Director of Public Prosecutions v McGuinness

[2024] VCC 98

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR-22-01625

DIRECTOR OF PUBLIC PROSECUTIONS

v

FINLAY McGUINNESS

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JUDGE:	HIS HONOUR JUDGE MAIDMENT
WHERE HELD:	Melbourne
DATE OF HEARING:	18 December 2023 & 12 February 2024
DATE OF SENTENCE:	12 February 2024
CASE MAY BE CITED AS:	DPP v McGuinness
MEDIUM NEUTRAL CITATION:	[2024] VCC 98

REASONS FOR SENTENCE

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Subject:Plea - sentencing

Catchwords:          Traffick drug of dependence - possess drug of dependence - negligently deal with proceeds of crime - deal with property suspected of being proceeds of crime

Legislation Cited: 

Cases Cited:

Sentence:98 days' imprisonment plus 2-year CCO

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr J. O'Toole	Office of Public Prosecutions
For the Accused	Mr H. Rattray	Rankin Lawyers

HIS HONOUR:

1Finlay McGuiness, you have pleaded guilty to an indictment charging you with six separate offences, and to one related summary offence.  The indictment charges are as follows: 

o   Charge 1 - trafficking a drug of dependence, namely cocaine;

o   Charge 2 - a similar offence involving a separate quantity of cocaine;

o   Charge 3 - trafficking a drug of dependence, namely ketamine;

o   Charge 4 - possessing a drug of dependence, namely cannabis L;

o   Charge 5 - possessing a drug of dependence, namely methylamphetamine;

o   Charge 6 - negligently dealing with the proceeds of crime in the sum of
                   $24,006.40.

2The maximum penalty for each of Charges 1, 2 and 3 is 15 years’ imprisonment.

3The maximum penalty for Charge 4 is 5 years’ imprisonment.

4The maximum penalty for Charge 5 is 1 year’s imprisonment.

5The maximum penalty for Charge 6 is 5 years’ imprisonment.

6The maximum penalty for the related summary offence, which is dealing with property suspected of being the proceeds of crime, namely a Victorian driver's licence in the name of somebody else, is imprisonment for two years. 

7You have one prior conviction.  That was on 20 November 2018 for which you received an aggregate fine of $1400 with conviction for trafficking MDMA, possessing cannabis, dealing with property suspected of being the proceeds of crime and possessing a prohibited weapon without exemption or approval. 

8The prosecution tendered and read to the court a Summary of Prosecution Opening for Plea, which deals with the activities of you and your co-offender, George Lewis, during the period between August 2021 and 15 December 2021.  During that time the activities of your co-offender, George Lewis, were observed to involve obtaining a number of items, which it would appear were related to the manufacture of and/or the trafficking in drugs of dependence.  This conduct occurred over a period of some months up to the period during which police observed activities at your place of residence.

9Police executed a search warrant on the vehicle and premises associated with your co-offender on 15 December 2022 and also executed a search warrant at your address in St Kilda Road.  There were a number of items found at that property associated with the manufacture of drugs of dependence - particularly cocaine and ketamine - and a Clandestine Laboratory Squad unit was delegated to ensure that the premises were safe.  When they were examined thoroughly by police, various items were located relevant to the charges, including in relation to Charge 1 a total of 375.8 grams of 76 per cent pure cocaine; in relation to Charge 2, 180.5 grams of 69 per cent pure liquid cocaine, which was in the process of being dried, and 234.4 grams of which 164 grams was pure ketamine, subject of Charge 3.  Other items were found:  2.6 grams of methamphetamine was the subject of Charge 5; cannabis L, which consisted of 430.5 grams, was the subject of Charge 4.  That was above the traffickable quantity of 250 grams, hence there is no concession by the prosecution as to it being in your possession for a reason other than trafficking.  The cash money located was reasonably substantial but clearly not unusual in circumstances where there is evidence of a trafficking operation in progress.

10You were arrested and interviewed at the St Kilda police station on the date of your arrest.  You indicated that you were in a bit of debt, that you had accumulated debt from your methylamphetamine habit in the sum of $30,000 or thereabouts, and although you did not sell drugs personally you were delegated the responsibility of preparing the drugs for sale and were the person taking the risk of being caught in or about a laboratory set up for that purpose.  I emphasise that the items that were required for that laboratory would appear to have been provided by and organised by your co-offender, George Lewis.

11George Lewis was sentenced in respect of his conduct to a 12-month community correction order at the Magistrates Court.  He had no prior convictions and, as I indicated during the plea hearing, it seems to me that his involvement could be said to be more serious than yours in that he seemed to be in a superior position in the organisation and had an organisational function himself of which there is no evidence against you.

12Your counsel provided me with an outline of submissions and an addendum to those submissions which went into more detail.  The outline of submissions dated 15 December is Exhibit 1 on the plea.  The addendum is Exhibit 2 on the plea.  Exhibit 3 on the plea is a report from Mr Foglia, a counselling and forensic psychologist, dated 23 May 2023.  There is a reference from your father dated 12 December 2023, which is Exhibit 4. 

13I am not going to go into great detail about this because during the plea hearing I have indicated the sentencing conundrum that I have found myself in.  There are mental impairments that are identified by Mr Foglia, namely post-traumatic stress disorder, although he did not diagnose the conditions of substance abuse disorder, depression and anxiety.  They had been identified and diagnosed previously. 

14It was submitted on your behalf that I should apply Verdins principles in mitigation of sentence.  I think it is a line ball whether Verdins principles apply.  However, all of those factors and the various assessments and the commentary in the psychologist's report are relevant and I take them into account in the overall synthesis that I am required to employ in determining an appropriate sentence.

15As I have made clear, it seems to me that the offences of trafficking in drugs of dependence in Charges 1, 2 and 3 are quite serious examples.  Your counsel frankly accepts that that is the case, particularly in relation to Charges 1 and 2.  Ordinarily it would require a not insignificant sentence of imprisonment, particularly where you have already had a warning on your previous court appearance when you were dealt with quite leniently for a trafficking offence.  I feel constrained somewhat by the sentence imposed on your co-offender who, as I have already observed, seems to me to be more heavily involved in the organisation of the enterprise to which you attached yourself.  He got away with a particularly light sentence, it seems to me, for the conduct in which he had engaged.

16However, I need to assess an appropriate sentence for you.  A term of imprisonment is inevitable for these offences.  I have already indicated that under the constraints that I feel in trying to do justice, observing the principle of parity as well as other sentencing principles, I do not propose to require you to return to prison.  Therefore, the sentence that I have in mind would be the term of imprisonment that you have already completed.  I accept your counsel's submission that you do have good prospects of rehabilitation.  Much will depend upon your capacity to deal with your drug habits, and you are never quite out of the woods with a history of drug abuse.  There is always a risk of relapse even though you might have managed to get things under control at this stage of your life.  The order that I have in mind will have the effect of leaving hanging over your head the prospect of having to be re-sentenced for these matters if you were to commit further offences punishable by imprisonment during the period of the order.

17I am going to proceed to sentence.  Your counsel has already indicated that you would consent to a community correction order in the terms that I outlined.  I will go into more detail on that, born

18and I am required to warn you as to the consequences of breaching the order in more detail. 

19The sentences that I intend to impose are as follows.  On each of Charges 1, 2 and 3 on the indictment I convict you and sentence you to imprisonment for a period of 98 days.  I declare 98 days' pre-sentence detention as time to be reckoned as served on the sentences that I have imposed for those offences and deducted administratively from the sentence, which means that you will not be required to return to prison.

20In addition, for those offences and for each of Charges 3, 4, 5 and 6 and the related summary offence, I order that you be the subject of a community correction order for a period of two years, the terms of which are set out in the order that I am going to be asking you to sign in a minute, and are that:

·     you must not commit another offence for which you could be imprisoned during the time that the order is in force;

·     you must comply with any obligation or requirement prescribed by Regulation 15 of the Sentencing Regulations, which means do not turn up to supervision or unpaid community work drunk or drug-affected and that kind of thing - you will get a clearer list of the requirements of those regulations from Corrections when you report;

·     you must report to and receive visits from the Secretary of the Department of Justice or his or her delegate;

·     you must report to the Community Corrections Centre within two clear working days of the order starting, and that will be the Melbourne Community Corrections Services at 50 Franklin Street, Melbourne, Victoria 3000;

·     you must let a Community Corrections officer know within two clear working days of you changing your address or your job;

·     you must not leave Victoria without first getting permission to do so from the Secretary of the Department of Justice or his or her delegate; and

·     you must obey all lawful instructions from, and directions of the Secretary or his or her delegate.

21Those are conditions that attach to all community corrections orders.  In addition to those conditions, all of which you must comply with, there are some further conditions, and they are that:

·     you perform 150 hours of unpaid community work over a period of two years during which the order is in force as directed by the regional manager;

I order that 75 hours of treatment and rehabilitation satisfactorily undertaken are to be counted as hours of unpaid community work for the purposes of the unpaid community work condition - if you fail to comply with that condition, the Secretary to the Department of Justice or his or her delegate may give you a direction to perform additional hours of unpaid community work in accordance with the Sentencing Act;

·     you must be under the supervision of a Community Corrections officer for the period of two years during which the order is in force;

·     you must undergo assessment and treatment (including testing) for drug abuse or dependency as directed by the regional manager;

·     you must undergo assessment and treatment (including testing) for alcohol abuse or dependency as directed by the regional manager; and

·     you must undergo any mental health assessment and treatment that may include psychological, neuropsychological, psychiatric or treatment in a hospital or residential facility as directed by the regional manager.

22Do you understand what I have read out to you?

23OFFENDER:  Yes, Your Honour, I understand.

24HIS HONOUR:  Are you willing to comply with those conditions?

25OFFENDER:  More than willing, Your Honour.

26HIS HONOUR:  Thank you.  Before you finally sign yourself up for this order, I need to say that if you were to breach the order, either by failing to comply with the conditions or by committing a further offence punishable by imprisonment during the term of the order, then you are likely to be brought back before this court, probably before me, and you may be subject to re-sentence for these offences in addition to any sentence that you might face for the conduct that put you in breach of the order.  Do you understand?  You can also be sentenced to a period of imprisonment for up to three months just for breaching the order.  So there are consequences of failing to comply with the terms of the order.

27It is not always easy to comply and you are going to have to work fairly hard to get through this order unscathed, so it is additional punishment as well as, hopefully, being of assistance to you in rehabilitation, and hopefully to help keep you away from further drug abuse, which obviously has been a major factor in your life.  I think that you told police at the time of your arrest that they essentially saved your life because they broke the cycle that you got yourself into and the problem with the debt that you owed and to people obviously that caused you to fear the consequences of the debt and being unable to repay it.  So I am inclined to accept that the reasons you got into this were as a result of that debt which you had raked up as a result of your drug abuse.

28Now, are there any other matters that I need to explain by either counsel in relation to the order?

29MR RATTRAY:  6AAA, Your Honour.

30HIS HONOUR:  I will do that in a second.

31MR RATTRAY:  Yes.

32HIS HONOUR:  I am going to ask you now if you would, Mr Rattray, to take the order to him.

33MR RATTRAY:  Yes, Your Honour.

34HIS HONOUR:  He can be asked to sign the order and I will then countersign it.

35MR RATTRAY:  Sure.

36HIS HONOUR:  The order will then be in place and I will finish off by dealing with s6AAA.

37MR RATTRAY:  Thank you, Your Honour.   My client had his own pen,
Your Honour.  It appears to have had red ink in it but I am not sure that is an issue that it is signed with red pen.

38HIS HONOUR:  No.  I doubt whether it is.  All right, the order is signed.  The order is in force.  There is a draft forfeiture order and draft disposal order that I have been handed.  The forfeiture order looks all right, but the disposal order refers to his being convicted of trafficking in a commercial quantity of a scheduled drug.  I think that needs amending.

39MR O'TOOLE:  Yes, Your Honour, that is clearly an error on our behalf.

40HIS HONOUR:  Yes.  So I take it there is no issue with the disposal order or the forfeiture order?

41MR RATTRAY:  If I can just have a review of those documents, Your Honour.

42HIS HONOUR:  (Indistinct words).

43MR RATTRAY:  I recall I've read them before but I just - - -

44HIS HONOUR:  I'll hand these down.  Subject to your agreement then I'll make the orders in due course.

45MR RATTRAY:  Yes.

46HIS HONOUR:  But if we could have the amended orders.

47MR RATTRAY:  Does Your Honour have the schedules?  Sorry.

48HIS HONOUR:  I don't but I dare say my associate does.

49MR RATTRAY:  I'm sure I already have.  I'm sorry, Your Honour.

50HIS HONOUR:  No, that's fine.

51MR RATTRAY:  I'm fairly certain I've confirmed all this.  I just want to make sure.

52HIS HONOUR:  Yes, you should have a look at the schedules.

53MR RATTRAY:  Yes, I've checked these.  Yes, perfect.

54HIS HONOUR:  You're content with the - - -

55MR RATTRAY:  Once the quantity issue is remedied they can be made by consent.

56HIS HONOUR:  All right, thank you.  All right, are you content if I make the amendment in the - - -

57MR O'TOOLE:  Yes, alternatively we can amend it and re-provide it to Your Honour.  Whatever is Your Honour's preference.

58HIS HONOUR:  Perhaps we'd better do that.  It looks cleaner doesn't it?

59MR O'TOOLE:  Yes, it does.

60HIS HONOUR:  All right.  Leave it.  We'll do that.

61MR O'TOOLE:  As Your Honour pleases.

62HIS HONOUR:  And I'll sign those orders in due course. 

63But for your pleas of guilty, I would have sentenced you to a total effective sentence of three years and six months with a non-parole period of two years and eight months. 

64So I think you've dodged a bullet one way or the other.  I hope that things go well for you from here on and you stay out of trouble. 

65Thank you both, counsel.

66MR O'TOOLE:  If the court pleases.

67MR RATTRAY:  Thank you, Your Honour.

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