Director of Public Prosecutions v McNaughton
[2013] VCC 1079
•25 July 2013
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-11-02131
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ANDREW MCNAUGHTON |
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JUDGE: | HIS HONOUR JUDGE TINNEY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 16 and 17th July 2013 | |
DATE OF SENTENCE: | 25 July 2013 | |
CASE MAY BE CITED AS: | DPP v McNaughton | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1079 | |
REASONS FOR SENTENCE
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Catchwords: Trafficking in drugs, conspiracy to cultivate cannabis.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr T. Hoare | Office of Public Prosecutions |
| For the Accused | Mr S, Langslow | Robert Stary Solicitors |
HIS HONOUR:
1 Andrew McNaughton, you have pleaded guilty to 5 charges of trafficking in drugs of dependence, one charge of possession of substances and equipment for the purposes of trafficking, one charge of possession of a precursor chemical and one charge of conspiracy to cultivate cannabis.
2 The maximum penalties are correctly spelt out in the prosecution summary and I see no need to restate them. Clearly as to the conspiracy charge, the higher penalty applies (15 years maximum) given the clear indication in the intercepted calls of the purpose of the conspiracy being the cultivation of cannabis for the purposes of sale.
3 You have admitted your prior criminal history. It is not extensive.
Factual Basis
4 The details of your offending are set out in the summary of prosecution opening which is marked as Exhibit A on the plea. That is for the most part an agreed prosecution opening. Clearly enough, the trafficking charges are founded on possession for sale of the specified drug as of the date of the warrants being executed on 1st April 2009.
5 You became a target of the Petra Taskforce in early December 2008 and this led to the discovery of your relationship with McHardy and McMillan. Electronic surveillance then led to the discovery of McMillan’s clandestine laboratory set-up in Preston. Though the summary goes into earlier events, that is to say events pre-dating the 1st April 2009, they are really only placed before me as going to the nature of the relationship between you and other players, in particular Mr McMillan and McHardy. The summary spells out those areas where challenge was taken and I made clear in the plea and make plain now that I see no need to reach any view as to the matters contained in paragraphs 29,31,32,33 or 34. I certainly don’t sentence on the basis of those matters being established to my satisfaction. As to paragraph 47, the prosecutor indicated that this was a conversation between Martin Sloan and yourself unmistakeably about drugs and the supply of drugs. Sloan was the son of the former President of the Bandidos, Kim Sloan. No real challenge was taken as to that fact on the plea though again it is clear that the conversation at page 2693 falls outside the ambit of the charged conduct and is before me only as to the relevant narrative and the lead up to charge 2. Significantly, there was of course no challenge to the contention in paragraph 26 that you and McMillan were involved in a joint enterprise. Nor could there be. It was after all the methylamphetamine in liquid form found at McMillan’s Preston clandestine laboratory which was possessed by you for sale, as your plea makes clear. So clearly enough there was a joint enterprise in relation to that methylamphetamine and an understanding as to manufacture of the substance. Again though, I make clear you are not sentenced for trafficking by manufacture.
6 It is unimportant and unnecessary for me to reach findings as to the particular meaning of conversations pre dating the 1st April or the extent if any to which you had provided equipment or chemicals to him. You are not charged with a process of trafficking by manufacture but rather trafficking based on possession for sale as of the 1st April 2009. McMillan was undoubtedly a methylamphetamine cook. You undoubtedly had a relationship with him. That much is clear. The suggestion raised in the material by you (see exhibit E) as to lack of knowledge of the existence of a clandestine laboratory at McMillan’s Preston address is impossible to reconcile with your acceptance now (but not at the time of that document being created on 24 June 2013) of liability for the joint possession of liquid methylapahetamine at Preston. In your case, possession for sale. It is that methylamphetamine in solution as well as other methylamphetamine found at your home in Kangaroo Flat, your storage unit in Harcourt and the rented room in Clydesdale which is subsumed by charge 2.
Chronology
7 This matter settled in late June of 2012 with arraignment taking place on 2 July 2012. That is not a typographical error. July 2012. I will comment later in these reasons as to the tortured chronology, but what is clear is that the plea waited in the wings for many many months as a result of the suggestion of there being a substantial and live dispute as to the factual basis of sentencing. For very many months last year and the early part of this year, Judge Cannon who the plea was listed before took such steps as she could and made such orders of your legal team as were open to her to make in an endeavour to obtain a written indication of the matters actually in dispute. Generally those orders were ignored by the Defence. No documents were filed. The matter was listed in Mid March of this year for a 2 day contested plea but ran off the rails when you sacked your counsel and appointed new solicitors in the days leading up to the listed date. In April of this year, the matter was adjourned to June 19, again as a 2 day contested matter but by then as an application to change your plea. Again there was a complete failure by your new legal team to file any of the ordered documents indicating the basis of the change of plea application. When the matter came on before Judge Cannon on the 19th June for the change of plea application, without any advance notice having been given to the Court at any of the many earlier listed dates, Judge Cannon was for the first time asked by your then counsel Mr Danos to disqualify herself from hearing the application, given some findings she had reached in her sentencing of the co-accused Mr McHardy way back in May of 2010. Her involvement in that sentence was known to you and in fact was a matter which you had raised in an email the very day after the plea was first taken from you in July 2012. See exhibit D. The fact is that of course it had been Her Honour’s earlier involvement in that sentencing exercise with McHardy and the need to apply the principle of parity of sentence that had led to all parties being of the view in July 2012 and beyond that in fact it was Her Honour who should be the person to hear your plea. However, when she came on to the bench to hear the change of plea application, for the very first time since the matter had settled in July 2012, suggestion was raised by your counsel as to it being inappropriate for her to proceed with the hearing given earlier findings made. She acceded to the application. Ordinarily, that would have led to an adjournment of the change of plea application and to further delay but as luck would have it, I was available to immediately pick up the hearing.
8 In any event, returning to the plea that ultimately proceeded before me, when push came to shove there was virtually no factual contest at all. Prudentially, Mr McMillan was brought to Court by the prosecution and was available actually at Court on the day of the plea commencing before me. Your counsel Mr Langslow indicated that he did not dispute paragraph 26 and did not seek to ask any questions at all of McMillan, saying it was not in your interests to do so. I am sure he was right in that judgment. As to the conspiracy, the only real issue was the extent to which it persisted beyond the 6th March 2009. The conspiracy was alleged as a between dates conspiracy between 1st March and the 1st April 2009. That end date relates to the warrant dates where material pertaining to the agreement was found at your premises and relevant material was found at the premises of your co-conspirator in that matter, Mr McHardy. The prosecutor Mr Hoare fairly conceded that beyond the 6th March 2009, he could not take me to material from intercepts or listening devices dealing with any further identified discussions as between you and McHardy, but that none the less there were five or so further meetings between 13 March and 27 March suggested by the tracking device, where your car went to the vicinity of McHardy’s premises in Woodend for periods of between 5 minutes to 3 hours on one occasion. The prosecution submitted that there was no suggestion of any abandonment of the agreement, merely a vacuum in the evidence as to the further discussions and any steps taken. I am satisfied to the requisite degree that the agreement remained on foot up until the warrant date. There is no suggestion in the materials of any abandonment or withdrawal from the agreement and there is evidence suggestive of continued meetings. But even if I had not been so satisfied it would not have produced any change in sentence on that charge. The fact is whatever the duration of the conspiracy, it is the same conspiracy which in McHardy’s case was rewarded with a sentence of 3 years with a non parole period of 20 months imposed by Judge Cannon. It’s seriousness is not derived from the duration and whether it persisted for 6 or 30 days. It’s seriousness is derived from the nature of the actual conversations that are recorded and the steps disclosed in the depositional materials and referred to in the opening.
9 In any event what is therefore clear from the way the plea unfolded before me is that other than in the areas I have identified, the summary was an agreed statement. In those circumstances, I really see no need to slavishly restate the lengthy summary in these reasons. What I will do is incorporate exhibit A into my reasons for sentence.
10 What is abundantly clear is that in April 2009, drugs, equipment and substances related to manufacture of drugs, talking about drugs and trafficking in drugs were a major part of your life. To illustrate, the conspiracy charge (charge 1) and the major trafficking charge (charge 2) are quite separate crimes with quite separate co-accused, different drugs involved or contemplated and separate goals but committed at or around the same time. By you. The covertly recorded material spells out your involvement generally and your awareness of the risks of and serious illegality of your conduct. The material set out in detail in the summary as to the conspiracy with McHardy makes plain that this was not just some idle chat or loose agreement. It was quite focussed discussion backed up by action to source for purchase by you a crop house in the Mildura region. As to the trafficking charges, well you possessed for sale a variety of different drugs at a variety of differing locations. As to charge 7, you possessed an array of equipment and substances with the intention of trafficking (by Manufacture). Again at more than one location. On any view of it, you had a relationship with a cook and with others in the drug trade. I was told that you were unemployed at the time and yet you rented a storage unit at Harcourt as well as a room for additional storage at Clydesdale. It is clear you were very deeply involved in drugs. Your counsel accepted that to be the case then. The thrust of the plea is that you had left that life behind you since.
Defence
11 In his excellent plea your counsel Mr Langlsow made submissions on your behalf. He relied upon the following:
· A relatively dysfunctional early family life
· Your guilty plea.
· The presence of remorse.
· The delay since the commission date, the impacts upon you of that delay and your efforts in the interim to rehabilitate yourself.
· Your good prospects of rehabilitation and steps taken along that path already.
· Physical and psychological conditions referred to in the materials suggesting an increased custodial burden.
· He pointed to what he said were the relatively small quantity of drugs in the trafficking charges and the fact that the conspiracy was of reasonably short duration and didn’t bear any fruit. .
· He argued that it might be possible to avoid an immediate term of imprisonment in all of the circumstances or failing that to either partially suspend or fix a non parole period which would recognise the positive progress made by you whilst on bail. He relied upon a large amount of material placed before me of which I will make later reference. However it is certainly not my intention to work my way in these reasons through each of the documents placed before me.
Range
12 Mr Hoare on behalf of the Director of Public Prosecutions took issue with the characterisation of the offending as being at a low level. As to the conspiracy he argued it was not low level offending at all when regard was had to the nature of the discussions and acts undertaken. As to the trafficking charges in particular charge 2, well this was at the high end of the non commercial quantity, he argued. You had a relationship with the manufacturer Mr McMillan. Charge 3 to 6 involved lesser amounts of different drugs but were still serious charges. He argued that the sentences imposed upon McHardy and McMillan had some application given the principle of parity of sentence, though there were many differences which had to be considered. Mr Hoare argued that an examination of the conversations showed that you were telling McHardy ‘how it would be’ and ‘who would do what’. He argued and it is accepted that you were to be the financier. You would provide the funding, the equipment, the seedlings, the house. He argued that the section 71 A offence was a serious example of that offence when regard was had to the range of substances and materials possessed by you with the intention of trafficking. The Crown challenged the presence of remorse in the circumstances and took issue also with the claim as to there being any increased custodial burden posed by your health or other conditions. Whilst accepting that there was a utilitarian benefit attaching to the plea and a significant delay which would be viewed in a mitigatory manner, Mr Hoare on behalf of the Director submitted that an appropriate range of sentence would fall with a head sentence of between 6 to 7 ½ years with a non parole period falling between 4 ½ to 6 years. Your counsel challenged that range arguing that it would be permissible to impose a total effective sentence of between 2 to 3 years.
13 As I have said each of your co-accused had been dealt with by a term of imprisonment though of course it was clear that there were a variety of differences. Mr McMillan for instance was dealt with for a commercial quantity trafficking carrying a higher maximum term. You do not stand to be sentenced for that offence. I do not lose sight of that difference. He on the other hand had no prior appearances at all and received very significant discounts by virtue of an early plea, presence of remorse and more particularly his preparedness to give evidence against you. Ultimately, as I have mentioned, he was called upon to do just that, attending on the first day of the plea but not then being required to enter the witness box. A document was placed before me summarising the sentences imposed upon McMillan and McHardy.See exhibit B. Of course I have read each of the complete sentencing remarks for both McMillan and McHardy.
Sentencing Considerations
14 Lest I fail to mention it in the course of the reasons that follow, I say now that I have taken into account all of the submissions made and all of the exhibits tendered by both parties. So too have I taken into account the evidence called on the plea from two witnesses, Mr Rowe and Mr Graham. A large range of materials was tendered on your behalf by Mr Langslow on the 16th July and at the time I had very little opportunity to meaningfully view the materials as for some reason the Practice Direction requiring filing of materials was ignored. I stood down to read the materials. I have since the plea read all of the references, reports and other exhibits in great detail. I take them all into account.
Background
15 Before turning to consider the matters raised by counsel, I want to turn briefly to your background. I do so briefly as I see no need to go to the full personal background placed before me. I have no reason to doubt the background placed before. Generally it was placed before me by adopting the background set out in the report of Mr Newton in exhibit 2. There was reference to your disadvantaged background in the very thoughtful reference presented by your younger brother, part of exhibit 7.
16 So I am not going to fully restate or recite your personal background in these reasons as I accept the personal background placed before me. You are now 49 years of age born in 1963. Your mother was only 15 years of age when you were born and this led to a great lack of stability in your life. That is very clear from the materials and is hardly surprising I suppose. Your early life, your life as a child and then as an adolescent was dysfunctional, with fragmented schooling and movement from your mother to your grandparents from time to time.
17 You were educated to year 10 level. Mr Newton indicates there was little security in your early attachments or consistency in care givers. To quote your brother: “ Neither I nor my two older brothers Andrew and Paul knew our fathers very well at all and they certainly never lived with us in what you might consider a family arrangement. Instead, we had a series of step parents, some better, some worse, some quite violent, some not so”
18 On any view of it, your upbringing was far from ideal and I take it into account in so far as I am able to.
19 I was not told much of your activities since leaving school. You had worked as a shunter on the railways and did some work with a car detailer and also a safety barrier company as part of exhibit 7 makes clear. Mr Newton describes your employment history as ‘patchy engagement’ in manual and semi-skilled positions.
20 A large portion of the plea focussed on what has happened in your life since these crimes and the positive steps you have taken. It is referred to in the report of Mr Newton, in the references from your University lecturer and course co-ordinator as well as in the personal references and evidence given. What is very clear from the materials before me is that since your involvement in these crimes you have taken some significant steps along the road to rehabilitation. You gained entry into Victoria University and now find yourself in the second year of a Bachelor of Science degree. There are 2 references as part of exhibit 6 which commend your approach to university life.
21 As to drugs in your life, you have had very significant issues with drugs over the years though it is not suggested that they had any role at all to play in this actual offending. Your counsel indicated that you make plain on one of the tapes that you were not a user of cannabis.
Prior History
22 You have had a handful of appearances before the courts but really those matters assume no weight at all in my sentencing task. The most recent offence was dealt with in 1995 over 18 years ago. None of the offences for which you have been dealt with in the past possess anything like the seriousness of the current offending. Nor were any of those offences particularly serious as the sentencing dispositions make clear. So of course the history impedes your counsel from saying you have not been to Court before but that is about as far as it goes. There has been no subsequent offending so there is nothing outstanding other than some summary offences relating to these proceedings.
Psychological materials
23 As I have indicated, there is a report of Mr Newton marked as Exhibit 2. I take into account the report. It sets out personal background including educational and substance use history and comments on your cognitive functioning. He says you are of normal intelligence though your counsel suggested that it was apparent to him at least that you were really quite an intelligent man. Though Mr Newton suggests you express apparent genuine remorse, that is not a matter within his expertise and he in no way grapples with the fact that a week before his most recent dealing with you, you were applying to change your plea in relation to every charge. Indeed in the background to offending section of the report at page 5, there is reference to a dissatisfaction in your mind as to the guilty plea as well as a current mindset as to the ulterior motives of those prosecuting you. At paragraph 32 Mr Newton indicates that you told him that your period on remand had opened your eyes to the true effect of drugs. Of course the change of plea application was years after your release from custody. I will return to some of these issues when considering the presence of remorse. Perhaps Mr Newton would do better to limit his account to matters of expert opinion. In that respect, he found you were suffering from intense anxiety and commented on the treatment you had obtained. Of particular note, and relied upon by your counsel was the phobic anxiety spelt out in Mr Newtons report and referred to in the report of Dr Keane. There is no condition relied upon in the report as in any way reducing your moral culpability for the offending or reducing the emphasis to be given to specific and general deterrence. Though there was reference to your having a personality meeting the description of a paranoid personality disorder, that condition was in no way relied upon as attracting any of the principles from Verdins v R. I take into account that report.
Guilty Plea
24 You have of course pleaded guilty to these offences and that has a strong utilitarian value. I am required to take into account the fact of your guilty plea. I do and discount the sentence as a result of your plea. I am also required to take into account the stage of the plea. On any view of it, this was quite a late plea with the resolution announced in late June 2012, arraignment following on 2nd July as against a trial date of 30 July 2012. As late as the plea was I do accept that it was not a simple business resolving this matter. There were a range of more serious charges laid and there was the complication of your being discharged in relation to some charges at committal, leading then to the service upon you of the statements of Mr McMillan, your co-accused. What is important is the fact that ultimately, you have pleaded guilty. Witnesses have been spared the experience of coming to court for trial. The community has been spared the time, cost and the effort associated with an actual trial in this court. So I do tell you that I will be passing a lesser penalty because of the fact of your guilty plea. That discount and its dimensions has nothing to do with the strength or otherwise of the Crown case or the presence or otherwise of remorse. It is conferred because of the very fact of your plea and the utilitarian benefits associated with a guilty plea.
Remorse
25 As to remorse, well sometimes, but certainly not always, a guilty plea of itself will evidence remorse. Here the case against you was an overwhelming one as your counsel agrees. Your counsel argues that I should find that you are remorseful for the commission of these crimes. He relies upon the material in Mr Newton’s report and utterances in some of the other references. The trouble with this contention is that it is you who applied recently to this Court to change your guilty plea in relation to every charge. That was first indicated following the contested plea date listed for 15th March 2013 being adjourned when you changed practitioners. Your new practitioners on 19 March foreshadowed a change of plea application and that was confirmed to be the position at a mention on 10 April 2013 before Judge Cannon. Thereafter, the matter was listed for change of plea application before Judge Cannon on 19th June 2013. As I have said earlier in these reasons, on that day, she was persuaded not to hear your application. Fortunately, I was available to immediately step into the matter saving you from any further significant delay. Your then counsel Mr Danos in your presence made submissions on that day arguing that there would be a miscarriage of justice if the guilty pleas on all charges were not vacated, arguing that there actually was no criminal conspiracy at all and that you were not trafficking in any drugs as you were not even in possession of them at all. Possession could not be proved. Your application proceeded before me deep into the afternoon of the 19th June and was adjourned part heard to the 21st June. By that stage, on the 19th June, the Crown had already made answering submissions strongly resisting the grant of your application. On the adjourned date, you withdrew your application but your counsel subsequently filed a document dealing with factual disputes which sought to distance you from any drugs at Preston. See exhibit E paragraphs 3 and 4. That stance was not persisted in when the matter came before me on the first day of the plea.
26 Now I have no problem accepting that it must be very difficult to get to the end point of a case such as this especially where that end point is surely to dramatically alter your position. However the sense I pick up from the report of Mr Newton is of a reluctant or grudging acceptance of guilt and a sense of the prosecution being based on some ulterior motive. It is you who has taken the significant step of endeavouring to withdraw your guilty plea so that you could plead not guilty to each charge. To dispute your guilt. It was not done spontaneously. It was foreshadowed by you in an email a day after arraignment last year, (see exhibit D) then raised as an issue by your counsel in your presence before Judge Cannon in March of this year and thereafter on a number of occasions leading to the formal listing of the application. Mr Langslow suggests that really the court just should ignore those steps taken on your instructions. I cannot. They were deliberate and conscious steps taken on your instructions which could well have led on the 19thJune to a successful withdrawal of your guilty plea. That is what you wanted. Though there are references in the materials to remorse and regret, not one of the references or the reports deals with this chronology. I am afraid that in all of the circumstances, I am simply not able to find that you have any remorse for your crimes. That is not a matter in aggravation obviously enough. I am just not satisfied as to the presence of a matter in mitigation. As I have said, none of the references or the reports grapple with the chronology of the change of plea application. I must and it leaves me with real and substantial doubts as to the presence of any remorse in your case.
Increased custodial Burden
27 You have a raft of health complaints and concerns spoken of in the report of Dr Keane and the other materials, not the least of which is your sleep apnoea. I take them all into account. You require a CPAP machine for the sleep apnoea and have had gastric lap band surgery which will require adjustments of the process 3 or 4 times a year and significant changes to your diet. No one suggests that your various conditions cannot be managed adequately in a prison setting. There is an affidavit marked as exhibit C from Rebecca Redpath suggesting your conditions can be managed in custody. But that does not provide the definitive answer as to whether the conditions themselves either individually or in combination are likely to increase your custodial burden. It seems to me that these physical conditions and the panic disorder or phobia referred to in the materials undoubtedly will increase to a degree your custodial burden. I take this into account in mitigation. I invited your counsel on two occasions to consider whether the principles enlivened in a case of Verdins v R had any application and to address me on this topic. It is a decision of the Court of Appeal of this State which in the broadest of terms relates to the mitigatory impact upon the sentencing process of illnesses or conditions existing either at the time of the offending or sentence, or both. I should say that is something of a gross simplification of the decision. Your counsel made clear that there was no suggestion of any reduction of moral culpability in this case nor any suggestion of any of the other principles applying such as to lead to a reduction in the emphasis to be placed on general or specific deterrence. He stated that the phobia or panic disorder might possibly be picked up by one of the principles in Verdins but he really doubted that it would be. He argued it would have some application whether recognised in a Verdins way or otherwise. As I have said, I judge that it does have a mitigatory value here and I take it into account in a mitigatory fashion. That condition and the physical problems will increase your custodial burden. The 5th limb of Verdins would have an application in this case independent of the physical ailments because of the phobia referred to.
Delay
You stand now in July 2013 to be sentenced for crimes committed by you in 2009. The delay has been significant. I don’t think there is any profit in my working may way through every listing date and adjournment as it has been said repeatedly by those above me in the Court hierarchy to be an unprofitable exercise. If I did, these reasons would expand by several pages. The fact is that when I came into the matter on the 19th June in the change of plea application, the chronology was significant to that application and I spent a large period of time in open Court setting out the full chronology. There was reference to portions of the chronology in an affidavit sworn by Ms Richter, the Crown instructor. You exercised your rights in running a committal and then electing to stand your trial. You obviously won’t be punished for that. No one has suggested that the delay has been produced by a leisurely prosecution attitude. The matter settled in late June 2012 and arraignment took place on 2nd July 2012. I set out some of this chronology a bit earlier in these reasons and return to it now in the context of delay. The matter went off to a date in November with the desire expressed that her Honour Judge Cannon should hear the plea. Ultimately the contested plea went off to March 2013 and in the lead up to that date, you withdrew instructions from Mr Georgiou SC and instructed new practitioners and foreshadowed a change of plea application. That ultimately came before Judge Cannon on the 19th June only for an application to be made for her to disqualify herself which she did. I note that the disqualification application was made without any notice to the Court, over 11 months after you had entered the plea and your then counsel argued before Judge Punshon in favour of the plea being assigned to Judge Cannon given her involvement with Mr McHardy. The following day the 3rd July 2012 you sent an email to your solicitors spelling out your desire that Her Honour not hear the plea but making clear that the email and subjects discussed not be disclosed to the Crown. So the matter lay dormant, at least from the prosecution and the Court. I stepped in to the matter on the day Her Honour disqualified herself and as I have said, the application ran for the balance of the day but then was withdrawn. Once that change of plea application was withdrawn on 21 June, an application was made by Mr Danos on your behalf to adjourn the matter so that various plea materials could be obtained and the points of contest discussed. I did not permit the adjournment sought, instead adjourning to early the next week and then again at his request to the 16th July. This so plea materials could be gathered or updated in a matter that from the 2nd July 2012 to at least March 2013 was always proceeding as a plea as far as the Crown and the Court were concerned. Ultimately as I have said the plea came before me on 16 and 17 July and there was virtually no factual contest at all.
That this matter should have been dealt and finalised well before now is clear enough to me. As I have said though, it is unprofitable to examine the reasons for the delay and to apportion blame and I certainly am not prepared to find as against you that you have deliberately changed tack or taken deliberate steps throughout to draw out the proceedings. Ultimately it is the fact of delay which is significant and its impact upon you. I have no difficulty in accepting your counsel’s argument that there is punishment aplenty in the state of suspense in which you have lived your life over the years in which this matter has hung over your head. Some of the referees speak of the stressful impact or toll of the outstanding matter. Further, in the period of the delay you have engaged in what I judge to be quite significant steps which suggest you are moving along the path to rehabilitation. You have undergone counselling in relation to drug use and are said to be drug free. See report of Jennie Rae. You have not committed further offences. You have done a number of courses prior to enrolling at Victoria University and are now mid way through a science degree. You are engaging well in those studies and interacting appropriately with others. You have a positive outlook. These are steps a long way removed from mere window dressing in the lead up to a plea. They suggest to me that you do see some real future ahead for you, a future as a law abiding member of society. Had the plea been conducted years ago and submissions made then as to these possible future prospects, they would have been but submissions and likely viewed as overly optimistic. Here what is relied upon is your achieved conduct over a significant period as demonstrating that you are actually on the right track at last. I judge the delay to be a significant factor in mitigation. I do take into account the delay in this matter in the ways argued by your counsel.
Parity
The principle of parity of sentence is an important consideration whenever a Court sentences two or more co-offenders. It is inherently unjust to discriminate in the sentences imposed upon equally culpable and equally positioned co-offenders. A court must strive to avoid any unjustifiable disparity or sense of grievance flowing from disparity of sentence. However very often there is a range of differences between offenders in terms of personal circumstances, role or the presence or otherwise of mitigatory matters. The fact is that very seldom are offenders equally positioned. That is obviously the position here. The prosecution placed before me a chart (exhibit B) marking out the various sentencing findings made by two other judges. I have of course read the full sentencing remarks of each Judge. The sentences imposed in those cases were as a result of that particular judge’s intuitive synthesis in that other case. Your personal circumstances are very different. You have matters in mitigation that they did not have. They had matters in mitigation not applicable to your case, for instance the presence of remorse and an early plea. There are differing roles or levels of involvement. Mr McHardy clearly had a very significant prior appearance for cultivation in a commercial quantity. You do not. McMillan had no prior matters at all. It is clear to me and I am satisfied beyond reasonable doubt of this having examined the recorded conversations that McHardy was the more minor player in the conspiracy. He had come out of prison. It was you who acted as the financier or backer for the proposed cultivation in a house in the Mildura region that you intended to fund. You had significant funds available to you so financial need is not pleaded on your behalf. My point is that very seldom are their like offenders. I must not lose sight of the many differences between the various players including in McMillan’s case the fact that he was dealt with for a more serious crime (commercial quantity by manufacture) but one who pleaded early, had no criminal history, gave an undertaking to give evidence and was remorseful. At the end of the day, of course I do have regard to the sentences passed upon McHardy and McMillan and the proper application of the principle of parity of sentence. I must reach my own conclusions as to your role, the mitigatory matters in your case and the appropriate sentence to pass upon you.
CSP
I take into account current sentencing practice. I have looked at the relevant Sentencing Snapshot for the crime of trafficking in a non commercial quantity (number 129 of 2012) . I have looked at a range of cases including Xi v R 2011 VSCA 342 and Baensch v R 2010 VSCA 191 and the tables of sentencing outcomes contained in that later case. I have looked at the JCV site and the table of cases and summaries in both the trafficking area and the possession of equipment charge. See 33.13.4.1&4 and 33.13.8. For that later charge, I have looked also at Ververis v R 2010 VSCA7 and the other cases referred to in the JCV manual. Having done all these things, once again it is apparent to me that there are very clear limitations in statistical materials and in examining other cases. No two cases are alike. I must reach my own instinctive or intuitive synthesis in this case.
Rehabilitation
28 As I have made clear when dealing with the issue of the delay in this matter, I am encouraged that you have taken the steps that you have in furthering your education. It is significant. So too is it significant that you have engaged with a drug counsellor. You have made some real gains and of course I do harbour a level of anxiety in potentially disturbing those gains. It is plainly in the communities interests that you continue to walk along the road to rehabilitation and that your steps in this regard are recognised. If you can remain free of any illicit drugs, then I believe you do have quite good prospects of rehabilitation. Those prospects will surely be improved if you further your education, obtain your degree and achieve some skills which will make you actually employable in a lawful field you enjoy. You are already some distance down that path. It is a work in progress. However, I am concerned as to your recent attitude to your own offending, your sense of the so called ulterior motives of the prosecution and your endeavour to alter your plea and the recency of that attempt. I am ultimately prepared to find that you have quite good prospects of rehabilitation.
Offence Gravity
29 As to your offending, I certainly don’t accept that the trafficking embraced by charge 2 is to be viewed as at a low level. It wasn’t low level offending at all. The quantity of drugs is at the high end of non commercial quantity by mixed weight and you had a direct relationship with the cook. As to the drugs in liquid form at Preston and those trafficked by you at Kangaroo Flats, Harcourt or Clydesdale, there is no suggestion of anyone above you in any hierarchy. Nor was the conspiracy a low level example of that offence. Conspiracies vary widely in seriousness and criminality. This was not some feeble discussion with a view to achieving unrealistic or preposterous goals. It was focussed and detailed discussion and was accompanied by meaningful acts including a trip to Mildura to explore various premises. It is equally clear to me from an analysis of the recorded conversations that you were the driving force in that conspiracy. Quite aside from the financial dominance, you were telling McHardy how he would behave, what he would do and what he would not do. Her Honour Judge Cannon found that the scale of cultivation contemplated was a substantial and sophisticated cultivation of cannabis at a non commercial level. See Judge Cannon paragraph 35. That conclusion was undoubtedly correct and her sentence imposed on McHardy as far as I am aware remains undisturbed. You understood clearly the risks involved and the seriousness of what was being discussed. The recorded conversations themselves involved a form of risk assessment and also refer to a potential court sequel where you said to McHardy “at the end of the day you don’t want to have to look at that fuckin jury” see 2676. As to charge 7, you must have taken real and concerted efforts to bring together the materials, substances and equipment and with the purpose or intention at least as of the 1st April 2009 to traffick by manufacture. It is a serious example of the offence but obviously less serious than some cases where there are vast quantities of chemicals and or precursors.
Purposes
30 I have to consider a number of purposes of sentencing and they are not limited to your prospects of rehabilitation which as I have said, I judge to be quite good. I am required to impose a just and a proportionate sentence in relation to your offending. You must be punished. Prison is always a disposition of last resort. I must also consider the need to protect the community from you. That is still a relevant purpose here but reduced to a degree as a result of your progress to date.
31 As I have indicated, there are other purposes of sentencing and one of those is the need for this court to seek to discourage or deter you from offending in the future. Your counsel says that is irrelevant. That simply cannot be so. I do to a degree reduce the weight to be given to that purpose given the findings I have made as to the steps you have taken since the crimes and your rehabilitative prospects but it is still a relevant purpose and must be so given the nature of your crimes and your sense of dissatisfaction or ambivalence as to your guilty plea and hence your guilt.
32 Quite aside from the need to deter you, as I have indicated, this court must send a message loud and clear to other individuals in the community who might be minded to commit these sorts of offence. General deterrence is of real importance in a case such as this. The illegal trade in drugs has exerted a massive and a dreadful toll on our community. Many aspects of our lives have been forever altered by the influx of drugs into our community. The Act does not draw distinctions between the harmfulness of particular drugs. You have admitted to trafficking in a variety of drugs in varying quantities. Charge 2 is at the higher end of the non commercial weight threshold. In fact the amount actually produced at McMillan’s in mixed weight exceeded the 500 gram commercial quantity threshhold but you are not to be sentenced on that basis even taking into account the other methylamphetamine you possessed for sale at other addresses. But it is clearly serious offending, the most serious of the trafficking charges as a result of the quantity of drug and the relationship with the ‘cook’. Though the quantities of other drugs are much smaller, they are still serious charges.
33 The courts are required to discourage or dissuade those who might consider trafficking in drugs at any level. Those who traffick in drugs at any level are usually taking a calculated risk or gamble. You were. As to the conspiracy, well you made plain the risks. As I have said, a form of risk analysis was engaged in in the recorded discussions between you and your co-conspirator.
34 Well, others must understand that one of the risks is of apprehension. Arrest, and prosecution; of being caught, of being sentenced by a court. Of losing one’s liberty.
Sentence
It is conceded that the only available disposition is a term of imprisonment though it was argued that such a term might be suspended either wholly or in part. Suspension is only available if the total effective sentence is no greater than three years. It is quite impossible to impose such a sentence given the seriousness of your offending and the need to order some level of cumulation as between a number of the separate sentences.
I make clear that I have paid regard to the principle of totality of sentence and have moderated as far as I am able to the extent of cumulation as between the individual sentences. But there must be some cumulation and quite sizeable cumulation in some instances. You have committed some quite separate crimes though obviously in the same time frame. I have considered the overall effect of the sentences shortly to be pronounced in an endeavour to avoid a crushing outcome.
Ancillary orders s.464 ZF
35 An application has been made for a forensic sample order pursuant to the provisions of s.464ZF(2) of the Crimes Act. You consent to the making of that order.
36 I have signed the 464ZF order and I pronounce it in the following terms:
Disposal
A disposal order is sought in relation to various equipment and materials referred to in the schedule. The order is not opposed. Again, I pronounce the order:
Transfer of summary offences to Magistrates Court
I order the transfer of the summary offences back to the Magistrates Court for mention on 7 August 2013.
Sentence
Would you stand up please, Mr McNaughton?
37 In relation to charge 1 conspiracy to cultivate cannabis, I convict and sentence you to 27 months imprisonment.
38 On charge 2, trafficking in methylamphetamine, I convict and sentence you to 3 years 8 months or 44 months imprisonment. This is the base sentence.
39 On charge 3, trafficking in ecstasy, I convict and sentence you to 2 ½ years imprisonment.
40 On charge 4 trafficking in cocaine, I convict and sentence you to 18 months imprisonment.
41 On charge 5 trafficking in MDA, I convict and sentence you to 2 years imprisonment.
42 On Charge 6, trafficking in LSD I convict and sentence you to 12 months imprisonment
43 On charge 7, possession of substances and equipment for the purposes of trafficking in a drug of dependence, I convict and sentence you to 2 ½ years imprisonment.
44 Finally on charge 8, possession of a precursor chemical, I convict and sentence you to 6 months imprisonment
Cumulation
45 I direct that 12 months of the sentence imposed on charge 1, 10 months of the sentence imposed on charge 7, 6 months of the sentence imposed on charge 3 and 4 months of the sentence imposed on charge 5, be served cumulatively upon the base sentence and upon each other.
Total effective sentence
46 This results in a TES of 76 months or 6 years and 4 months imprisonment.
Non parole Period
47 I fix a period of 46 months or 3 years and 10 months during which you will not be eligible for release on parole.
Section 18
You have spent 192 days in custody in relation to this matter and pursuant to section 18 of the Sentencing Act, I declare that this period be noted in the records of the Court as already having been served in relation to this sentence.
Section 6AAA
48 Under s.6AAA of the Sentencing Act, I declare that but for your plea of guilty, I would have imposed a more significant term. I would have sentenced you to a term of 8 ½ years imprisonment with a non parole period of 6 years. That statement is to be noted in the records of the court pursuant to section 6AAA.
49 Are there any other matters?
50 Remove Mr McNaughton please.
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