Director of Public Prosecutions v Larrain
[2022] VCC 1405
•24 August 2022
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT Melbourne
CRIMINAL DIVISION
CR-21-01007
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ALEXANDER JAVIER LARRAIN |
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JUDGE: | HIS HONOUR JUDGE MAIDMENT | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 12 August 2022 | |
DATE OF SENTENCE: | 24 August 2022 | |
CASE MAY BE CITED AS: | DPP v Larrain | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1405 | |
REASONS FOR SENTENCE
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Subject:Plea – sentencing
Catchwords: Traffick drug of dependence large commercial quantity - traffick drug of dependence - knowingly dealing in proceeds of crime - possess drug of dependence - refuse to provide police with PIN to enable access to mobile storage device
Legislation Cited:
Cases Cited:Quah v The Queen [2021] VSCA 164,
Director of Public Prosecutions v Natale [2022] VCC 1199
The Queen v Worboyes [2021] VSCA 169Sentence:16 years' imprisonment, 9 years and 9 months non-parole
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr J. Saunders | Office of Public Prosecutions |
| For the Accused at hearing For the Accused at sentence | Mr P. Morrissey SC Mr D. Georgiou | Melasecca Kelly & Zayler |
HIS HONOUR:
1 Alexander Javier Larrain, you have pleaded guilty to each of five charges of trafficking a drug of dependence in a quantity not less than a large commercial quantity of the drug of dependence to which the charge relates. For each of those offences the maximum penalty is imprisonment for life. You have pleaded guilty to one charge of trafficking in a drug of dependence and one charge of knowingly dealing in the proceeds of crime, for each of which the maximum penalty is imprisonment for 15 years.
2 You have pleaded guilty to one charge of possessing a drug of dependence for which the maximum penalty is imprisonment for five years, and one charge of possessing a drug of dependence for which the maximum penalty is imprisonment for one year. You have pleaded guilty to a related summary offence of refusing to provide police with a PIN to enable access to a mobile storage device, for which the maximum penalty is imprisonment for two years.
3 You have admitted your prior criminal record.
4 The five offences of trafficking in a large commercial quantity of a drug of dependence are standard sentence offences, for which the standard sentence is imprisonment for 16 years.
5 The prosecution relied on a written summary of evidence supporting the charges. It was read to the court and is marked Exhibit A. Its contents were not in dispute. It may be summarised briefly as follows: at the time of your offending you lived in rented accommodation in Williamstown North. In 2020 police commenced an investigation into your drug trafficking activities. During the investigation it became apparent that, in addition to dealing drugs of dependence from your home address, you were also utilising a storage facility at Jim's Self Storage in Williamstown. The manager of the storage facility confirmed that you had leased the storage unit at the premises since 12 November 2019.
6 On 1 March 2020 you were recorded on CCTV at the storage facility placing 11 boxes inside your storage unit. On 8 April 2020 police executed a drug search warrant on that storage unit in your absence, locating seven boxes each containing 30 litres of clear liquid which appeared to have been imported from China. Samples of the liquid were taken which later forensic analysis identified as 1,4-Butanediol. Based on that discovery police obtained further search warrants for your home and the same storage unit. You were arrested at your home on 12 May 2020.
7 A search of your home located the following:
· three “tick books” which later turned out to contain details of your drug trafficking activity;
· a cash counting machine;
· a vacuum sealing machine;
· plastic Ziploc bags containing multiple drugs of dependence;
· $1,252,055 in cash;
· mobile phones; and
· a Jim's Self Storage contract.
8 The total quantities of drug of dependence located at your home were:
· 41.7 grams of 78 per cent purity methylamphetamine;
· 915.5 grams of 38 to 80 per cent purity cocaine;
· 234.5 grams of 71 to 79 per cent purity diacetylmorphine or heroin;
· 8.9 grams of 98 per cent pure N,N-dimethyltryptamine;
· 2.93 grams of 14 to 17 per cent purity MDA; and
· 29.4 grams of cannabis L.
9 The search of your rented self-storage unit took place on the same day. Police located seven cardboard boxes containing 30-litre drums of liquid which were found to contain 1,4-Butanediol. The total amount of 1,4-Butanediol which was recovered from your home and the storage unit was 188,285 grams.
10 Analysis of the tick books by police showed transactions in MDMA totalling:
·
3,000 grams (or three kilograms) between 5 August 2019 and
28 February 2020;
· dealings or transactions in 21,018.5 grams (or 21.0185 kilograms) of methylamphetamine between 29 February 2020 and 23 April 2020;
· 2,729.9 grams of cocaine between 29 February 2020 and 8 May 2020;
·
861 grams of diacetylmorphine (heroin) between 1 March 2020 and
5 May 2020; and
·
2 litres and 2 boxes of 1,4-Butanediol between 28 March 2020 and
2 May 2020.
11 The total amounts of drugs trafficked by you during the charge period, comprising drugs seized at the two locations, namely, your home and the storage facility, and the transactions recorded in the three tick books referred to previously, amounted to the following:
· MDMA, a total of 3,000 grams (or 3 kilograms), which is three times the threshold limit for a large commercial quantity;
· 21,060.2 grams (or 21.0602 kilograms), which is a little over 28 times the threshold for a large commercial quantity of methylamphetamine;
· 3,645.4 grams (or 3.6454 kilograms) of cocaine, which is equivalent to over 3.6 times the threshold for a large commercial quantity of cocaine;
·
1,095.5 grams (or 1.0955 kilograms) of diacetylmorphine or heroin,
1.46 times the threshold for a large commercial quantity of that drug; and
· 190,285 grams (or 190.285 kilograms) of 1,4-Butanediol, which is about 9.5 times the threshold for a large commercial quantity of that drug.
12 A schedule of the transactions and weights was attached to Exhibit A.
13 You were interviewed by police and you made no comment to questions about your offending. However, when police made a demand that you provide the PIN access code for your mobile phones you refused to do so. That refusal is the subject of the related summary offence.
14 Turning to matters personal to you: your counsel provided me with a written outline of submissions, Exhibit 1; three reports from Luke Armstrong, psychologist, collectively Exhibit 2; and a bundle of nine written character references, collectively Exhibit 3. They include letters from your brother and one of your sons.
15 Your counsel acknowledged, realistically, at the outset of his submissions, that you now face a significant sentence of imprisonment. He accepted that your offending was 'serious and persistent'. He characterised your role in the broader criminal enterprise of which you were part - I think accurately - as:
'… the risk taking role of a hands-on handler, for those higher in the structure, of large quantities of narcotics and cash. This role was not mere storage, but involved collecting and counting money, and receiving, packaging and handing over narcotics. His role is underlined by the comments of police (and by him [meaning you]) in the Remand Summary - police expressing a concern (which he also expressed) that the discovery of the money and drugs at his own rented house might lead to danger for him from others in the syndicate. His house, his car, his storage were all used: he was the risk bearer.'
16 Your counsel also accepted that the quantities of narcotics you dealt with were substantial, though 'not top end', that the quantity of money handled was substantial and the role you played was of significance to the syndicate in shielding others, and that you were motivated by profit, at least to the extent you benefited by the paying down of drug debts and other debts by the provision of rent-free premises and by access to the drugs you desired.
17 However, your counsel also identified a number of significant matters in support of his overall plea that I should apply a suitable measure of clemency in setting a total effective sentence and non-parole period.
18 You are now 48 years of age. Although you have prior criminal convictions, including in November 2011 for trafficking in cannabis, your previous record pales into relative insignificance in comparison with this offending.
19 I have read with care the reports of Mr Armstrong, which provide useful information about your background, education and adult life as a partner and father. He describes your descent into, and history of, serious drug abuse and he identifies mental impairments, including previously undiagnosed borderline personality disorder, arising, it seems, from traumatic childhood experiences and family breakdown at a young age. He also opines that you are at risk, particularly in a prison environment, of developing a persistent depressive disorder.
20 Significantly, he describes how in the last two years of your period in custody on remand you have completed, with him, a Motivating Affect Self‑control program, requiring more than 25 hours of contact, which had been tailored to address your polysubstance abuse disorders and personality disorder. Mr Armstrong also provides persuasive support for the proposition that you have taken responsibility for your offending and are genuinely remorseful. However he describes your remorse as a 'double-edged sword', contributing to a continuing poor mental state secondary to what he describes as 'self-loathing'.
21
I have also read, with equal care, the letters of reference, Exhibit 3. I might say that I have rarely, if ever, seen a collection of written references which speak so highly of the personal qualities of a relative, or a person they have known for many years, in the context of admitted serious drug offending. The picture they paint, individually and collectively, is of a person with qualities that are very difficult to reconcile with the serious drug offender you became and with a person diagnosed with polysubstance abuse disorders and borderline personality disorder.
22 I have no doubt that the authors of each of those letters expressed genuine, honest and sincere opinions based on their own experiences of, and relationships with, you. They have also provided strong indicia of genuine remorse on your part. It seems to me likely that the effect of your marriage breakdown upon your ability to cope, together with the deterioration of your mental state, led to a deeper spiral into more serious drug abuse than your referees had appreciated.
23 Whatever the explanation, Exhibits 2 and 3 together support the conclusion that there are substantial grounds for optimism as to your prospects of rehabilitation once you complete your sentence. I note in that regard your sustained participation in the Motivating Affect Self-control program over a two‑year period and your willingness to participate in work within the prison system.
24 I accept your counsel's submission that your personal make-up does not excuse but explains, and somewhat mitigates, your conduct. It is unsurprising that offenders who engage in drug trafficking are, at least in part, motivated to maintain their own drug-taking habits, as you reported to Mr Armstrong in this case, and to meet substantial financial debts owed to their suppliers. That your participation with the syndicate of traffickers for whom you worked has placed you in physical danger is equally unsurprising.
25 Your counsel, I think rightly, does not contend that Verdins principles 1 to 4 apply, although your mental impairments have been taken into account as part of the instinctive synthesis of factors relevant to sentence. I do accept your counsel's submissions that serving your sentence will be harder than usual, as contemplated in Verdins principle 5, and that, as Mr Armstrong's further report makes clear, there is a danger of your mental health deteriorating to a persistent depressive disorder. In those circumstances I apply Verdins principle 6 in relation to your sentencing on this matter. Neither of those submissions was opposed by the prosecution.
26 Your counsel stressed the mitigatory significance of your plea of guilty as follows:
‘It has utility. It represents conformity to justice. It is consistent with other material establishing remorse. It is a major matter when considering community protection, rehabilitation and specific deterrence; and is a matter of obvious great significance in other sentences. The timing of this plea is valuable, and is a relatively early plea.’
I accept those submissions.
27 Next, he referred to the COVID context of the plea meriting a greatly raised significance. The Court of Appeal decision in The Queen v Worboyes [2021] VSCA 169 at paragraph 39 requires a further 'perceptible amelioration' of sentence. The plea is valuable in this case. The utilitarian benefit of the plea is to be assessed in the context of the overburdened court lists. I accept those submissions.
28 Next, he referred to your remorse which is supported by your plea, your conduct in custody, your efforts towards rehabilitation and your apparent insight. Given your history I accept this is relevant of itself and goes to rehabilitation, community protection and specific deterrence.
29 Next, it is suggested, with some force, and I accept, that you have done all you reasonably can in the circumstances to reform yourself. In particular, you cooperated with Mr Armstrong in completing the Motivating Affect Self‑control program in custody. Your progress in prison, and your engagement with jobs and with education, support this conclusion. Those jobs include responsible work such as groundkeeper, kitchenhand, laundry assistant and clinician's assistant.
30 You appear to be a drug-free trusted prisoner. Your addiction is in remission. The personal and psychological references made clear your good progress with limited resources. You have done very well. Given your supportive community, your children and your family's motivation, there are grounds for hope for excellent rehabilitation on release.
31 Next, your counsel urged, and I accept, that the history and character of you is relevant and “rather sympathetic”, as set out in Mr Armstrong's reports. You had family struggles which caused you much guilt and self-loathing and personal misfortunes. Psychological issues are likely caught up in that history. Your prior convictions are not irrelevant, but are relatively modest, and symptomatic of a long-term drug abuse issue. There are grounds for hope when you are released that you will remain drug-free.
32 Finally, it was submitted on your behalf, and I accept, that the pre-sentence and post-sentence realities mitigate the sentence. Your time on remand has been objectively harsh, involving delay, stress and unusual loneliness during that period. Consistent lengthy isolation was harder to bear because you were unable to see and support your two teenage sons. Prison conditions after sentence will be harsh. COVID is persisting and gaol time is harder now than before the pandemic. Your counsel also went on to submit that in sentencing, a very high degree of concurrency is warranted. Given your role, there is an unusual continuity of conduct across the offending which requires greater concurrency than might otherwise be appropriate. The principle of totality limits cumulation in this setting.
33 As will be apparent from the orders that I am about to make, I accept those submissions, notwithstanding the provisions of Part 2A of the Sentencing Act to which I will refer a little later. I regard the sentencing submissions advanced by your counsel as well balanced and persuasive and I note that no substantial issue was taken with them by counsel for the prosecution.
34 All of those matters in mitigation are to be evaluated and applied against the background of very serious offending. The quantities of drugs relevant to Charges 1 to 5 inclusive are very substantial indeed. For example, in relation to Charge 2, the quantity of methylamphetamine is more than 28 times the threshold for a large commercial quantity of that drug. In relation to Charge 5, the quantity is more than nine times the large commercial quantity threshold. Nevertheless, I treat the offending reflected in Charges 1 to 5 as part of essentially the same trafficking enterprise, as well as the trafficking offence the subject of Charge 6, and the offence of knowingly dealing with the proceeds of crime in the cash sum of more than $1.2m.
35 I treat the knowingly dealing with proceeds of crime offence as an incident of your important role in this substantial trafficking enterprise rather than as separate offending requiring cumulation of sentence. This factor is also influential in my selection of a total effective sentence which, in my judgment, is itself appropriately related to the standard sentence for any one of Charges 1 to 5 and which avoids the obvious injustice that would arise on the facts of this case of total cumulation of each of the sentences on Charges 2 to 5 inclusive under Part 2A of the Sentencing Act.
36 Your role in the offending was vital to the success of the overall criminal enterprise. Your offending was indeed serious and persistent. I regard your refusal to provide your PIN when police demanded your assistance - the subject of the related summary offence to which you have pleaded guilty - as separate and relatively serious offending of its kind, requiring some moderate cumulation of sentence.
37
Despite the matters mitigating sentence to which I have referred, your moral culpability is high. Your offending is to be denounced in clear terms. There is a need for public protection which, in conformity with s6D(a) of the
Sentencing Act1991, I must regard as the principal purpose of sentencing in relation to Charges 2 to 5 for which I am required to sentence you as a serious drug offender. The principle of general deterrence is also highly significant. I regard individual deterrence as less significant, though still relevant.
38 As I have mentioned already, on your conviction and sentence to a term of imprisonment on Charge 1, being a serious drug offence, Part 2A of the Sentencing Act directs me to regard the protection of the community from you as the principal purpose for which the sentence is imposed on Charges 2 to 5 inclusive.
39 In order to achieve that purpose a sentence may be imposed longer than that which is proportionate to the gravity of the offence considered in the light of its objective circumstances. However, because of the overall circumstances and mitigating factors in your case, I do not propose to do so. I note that the prosecution did not call for a disproportionate sentence as contemplated by s6D of the Sentencing Act.
40 For the sake of clarity, I note that s6E of the Sentencing Act also requires that, unless I otherwise direct with respect to Charges 2 to 5, the sentences I impose are to be served cumulatively. In light of the totality of the matters to which I have referred, I determine that it is not appropriate to impose cumulation beyond that which I propose to order in relation to Charge 5 and the related summary offence.
41 Despite your history of drug abuse, I am persuaded that your prospects of long-term rehabilitation are reasonably good and there is a public interest in promoting your further rehabilitation to build on the rehabilitative measures you have undertaken thus far during your period on remand.
42 I have been referred to a number of cases to assist me in identifying current sentencing practice. I found particular assistance in the Court of Appeal decision of Quah v The Queen [2021] VSCA 164, the recently published reasons for sentence of His Honour Judge Gamble in the Director of Public Prosecutions v Natale [2022] VCC 1199, and other authorities referred to in those reasons.
43 The latter reasons are particularly useful because they take into account the relevant considerations and principles developed during the COVID pandemic. Of course, I have to sentence you on the particular facts and circumstances relating to your case, and the reference to other authorities or other decisions of other judges can only assist me as guideposts to the ultimate sentence which is appropriate to you.
44 As submitted by your counsel, you are entitled to and will receive significant reductions in sentence for your relatively early pleas of guilty, your remorse, the delay since your arrest some 834 days ago, hardship in custody - both on remand and during the service of your sentence, the application of Verdins principles 5 and 6, and generally arising from other matters in mitigation for which I have indicated my acceptance. I intend to fix a non-parole period designed to promote further long-term public protection by offering you the opportunity of continuing assistance with supervised rehabilitation at the conclusion of your sentence.
45 I now proceed to pass sentence upon you. Alexander Javier Larrain:
· On Charge 1 on the indictment you are convicted and sentenced to imprisonment for a period of 13 years.
· On Charge 2 you are convicted and sentenced to imprisonment for a period of 13 years.
· On Charge 3 you are convicted and sentenced to imprisonment for a period of 15 years.
· On Charge 4 you are convicted and sentenced to imprisonment for a period of 12 years.
· On Charge 5 you are convicted and sentenced to imprisonment for a period of 13 years and six months.
· On Charge 6 you are convicted and sentenced to imprisonment for a period of two years.
· On Charge 7 you are convicted and sentenced to imprisonment for a period of four years.
· On Charge 8 you are convicted and sentenced to imprisonment for a period of three months.
· On Charge 9 you are convicted and discharged.
· On the related summary offence to which I have referred, you are convicted and sentenced to imprisonment for a period of four months.
46 The sentence of 15 years on Charge 3 is the base sentence and I order that 11 months of the sentence on Charge 5 and one month of the sentence on the related summary offence be served cumulatively upon one another and upon the sentence of 15 years imposed on Charge 3.
47 That makes a total effective sentence of imprisonment for 16 years.
48 I fix a non-parole period of nine years and nine months' imprisonment.
49 I make the orders for forfeiture and disposal in accordance with the drafts with which I have been supplied.
50 I declare pre-sentence detention of 834 days, not counting today, as time to be reckoned as served on the sentence that I have imposed and deducted administratively from the total sentence that you will be required to serve. I order that those facts be noted in the records of the court.
51 In relation to the sentences imposed on Charges 2 to 5 inclusive, I sentence you as a serious drug offender and order that this be noted in the records of the court.
52 Mr Saunders, any other matters that I have not referred to?
53 MR SAUNDERS: No, Your Honour. My quick check of the mathematics shows that the minimum term falls within the prescription under the relevant standard sentence legislation.
54 HIS HONOUR: Yes. It's a little bit more than 60 per cent I think.
55 MR SAUNDERS: About three months, but that's the only other - - -
56 HIS HONOUR: Yes.
57 MR SAUNDERS: I just wanted to check. My maths is not inherently very good so I'll just put it on the record that by my calculations it's correct.
58 HIS HONOUR: Yes. Mr Georgiou, any other matters that I've forgotten about or that need - - -
59 MR GEORGIOU: No, Your Honour.
60 HIS HONOUR: All right.
61 MR SAUNDERS: 6AAA, Your Honour.
62 HIS HONOUR: Yes. Section 6AAA.
63 MR SAUNDERS: Yes, thank you, Your Honour.
64 HIS HONOUR: Pursuant to s6AAA of the Sentencing Act I declare that if you had pleaded not guilty to these offences and been convicted I would have sentenced you to a total of 24 years' imprisonment with a non-parole period of 16 years.
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