Director of Public Prosecutions v Gaffy
[2014] VCC 25
•31 January 2014
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
CR-13-00741
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| LEAH GAFFY |
---
JUDGE: | HIS HONOUR JUDGE GRANT | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 12 December 2013 | |
DATE OF SENTENCE: | 31 January 2014 | |
CASE MAY BE CITED AS: | DPP v. Gaffy | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 25 | |
REASONS FOR SENTENCE
---
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr Ellwood | OPP |
| For the Accused Gaffy | Mr Taafe | Doogue O’Brien George |
HIS HONOUR:
1 Leah Gaffy you have pleaded guilty to one count of trafficking in a drug of dependence. The maximum penalty is 15 years imprisonment. You have limited prior criminal history. No convictions have been recorded against you. You have no criminal history for drug offending.
2 Mr Ellwood presented a summary of your offending. It is not my intention to repeat that summary. It will be attached to these remarks as Exhibit A.
3 Ms Gaffy your offending occurred between the 22 June 2012 and 19 July 2012. You were living with your then partner, John Harris, in a unit in Preston. Mr Harris was manufacturing methyl amphetamine at that address for Brane Stankovski. It is conceded by the prosecution that you did not have the skills to be a “cook”. However, you were present during the manufacturing process and you assisted Mr Harris by advising Stankovski as to when a “cook” would be completed. You also collected a box of Demazin for Mr Harris on 22 June 2012.
4 Quite properly, your counsel conceded that your offending is serious. You assisted Mr Harris in the manufacture of an illegal drug that causes much hardship within the community. The operation was ongoing and you facilitated the dealing in drugs over a one month period. Generally, deterrence, punishment and denunciation are central sentencing considerations in cases of this type.
5 In determining the appropriate order in this case I take account of the following matters in mitigation.
6 The first matter of relevance concerns your background. You are a 38 year old woman who has come from a background of deprivation. You were the 16th of 17 children. The family circumstances were poor. Your Father was abusive towards your mother. Your education was unsettled. You attended three different primary schools and three different high schools. Your mother was the only stable point in your life. You left school at the age of 15 to support her when she was dying of bowel cancer. When your mother died you tried to support your younger brother before leaving home with the man who became the father of your three children. He introduced you to the use of amphetamines when you were 19 years old. The relationship deteriorated over time and finally concluded in 2001.
7 After the breakdown of the relationship with your first partner you met Mr Harris and entered in to a relationship that lasted for 10 years. He died in mid-July 2013. You are still dealing with the consequences of that. You are still wrestling with drug abuse problems.
8 None of your dependent children reside with you. Your 17 year old son has left your care and your 12 year old son has been placed with his paternal grandparents on a Children’s Court order. Your eldest child attended court to support you.
9 Given these background matters, it is very much to your credit that you have not been convicted of any offences in the past. Nor have you been previously charged with any drug offences. Your limited criminal history and your deprived background are important matters that mitigate sentence in this case.
10 Ms Gaffy I am satisfied that you would not have been involved in this offending but for the influence of Mr Harris. He was the principal offender. Your involvement in the offending was at a relatively modest level, offering support to Mr Harris as needed. The death of Mr Harris makes it highly unlikely that you would be involved in offending of this type again.
11 There is one other matter in mitigation. It relates to the credit that attaches to your relatively early plea of guilty in this matter. Your preliminary hearing on 7 May 2013 proceeded as a straight hand up brief. A formal plea offer, which included an offer to assist authorities, was made on 28 May 2013. You were arraigned and pleaded guilty at a Directions Hearing on 31 May 2013. This is to your credit. I am satisfied the plea of guilty indicates remorse for your offending. I also accept that your plea of guilty has the benefit of avoiding the costs associated with a criminal trial.
12 Ms Gaffy, I must mark the seriousness of your offending by making an appropriate imprisonment order, however, taking account of your limited involvement in the offending, the relatively short period of your offending and the matters in mitigation that I have already highlighted, the sentence of imprisonment should be wholly suspended.
13 Ms Gaffy, you will be convicted and sentenced to 15 months imprisonment, wholly suspended for the next 3 years. You understand that this means you cannot commit any criminal offences during the next three years. If you were to commit an offence punishable by a term of imprisonment then it is most likely that the 15 month sentence will be activated and you will be required to serve it. Obviously if there is no further trouble then you will not serve any time.
14 I also make a disposal order in relation to the drug paraphernalia seized by the police from the Preston unit.
15 I also order that pursuant to s.464ZF(2) of the Crimes Act you undergo a forensic procedure for the taking of a scraping from your mouth in accordance with sub-division 30A of Part 3 of the Crimes Act 1958. I am making this order because the circumstances of the offence warrant it; the order, as I understand it, is not opposed; and the granting of the order is in the public interest. Ms Gaffy, I must inform you that if you do not co-operate with the authorities in the taking of the mouth swab, reasonable force can be used to obtain the sample from you.
16 You must attend at the Epping Police Station within the four weeks after 28 days from today. In plain English, this means you have to attend the Epping Police Station for the taking of the sample within the first four weeks of March.
17 Pursuant to s.6AAA if you had been found guilty of these offences after trial, I would have sentenced you to a term of 18 months imprisonment with a minimum of 6 months.
- - -
Exhibit A:
Court References: CR-13-00837; 13-13-00854 & 13-00845, 13-00846, 13-00847
MARKOVSKI
Indictment No: C12111975
GAFFY
Indictment No: 1204920 STANKOVSKIIndictment No: C1208600
IN THE COUNTY COURT
IN THE STATE OF VICTORIA
AT MELBOURNE
THE DIRECTOR OF PUBLIC PROSECUTIONS
-v –
Velimir MARKOVSKI, Leah GAFFY and Brane STANKOVSKI
SUMMARY OF PROSECUTION OPENING
Operation GNOMICAL commenced on 15 February 2012 targeting Brane STANKOVSKI then believed to be trafficking methylamphetamine in the northern suburbs of Melbourne. Over the course of the investigation telephone communications to and from STANKOVSKI were the subject of Interception Warrants. In the course of that interception the activities of several other persons came to light. They included Velimir MARKOVSKI, Chris JOVANOVSKI, John HARRIS and Leah GAFFY.
SHORT SUMMARY
Charge 1 against STANKOVSKI is a rolled-up charge.
The case against STANKOVSKI is that he was very busy trafficking drugs of dependence during the period of the investigation, selling, or offering to sell, methylamphetamine to various customers.
The case against him on Charge 1 is in two parts. First, a total of seven sales were made to a covert operative between 25 May 2012 and 27 July 2012.
Second, intercept transcripts and observation revealed STANKOVSKI arranging sales and deliveries of drugs to other customers, as summarised in the coloured chart annexed hereto.
Charge 2 relates to the sale of 3 pounds of cannabis (or 1.36 kilograms) on 12/7/2012.
Charge 3 relates to the possession of 5.2 grams of Cannabis L in STANKOVSKI’s possession at his house in Reservoir.
Additionally It is alleged that STANKOVSKI recruited a number of his customers to source Demazin or similar products from which could be extracted pseudoephedrine for amphetamine production and that this manufacturing was carried out by John HARRIS and Leah GAFFY. HARRIS and GAFFY were then living in a de-facto relationship. [HARRIS died of natural causes in mid-July 2013 following the committal.]However, notwithstanding the manufacturing alleged against HARRIS and GAFFY for STANKOVSKI, the Prosecution case is that the supplier of high purity methylamphetamine to STANKOVSKI on the dates charged as against MARKOVSKI, namely 19 July and 27 July 2012, was Velimir MARKOVSKI.
MARKOVSKI [Indictment C.12111975 - Charges 1 and 2]
10.Velimir MARKOVSKI (Born 23 May 1951) resided at an apartment at 2506/265 Exhibition Street, Melbourne, a building close to the corner of Little Lonsdale Street. In the course of the investigation STANKOVSKI was observed meeting with MARKOVSKI at a number of City locations following telephone communications. Those telephone communications reveal MARKOVSKI speaking in Macedonian and in coded form to STANKOVSKI regarding their illegal drug activities. It is alleged that intercept material demonstrates the hierarchy as between MARKOVSKI and STANKOVSKI, namely that MARKOVSKI was a supplier to STANKOVSKI.
Charge 2
11.When arrested on 27 July 2012 MARKOVSKI was found to be in possession of twelve $100 notes, notes which had been paid by the Covert Operative to STANKOVSKI as part of a total price of $2,000 for what became the final purchase of 3.5 grams of methylamphetamine on that day [MARKOVSKI Charge 2]
12.The prosecution allege that the final day’s surveillance and intercepts reflect the modus operandi as between MARKOVSKI and STANKOVSKI.
13.On 27 July Covert Operative Kaz (‘Kaz’) phoned STANKOVSKI and told him she wanted to purchase “the bigger one” they had previously talked about and offered to pay him $2,000 ‘up front’.
14.At 11:41 Kaz met STANKOVSKI at a flat he used in Tarakan Street, Heidelberg West and gave him $2,000.
15.At 12:14 p.m. STANKOVSKI phoned MARKOVSKI. De-coded, STANKOVSKI told MARKOVSKI that he had $2,000 plus a further $1,000 in relation to a different sale to another person. They agreed to meet when MARKOVSKI called.
16.Subsequently MARKOVSKI told STANKOVSKI to go to the smoking area at the Golden Nugget Hotel in Lonsdale Street, a place they often met.
17.It is alleged that after meeting MARKOVSKI, STANKOVSKI drove to Carlton intending to meet Kaz and complete the sale. He was arrested before he could do so.
18.He had in his possession 7 grams of methylamphetamine with a purity of approximately 70%. He had none of the notes paid to him earlier by Kaz.
19.As stated earlier, when MARKOVSKI was arrested – in the Golden Nugget at 3:55 p.m. on that day – he was found to be in possession of some $5,370 cash, $1,200 of which was identifiable as part of the Kaz payment earlier that afternoon. [Summary Charge - Deal with property suspected of being proceeds of crime]
Charge 1
20.On the earlier occasion, on 19 July 2012, [MARKOVSKI Charge 1] Kaz had also paid STANKOVSKI the money - $1,000 – in advance. STANKOVSKI met MARKOVSKI in a hotel car park in Northcote from where STANKOVSKI drove to a car park in Heidelberg and delivered the drugs to the undercover policewoman, Kaz.
21.The prosecution case against the accused MARKOVSKI is that he agreed to supply STANKOVKSI with 1.7 grams of methylamphetamine for on-sale; notwithstanding that the weight he actually supplied proved on analysis to be ‘short’ [1.5 grams at 80%] [MARKOVSKI Charge 1] and that on the second occasion he supplied STANKOVSKI with 7.0 grams at 70%, from which STANKOVSKI was to supply Kaz with 3.5 grams [MARKOVSKI Charge 2].
Arrest and Interview
22.A field interview [Deps. pp.1067 – 1104) was conducted with MARKOVSKI after which he attended with police while they executed a Drugs Act search warrant at his Exhibition Street apartment. No drugs were located. Deal bags and scales were located. Five empty cigarette packets bound together with rubber bands were located in a cupboard over the refrigerator.
23.The presence of the empty cigarette packets was significant. On the occasion STANKOVKSI effected delivery of what he had agreed to supply, namely 1.7 grams of methylamphetamine to Kaz on 19 July 2012 [Charge 1] he had handed her a cigarette packet containing a plastic bag inside which was the purchased methylamphetamine; on later analysis this found to actually be 1.5 grams with a purity of approximately 80%.
Empty cigarette packets containing empty plastic bags were also found by police at STANKOVSKI’s premises in Vale Street, Reservoir.The Prosecution alleges the cigarette packet was a simply disguised delivery method from MARKOVSKI to STANKOVSKI.24.During the recorded field interviews at the Golden Nugget and at his apartment following his arrest MARKOVSKI claimed that the money in his possession came from legitimate sources.
25.When interviewed at Mill Park Police Station later that night. He admitted possession of the cash found on his person at the time of his arrest. He told police that “most” of the money found on his person he withdrew from Suncorp by way of a loan. He denied knowing anyone named “Braneh” or “Barney”. He otherwise exercised his right to silence.
GAFFY [Indictment C.1204920 - 1 Charge]
Charge 1
26.This is a ‘Giretti’ charge.
27.John HARRIS (then aged 46) and Leah GAFFY (then aged 37) lived at Unit 4, 13-19 Oak Street, Preston. Their two children aged 11 and 16 years, respectively, lived in the same house in which the manufacturing took place.
28.Throughout Operation GNOMICAL HARRIS and GAFFY both had phone contact with STANKOVSKI using a number of mobile phone services. It was HARRIS who ‘cooked’ methylamphetamine for STANKOVSKI during this period. While it is not alleged that GAFFY herself had the requisite skill set to be a ‘cook’, the prosecution allege that GAFFY assisted HARRIS on occasions within the date period charged on the Indictment and her guilt arises by virtue of her aiding and abetting, or acting in concert with him; receiving boxes of tablets from STANKOVSKI for pseudoephedrine extraction purposes and conversing with STANKOVSKI as to when a ‘cook’ would be complete.
29.On 4 September 2012 police executed a Drugs Act search warrant at the home of HARRIS and GAFFY. During the search police identified various items of equipment and chemicals used in the manufacture of amphetamines in both the laundry and a cupboard within the master bedroom. There was evidence that the “cooking” of amphetamines had been carried out in the laundry immediately adjacent to the kitchen and dining room of the unit.
Arrest and Interview
30.When interviewed on 4 September 2012 (Deps. pp.1124 – 1176) the accused GAFFY told police that she had no part in manufacturing drugs. She said that her partner [HARRIS] was looking after some items - “glass stuff” and “containers” - for a friend named Barney (1124-25); the items found by the police in the laundry and the master bedroom. She in fact addressed STANKOVSKI as “Barney” in a phone conversation on 22 June 2012. She told police she didn’t know what the glass and other items were used for (1126). She never asked HARRIS what the items were used for and she never looked inside the containers (1127)
31.The prosecution case against GAFFY [Charge 1] is that she was aiding and abetting or acting in concert with HARRIS in the trafficking by manufacture of methylamphetamine during the date period charged.
STANKOVSKI [Indictment C.1208600 – 3 Charges]
Charge 1
32.STANKOVSKI was observed by police driving in the Reservoir area on 15 February 2012. He stopped his car in the middle of Lucas Street and a woman named Angela COSTA approached. He passed a cigarette packet to her. Both persons were intercepted by police. The cigarette packet contained 0.4 gm of methylamphetamine in a snap-seal plastic bag.
33.STANKOVSKI was asked to pull his car over to the side of the road and step out to the footpath. When searched he had $300 in cash in his pocket. Another cigarette packet was found on a brick pillar in Lucas Street near to where STANKOVSKI had parked. This contained methylamphetamine. Under the steering column of STANKOVSKI’s car were located nine deal bags and another quantity of methylamphetamine as well as an ‘ice’ pipe; a total of 1.1 gms methylamphetamine. Inside the car were found eight empty Demazin packets. COSTA was dealt with in the Magistrates Court on a possession charge.
34.STANKOVSKI made a ‘no comment’ interview. He was then charged and bailed to appear at Heidelberg Magistrates’ Court. Those charges were still unresolved at the time of the further offending behaviour set out below.
35.Between 25 May 2012 and 27 July 2012 STANKOVSKI sold methylamphetamine to Kaz on seven occasions. Each of these transactions followed a common path. Kaz contacted STANKOVSKI by telephone and indicated a desire to purchase methylamphetamine. Arrangements would be made by telephone to meet, STANKOVSKI suggesting the meeting place. At the meet Kaz would exchange a sum of money for methylamphetamine. The details of the individual transactions – two of which are outlined in more detail in paras. 9 – 19, above – occurred as follows:
a.25 May 2012 – 0.2 gm (90% purity) for $200
b.1 June 2012 – 0.5 gm (90% purity) for $400
c.19 June 2012 – 0.5 gm (80% purity) for $400
d.28 June 2012 – 0.9 gm (90% purity) for $800
e.12 July 2012 – 0.2 gm (80% purity) free as substitute for the 1.7 gms agreed to be supplied but which was then unavailable
f.19 July 2012 – 1.7 gms (80% purity) for $1,000
g.27 July 2012 – 3.5 gms (70% purity) for $2,000.
36.On one occasion – the 12 July - STANKOVSKI arranged to meet Kaz at a flat he used in Tarakan Street, Heidelberg. A number of other purchasers were observed to attend the Tarakan Street apartment during the surveillance period. It is alleged that STANKOVSKI used the Tarakan Street apartment as a ‘safe house’ for his drug activity.
37.As is earlier set out [paras 9 – 16, above] STANKOVSKI was arrested on 27 July 2012 on his way to complete the last transaction with Kaz. He was in possession of 7 gms of methylamphetamine, half of which was intended for delivery to Kaz.
38.The telephone interceptions contain many hundreds of drug-related conversations between STANKOVSKI and his customers. Most of these persons were regular, if not daily, users of methylamphetamine and the amounts sold or agreed to be sold by STANKOVSKI reflected purchases by users although it should be noted that the amounts supplied to Kaz were of a high purity.
39.The Crown case is that STANKOVSKI trafficked at least 158.19 grams of Methylamphetamine as outlined in the coloured chart annexed hereto.
40.The prosecution case is that STANKOVSKI clearly had a significant and regular customer base throughout the charge period to whom he supplied Methylamphetamine in amounts of between 1 to 3 points, although gram and multiple gram amounts are also the subject of discussion from time to time.
41.This customer base included a girl and her mother, both of whom were users. Police established that the girl was 14 years old at the time of the four purchases she made from STANKOVSKI during the charge period. It cannot be established that STANKOVSKI was aware of her age.
Charge 2
42.On 11 July 2012 a telephone call was intercepted between STANKOVSKI and a person identified as ‘Youssef AHMAD’. AHMAD needed “3 or 4 jobs done”. STANKOVSKI told him there were “10 to 15 jobs there”. STANKOVSKI then phoned a person identified as ‘GASPARIS’ and left as message asking for “five of those jobs that you have got”. Later GASPARIS rang and told STANKOVSKI he only had four left. GASPARIS provided STANKOVSKI with directions to his house.
43.On 12 July 2012 police observed a male arrive at STANKOVSKI’s premises in Vale Street, Reservoir. He was carrying a blue cooler bag. He entered the address. A few minutes later STANKOVSKI left the address carrying the blue cooler bag and drove off. He went to High Street, Thomastown, where he met AHMAD and handed over three pounds (1.36 kgs) of cannabis. AHMAD was intercepted by police thereafter and the cannabis seized. STANKOVSKI was not arrested at this time.
Charge 3
44.A search of STANKOVSKI’s premises at Vale Street, Reservoir following his arrest on 27 July 2012 revealed 5.2 gms of cannabis in a cigarette box.
Arrest and Interview
45.Following the arrest of STANKOVSKI police executed search warrants at the Tarakan Street, Heidelberg premises and his home at Vale Street, Reservoir. At the first premises – the ‘safe house’ address - police seized a large number of deal bags, a set of scales, an ‘ice’ pipe, Iodine and glassware. At the Vale Street premises police seized blister packs of Demazin. STANKOVSKI made a ‘no comment’ interview.
JOVANOVSKI
46.The prosecution case against JOVANOVSKI was that:
-He pooled money with STANKOVSKI on occasions to facilitate purchases of methylamphetamine;
-He trafficked in his own right, sourcing his own clients, and
-He trafficked a total of 4.0 gms of methylamphetamine over the period 22 June 2012 to 27 July 2012. This amount was secured by him over nine individual purchases from STANKOVSKI.
47.JOVANOVSKI pleaded guilty in the Magistrates’ Court on 3 May 2013 to a charge of Trafficking a drug of dependence and several weapons offences. He was sentenced on 6 June 2013 to a Community Corrections Order with conviction for 12 months with 120 hours of unpaid work with conditions for assessment and treatment for mental health issues.
HISTORY
48.The charges against JOVANOVSKI originally formed a separate brief but were eventually joined to the larger committal of STANKOVSKI, MARKOVSKI, HARRIS and GAFFY.
49.MARKOVSKI and HARRIS resolved the charges against them at the committal hearing on 2 May 2013. GAFFY took a straight hand-up brief on 3 May 2013. All accused were adjourned to this date for a plea.
50.GAFFY resolved at a time after the Initial Directions Hearing and she formally entered a plea of guilty to her Indictment on 31 May 2013. Her plea was adjourned to join the already listed plea of MARKOVSKI and HARRIS.
51.STANKOVSKI resolved on or about 27 September 2013 after discussions. He was arraigned on that date on his Indictment and his plea adjourned to join MARKOVSKI and GAFFY; HARRIS having died.
PENALTY
52.The maximum penalty for the offence of trafficking in a drug of dependence is 15 years imprisonment [s.71AC Drugs Poisons and Controlled Substances Act 1981].
53.The maximum penalty for the offence of possession of a drug of dependence, (cannabis < 50 gms) where the Court is satisfied that possession was for a purpose not related to trafficking: 5 penalty units. In any other case the maximum penalty is 400 penalty units or 5 years, or both. [s.73 Drugs Poisons and Controlled Substance Act 1981]54.The summary offence of Dealing with property suspected of being the proceeds of crime (1 charge) carries a maximum of 2 years imprisonment. [s.195 Crimes Act 1958]
55.The summary offence of entering an intersection on a red light carries a maximum penalty of 10 penalty units.
56.The summary offence of using a mobile phone while driving a motor car carried a maximum penalty of 10 penalty units.
Pre-Sentence Detention
57.For the prisoner MARKOVSKI is 8 days
58.For the prisoner GAFFY is 1 day.
59.For the prisoner STANKOVSKI is 65 days.
Orders sought
FORFEITURE
60.A Forfeiture Order is sought in respect of the $5,370 cash located in the possession of the accused MARKOVSKI on his arresttogether with the $2,000 found in the possession of STANKOVSKI on arrest.
DISPOSAL
61.A Disposal Order is sought in relation to the drug paraphernalia at the Preston home of HARRIS and GAFFY, together with the drugs - cannabis and methylamphetamine – and the paraphernalia located at the premises occupied by STANKOVSKI in Tarakan Street, Heidelberg West.
S.464ZF Forensic Sample
62.A Forensic Sample Order is sought in respect of both GAFFY
and STANKOVSKI.71AC of the Drugs Poisons and Controlled Substances Act 1981 is a Schedule 8 offence.
Damian Ellwood 9 December 2013
Prosecutor
0
0
0