Director of Public Prosecutions v Proko

[2015] VCC 422

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR-14-00528

DIRECTOR OF PUBLIC PROSECUTIONS

v

EDMOND PROKO
JAMES KELSEY
CATHERINE MCNAUGHTON

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JUDGE:	HIS HONOUR JUDGE DEAN
WHERE HELD:	Melbourne
DATE OF HEARING:	23 February 2015, 1 April 2015
DATE OF SENTENCE:	9 April 2015
CASE MAY BE CITED AS:	DPP v Proko
MEDIUM NEUTRAL CITATION:	[2015] VCC 422

REASONS FOR SENTENCE
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Subject:
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Cases Cited:
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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms A. Ellis	CDPP
For Accused Proko	Mr R. Backwell	Valos and Black
For Accused Kelsey	Mr J. McQuillan	Patrick W Dwyer
For Accused McNaughton	Dr M. Marich	Dr Martine Marich

HIS HONOUR: 

1Edmond Proko, James Kelsey and Catherine McNaughton, following a trial that occupied ten sitting days in this court, you were each found guilty of the following offences -

2Edmond Proko, one charge of trafficking in a large commercial quantity of a drug of dependence, namely ephedrine, contrary to s.71 of the Drugs, Poisons and Controlled Substances Act 1981. The maximum penalty for that offence is life imprisonment, and one charge of attempting to traffic in a large commercial quantity of a drug of dependence contrary to s.71 of the Drugs, Poisons and Controlled Substances Act 1981. The maximum penalty for that offence is life imprisonment.

3James Kelsey, three charges of attempting to traffic in a commercial quantity of a drug of dependence, namely ephedrine, contrary to s.71AA of the Drugs, Poisons and Controlled Substances Act 1981. The maximum penalty for that offence is 25 years' imprisonment.

4Catherine McNaughton, one charge of attempting to traffic in a commercial quantity of a drug of dependence, namely ephedrine, contrary to s.71AA of the Drugs, Poisons and Controlled Substances Act 1981. The maximum penalty for that offence is 25 years' imprisonment.

5The jury found each of you not guilty of other offences, as in my opinion, it was not satisfied beyond reasonable doubt that you knew or believed the boxes you were each concerned with contained drugs of dependence until you were aware of what the boxes did in fact contain.

6Your respective offending may be summarised as follows. 

7Edmond Proko, you travelled to Australia from Canada and arrived here on 28 July 2013.  You did so at the direction of two Vietnamese men in Canada.  You were told you were to move some items located in a storage facility in Melbourne.  The items were in fact numerous boxes containing jars, which in turn contained white powder, containing approximately 207 kilograms of pure ephedrine.  A precursor used in the manufacture of methamphetamine and valued at approximately $8 million.  The ephedrine was capable of producing approximately 100 kilograms of methamphetamine.

8You were to be paid $40,000 for moving the boxes containing the jars.  On 5 August 2013, you moved the boxes from one storage unit to another at Austpac Self Storage in South Melbourne.  On 15 August 2013, at the direction of the persons in Canada, you met two Asian males, Mai Ding Huang To and Jimmy Kwong Liu, and gave them two boxes containing 64 jars containing the white powder and a black bag containing a further 7 jars containing the white powder.  To and Liu were apprehended by police in a vehicle in New South Wales.

9Following examination of the jars, it was established that they contained a total of 18.4 kilograms of pure ephedrine.  This conduct was relied upon by the prosecution in proof of Count 2 on the Indictment in your case.

10On 8 October 2013, you met with James Kelsey at a restaurant near Crown Casino and gave him the key and passcode to the storage unit at Austpac in South Melbourne.  Following the arrest of To and Liu, the contents of the jars had been substituted with sugar by investigating AFP officers on 20 September 2013.  After giving the key and the passcode to Kelsey, the following day, you extended the lease on the storage unit.  These acts were relied upon by the prosecution in proof of Charge 3 on the Indictment in your case.

11You played an important and trusted role in the activities of a foreign syndicate involved in the trafficking of a very substantial quantity of an illegal drug of dependence, which is used to manufacture methamphetamine.  You did so for profit and in full awareness of the scale of the illegal activity you were involved in.  Your offending is of the utmost seriousness.  Illegal drugs of dependence, particularly methamphetamine, cause incalculable damage to our society and the sentence that I impose must be calculated to deter others from offending in this way.  Our society must be protected from people like you and you must be punished for what you have done.

12The prosecution submitted that you are to be sentenced as a serious offender in respect of Charge 1 and thereby the protection of society is the principal purpose for which the sentence is to be imposed.  The prosecution did not submit that I should impose a disproportionate sentence in order to achieve this objective and I have not done so.

13You were arrested by investigating police on 20 October 2013 at Melbourne Airport, and you have been in custody since that date. 

14You were born in Albania on 20 June 1967 and are now aged 48.  You have no criminal history.  You are married and have a son aged four years.  Your wife and son reside in Toronto in Canada.  Your wife is also Albanian and she has no relatives in Canada.  Her financial circumstances are poor.  You both became Canadian citizens in 2008.

15I accept that you and your family were persecuted in Albania by reason of your political and religious beliefs, and you were imprisoned there yourself.  Since that time, you have suffered from anxiety and depression.  I have received in evidence a psychiatric report of Dr Lester Walton, a consulting and forensic psychiatrist, and despite your unsettled demeanour during the proceedings in this court, it appears that you do not suffer from any frank mental illness and are of average intelligence.

16I accept that your imprisonment and isolation from your wife and child will, however, compound your depression and anxiety.  In my opinion, you are a simple person and your offending was in part caused by a degree of naivety.  On 31 August 2013, you contemplated reporting your situation to police.  But after visiting Victoria Police in St Kilda Road on that day, you did not proceed beyond obtaining the address from them of the AFP headquarters in Melbourne.  You were no doubt very troubled by your situation and probably feared for your safety and the safety of your family.

17It would appear that by reason of your status as a foreign national, you will serve your imprisonment in maximum security and I accept that this will further compound the isolation that you will experience. 

18I must also not impose upon you a sentence that is crushing and in my opinion, it is unlikely that you will reoffend and your prospects of rehabilitation may properly be described as good.

19I have also been conscious not to be unduly influenced by the very substantial quantity of ephedrine that you were concerned with and I have taken into account and given balance to all relevant sentencing considerations in your case.

20James Kelsey, you were also recruited by two Vietnamese men in Canada to move the boxes that were in storage in Melbourne and to distribute their contents.  You were introduced to the men in Canada by an associate of your co-accused and first cousin, Catherine McNaughton.  In all probability, you and McNaughton were sent to Australia as the syndicate had become concerned about the reliability of Proko and may have also become aware of the arrest of To and Liu.

21On 13 September 2013, you and McNaughton arrived in Australia from Canada.  You expected to receive $100,000 for your activities here to be shared between yourself and McNaughton.  At the direction of the principals in Canada, you leased another storage unit at Kennard's Self Storage in Port Melbourne on 7 October 2013.  After receiving the key and passcode from Proko, for the Austpac storage unit in South Melbourne, you and McNaughton moved all of the boxes to the Kennard's unit on 9 October 2013.

22The following day, at the instruction of the principals in Canada, you delivered one jar containing the white powder to a person at Luna Park in St Kilda and two jars to another person in Clifton Hill.  Prior to the contents of the jars being substituted by the AFP, each jar contained approximately 311 grams of pure ephedrine.  The delivery by you of the jars on 10 October 2013, was relied upon by the prosecution in proof of Charges 5 and 6 on the Indictment in the case against you.

23On 18 October 25013, you delivered a further five jars to a person in Northcote, again at the instruction of the principals in Canada.  This conduct was relied upon in proof of Charge 7 on the Indictment in your case.

24You also played and important and trusted role in the activities of a foreign drug syndicate in the distribution of drugs of dependence in Australia.  You did so for profit and with full knowledge of the scale of the operation you were involved in.  You offending is also of significant seriousness and the sentence that I impose in your case must be calculated to deter others from offending in this way.  You also must be punished for what you have done.  Our society must be protected from people like you and you are also to be sentenced as a serious offender in relation to Charges 6 and 7 on the Indictment. The prosecution do not submit that I should impose a disproportionate sentence in relation to these charges and I will not do so.

25You were also arrested on 20 October 2013 and have remained in custody since that date. 

26You were born on 9 October 1986 in Canada.  You are now aged 28.  You have no prior criminal history.  You have never been married and have no dependents or children.  You have completed Year 12 in Canada and are adept to technology maintenance and repairs.

27However, your work history reveals a series of unskilled positions and at the time of becoming involved in this offending, you were unemployed.  I accept that your personal development was disrupted by the death of your father when you were 17.  There was also a very significant age gap between your mother and your father and your mother has a history of significant health problems.  You have one sister and one half-brother.  You suffer from asthma.

28I have received in evidence a psychological report of Mr Jeffrey Cummins, a consulting and forensic psychologist, in relation to your development and psychological profile.  I accept that you have experienced depressive episodes in the past and this will compound the isolation you will experience as a result of your imprisonment in Australia.

29However, you do not have any children unlike Proko and McNaughton and your isolation does not involve the same degree of personal separation that they will experience.  I also accept in your case that it is unlikely that you will reoffend and your prospects for rehabilitation may also be described as good.

30Catherine McNaughton, your role in the offending was to support Kelsey and act as his driver.  You drove him to Northcote on 18 October 2013 and knew he was to deliver a box containing drugs of dependence to another person.  The prosecution accept that you should be sentenced on the basis that you intended to traffic no more than a commercial quantity of ephedrine, namely 100 grams.  Nevertheless, you were also aware of the context in which your act of trafficking occurred and you also offended for profit.

31You were born on 12 August 1983 in Canada and are now aged 31.  You have no prior convictions.  You have one daughter aged 13 who is now being cared for by your parents in Canada.  You completed Year 11 at school and fell pregnant with your daughter, Luna, in Year 12 when you were aged 17.  Your main vocational interest is photography and this has been your main source of income in recent years.

32I have received in evidence a psychological report of Mr Gary McMullen, a consulting and forensic psychologist, detailing your background and psychological profile.  I accept that following sexual assaults on you as a child, your personal development was disrupted and you suffer from a degree of Post-Traumatic Stress Disorder and associated depression.  This in turn will compound the isolation that you are experiencing in prison and that your distress at your separation from your daughter.

33I accept that you are also unlikely to reoffend and your prospects for rehabilitation may properly be described as good.

34Specific deterrence is not a significant sentencing factor in any of your cases and you will also all be deported on completion of your sentences. 

35I have been referred to the sentences imposed on To and Liu in the District Court of New South Wales on 14 November 2014. Both pleaded guilty to supplying a large commercial quantity of a prohibited drug, contrary to s.25(2) of the Drug Misuse and Trafficking Act 1985 (NSW). The maximum penalty for that offence is life imprisonment.

36I have been provided with a copy of the sentencing Judge's reasons for sentence.  The sentences imposed by His Honour were structured under a different statutory sentencing regime to that applicable in Victoria.  It is also clear that ephedrine is not regarded as seriously in New South Wales as it is in Victoria as the quantity to engage the large commercial quantity provisions in New South Wales is five kilograms, whereas in Victoria it is 750 grams.

37The sentences were also imposed following a plea of guilty and the context of the offending would not appear to be akin to that in the cases before this court.  Whilst I have had regard to the principles of parity in sentencing, I do not accept that the sentences imposed on To and Liu constitute a benchmark in relation to the sentences that I must impose in this case.

38Upon your arrest, you each participated in records of interview.  You each made admissions against interest but otherwise denied your offending.  None of you provided material assistance to the police investigating the wider syndicate responsible for the trafficking of the very significant quantity of ephedrine involved in this case.  

39In the result, the sentences of the court are as follows -

40Edmond Proko, on Charge 2 on the Indictment, trafficking in a large commercial quantity of a drug of dependence, you are convicted and sentenced to be imprisoned for seven years. 

41On Charge 3 on the Indictment, attempting to traffic in a large commercial quantity of a drug of dependence, you are convicted and sentenced to be imprisoned for 12 years. 

42I order that two years of the sentence on Charge 2 be served cumulatively on the sentence on Charge 3. 

43This makes for a total effective term of imprisonment of 14 years. 

44I direct that you serve nine years' imprisonment before becoming eligible for release on parole. 

45I declare that you have served 536 days by way of pre-sentence detention not including today.

46James Kelsey, on Charge 5 on the Indictment, attempting to traffic in a commercial quantity of a drug of dependence, you are convicted and sentenced to be imprisoned for three years. 

47On Charge 6 on the Indictment, attempting to traffic in a commercial quantity of a drug of dependence, you are convicted and sentenced to be imprisoned for four years. 

48On Charge 7 on the Indictment, attempting to traffic in a commercial quantity of a drug of dependence, you are convicted and sentenced to be imprisoned for six years. 

49Charge 7 is the base sentence.  I order that six months on Charge 5 and 18 months on Charge 6 be served cumulatively on each other and cumulatively on the sentence imposed on Charge 7. 

50This is makes for a total effective term of imprisonment of eight years. 

51I direct that you serve five years' imprisonment before becoming eligible for release on parole. 

52I declare that you have served 536 days by way of pre-sentence detention, not including today.

53Catherine McNaughton, on Charge 7 on the Indictment, the charge of attempting to traffic in a commercial quantity of a drug of dependence, you are convicted and sentenced to be imprisoned for four years and nine months. 

54I direct that you serve two years and six months before becoming eligible for release on parole. 

55I declare that you have served 536 days by way of pre-sentence detention, not including today.

56Are there any further orders required Mr Sinnett?

57MR SINNETT:  No, Your Honour.

58HIS HONOUR:  Mr Backwell?

59MR BACKWELL:  No, sir.

60HIS HONOUR:  Ms Garner?

61MS GARNER:  No, Your Honour.

62HIS HONOUR:  Dr Marich?

63DR MARICH:  No, Your Honour.

64HIS HONOUR:  Thank you.

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