Director of Public Prosecutions v Lothian
[2013] VCC 1736
•8 November 2013
EFF?---
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-13-00916
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| SHANE LOTHIAN |
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JUDGE: | Her Honour Judge Hampel | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 7 November 2013 | |
DATE OF SENTENCE: | 8 November 2013 | |
CASE MAY BE CITED AS: | DPP v Lothian | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1736 | |
REASONS FOR SENTENCE
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Subject:
Catchwords: Sentence – guilty plea – trafficking in ice – aiding and abetting principal offender – wide spread assistance – at every stage from purchase of chemicals and equipment to delivery and collection of payment – partly suspended sentence
Legislation Cited:
Cases Cited:
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr D. Porceddu | Office of Public Prosecutions |
| For the Accused | Ms N. Karapanagiotidis | James Dowsley & Associates |
HER HONOUR:
1 In September 2012 you, Shane Lothian, became the target of a police investigation into a trafficking operation in methylamphetamine or ice. You were the primary target of the investigation; however, the investigation revealed that a man by the name of James Counihan was the principal and, as your guilty plea now confirms, you aided and abetted him in the operation of trafficking.
2 On the admitted facts, you aided and abetted him by purchasing scientific glassware and other items for use in the manufacture of methamphetamine, procured other people to purchase pseudoephedrine-based medications which you then passed on to Counihan, and dealt with people who wanted to purchase methamphetamine from him, promising them that you could supply them or transmitting their orders to Counihan. The prosecution summary also alleges that you supplied methamphetamine to people on behalf of Counihan and were involved in the payment for the drugs on his behalf. You did not admit this.
3 Having read the telephone intercepts that the prosecution relies upon to support the inference that you were engaged in the supply of methamphetamine and in the collection of payment for the drugs, seen in the context of the other evidence, I am satisfied beyond reasonable doubt that the matters relied on establish that you were engaged in the supply of drugs on Counihan's behalf and that you did at his behest collect or try to collect payment for methamphetamine supplied to them by him.
4 It follows that you were actively involved at every stage in the trafficking operation, from purchasing equipment, chemicals and other materials for use in the manufacture and production of methamphetamine; enlisting or recruiting other people to obtain supplies of pseudoephedrine from pharmacies; dealing with customers of Counihan's by transmitting their orders to Counihan and telling them that you could supply drugs to them; delivering the drugs and collecting payment. You took active steps to conceal your involvement in the purchase of the equipment and other materials and precursor chemicals. They included signing a false end-user declaration when you purchased the scientific glassware; paying cash for items, and concealing your identity as the person commissioning the purchase of the pseudoephedrine by using other people to purchase it from pharmacies and provide their own identifying information. It follows that your role was a significant one across the whole spectrum of the trafficking operation.
5 There is no evidence that you received cash payment as a reward for your involvement. I was told and I accept for sentencing purposes that your reward was the supply of methamphetamine. In my view, it matters little whether you obtained a cash reward or were paid in kind. You engaged in this for personal gain, and in your case the gain was the supply of sufficient methamphetamine to support what I was told was high usage, and one which you were unable to afford to pay for from your own cash resources.
6 The investigation and surveillance spanned a three-month period from September to the end of November 2012. A number of search warrants were executed and a number of people arrested on 30 November, thus bringing the operation to an end. You were one of those arrested and your house one of those searched. Amongst the things found at your house were electronic scales bearing traces of methamphetamine, cut up pharmaceutical blister packs, plastic sachets bearing traces of methylamphetamine, and other as yet unused plastic sachets, as well as various other items connected with the manufacture of methamphetamine.
7 When questioned, you admitted that Counihan had been supplying you with methamphetamine and that you had been assisting him with the manufacture of it by purchasing scientific glassware and chemicals and other materials and sourcing pseudoephedrine. You denied selling any of the methamphetamine that you obtained from Counihan. You acknowledged using various code words which were associated with the drug trafficking activity, and which were used by you and those you were dealing with in some of the intercepted conversations.
8 You were charged on the day of your arrest, 30 November 2012, and pleaded guilty to a charge of trafficking at committal mention in May 2013, and you have maintained that position. Your plea was first listed for hearing on 4 July 2013 but was adjourned through no fault of your own. One of your co-accused, Ms Elbouch, was unfit to plead on that day, and your other co-accused, Mr Counihan, was unrepresented. The matter was therefore re-listed for yesterday, 7 November. Again, Ms Elbouch did not attend at the time court commenced and advised her counsel that she was again unfit, and Mr Counihan by then had indicated that he was proceeding to trial. Through your counsel you indicated that, as there were factual matters in dispute, your plea was not ready to proceed because of those factual matters in dispute; it was otherwise ready.
9
On inquiry it became clear that the dispute was as to the inference to be drawn from the content of a number of identified telephone intercepts.
Ms Karapanagiotidis indicated that she did not require the Crown to call any evidence and was not calling any evidence herself to challenge the inference sought to be drawn by the Crown from those calls. As both parties were ready to make their submissions as to the inferences to be drawn from those calls and as the plea was otherwise ready to proceed, it did so. That meant that the 12 months of waiting between the time of charge and arrest was finally coming to an end for you.
10 The prosecution had relied on four specific intercepted calls which it submitted indicated that you were involved in the delivery of methylamphetamine. You did not challenge the inference arising from three of those four calls. The fourth call, Intercept 294, is a conversation between you and a man by the name of Kerans. It is clear from the call that you and he had arranged for him to come to your place to collect something, but you had left home before he arrived. He appeared keen to collect what you had to give him and you told him that you were unable to meet him because you were already away from home and on your way to an appointment that you had to keep. You kept apologising to him, telling him it was your fault, that you knew he was coming but that you had forgotten. It was in that context that you said to him, "I've got it in the console of my car". No alternative hypothesis was suggested by your counsel. She simply submitted that the conversation was not such as to support a finding beyond reasonable doubt that the conversation concerned the supply of methamphetamine.
11 Having regard to the other uncontested calls or the other uncontested inferences flowing from the other calls concerning the supply of methamphetamine and to the tenor of this particular conversation, I am satisfied that it concerns the supply, or rather the failure to supply, at the agreed time of methylamphetamine to Kerans.
12 The prosecution also relied on four specific calls which it said related to your involvement in the collection of money for Counihan. Again, no evidence was called or other evidence pointed to, or alternative innocent explanations for the calls were put. The submission was confined to an assertion that no call taken in isolation could support the inference beyond reasonable doubt that the particular call related to the collection of money on behalf of Counihan for the supply of drugs. Again, it is clear that the calls must be considered in context, not examined in isolation.
13 Two of the calls are text messages. One is from you to Counihan in which you say you are "just running around, getting coin". It is common ground that 'coin' was a code word for money that was used at least between you and Counihan. The other is a text made by you to a man called Grass. You asked him, "You got anything?" I was told that there was other evidence in the depositions indicating that Grass was a person to whom Counihan supplied methamphetamine and that he was a paying customer. Nothing was put to suggest that there was any other relationship between you and Grass which could provide an innocent explanation or not exclude an innocent explanation for this exchange. I am satisfied that in context and absent any other suggested inference this refers to money in exchange for drugs.
14 The other two calls are voice calls. The first, Call 145, is a conversation between you and Counihan. Counihan is asking if you have any coin and you say, "Only that little bit still, 50". Counihan tells you to have a look, to have a look for them and to ring him back. The clarification of having a look for them, that is people as opposed to it, that is money, in my view on its own and fortified by the context of the drug trafficking relationship between you and Counihan and in the absence of any innocent alternative explanation points inexorably to this being a conversation about the collection of money in exchange for supply of drugs.
15 The last call, Call 392, is a conversation with Kerans later in the same day that he had called you, when you had told him you had forgotten he was coming and when you said you "had it in the console". It would appear that he is not at home when the voicemail occurs that evening, but from what you say to him, you are driving past his place. When you tell him that, he immediately volunteered that he has "got your 30" and asks if you are in a hurry for it. You tell him that you need it by the morning and then tell him that you have just had to pay your children's school fees and that you do not have enough money to pay your rent.
16 Although on the face of it this would appear to relate to your need to collect money owed to you and not to Counihan because you are short, it occurs just days after the call where Counihan asks you to look for "them" in the context of collecting coin, and the day before you texted Counihan, telling him that you are "running around getting coin". Whilst I am not satisfied that the only inference to be drawn from this call is that it relates to the collection of money for Counihan from a known purchaser of methamphetamine supplied by him, I am satisfied that it is a piece of circumstantial evidence which points to and supports the general inference supported by the other calls that you were engaged in the collecting of money for Counihan in respect of the supply of methamphetamine.
17 The charge of trafficking to which you have pleaded guilty covers the three-month period of investigation and surveillance. You therefore come to be sentenced for a three-month involvement in a business or a course of conduct of trafficking, involvement at every stage of the process, from obtaining items necessary for the manufacture of amphetamine to supplying the finished product and collecting the money for it.
18 It is clear therefore that, subject to consideration of matters personal to you, deterrence, both general and specific, denunciation and just punishment are important sentencing considerations. Those who lend themselves, whether as principals or aiders and abettors, to the process of trafficking by the manufacture and supply of amphetamines contribute to significant illegal activity and the enormous harm that flows from the impact of the ice.
19 MS KARAPANAGIOTIDIS: Your Honour, I'm so loath to do this and I beg your pardon for rising to my feet while you are delivering sentence, but the charge period, and I have just brought it to the attention of the prosecutor, and it's as I put to Your Honour - it's been suggested to me there's another indictment, but it's 13 November 2012 to 30 November 2012.
20 HER HONOUR: Sorry, that is my mistake. Thank you.
21 MS KARAPANAGIOTIDIS: Sorry, Your Honour. You referred to three months and I was just anxious to ensure that that was a mistake.
22 HER HONOUR: Thank you for that. Let me clarify then that the surveillance period and the evidence covered a three-month period but the charge relates to a just two-week period of trafficking.
23 MS KARAPANAGIOTIDIS: Thank you, Your Honour.
24 HER HONOUR: And that two-week period then dealing predominantly with the period covered by the intercepted calls that I have identified. The evidence of surveillance and other activity in the two and a half months of the earlier surveillance operation but before the period of the charge has to be seen as contextual material rather than anything else.
25 Dealing then with matters personal to you, you are a 36-year old man. I was told and accept that the offending occurred at a low point in your life. Your long term relationship had recently come to an end. The relationship between you and your former partner was acrimonious, and your contact with your two young sons, who were about seven and five, had been severely curtailed. That had caused you considerable distress. It would appear that the contact may at least in part have been due to your own behaviour as a result of your increasing use of ice. You had moved out of the family home and into a shared house not far away. You described it as, in effect, a party house where drug use and drinking was rife.
26 You then injured your back at work. That led to you having much more time on your hands because you were unable to work and, of course, you were suffering considerable pain and discomfort from the injury and you were on a reduced income because you had gone from your full income to the more limited coverage on WorkCover benefits. Your drug use continued and escalated and your means for paying for your drugs was severely reduced.
27 You have, I am told and accept, a history of what I consider to be intermittent drug use in the past, but you had all but put it behind you following the birth of your children until the combination of the breakdown of relationship and the work injury led to first a small and then a greatly increased use of ice.
28 You have some previous convictions. Apart from one old conviction for possession and use of marijuana, you have no other drug-related convictions. Your other convictions cover a range of offending, driving, dishonesty, violence and property damage. They do not indicate a significant past problem with drug abuse, nor do I consider they indicate a widespread and comprehensive history of flouting the law. You did not breach any of the rehabilitative conditions imposed on your earlier sentences. All but one court appearance pre-date the birth of your children. It seems that you had been maturing and leaving what had been a troubled and perhaps troublesome past behind you.
29 Although you were a poor and disruptive student during your secondary schooling, and although you left school relatively young and have no post-secondary training or qualifications, you have got a good work history. You have worked in a number of fields, most consistently as a metal worker and machinist. For some years before these events you were employed by Jayco engaged in the manufacture and fit-out of caravans. Although you had had a number of jobs, you had also had consistent periods of employment with single employers, again showing a preparedness to engage with work and to stick at it. I was told that being employed was important to you and that you prided yourself on being a good provider for your partner and children. In my view, your employment history and the historic nature of your criminal history bear that out.
30 I am satisfied that the offending did occur at that low point in your life when the combination of the ice use, the breakdown of your relationship with your partner, the loss of regular contact with your children, and your workplace injury all combined. However, your use of ice I do not consider to be a mitigating factor. You are a mature adult and well able to make conscious choices about whether you abuse drugs or not, and although your history indicates that you have had periods in the past when you have abused drugs, you had not had any apparent difficulty in stopping when you had other priorities and other responsibilities, when you wanted to, or whether you accepted the responsibilities that were willingly, it would seem, assumed by you following the formation of your relationship and the founding of your family.
31 Nor do I consider it to be a mitigating feature to say you made no money out of this, that what you got was a supply of drugs. Whether you were paid in cash or kind, this was still involvement for reward and your role was much more than doing small jobs or favours. In my view, to characterise it that way as you did to Ms Lechner means that you are still seeking to minimise your role and to minimise your culpability.
32 I am told that since being charged you have stopped associating with those people who you were associating with who used ice, and that you have stopped using ice yourself. Since the start of this year you have moved back in to live with your mother and stepfather. That seems to be an indication of a cleaner and better lifestyle and a preparedness by your mother and stepfather to have you back in the family home, a mature man of 36, and in circumstances I accept, from their presence and the evidence about them, to be in circumstances where they would not knowingly countenance an out of control drug lifestyle.
33 Although your employment at Jayco has come to an end, it appears that was more because of transport difficulties than anything else, the residual effect of your back injury has not stopped you from obtaining alternative employment and you are now working again and as a painter. It is apparently casual and as needs employment rather than fulltime, but steady enough, and your employer it would appear has happily provided you with the flexibility you need to ensure that you do not strain your back again and that you can accommodate any residual disability. You, too, have obviously shown yourself prepared to engage in work as much as you can to accommodate your disability but to re-establish yourself as a person who identifies himself as somebody engaged in work, not somebody who does not.
34 Your former partner has moved to Queensland with the children. I am told that her father is able to provide her with considerable support. He is based there and that has really been the reason for the move. That means that your contact with the children has been even less than it was when you were living nearby, although you have apparently been recently in amicable discussions with your partner about the prospect of your - by consent, in effect - relocating to Queensland so that you will be nearer her and the children and able to have more frequent contact with them. You appear to be confident that you could obtain employment in Queensland and you harbour some hopes that you may be able to re-establish your relationship with your former partner.
35 Your youngest child apparently has special needs, and although there has been no formal diagnosis, there is a concern which must be a concern to a parent that he may be autistic. He has problems in communicating and therefore communication only by telephone as you have been limited to has made the already limited contact more difficult between you and him than it is with the older child, but I accept certainly your desire to continue to have contact with your children, to have responsibility for them or to share responsibility for them and to demonstrate that you are again responsible enough to have better contact with them than you have had in the past.
36 In her report prepared in June of this year the psychologist, Ms Lechner, noted that you were then evidencing moderate levels of depression as measured by the Beck Depression Inventory. As I indicated in discussions with your counsel, I do not accept that the Beck Depression Inventory provides a proper basis for a diagnosis of clinical depression. At most, it is an indicator based on a self-report questionnaire of psychological and physiological symptoms of depression experienced by the person in the two weeks immediately before the administration of that questionnaire. As Ms Lechner points out, any depressive symptoms that you were manifesting appear to be reactive to those recent events in your life: the court hearing, the separation from the children, and the back injury.
37 She noted specifically that you do not evidence long term psychological or psychiatric disorder. Although based again on a relatively cursory test, three subtests of the Wechsler Abbreviated Scale of Intelligence, she estimated that your overall intelligence was in the low-average borderline range but it was not suggested that that should reduce your culpability. As your counsel acknowledged, you know right from wrong; you are capable of making rational decisions, even if you impress as immature and impulsive for your age.
38 Ms Lechner reported that when she saw you in June, you presented with methamphetamine addiction and that you had not previously been involved with counselling or treatment services. In one of the much earlier court orders there had been a condition in relation to engaging in drug rehabilitation but I notice that was a very short term order, it was a long time ago, and I read what Ms Lechner says as relating to not having been engaged since being charged.
39 She recommended that you engage with drug counselling and she even nominated the appropriate local publicly funded provider Pendap to help you achieve your goal of total abstinence and she said that you would also benefit from developing more adaptive mood management strategies. I am told that you are amenable to such interventions, but you have done nothing to engage with drug or other counselling services at any time since being charged.
40 In my view, notwithstanding your failure to engage with drug or other counselling services of your own initiative, and notwithstanding the limited weight that can be given to an indication of preparedness to do so if directed, the other matters that I have identified, certainly to my thinking, point to it being appropriate to find that you have reasonable prospects for rehabilitation. You have stable accommodation, family support, you are working again, you have not been charged with any further offences, you report that you have stopped using drugs and stopped associating with your drug-using associates and you are apparently trying to establish a better relationship with your former partner and working to achieve better and more regular contact with your children. All of that counts very much in your favour and points to determined efforts to try and turn your life around again.
41 Ms Karapanagiotidis submitted that you should be sentenced to a fully suspended sentence, or alternatively a community corrections order. Leaving aside the fact that that puts it in the wrong order, I do not consider either of those sentencing options sufficient to mark the seriousness of the offending. For the reasons I have given, I do not consider your role to be as limited or as minor as was submitted. Your personal circumstances, although you have many positives counting in your favour, do not so temper the weight to be given to general deterrence and denunciation as to justify a non-custodial sentence or a sentence which does not involve a component immediately served. Because in my view you are minimising your role or the gravity of your conduct and because, although you seem to have done well on your own, you have not taken any active steps to engage in drug or other counselling, there is still a need to give some weight to specific deterrence, although as I have said, I do consider your prospects of rehabilitation to be reasonable. You are, of course, entitled to a reduction in the sentence otherwise appropriate by reason of your plea of guilty and the early stage at which it was entered.
42 Having considered that the sentence must involve a component of imprisonment immediately served, I have given consideration to whether I should impose a partially suspended sentence or fix a non-parole period. I have decided that is appropriate in the circumstances to impose a partially suspended sentence. That means you will receive the benefit of a certain date for release, that you will be able to leave the state and go to Queensland without seeking permission from the Adult Parole Board after your release, and I am leaving it up to you rather than the Adult Parole Board for you to decide to take active steps to engage in counselling if you wish to do so or feel a need to do so.
43 Could you now please stand.
44 Shane Lothian, on the charge of trafficking to which you have pleaded guilty you are convicted. You are sentenced to be imprisoned for a period of two years. I suspend 18 months of that for a period of 18 months. That means you must serve six months before release.
45 There is no period of pre-sentence detention.
46 I have been asked to make an order for the provision of a forensic sample and I propose to do so having regard to the nature and seriousness of the offending. I am making that order for provision of that forensic sample by way of a buccal sample. That means a swab rubbed on the inside of your mouth. I must warn you that if you do not cooperate in the provision of that sample the police are authorised to use reasonable force and may well use the more invasive means available, namely the taking of a blood sample. Do you understand that? Thank you.
47 Have I made all the orders that are required to be made?
48 MR PORCEDDU: Just the 6AAA, Your Honour.
49 HER HONOUR: Pursuant to s.6AAA I declare that but for your plea of guilty I would have sentenced you to be imprisoned for a period of three years and I would have fixed a period of two years as the time that you would have had to have served before being eligible for parole. No further orders?
50 MR PORCEDDU: No, Your Honour.
51 HER HONOUR: Thank you. Could you remove Mr Lothian, please.
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