Director of Public Prosecutions v Hamilton
[2018] VCC 1585
•27 September 2018
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
GENERAL LIST
CR 18-00316
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| CHRISTIAN HAMILTON |
---
| JUDGE: | HIS HONOUR JUDGE HIGHAM |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 23 July 2018 and 17 August 2018 |
| DATE OF SENTENCE: | 27 September 2018 |
| CASE MAY BE CITED AS: | DPP v Hamilton |
| MEDIUM NEUTRAL CITATION: | [2018] VCC 1585 |
REASONS FOR SENTENCE
---Subject: CRIMINAL LAW
Catchwords: Sentence – trafficking in a commercial quantity of a drug of dependence – prohibited person possess firearm – plea of guilty
Legislation Cited: Crimes Act 1958 (Vic); Sentencing Act 1991 (Vic)
Cases Cites: Berichon v R; Houssein v R (2013) 40 VR 490; DPP v Basic [2017]
VSCA 376; Gregory (a pseudonym) v The Queen [2017] VSCA 151
Sentence: Total effective sentence of 5 years and 6 months’ imprisonment
with a non-parole period of 3 years and 4 months.
Section 6AAA declaration: 6 years and 9 months’ imprisonment
with a non-parole period of 5 years.---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr J Livitsanos | Solicitor for the Office of Public Prosecutions |
| For the Accused | Dr M Gumbleton (Plea) Mr S Andrianakis (Sentence) | Stephen Andrianakis & Associates |
HIS HONOUR:
1Christian Hamilton, you have pleaded guilty to two charges of trafficking in a commercial quantity a drug of dependence for which the maximum penalty is a term of imprisonment of 25 years; one charge of trafficking in a drug of dependence for which the maximum penalty is a term of imprisonment of 15 years; one charge of possession of a drug of dependence for which the maximum penalty in the circumstances I find is a term of imprisonment of five years; one charge of possessing a firearm whilst prohibited for which the maximum penalty is a term of imprisonment of ten years; and to one summary charge of possessing cartridge ammunition without a licence for which the maximum penalty is 40 penalty units.
2In relatively short compass, the circumstances of your offending arose out of your association with Mr Robert Ale, who in the latter part of 2016 headed, directed and controlled a drug trafficking syndicate operating in the south-eastern suburbs of Melbourne.
3Mr Ale's criminal enterprise relied for its success upon the active participation of trust lieutenants, business associates, friends, lovers and motorbike enthusiasts, who lent their services in different capacities over different periods of time, and for different rewards. You had come to know Mr Ale through your membership of a group called The Last Kings, of which Mr Ale was the leader.
4In mid-November 2016, Mr Ale had sourced a consignment of methamphetamine and cocaine in Sydney. You were asked to go to Sydney, collect the drugs, and bring them to Melbourne. I was told on your plea that you were to be paid the sum of $10,000 for your participation.
5On 15 November 2016, you hired a Hyundai Accent motor vehicle, registration 1FU9AA, with a return date of 18 November 2016, and you then drove to Sydney.
6Intercepted communications evidenced Mr Ale's concern as to the success of the operation, and during the course of 16 November 2016, his communication with yourself and with others, and your eventual assurance to him that you had collected, on separate occasions, both the cocaine and the methamphetamine, which you now had in your possession.
7Due to your exhaustion, you made arrangements to remain in Sydney and to drive back to Melbourne on 17 November 2016. You crossed the state border sometime in the late afternoon of the 17th, and by that time you had become aware that police had executed various warrants against various members of Mr Ale's syndicate.
8You were arrested at about 7:50 pm at a service station in Euroa. Intercepts suggest you may have been waiting for further instructions from Ale as to where the drugs should be delivered.
9In a plastic shopping bag hidden under the steering column of the vehicle, investigators found a taped brick containing 577.2 grams of cocaine in white powder form with a purity of 82 per cent (Charge 2), and a black and white Calico shopping bag containing 999.5 grams of methamphetamine with a purity of 55 per cent (Charge 1).
10The drug packaging was tested, and your DNA was matched to samples taken from the plastic shopping bag and the tape around the brick of cocaine.
11At 10:45 pm on 17 November 2016, a search warrant was executed at your home address in Cranbourne West, which you shared with your girlfriend. Among other items located was a small bag containing 16.1 grams of methylamphetamine in clear, crystal form, and a small plastic container containing 77.8 grams of methylamphetamine in white rock form (Charge 4); a plastic bag containing three separate bags, each with a quantity of light blue ecstasy pills (MDMA), with a total weight of 226.4 grams (Charge 3); and finally a large quantity of various calibre ammunition, which is the summary charge. Charges 3 and 4 demonstrate your involvement in the drug world prior to your journey to Sydney on 15 November 2016.
12You were initially held on remand in Shepparton police cells, where on 27 November 2016 you received a visit from Ms Khia Humbles, who at that time was in an intimate relationship with Mr Ale. Mr Ale was living with Ms Carly Epskamp, who was his long-term de facto partner.
13Intercepts captured Ms Humbles' communication with Mr Ale after her visit with you. Ms Humbles told Mr Ale that she had given you a message from Mr Ale that you "sit tight and keep your mouth shut and it will be okay".
14Later that day, Ms Humbles told Mr Ale of your concern relating to what Ms Humbles described as "the other tool". You told her where it is and you said "it was urgent for what it was used for. The thing that Omi got questioned about". I make clear that is a quote of Ms Humbles relaying your conversation with her during the course of the visit she had been allowed whilst you were in Shepparton police cells. Both Ms Humbles and Mr Ale clearly knew the item to which you were referring. Ms Humbles asked Mr Ale "Why has he still got it?", to which Mr Ale replied "'Coz he is a dumb c***".
15Alert to these conversations, police kept surveillance on your Cranbourne West address, and at 7.21 pm executed a search warrant obtained on the basis of the intercepted communication. Located buried in the backyard, wrapped in a t-shirt and then a plastic bag, was a Ruger GP100 .037-calibre revolver, loaded with five .357-calibre rounds (Charge 5). Forensic ballistic examination confirmed that that was the same firearm that had been used in the non-fatal shooting of Mr Stephen Dank on 23 July 2016. Mr Omid Said, or "Omi", an associate of Mr Ale, had previously been spoken to about the shooting of Mr Dank.
16I now turn to your personal circumstances.
17You were born on 5 April 1985 and are now 33 years old, and you were aged 31 at the time of the offending in November 2016. I view you as having no prior criminal record.
18You were born in New South Wales, and your family moved to Victoria when you were four. You have an older brother, Josh. Your parents separated in 1996 when you were approximately around 11 years of age. You attended four different primary schools around the Frankston area, and completed Year 12 at Mount Erin Secondary College. You reported that you were an above-average student without social or behavioural difficulties, but that your Year 12 schooling coincided with the tragic passing of your mother to cancer, and your marks suffered.
19You described your home life as good, with no exposure to violence or substance abuse issues, and that your parents had separated due to your father having an affair. You were particularly close with your mother, and you reported that you were devastated by her death. Your father now lives in Thailand with his partner and their young daughter.
20In the aftermath of completing high school and your mother's death, you worked a number of jobs, including as a bartender, security guard, roof trussing, at a printers, and in construction. You began using drugs at the age of 21, mainly cocaine and occasionally ecstasy and cannabis, and you quickly became a regular user.
21You moved to Perth at the age of 23 before returning to Melbourne a few years later, and in 2010, at age 25, you were based in the Western Australian mines for approximately four years. You report that you were binging on drugs on the weekends and you described it as a stress outlet. You would spent most of your time off work in Bali, and in early 2012 you met Lesty, your ex-wife, with whom you then had two children now aged five and four years old.
22You brought your family from Bali to Western Australia. You reported that your marriage with Lesti became strained, and that you suspected she may have suffered post-natal depression, although this was never diagnosed. She wanted to move to Sydney. As a compromise, you moved to Melbourne, where I understand you began to work for your father's security business.
23You reported that your wife's behaviour became more erratic, and that she was violent towards you. She made counterclaims, and as a result intervention orders were issued in respect to both you and your wife. The consequences of these orders being issued was particularly significant for you.
24Your father had bought into his own brother's business, Home Security Systems, and you had been working in your father's business with the expectation that you would take it over. However, with an intervention order in place you lost your security firearms licence and were no longer able to work in the security industry. I am told that the succession plans for the business were therefore put in jeopardy.
25Having lost your source of income, you began to earn a living by installing security cameras for outlaw motorcycle gang (OMCG) members, and it was through this work that you came to meet Mr Robert Ale.
26In response to your wife's behavioural deterioration, you decided to leave with your two children, and you also decided to seek formal custody of your two children. There followed a protracted and expensive journey through the courts. The final court order granting you custody of both your children was made around the end of September or beginning of October 2016, and shortly thereafter you were presented with your lawyer's final bill, which totalled $80,000.
27You did not have the funds, and apparently your father paid. Although your father was not demanding repayment, you felt both morally and materially indebted to him, and felt obliged to repay the loan. It was in this context of indebtedness that you accepted Mr Ale's offer of financial reward in the sum of $10,000 for the Sydney trip.
28You and your current partner Zoe have recently had your first child together. She is now the carer of both your children from your first marriage, and your new child, Whitney, and your partner is rightly apprehensive about the future and her ability to parent all three children
29Tendered on the plea as Exhibit 4CH was a report from Carla Lechner, clinical psychologist, dated 12 May 2018. In that report, Ms Lechner details your reported history and context to this offending, which is consistent with what I was told by your counsel, Mr Gumbleton.
30She was of the view that you did not present with symptoms of an underlying psychological or psychiatric disorder. She noted your steady employment history and your strong commitment to your family. Ms Lechner believes that you present with a positive prognosis for the future.
31She notes that you have a tendency to minimise, that is, lessen, the extent of your internal distress, and that you are keen to be seen as independent and coping and in control at all times, a tendency she identifies as starting at the time of the loss of your mother.
32She notes the extent of your concern about the welfare of your partner Zoe and your children whilst you are in custody.
33As to your offending, she describes you as "refreshingly honest", in stating that you simply wished to make some money in order to repay your father in relation to the outstanding legal bill. Pausing there, I note that your father was not seeking repayment of the bill at the time of this offending.
34You told Ms Lechner that you deeply regret your actions, and particularly the impact that your offending and inevitable gaol sentence will have upon your family, and you have special concerns about the care of your older children.
35Mr Livitsanos on behalf of the prosecution submitted that whilst broadly-described, your role was that of a courier in relation to Charge 1 and Charge 2. You were no mere mule, but you played an active role serving the interests of Ale's trafficking enterprise.
36He correctly identified that the sentencing purposes of general and specific deterrence (that is, sending a message to the public at large, and sending a message to you that you cannot repeat such behaviour), and denunciation and just punishment came to the fore in both drug trafficking and firearms offending. He submitted that there should be significant cumulation in respect of the distinct offending represented by Charges 1 and 2, Charges 3 and 4, and then Charge 5.
37As to Charge 5, he submitted that I could be satisfied to the requisite standard that your possession was for the purpose of ongoing criminal activity, thus bringing your offending into the second category of cases by Redlich JA in the case of Berichon v R; Houssein v R (2013) 40 VR 490, and referenced further in the case of DPP v Basic [2017] VSCA 376 at paragraph 66.
38He submitted that I should be cautious in assessing your prospects of rehabilitation, in light of you having more recently become a fully-patched member of the Comancheros.
39Your counsel, Mr Gumbleton, realistically accepted that the only disposition open to the court was a term of immediate imprisonment. He urged however that such a term should be moderated for the following reasons.
40Firstly, your plea of guilty, which although was not entered at the earliest opportunity, nonetheless could be viewed as an early plea, attracting the utilitarian benefit of saving the community time, the cost and trauma of a trial. I agree, and I give appropriate and significant weight to your plea;
41Secondly, he relied on your remorse, expressed not only by your plea, but also in your expressions of regret to Ms Lechner. He relied upon your absence of prior convictions. As indicated above, I regard you as a man of previous good character.
42Mr Gumbleton submitted that you pleaded guilty in relation to the trafficking charges on the basis of possession for sale and nothing else. He accepted that you went into the venture with your eyes open for financial reward, and you were caught.
43However, he emphasised that your role remained as a courier, however willing, of the drugs, and not someone who was conducting business on their own behalf.
44As to Charge 5, the possession of the Ruger revolver, your counsel submitted that I could not be satisfied beyond reasonable doubt that you knew the firearm had in fact been used in a particular attack against Mr Dank, however he did accept that I could find that your possession of the firearm was associated with ongoing criminal activity.
45He submitted that you had positive prospects of rehabilitation, notwithstanding that you have recently become a member of the Comancheros OMCG. He submitted that your decision to join should be viewed by me as no more than providing you with a sense of identity, and indeed of protection whilst you are serving your term of imprisonment.
46He further submitted that you will be acutely aware of the strain of your partner in the wellbeing of your young family whilst you are in custody serving a term of imprisonment. He urged upon me the principle of totality when considering questions of cumulation.
47Mr Gumbleton submitted in conclusion that the matters in mitigation could be reflected by a greater than usual disparity between any head sentence and the non-parole period.
48Mr Hamilton, the trafficking offences to which you have pleaded guilty are serious offences, as is clear from the maximum penalty which Parliament have seen fit to impose. These are, in my view, serious examples of such offending.
49Quantity is a highly-relevant consideration in assessing the objective gravity of your offending in relation to the trafficking charges. In Charge 1, the quantity was just under the threshold for a large commercial quantity. In Charge 2, on a calculation based on purity, the quantity was 0.631 per cent of the large commercial quantity. In Charge 3, it was 0.452 per cent of the commercial quantity threshold.
50There are, of course, other important indicators of offence seriousness. In particular, the offender's role in the trafficking, the duration of the trafficking, and the motivation for the offender's involvement.[1]
[1] Gregory (a pseudonym) v The Queen [2017] VSCA 151 at [24].
51The maximum penalty of ten years' imprisonment applicable to the possession of a firearm (Charge 5) reflect the gravity of the offence and Parliament's intent of ensuring the public's safety. Your possession was for the undoubted purpose of ongoing criminal activity in the service of Mr Ale's criminal enterprise, and that informs, in my view, the seriousness of the offending. That the revolver was loaded is itself an aggravating feature.
52Mr Ale ran a criminal enterprise dedicated to the wholesale distribution of drugs, and to ensuring through various means of enforcement that the business would be carried out effectively and without challenge. Such a criminal enterprise constitutes, in my view, a direct challenge to the very fabric of our society, and such a criminal enterprise cannot exist without the participation of people such as yourself, prepared to perform their particular tasks.
53For the promise of $10,000, you willingly lent yourself to Mr Ale's criminal enterprise. You went to Sydney to collect what you believed was a kilo of methamphetamine, in addition to the quantity of cocaine which forms the subject matter of Charge 2.
54Had you in fact collected a kilo of methamphetamine, the maximum penalty would have been one of life imprisonment. You are not to be sentenced for Mr Ale's crimes. Your role in Charges 1 and 2 was, I accept, that of a courier. However, it is plain you were not merely a mule who was to be met at both ends of the journey, and whose exercise of choice may have been overborne by some pressing and overwhelming financial hardship.
55Rather, you were someone who took on the role for significant financial reward, well knowing the risks, and who I find in the discharge of your duties, showed an ability to exercise choice and to put into effect decisions that were designed to ensure the overall success of the enterprise, which was of course to transport drugs of dependence from New South Wales into Victoria. It was quite simply a role that you embraced with enthusiasm, a measure of your active and willing participation is found in the intercepted communications made by and to you during the course of your journey interstate.
56In short, you entered into the criminal enterprise with your eyes wide open, fully knowing the risks, and you were caught. The drugs found at your home which underpin Charges 3 and 4 are themselves serious matters, and of course stand as separate offending.
57Mr Hamilton, those of us who sit in the criminal courts day after day are aware of this one simple truth. Drugs are tearing the heart out of our community. This community is quite simply losing a generation, and so therefore those who participate in what is an evil trade can expect to be punished if and when they come before the courts.
58What might start out as a fun Saturday night, what might be regarded as recreational, can quickly spiral into the horrors of addiction. Many lose everything, and some lose their lives.
59In sentencing you, I must have regard to a range of different factors. I must give effect to the principles of both general deterrence, sending that message to the community at large, and specific deterrence, sending a message to you to not repeat this behaviour.
60I must express the community's denunciation of your conduct, and I must also promote, if possible, your rehabilitation. I must take into account the effect of your crime upon the community, and I must have regard to current sentencing practices and the maximum penalties imposed by Parliament.
61In short, I must try to balance your personal circumstances with the circumstances of your offending. I have regard to all the matters urged upon me by your counsel on your behalf.
62For the avoidance of doubt, I find that your role in Charge 1 and 2 was that of a courier, albeit a very hands-on one. I find that the firearm in Charge 5 was kept by you on the instructions of others, and for their ongoing criminal activity, not yours.
63I have regard to your plea of guilty, which I accept was presented at an early opportunity. I accept that you now express remorse, and that you are only too well aware of the damage that your offending has inflicted upon your young family, and that your partner will struggle whilst you are in custody.
64As to your recent membership of the Comancheros, whilst it is certainly not to be commended, in my view it does not impact adversely upon your prospects of rehabilitation. Your prior good character and antecedents, in addition to your young family does, in my view, bode well for your future.
65Nonetheless it is clear, the gravity of your offending is such that the principles of general and specific deterrence and denunciation are the primary sentencing considerations in this case, and those purposes can only be met by a substantial term of imprisonment.
66Could you stand up please, Mr Hamilton?
67On Charge 1, trafficking in a commercial quantity of a drug of dependence, you are sentenced to a term of imprisonment of four (4) years.
68On Charge 2, trafficking a commercial quantity of a drug of dependence, you are sentenced to a term of imprisonment of three (3) years.
69On Charge 3 of trafficking in a drug of dependence, you are sentenced to a term of imprisonment of twelve (12) months.
70On Charge 4, possession of a drug of dependence, you are sentenced to a term of imprisonment of six (6) months.
71On Charge 5, possession of a firearm whilst prohibited, you are sentenced to a period of imprisonment of twenty-one (21) months.
72On the summary charge possession of ammunition, you are convicted and discharged.
73I order that six (6) months of the sentence on Charge 2, three (3) months of the sentence on Charge 3, and nine (9) months of the sentence on Charge 5 run cumulative to each other and cumulative to the sentence imposed on Charge 1.
74This makes a total effective sentence of five (5) years and six (6) months, and I fix a non-parole period of three (3) years and four (4) months.
75Pursuant to s.6AAA of the Sentencing Act 1991, had you not pleaded guilty you would have been sentenced to a total effective sentence of six (6) years and nine (9) months with a non-parole period of five (5) years.
76HIS HONOUR: Pursuant to section 18 of the Sentencing Act, I declare that you have served 90 days of the sentence that I have passed on you today, and I direct that this be entered into the records of the court.
77HIS HONOUR: All right. Now, Mr Livitsanos, I have a forfeiture order in relation to the two firearms and rounds of ammunition.
78MR LIVITSANOS: Yes, Your Honour.
79HIS HONOUR: Yes, I will sign that. Disposal order with a schedule.
80MR LIVITSANOS: Yes, Your Honour.
81HIS HONOUR: I will sign that.
82MR LIVITSANOS: And another forfeiture order.
83HIS HONOUR: And another forfeiture order.
84MR LIVITSANOS: Yes, yes, Your Honour.
85HIS HONOUR: With three items on the schedule?
86MR LIVITSANOS: That's correct, Your Honour.
87HIS HONOUR: There we are.
88MR LIVITSANOS: Your Honour, there is only one other matter, Your Honour, and that was the serious offender provisions.
89HIS HONOUR: Yes.
90MR LIVITSANOS: Your Honour will recall - there are two separate serious offender provisions, if I can put it that way.
91HIS HONOUR: Yes.
92MR LIVITSANOS: One pursuant to s89(d)(i) of the Act, and I think Your Honour will recall that that is not actually applicable. However ‑ ‑ ‑
93HIS HONOUR: No, but it is 6E.
94MR LIVITSANOS: Correct.
95HIS HONOUR: Thank you for reminding me, I thought I dealt with it, but it was not - yes, it's s.6E.
96MR LIVITSANOS: It is noted in the opening, Your Honour. Section 6 C, D and E, provisions apply, Your Honour. He should be noted as a serious drug offender on Charge 2.
97HIS HONOUR: He will become - I will declare that pursuant to the provisions of s.6, the sentence on Charge 2 - indeed on Charge 2 and 3 ‑ ‑ ‑
98MR LIVITSANOS: Three Your Honour. As a serious drug offender.
99HIS HONOUR: Yes.
100MR LIVITSANOS: We do not seek a disproportionate sentence.
101HIS HONOUR: Yes, and I have made the orders.
102MR LIVITSANOS: Your Honour, clearly then s.6 - I think E, Your Honour, or D, Your Honour, means that protection of the community is the principal purpose for which then Your Honour is enclosing the sentence.
103HIS HONOUR: Do you wish me to make that clear?
104MR LIVITSANOS: In Your Honour's sentence, yes Your Honour.
105HIS HONOUR: Yes, I will ‑ ‑ ‑
106MR LIVITSANOS: Because I think Your Honour must - not so much should, but must, regard the protection of the community from the offender as the principle purpose for which the sentence is imposed.
107HIS HONOUR: Yes.
108MR LIVITSANOS: But again, pursuant to s6D, we do not seek a disproportionate sentence for Your Honour to do that.
109HIS HONOUR: No, and I made the orders for cumulation that I have.
110MR LIVITSANOS: Indeed, and Your Honour has.
111HIS HONOUR: But I will certainly add to the order that on Charge 2, he is sentenced as a serious drug offender, and cause that to be entered into the records of the court.
112MR LIVITSANOS: If Your Honour pleases.
113HIS HONOUR: That would not have impacted on my sentence in light of the view that has been taken by the prosecution in that regard. Now, there was recent - I should have been alert to this - but there was recent authority suggesting whether you could make the base sentence - there were recent issues whether you could make the base sentence something other than the sentence which made him a serious offender. I think their Honours in the Court of Appeal in a recent judgment, that I to be honest was not quite sure I understood, but certainly said that that was not necessary, and that you could for example identify as the base sentence the most serious offending.
114MR LIVITSANOS: Yes, and Your Honour's done that.
115HIS HONOUR: (Indistinct words), so I have done that - so it was in the back of my mind, but it has not actually - now, do you wish me to add that to that?
116MR LIVITSANOS: Your Honour, that is a matter for Your Honour, but I think ‑ ‑ ‑
117HIS HONOUR: When I prepare the judgment I will put in a section make very, very clear that you do fall, but that the prosecution cannot ask for a longer than commensurate sentence, or a disproportionate sentence.
118MR LIVITSANOS: That is right, Your Honour.
119HIS HONOUR: And certainly I have had regard to the triggering of the protection of the community in principle.
120MR LIVITSANOS: And cumulation, which Your Honour has done.
121HIS HONOUR: Yes, which I have made very clear. Thank you for bringing that to my attention.
122MR LIVITSANOS: Yes Your Honour, as Your Honour pleases.
123HIS HONOUR: I thought I had managed to avoid s.89, but s.6 remains there.
124MR LIVITSANOS: Yes.
125HIS HONOUR: All right, thank you very much, so is there anything else that arises from that?
126MR LIVITSANOS: No there is not, Your Honour.
127HIS HONOUR: All right Mr Livitsanos. Mr Andrianakis ‑ ‑ ‑
128MR ANDRIANAKIS: No Your Honour.
129HIS HONOUR: ‑ ‑ ‑ are you satisfied that we have managed to negotiate all the pitfalls?
130MR ANDRIANAKIS: Yes Your Honour.
131HIS HONOUR: All right then, thank you. Yes all right, you can take him down, thank you.
132(At this stage the court proceeded with another matter.)
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