Director of Public Prosecutions v Counihan

[2014] VCC 2062

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-13-00918

DIRECTOR OF PUBLIC PROSECUTIONS

v

JAMES COUNIHAN

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	4 December 2014
CASE MAY BE CITED AS:	DPP v Counihan
MEDIUM NEUTRAL CITATION:	[2014] VCC 2062

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. Porceddu
For the Offender	Ms M. Cenacchi

HIS HONOUR: 

1James Counihan.  You have pleaded guilty to one charge of trafficking a drug of dependence, one charge of possession of substances, materials or equipment for trafficking a drug of dependence and one charge of shortening the barrel of a longarm.  Those crimes carry maximum penalties of ten years, ten years and four years respectively. 

2You have also pleaded guilty to one charge of possession of a firearm and one charge relating to proceeds of crime.  They are both related uplifted matters.  Each of those carries a maximum penalty of two years' imprisonment. 

3You are 39 years of age. 

4You must get the utilitarian benefit of your plea of guilty, though I suspect it is not accompanied by a great deal of remorse. 

5You have now been awaiting sentence, in effect, for a period of approximately two years.  Whilst that delay is, to an extent, because of your late plea of guilty, I do take it into account. 

6In your record of interview you did make significant admissions to at least the basis of these charges.  Though, as I have indicated, I think you were probably minimising. 

7You do have a prior criminal history going back to your late teens.  You have been convicted previously of drug related matters and indeed many years ago received a suspended sentence for the cultivation of cannabis.  I take those matters into account, and indicate that I do not feel that they extinguish the possibilities of your potential rehabilitation, though obviously in your particular situation where you have been addicted to ice, I must be somewhat guarded in assessing those prospects. 

8Pursuant to s.464 of the Crimes Act I make an order that you provide a saliva sample for DNA purposes.  That order having been made, I must advise you that should you refuse to provide such a sample, police may use reasonable force to take it from you.  I make it clear that that is a saliva sample, no injections or anything like that involved. 

9The offending relates to a Giretti trafficking between 13 and 20 November 2012.  There is a very detailed Crown opening and I do not propose to even embark upon an attempt to summarise that.  What I will do is annex that summary to these my sentencing remarks.  It is the basis of that summary that I act upon, and whilst there may be matters that are debatable, the overall seriousness of the offending is adequately described.

10What was occurring during that period of time was that you were the occupant of a factory in Hastings.  You, with the very significant assistance of a woman known as Elbouch and also a Mr Lothian, were manufacturing amphetamine.  You were sourcing various substances from Bunnings and supermarkets and the like, and you and others on your behalf, including, as I understand it, Lothian and Elbouch, were sourcing pseudoephedrine from chemists.  You then apparently had the ability to turn that into amphetamine. 

11I am very conscious that you are not charged with a commercial quantity, and it is trafficking simpliciter. 

12I accept that in that overall scenario your primary motivation for the manufacture and therefore the trafficking was one of providing for your own addiction.  That puts it into a somewhat different category, in my view, as to somebody who is simply doing it for greed.  In your particular situation, you were living in a hovel.  There is no sign of enrichment, and that is a different situation to your co-accused.  I accept that you were fairly vigorous in the way that you were going about this, but that you were never going to become a millionaire. 

13As I have said, I will simply annex that prosecution opening which contains detail of the numerous phone conversations, appointments and attendances that you and your two co-accused made. 

14Trafficking amphetamine, particularly when you have - in my view - manufactured it yourself, has to be regarded as a very serious offence.  I think it is fair to say that ice, at the present time, presents the greatest challenge for the justice system that has occurred, certainly during my experience of it.  I can simply say, for example, that in the Melbourne Koori Court in the last 12 months we have dealt with 29 matters, 27 of them were armed robberies and 26 were on ice.  That is the level of destruction that this drug causes within the community, and that destruction goes way beyond simply the Aboriginal community, which is the one that I have had the most contact with. 

15An active custodial sentence is inevitable, in my view, and it must be such as to deter others or other likeminded people from engaging in similar conduct. 

16When police raided the factory on 30 November 2012, to your credit, you had advised them that there was a sawn-off shotgun in situ.  You yourself had sawn the barrel off, and as I have indicated during the course of the plea, ice and sawn-off shotguns seem to go hand-in-hand and it is a very dangerous weapon.  That also has to be regarded as a serious offence. 

17As I have discussed with counsel, the main concern I have got insofar as the sentencing process with you is concerned, is what occurred with the co-accused.  They were treated by the Crown as, in the ultimate, aiders and abettors.  Mr Lothian, for the trafficking in the same period of time, received two years' imprisonment, 18 months of which was suspended, and he had six months to serve.  He was told that but for his plea of guilty he would have received a sentence of three years with a minimum of two.  That amounts to a 75 per cent reduction in the time he had to serve, simply because he pleaded guilty.  I would not do that, but in this situation I think I am, to a certain extent, stuck with it. He did have prior convictions, albeit not particularly serious drug ones, and he, as you are, was addicted. 

18Your other co-accused, Elbouch, with whom you were in a relationship, received a sentence of 18 months with 14 months suspended.  She had no prior convictions.  Having read the sentencing remarks of that judge, it would appear that Ms Elbouch was a very lucky woman indeed.  She was told that her plea was late, that there was no remorse.  As I understand it, she had done a no comment record of interview.  She also faced charges of proceeds of crime which was some $13,500 and also ammunition. 

19The distinctions between you and her are that you have prior convictions and she had none, though I note that your prior convictions for cultivation are now of some antiquity.  She, however, the judge found, was doing this for greed.  I accept that your primary motivation was to supply your own addiction. 

20I had considered going through those sentencing remarks in some detail in these sentencing remarks, but I think I have made it clear, the view that I have of it, and they can be read by any other person who I suspect will form the same view as I have.  She was told that but for her plea of guilty, she too would have received three years with a minimum of two.  On my calculation, that is a reduction in actual time served of 85 per cent for a remorseless, late plea of guilty with a no comment record of interview and the criminality was being carried out for no purpose other than greed.  My view speaks for itself, but again, as I have indicated, I am, to a large extent, stuck with it.  Again, and I am certainly not being critical of anyone involved in this case, this is another reason or another example of why it is so important if at all possible that co-accused be sentenced by the same judge. 

21In your situation, Mr Counihan, I do not have to go into detail.  You are 39 years of age.  I am told that by occupation you have been a commercial diver.  You have clearly, over the years, had periods of time where you worked and I have no reason to doubt why that should not be able to occur again. 

22You, by around about 2008, were single and broke, as it was described to me.  You went to Tasmania.  It was around that time that you started smoking ice, but you were able to continue working in the tuna industry for a period of time.  You had been brought up, as I understand it, down around Hastings, and in 2010 you went there and started to work again.  Your ice addiction became out of control and you decided to make your own.  It was in those circumstances that surveillance, which initially was in relation to Lothian, as I understand it, discovered your little enterprise and the inevitable raid took place. 

23In the end, as I have said, I think I have to take note of matters of parity, but I am simply not prepared to give a sentence of such a low order for this type of offending.  We are talking about actual time served rather than head sentences.  My initial thought was that I would give you a period of imprisonment and then have a community corrections order.  However, having read the other sentencing remarks, I think that that added burden on you would be unfair for reasons of parity.  If you breach a partially suspended sentence you will be brought back before me, and if it reoffending of this nature, you will do the lot plus whatever the breaching offence is.  That should be sufficient to deter others and should certainly be a sufficient deterrent for you yourself. 

24The possess proceeds of crime related to something in the order of $900 which was found in your possession.  I simply forgot to mention that previously. 

25As I say, somewhat concernedly, but I think all I can do is sentence you as follows.  On the charge of trafficking, two years; on the charge of possess articles for traffick, six months; and on the charge of shortening the barrel of a firearm, nine months; the charge of possess firearm, one month; and the charge of proceeds of crime, one month. 

26I direct that six months of the sentence imposed on Charge 6, that is the shotgun, be served cumulatively upon the sentence imposed upon Charge 1.  That gives an effective head sentence of two and a half years. 

27I direct that 18 months of that two and a half years be suspended for a period of three years, because I consider it to be in the interests of justice to do so, which means that you will be undergoing the sentence of 12 months.  I do not need to comment any further about that. 

28I say that but for your plea of guilty, you would have been sentenced to be imprisoned for a period of four years with a minimum term of two and a half. 

29Are there any other orders I have to make, gentlemen?

30MR PORCEDDU:  No, Your Honour. 

31HIS HONOUR:  All done.

32MR CENACCHI:  No other orders, sir, but there was a slip of the tongue when Your Honour was indicating the maximum penalties.  The maximum penalty for trafficking I believe is 15 years. 

33HIS HONOUR:  I was told ten.  It is not going to make a difference.  I thought 15 was the commercial trafficking.

34MR CENACCHI:  Commercial trafficking is 25 years. 

35HIS HONOUR:  That is right.  Large as life, is it not? 

36MR CENACCHI:  Large as life. 

37HIS HONOUR:  Yes.  Look, if it had been 15, it would not have been any different, because I am assuming that the judge who sentenced the others did that as well, and I have said about ten times now, this sentence is about parity.  But thank you for pointing that out. 

38MR CENACCHI:  You are welcome, sir. 

39HIS HONOUR:  But it makes no difference to the ultimate result.

40MR CENACCHI:  And there is the question of PSD, sir.

41HIS HONOUR:  Sorry, yes.  Nine days?  Nine or ten.  There is three days plus what has happened since ‑ ‑ ‑

42MR CENACCHI:  Yes, that is correct, Your Honour. 

43HIS HONOUR:  So it is nine days. 

44MR CENACCHI:  Nine days.

45HIS HONOUR:  I direct that nine days be reckoned as having been served under this sentence.

46COUNSEL:  As Your Honour pleases. 

47HIS HONOUR:  All right.  Sorry about that whinge, gentlemen, but that is sometimes how I view things.  And thank you, counsel, for their assistance in the matter. 

48MR CENACCHI:  Thank you, sir. 

49HIS HONOUR:  It is a suspended sentence, Mr Counihan, so if you breach it, you get brought back.  I will just explain this to you, I have got to tell you this as a matter of law.  If you breach by anything carrying imprisonment, you have got to show exceptional circumstances why you would not have to do that other 18 months, and as you understand, it would be pretty hard to do.  All right. 

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