from custody. You are working from a home office. You have provided assistance to others and you have ambitious plans for the future.
50You were arrested on or about 23 June 2015 and released on bail on or about 10 September 2015. There were riots in the MRC within a week of your remand. For approximately one month you experienced a 24 hour lock down then a 23 hour lockdown. I have taken these conditions into account.
51You were a relatively young man at the time of this offending. This is a relevant consideration. There has been significant delay in this matter. It is relevant that you have during this period of delay taken a number of positive steps to rehabilitate yourself. You have also had this matter hanging over your head for almost three years.
52Against these matters in mitigation however, your actions were very serious indeed. Charge 2, trafficking in a commercial quantity of a drug of dependence is the most serious charge. I accept the prosecution's' submission that your role in the offending in respect of Charge 2 was very involved and this offending was carefully planned. You arranged for the purchaser of the drugs to fly to Melbourne to engage in this transaction. The transaction involved a significant amount of money. This was a commercial quantity of methylamphetamine with a very large wholesale and street value.
53In respect of Charge 1, you supplied drugs on a regular basis to Milanovic. The possession Charges 3, 4 and 5 are less serious and they can be dealt with by the imposition of a conviction and fine for each possession charge.
54I have had regard to the principle of parity. I have taken into account your role that of the co-offender's role antecedents, personal circumstances and prospects of rehabilitation.
55You were the supplier of the drugs and you arranged for the co-offender to travel to Melbourne. He was to pay for the drugs. He is older than you and he has a significant criminal history. His personal circumstances are set out in detail in the reasons for sentence of His Honour Judge Stuart delivered
12 August 2016.56Wake was convicted and sentenced to five years' imprisonment with a non-parole period of two years and nine months.
57Whilst I accept there ought be some disparity having regard to your differing antecedents and personal circumstances, I do not accept that it ought be as significant as was submitted by your counsel on your behalf.
58There was much evidence before His Honour Judge Stuart in respect of the co-offender's efforts at rehabilitation and other matters in mitigation. I do regard your role as a very important factor in this regard.
59Charge 1 is a Commonwealth offence. I have therefore had regard to the provisions of the Crimes Act (Cth) 1914 and in particular the overriding obligation to impose a sentence that is of a severity appropriate in all the circumstances of the offence (s.16A(1)). I have taken into account the matters in so far as relevant as set out in s.16A(2).
60Charge 2 is a state charge therefore the provisions of the Victorian Sentencing Act 1991 apply.
61In respect of all charges, as well as the matters to which I have referred, I must also take into account the need for general and specific deterrence.
62Specific deterrence is less relevant as you have no prior convictions and I assess your prospects of rehabilitation as being good.
63General deterrence is, however, of considerable importance in a case such as this. Superior courts have consistently emphasised for many years that drug trafficking must be discouraged. The very serious nature of trafficking in a commercial quantity of a drug of dependence is demonstrated by the maximum penalty set by Parliament of 25 years imprisonment.
64The selection of quotations provided by the prosecution in their submissions on sentence is relevant in that, as long ago as 1997 the Victorian Court of Appeal stated in Su's case:
"The Court of Criminal Appeal has said over the years and this court has reiterated that the elements of punishment and general deterrence are of particular importance, that those who engage in this trade which has not inappropriately been termed 'evil' play for high stakes."
65In a similar vein, in 1998 Winneke P in Carey's case stated:
"Those who engage in the illicit drug trade, no matter what their status and the enterprise, must expect heavy sentences in which general deterrence will be the principle purpose of the punishment."
66A final quote from the cases of Nguyen and Phommalysack in 2011:
"The sentence must signal to would be drug traffickers that the potential financial rewards to be gained from such activities are neutralised by the risk of severe punishment."
67It is appropriate that I manifest the community's denunciation of your conduct and generally impose a just punishment. I have had regard to the comparative cases provided by the prosecution.
68I am satisfied in respect of both Charges 1 and 2 that I have no alternative but to impose sentences of imprisonment.
69As stated, Charge 2 trafficking in a commercial quantity of a drug of dependence is the most serious offence. It is a state offence.
70Charge 1, trafficking simplicter, is a Commonwealth offence. The difficulties of sentencing in respect of Commonwealth and state offences are notorious. I have had regard to the comments of the Court of Appeal in DPP (Cth) v Swingler [2017] VSCA 305, paragraph 78 to 92 and the Guide to Federal Sentencing in Victoria (as at 31 January 2017), paragraphs 391 to 392, together with the state and Commonwealth legislative regimes.
71Charge 1 involved drug trafficking between 1 June 2014 and 31 March 2015. Although the amounts involved were modest there were a number of transactions. As it was separate offending to Charge 2 it is appropriate that there be some degree of cumulation.
72The sentence on Charge 1 that I propose imposing is not, however, of such a magnitude that a recognisance release order is required (s.19AC(3)).
73Charge 2, the state offence, requires a sentence of imprisonment and a non-parole period.
74In this situation I have structured the sentence in the most practical and appropriate manner. Whilst I acknowledge concerns about the interpretation of s.16(4) of the Victorian Sentencing Act discussed in Swingler's case I propose to direct the Commonwealth sentence commence on this date and the state sentence and non-parole period commence at a later date thereby enabling a degree of cumulation.
75Having regard to all relevant facts and appropriate sentencing principles I propose imposing the following sentences. For the purpose of this exercise I will ask my associate to provide to your solicitor and counsel a draft of the proposed order so that it can be followed and any alteration in any technical aspect of the sentence can be addressed. This is a draft only. If you turn to the second page, for reasons which are not relevant, the financial penalties appear first.
76The sentences I propose are as follows. Charge 1 is a Commonwealth offence. Convicted and sentenced to six months' imprisonment. The sentence is to commence on this date;
77Charge 2 is a state offence, convicted and sentenced to four years and six months' imprisonment. I direct that the non-parole period is two years and three months. The sentence and non-parole period commence three months from this date;
78The total effective state and federal sentence is four years and nine months. The non-parole period is two years and three months which as I have said commences from three months from this date.
79Charges 3, 4 and 5, you will be convicted and fined $500 in respect of each charge and there will be a stay of three months for the payment of those monetary penalties.
80As prescribed by s.18(4) of the Sentencing Act I declare the period of time you have spent in custody is 90 days which is to be reckoned as time already served under the sentence. I direct that such be noted in the records of the court.
81I will make the disposal orders sought by the prosecution. Pursuant to s.6AAA of the Sentencing Act I state the sentence and non-parole period I would have imposed but for the plea of guilty is seven years with a non-parole period of five years.
82MR SCHWARTZ: The only matter, Your Honour, which I have raised with my instructing solicitor, is the question of the orders of forfeiture. I understand that those orders have been signed?
83HIS HONOUR: Yes. We will formally include the forfeiture order on those orders.
84MR SCHWARTZ: Yes, Your Honour.
85HIS HONOUR: In terms of the technical or mechanical aspects of the sentence?
86MR SCHWARTZ: Nothing to add, Your Honour to what Your Honour said.
87HIS HONOUR: It all appears in accord with the legislation?
88MR SCHWARTZ: Yes, I understand it does, with respect.
89MS MARKOFITCH: That is so, Your Honour.
90HIS HONOUR: Thank you to both of you for your help.
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