Director of Public Prosecutions v McInnell, Glen Andrew
[2013] VCC 721
•24 May 2013
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No.
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| GLEN ANDREW McINNELL |
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JUDGE: | HIS HONOUR JUDGE SMALLWOOD | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 24 May 2013 | |
CASE MAY BE CITED AS: | DPP v McInnell, Glen Andrew | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 721 | |
REASONS FOR SENTENCE
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Catchwords:
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr K. Doyle | Office of Public Prosecutions |
| For the Accused | Mr M. Grice |
HIS HONOUR:
1 You can stay seated, Mr McInnell, there is no need to stand up.
2 Glen Andrew McInnell, you have pleaded guilty to one count of trafficking in a drug of dependence in a large commercial quantity and one count of handling stolen goods. Those crimes carry maximum penalties of life and 15 years respectively.
3 You are 34 years of age. You pleaded guilty at a reasonably early opportunity, and I accept in the circumstances, particularly insofar as what you told Mr McKinnon, the psychologist, that there is appropriate remorse. You must also get the utilitarian benefit of that plea of guilty. Trials such as this can become complicated and can take an extensive period of time, and you must get some recognition for that.
4 You do have, unfortunately, prior convictions of significance. There are a number which I will not go into here, but you have one which relates to trafficking with at least the potentiality of gaol which had been imposed on you not long before this offending started. I understand that that offence had occurred some years previously, but the fact remains that you committed this offending whilst under some form of adjourned suspended sentence from New South Wales for the same sort of thing.
5 The count to which you have pleaded is between 1 July 2011 and 1 June 2012. There is some dispute about what might have occurred prior to that, but it is still a Giretti offending over a very significant period of time.
6 Firstly, pursuant to s.464 of the Crimes Act, I make an order that you provide a saliva sample for DNA purposes. That order having been made, I must advise you that should you refuse to provide one, the police may use reasonable force to take it from you, and that order is made and handed down.
7 The circumstances of the offending can be described in fairly brief terms. What I propose to do is annex a summary of the prosecution opening to these, my sentencing remarks.
8 I have already sentenced a number of people in regard to this operation, and the only one, having discussed it with your counsel, with whom parity would appear to be an issue is one Mr James, and I will refer to him again shortly.
9 The circumstances were that in May of 2011 you were living in Bombala. You came to Victoria. By July of 2011 you were selling Mr James a significant amount of amphetamine. I am not taking into account obviously the amounts that were sold prior to the commencement of the offending, but certainly around February 2012, for example, it was something in the order of six to eight ounces per fortnight.
10 Your counsel stressed that there were matters within the Crown summary that were disputed, and it was agreed that in the end I would find your role as being slightly above that of James in that you were the one who had the knowledge of the source of the amphetamine. It may be that Mr James is somewhat lucky in terms of what evidence the police had against him or his overall involvement, but again, I will deal with that later.
11 There was clearly significant trafficking taking place over that entire year. Two examples: on 10 May, you with Mr James and another co-accused, Bacon, went to your supplier in Campbelltown, New South Wales, where a significant amount was purchased. The Crown summary says that two pounds was purchased. It was put to me from the Bar table that it was 200 grams. Shortly after that, more conversation took place about another trip to New South Wales.
12 On 24 May 2012, you telephoned the supplier in New South Wales and said you were hoping to come up the next day. The same day someone rang you and said they had $8,000 for you for tomorrow. You told Mr Gaudi, another co-accused, that you planned to sell all your assets in order to make the next purchase. You said that you needed to go bigger but sell to less people You said that if you cashed everything in for the next purchase, you would make enough to buy everything back new.
13 You then made arrangements to go to New South Wales. Other co-accused went with you. You indicated, when talking to that supplier, as I understand it, that you had come up with $60,000 the previous week and the supplier responded that you still owed $13,000 on top of that. You said how you had recently had to sell a boat to settle a debt with another supplier.
14 On 31 May you, in Sydney with others, met with your supplier and purchased 1.1 kilograms of methamphetamine. I note from my previous knowledge of these matters that the purity of that amphetamine was only 12 per cent, and therefore, in one sense, barely street level. Be that as it may, I do not have any evidence before me about the purity of other amphetamine that you had purchased over that period of time. The conversations that you had in May indicate the level at which you were purchasing, and I simply regard it in an overall situation.
15 I am not going to do any form of mathematical calculation. It might be unfair to you, it might be unfair to James if I was to endeavour to do so. It can simply be said that there are very significant amounts of money involved and very significant amounts of drugs. It is a situation that a large commercial quantity carries life imprisonment. That in itself indicates the nature of what you have pleaded guilty to.
16 On the day of interception, the 1.1 kilograms of mixed methamphetamine was brought to Melbourne by Mr Gaudi. You had apparently hired a suite at an hotel, and you and the others had had a night on the town. In any event, early in the morning when Gaudi arrived with his truck just near a service station off the Westgate Freeway, James and another went to meet him. They were arrested at the scene by the SOG, and you were arrested subsequently at the hotel.
17 When interviewed by police, you essentially conceded that you had been trafficking certainly so far as that particular quantity or transaction was concerned. You told police that you used speed every day. You said that you had not worked for about six to eight months but did a few cash jobs. You said that you had survived on money you had saved up and that your dad had given you 20 or 30 grand. The police raided your premises and found the ride-on lawn mower which is the subject of the handling stolen goods .
18 Trafficking at that level is clearly serious. It carries life. General deterrence is obviously of paramount importance here, and it incorporates public protection. Specific deterrence for you I think is probably less significant, I would be very surprised if you did this again, but there must be denunciation, and unfortunately for yourself and your family and everyone associated with you, an appropriate punishment.
19 Insofar as your role is concerned, I have indicated that I regard it as slightly above that of James. I do not propose to descend into detail. There is no real sign of enrichment in your particular situation, and it was put from the Bar table that you were using far more than you admitted to in your record of interview. That may well be so. The fact of the matter remains that it is a trade in death essentially, and even though there might not be wealth to the level of a Mokbel or someone such as that, you are still doing it for profit, whatever the purpose of that profit might be.
20 Mr James, for this particular offence of large commercial quantity, was sentenced to a period of imprisonment of three years. He also pleaded guilty to other offences involving drugs, and so he received in total three years and two months with one year and nine months minimum. The suggestion was made at one stage that I was to regard you as a serious drug offender. I was not asked to do that in respect of Mr James. I looked at the legislation and I do not propose to do so. It would make no difference to the sentence that I intend to impose. Life certainly gives a judge plenty of scope.
21 The differences between you and Mr James are, that he was significantly younger, he had no prior convictions at all, that he had given very significant assistance to the Crown and the prosecution or potential prosecution of others, and that he was going to do his entire sentence in protection. You will not be in protection, and you do not get the benefit of the very significant discount given for cooperation or an undertaking in respect of cooperation as to others. As I say, I will annex the Crown opening to my sentencing remarks with the notation, if I can put it that way, that your counsel has disagreed with significant portions of it, and I have endeavoured to take that into account in my overall assessment of the situation.
22 I then look to matters personal to you as to what sort of sentence has to be imposed here. The Crown had a range of 10 to 12 on top with an eight to 10 on the bottom. Where you have got a prior for it, you are 34, you are doing it over a period of a year in very significant quantities, that seems to me to be around about the ballpark that we are dealing with. I then have to endeavour to look at Mr James in comparison with your situation.
23 Tendered on your behalf was a report from Mr McKinnon. Very significantly, I think, that report indicates that insofar as your plea of guilty is concerned, that you have indicated to him genuine remorse. He said:
"At the time I assessed him, Mr McInnell appeared to be genuinely remorseful about the offence which currently bring him before the court, and added, 'It wasn't worth it, coming to gaol hasn't just wrecked my life, it's wrecked everyone else's. It's caused problems for my kids, dad's paying my bills, it's fucked. I just want to do my time at Fulham so my missus and kids can visit me easier. Later I'll go back to work and live normal and look after my family.'"
24 I do not know if that is necessarily remorse for drug trafficking but it is certainly remorse for what you have done and the effect of what you have done has had on those who have been close to you and endeavoured to protect you from this for a long time.
25 You have not used your time in gaol unwisely; you have done courses, and you are clearly endeavouring to rehabilitate. You have now been there for very close to a year. Mr McKinnon diagnosed certainly the criteria for a post-traumatic stress disorder for reasons that will become apparent in a moment. It was not suggested, in fact it was disavowed by your barrister, that the principles in Verdins had any application here. I can understand how a person using at the level that you were can become somewhat grandiose in terms of the lifestyle that they are leading and the frenetic trafficking which can occur from that. That is all understandable for someone who is using drugs, but it does not excuse anything.
26 You have a partner and you have two children, on my understanding, aged about six and five. They have seen you in gaol and they are going to have to continue seeing their father in gaol for a very significant period of time. What you said to Mr McKinnon indicates to me that gaol for you will be hard knowing what you have done for others, but there is no other form of ill health or any such thing to make it harder for you than for other prisoners. You told Mr McKinnon that in gaol you are just basically doing a lot of laps and keep your head down, which is a very sensible way of going about it.
27 I now look at the prospects of rehabilitation, the risk of you reoffending. Your father gave sworn evidence on your behalf, and I will say that it was apparent not only to me, but certainly I think to everyone else in the court that you come from a very strong family.
28 You were born in Melbourne but went to East Gippsland. Your father has had a very successful timber harvesting, haulage and logging business for years. You went to primary school in Cann River, and the family shifted to Bombala. You were good at sport at school, but academically very poor. It would appear that you are now literate, though I note that Mr McKinnon regards your capacity to read at about a Grade 5 level. Your father said that around about 13 to 14 you started to become a serious problem and started to use drugs; marijuana at that point, he believed. You left school at 16 and were working in saw mills.
29 By your late teens you were drug dependent. As was clearly brought home by your father, you became the nightmare that many parents fear. At 18 or 19 you were assisted by your family to go to Odyssey House in Sydney, to another rehabilitation centre in Canberra and to one in Orange. It was around about that period of time that you began using heroin, but you would appear to have got over that.
30 Your partner is now a partner of some 20 years. You are clearly capable of working and clearly capable of working hard. You are a good operator, as your father told me. There were some instances in your life which were contained in the report of Mr McKinnon, which were confirmed by your father. One was of sexual abuse when you were small, which you tend to link to drug use subsequently, and also an extraordinarily traumatic situation both for you and your family, I understand, where a close friend was killed working with you alone in the bush. That clearly has not assisted you either.
31 Coming to Traralgon, as you did, your father had loaned you thousands of dollars to set up a business, and I have no doubt that the whole family was hoping that it would all turn out well. You were still using, and then embarked upon this 12 months of - if "frenetic" is not an unfair word - drug trafficking.
32 Your attitude now that you are straight and now that you have been in gaol for a significant period of time is, I think, comforting. You do say that you wish to rehabilitate, and with such a strong and caring family and two small children, I have no doubt that that is a genuine determination. Whether you can achieve it or not is up to you. If you can rehabilitate, you are clearly capable of being a hard-working and useful member of the community, and I take those matters into account.
33 The Crown range here had a minimum term in the order of some 20 per cent between the head sentence and the minimum. I think that your father described that sometimes with you he got a glimmer of hope. I think that in this situation, particularly because of his evidence, I make that very clear, that the court should provide as best as it can in a very, very difficult situation, a greater glimmer of hope than the Crown range.
34 I am also concerned in your particular situation of principles relating to totality. I would be very surprised if you became institutionalised because, as I have indicated a number of times now, of the strength of your family and your capacity to function when straight and being not in custody, but it is a matter that I have given consideration to.
35 In the end, it must be a very significant sentence, but I have endeavoured to give you a minimum term which gives you some chance.
36 On the charge of trafficking in a large commercial quantity you are sentenced to be imprisoned for a period of nine years and nine months. On the charge of handling stolen goods, six months, to be served concurrently.
37 I direct that you serve six years and three months before becoming eligible for parole, and I direct that 358 days be reckoned as having been served under this sentence. So that yourself and your family understand the benefit that you have brought to both yourself and them by your plea of guilty, I say that but for your plea of guilty you would have been sentenced to be imprisoned for a period of 13 years with a minimum term of eight and a half years. Are there any other orders I have to make?
38 MR DOYLE: No, Your Honour.
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