Director of Public Prosecutions v Ray
[2023] VCC 1050
•21 June 2023
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT Melbourne
CRIMINAL jurisdiction
CR 21-01073
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MICHAEL RAY |
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JUDGE: | HER HONOUR JUDGE MARICH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 8 May 2023 | |
DATE OF SENTENCE: | 21 June 2023 | |
CASE MAY BE CITED AS: | DPP v Ray | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1050 | |
REASONS FOR SENTENCE
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Subject:SENTENCE – CRIMINAL LAW
Catchwords: Sentence – one charge of trafficking in a commercial quantity of a drug of dependence; one charge of trafficking in a drug of dependence; one charge possess an unregistered general category handgun; four related summary charges
Legislation Cited: Sentencing Act 1991 (Vic)
Cases Cited:Worboyes v R [2020] VSCA 169; R v Hall [2023] VSC 151
Sentence: Total effective sentence of 8 years 6 months imprisonment with a non-parole period of 5 years imprisonment; 100 days of presentence detention reckoned as time already served under this sentence. 6AA declaration – 10 years 6 months imprisonment with an order for parole eligibility.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms V. Worrell | Office of Public Prosecutions |
| For the Accused | Mr J. Miller | Haines & Polites |
HER HONOUR:
Introduction
1Michael Ray, you have pleaded guilty to an indictment containing one charge of trafficking in a commercial quantity of a drug of dependence, namely methylamphetamine, which carries a maximum penalty of 25 years' imprisonment; one charge of trafficking in a drug of dependence, namely 1,4‑Butanediol, which carries a maximum penalty of 15 years' imprisonment; and one charge of possess an unregistered general category handgun, which carries a maximum penalty of seven years' imprisonment.
2Four related summary charges were uplifted into the hearing of the plea in mitigation of penalty and you pleaded guilty to those charges, namely one charge of possess cartridge ammunition, which carries a maximum penalty of 40 penalty units; one charge of possess prohibited weapon without exemption or approval, which carries a maximum penalty of two years' imprisonment and/or 240 penalty units; and two charges of deal with property suspected of being the proceeds of crime, which also carries a maximum penalty of two years' imprisonment and/or 240 penalty units.
3The prosecution has relied on a summary of prosecution opening for plea dated 3 April 2023, which I have received and marked into evidence (Exhibit A). I also received prosecution submissions on sentence dated 5 May 2023 (Exhibit B).
4In addition to the matters developed in oral argument, your counsel relied on plea submissions dated 5 May 2023 (Exhibit 1); a psychological report prepared by Sandra Cokorilo, dated 10 October 2020 (Exhibit 2); the results of drug tests (Exhibit 3); and the case of DPP v Fleming (a pseudonym) [2020] VCC 1860, relating to the reasons for sentence in one of your prior matters (Exhibit 4). I have also received the prosecution plea summary in respect of that matter.
5I have had careful regard to all exhibited documents, as well as to the matters developed in oral argument, when determining the appropriate sentences in your case.
Circumstances of your offending
6At the time of your offending, in August 2020, you were in a relationship with your co‑accused, Tegan Jones, and were living with her at an address in Market Street, South Melbourne. Another co‑accused, Aidan Cutajar, was an associate of you both, and would visit you at the Market Street address.
7On Saturday, 15 August 2020 at approximately 5.30 am, members of the Victoria Police Special Operations Group entered your apartment pursuant to warrant. The front door was forced open, which required repeated application with a blunt instrument, and Special Operations Group members entered your apartment shouting words indicating their status and their presence.
8Officers proceeded down a hall to the main living area of the apartment. Police there observed you and your co‑accused, Aidan Cutajar, standing still at the short end of a long kitchen bench facing police with a round table between you. Ms Jones was seated at that table.
9On the bench in front of you and Mr Cutajar were two bags. The first of those bags was a plastic bag tied with rubber bands and the second of the bags was a resealable plastic bag. On the floor near your feet was a small cup of crystal substance with its contents spilled onto the floor, together with a small scoop.
10The contents of the bag tied with the rubber bands was later analysed and was found to contain 496.9 grams of methylamphetamine. Your thumb print was located on the packaging of that bag.
11The contents of the resealable plastic bag were later analysed and were found to contain 72.9 grams of methylamphetamine. The quantity that had been spilled on the floor was later analysed and was found to consist of 54.9 grams of methylamphetamine. Further amounts adding up to approximately 50 grams of methylamphetamine were located throughout your premises. Your possession of these quantities for the purpose of sale is the offending referable to your Charge 1, trafficking in a commercial quantity of a drug of dependence, namely methylamphetamine, being a total of 677.5 grams, containing 542 grams of pure methylamphetamine, representing an average purity of 80 per cent. The threshold for trafficking commercial quantity of methylamphetamine is 50 grams (pure) and 250 grams where the substance is in an admixture, such as in your case.
12Police systematically searched and processed your address, seizing and photographing exhibits. I have had the benefit of a series of photographs of items seized.
13Amongst the items seized were a .22 calibre single-barrel revolver loaded with two rounds of ammunition inside a black case and capable of discharge. The revolver was later swabbed for DNA and was found to have a profile from which I can infer safely that you were a contributor (with a likelihood ratio of 100 billion times more likely that you contributed than another person). This is the offending referable to your Charge 3, possession of an unregistered general category handgun, and your summary offence of possess cartridge. Ammunition was also found in a Ziploc bag.
14In the course of the search, different plastic containers containing various amounts of 1,4‑Butanediol were found by police, with a total quantity of 287.1 grams. Your possession of these amounts for the purpose of sale is the subject matter of your Charge 2, trafficking in a drug of dependence simpliciter.
15In the course of the search police also located laptops, phones, notebooks containing information of drug traffickers, specifically names and outstanding moneys next to each name, and a large amount of cash. Items consisting of a Rolex GMT, two Nokia mobile phones, an Apple Mac laptop, a black Dell laptop, six Apple iPhones, two Samsung Galaxy mobile phones, an Apple iPad, an Arlo camera and a Luminor Panerai watch, are the subject matter of your first summary offence of deal with property suspected of being the proceeds of crime, together with cash located, namely $300,840, being the subject matter of your second summary offence of deal with property suspected of being the proceeds of crime. Police located knuckle dusters, which are the subject matter of your summary offence of possess prohibited weapon.
Plea of guilty and timing, remorse
16You were charged and remanded into custody on the day of your offending, that is 15 August 2020.
17The matter proceeded through committal proceedings in the Magistrates' Court and you were committed to stand trial in this court on 18 July 2022. The matter was listed for trial to take place in February 2023. However, it resolved in December 2022, shortly after the final directions hearing, and the trial was vacated. I accept and take into account that your pleas of guilty were entered well prior to a jury being empanelled to try the issues in your case. You have saved the court, the witnesses, and the community the time and expense of a trial.
18Your plea is of very considerable significance in the current era, where the effects of the COVID-19 pandemic continue to linger upon the listing of trials. Moreover, I consider that your plea is accompanied by some remorse and insight, and I mitigate sentence on each of these bases.
19Your co-offender Mr Cutajar pleaded guilty to the offence of trafficking (simpliciter) in methylamphetamine, relating to the 54.9 grams of the spilled quantity, and was sentenced to eight months' imprisonment, in combination with a two-year community corrections order. Your co-offender Ms Jones pleaded guilty to the offence of trafficking (simpliciter) in methylamphetamine, relating to the 54.9 grams in the spilled quantity in combination with the 72.9 grams in the resealable plastic bag, and was sentenced to six months' imprisonment, in combination with a two-year community correction order. There is a clear difference between your cases in that their matters involved a more modest principal charge than yours, involving a mere fraction of the quantity of methylamphetamine in respect of which you have taken responsibility; your conduct involves a second drug; and their role was to assist you in your offending.
Personal circumstances
20You were 38 years old at the time of offending and are now 41. You were the only child born to your parents and were raised by your mother and stepfather, who has been present since the time of your birth. You report a stable and supportive relationship between your mother and her husband.
21You have a younger half-brother and a younger half-sister. You were raised in a stable family environment and you never experienced any trauma, nor did you witness or experience family violence or abuse.
22You completed Year 10 and were asked to leave school in Year 11 due to your poor attendance. You then started working as a concreter and you initially had a stable work history, remaining with the same employer as a concreter until aged 24, when you started operating your own business, which continued until you were aged 30.
23You closed your business in 2009 when a client omitted to pay $250,000 owing under your contract.
24You have described to Sandra Cokorilo, psychologist, a series of relationships, the first lasting approximately six years; the second also being of approximately six years; and you had been in a relationship with your co-accused, Tegan Jones, for approximately 12 months at the time of offending.
25You started drinking at the age of 16 and escalated from smoking cannabis to amphetamines and ecstasy between the ages of 19 and 21. From the age of 21, you smoked up to half a gram of ice daily and you told Ms Cokorilo that you only abstained from your usage of drugs during your terms of imprisonment.
26You also told Ms Cokorilo that you consider yourself to be addicted to gambling, commencing from the age of 17.
27Ms Cokorilo's professional opinion, expressed in her 2020 report, which related to another matter, was that you have a long history of gambling disorder and an amphetamine-type stimulant use disorder. You suffered an adjustment disorder with disturbance of conduct following the loss of your business in 2009. At that time she evaluated your risk of reoffending as high, on the basis of your prior history, involvement with an antisocial peer group who were also involved in offending and substance use, history of substance use, psychosocial adversity and emotional and personal factors.
28You have a long history of criminal offending dating back to your first appearance for driving offences in the Magistrates' Court in August 2011. In June 2014 you were convicted for charges including driving whilst authorisation suspended and failing to answer bail and you were sentenced to your first period in custody.
29In August 2014 you appeared in this court on charges of attempting to obtain a financial advantage by deception, obtaining property by deception and dealing with property suspected of being the proceeds of crime which, as in this case, involved cash. You were again sentenced to immediate custody. A further sentence of imprisonment followed in October 2015 on your conviction for possess methylamphetamine.
30In March 2017 on your conviction for a large number of offences including driving whilst disqualified and suspended, obtaining property by deception and other property offences and commit indictable offence whilst on bail, you were sentenced to a combination of 180 days' imprisonment followed by a community correction order. That order was later contravened.
31In December 2018 you were convicted of driving offences, of dishonesty offences and of commit indictable offences whilst on bail and you were sentenced to a total effective sentence of one year and three months' imprisonment. This sentence was later varied on appeal and a more modest total effective sentence was imposed.
32Three months after you committed the offences before me, you were sentenced by his Honour Judge Cahill of this court on your plea of guilty to significant dishonesty offending to five years' imprisonment with a non-parole period of three years.
33As your conviction for that offending post-dates the commission of this offence, I do not take the offending into account in a strict sense in my evaluation of your character. However, you now fall to be sentenced nearly three years into the operation of that sentence.
34That offending related to your plea for a charge of conspiracy to dishonestly obtain gain from the Commonwealth. Your offending occurred between 12 November 2010 and 14 December 2012 and it involved your agreement with others to dishonestly obtain GST refunds from the Commonwealth Government by lodging false business activity statements with the Australian Taxation Office.
35In furtherance of the conspiracy your principal offender, with help from you, set up more than 100 false business entities and registered them for GST with the Australian Taxation Office. Throughout your conspiracy more than 100 bank accounts were opened using false identity documents. Between you and your principal offender, 300 fraudulent business activity statements were lodged claiming GST refunds. During the conspiracy, the Australian Taxation Office paid GST refunds totalling $2,547,544.15 pursuant to the scheme.
36During the latter part of the period of your offending you obtained confidential information, including tax file numbers of 40 taxpayers, which were used to make false GST claims. A further $339,829 in GST refunds was paid pursuant to those claims.
37You were charged for that offending in June 2017 and the matter resolved in this court in February 2020. Whilst you were on bail initially for that offending, you failed to appear at sentence and a warrant was issued for your arrest on 26 February 2020. That warrant, I understand, was extant at the time of your commission of the offending before me some six months later.
38Contained within those reasons is a reference to your offending from August 2014 in this court, which I have previously referred to. As his Honour Judge Cahill recounted, in that offending you, and the principal co-accused in your conspiracy, pleaded guilty to a charge of dealing with money totalling approximately $1.5m reasonably suspected of being the proceeds of crime.
39It is apparent that you have had access to significant sums of cash over a long period and of course one of the offences to which you are pleading guilty before me is your possession of that $300,000 in cash.
40You have been abstinent from drugs whilst in custody, which is to your credit, and you are now on a 60-milligram daily dosage of methadone. You have been employed as the COVID-19 and unit billet and make sure that the cleaning standards comply with protocols, as well as delivering meals to other prisoners. You unfortunately contracted COVID whilst in custody and in August 2022 you were hospitalised following a lung infection from your viral exposure.
41When you are released from this sentence you intend to live with your mother.
Objective gravity; moral culpability
42Having considered the evidence carefully, I am of the view that your offending in respect of Charge 1 is a serious example of the offence of trafficking in a commercial quantity of methylamphetamine of reasonably high purity and your offending in respect of Charge 2 is also a concerning example of the offence of trafficking simpliciter in 1,4‑Butanediol. You possessed a very significant quantity of the two drugs. There were indicia of trade and a large amount of cash, and a collection of valuable items were found. You possessed a firearm capable of immediate use.
43On the single date of your charge you were in a business of significant scale of trafficking in the two drugs and your role was sufficiently senior that you had two assistants. The overall criminality is significant and grave. Your assistants' role and involvement was confined to smaller quantities of a single drug.
44Though your history of drug offending is very modest, you have a long history of court appearances for fraud and other offences. Where there is a choice available to you, your character shows that you are unafraid of choosing an illegal, risky and potentially lucrative path to satisfy your needs. In the case before me you showed your interest in trafficking on a significant scale, the very drug which has caused you such addiction and misery over such a long period. Your offending allows others to descend into the same chaos. It is shameful, serious, criminal behaviour.
45This is not your first period in custody and at the time of your offending, as I have said, a warrant was in existence following your failure to appear at sentence for your Commonwealth offending. This did not deter you from further serious offending.
46Your offending apparently, in some part, subsidised your drug addiction, but given its scale was also operated for profit.
Purposes of sentencing, sentencing submissions and relevant sentencing principles
47In cases of this nature, the need for general deterrence is high. In other words, I am required to send a message to the community generally to deter others from engaging in this type of behaviour. I must give significant emphasis to this objective of sentencing and also to specific deterrence given your long history of offending, as well as to the need to denounce your behaviour and to punish you for your offending.
48The sentencing exercise also obliges me to make allowance for your rehabilitation. On the one hand you have a long history of offending and an entrenched drug addiction, which concerns me as to your risks of general reoffending. On the other hand, you have a very limited history in respect of drug offending, no prior history of drug trafficking and the time spent serving your current sentence has no doubt been of salutary effect upon you. I am cautious as to your prospects for rehabilitation, but I do intend to order a long period of parole eligibility to assist you in your transition back into the community. You have abstained from drugs whilst in custody, which is to your credit.
49I am of course conscious of current sentencing practices in respect of the charges to which you have pleaded guilty. Your counsel has urged me to avoid a crushing sentence and I intend to honour the obligation not to do so.
50As I have mentioned, your pleas of guilty were entered at a time when the court system in Victoria was experiencing significant impediments as a result of the unfortunate effects of the COVID-19 pandemic. There was significant utilitarian benefit in you entering a plea of guilty to the proceeding charges, which I take into account further in mitigation of sentence.[1]
[1]Worboyes v R [2020] VSCA 169.
51As I have mentioned, you are already undergoing a sentence of five years' imprisonment with a minimum of three years before parole eligibility for your unrelated, most recent conviction for fraud for offences which well pre-date these. I have had careful regard to the totality principle of sentencing in imposing sentence today and I note that you would otherwise be approaching parole eligibility on that Commonwealth sentence in July this year.[2]
[2] R v Hall [2023] VSC 151, [67]-[68].
52Pursuant to s16(4) of the Sentencing Act 1991 (Vic), given that I must impose a term of imprisonment on Victorian offences upon you, a person already undergoing sentence upon a Commonwealth offence, I must direct when the new term commences no later than immediately after the end of the non-parole period given that one was fixed.
53After giving the issue of totality careful consideration, I will order that my sentence commences immediately. In other circumstances involving two State sentences, for instance, I might be ordering a new single period before parole eligibility; having regard though to the fact that your Commonwealth sentence is now to be followed by a single State sentence I will order an artificially shortened period before parole eligibility in respect of my sentence, having regard to the fact that you have already served all but one month of your three-year minimum on your Commonwealth sentence.
Sentence
54I now pass the following sentences.
· On the charge of trafficking in a commercial quantity of a drug of dependence, namely methylamphetamine, you are convicted and sentenced to five years and nine months' imprisonment. That is the base.
· On the charge of trafficking in a drug of dependence, namely 1,4‑Butanediol, you are convicted and sentenced to two years and nine months' imprisonment. Twelve months of this sentence I order be served cumulatively upon the base and upon other sentences.
· On the charge of possessing an unregistered general category handgun, you are convicted and sentenced to two years and three months' imprisonment. Twelve months of this sentence I order be served cumulatively upon the base and upon other sentences.
· On related Summary Charge 5 of possess cartridge ammunition, you are convicted and discharged.
· On related Summary Charge 12 of possessing a prohibited weapon, namely knuckle dusters, you are convicted and sentenced to three months' imprisonment to be served wholly concurrently.
· On related Summary Charge 13 of dealing with the items of property suspected of being the proceeds of crime, you are convicted and sentenced to 12 months' imprisonment, one month of which I order be served cumulatively on the base and upon other sentences.
· On related Summary Charge 14 of dealing with $300,840 suspected of being the proceeds of crime, you are convicted and sentenced to 18 months' imprisonment, eight months of which I order be served cumulatively on the base and upon other sentences.
55This is a total effective sentence of eight years and six months' imprisonment, which, as I have indicated, I order commence today. Having regard to the amount of time that has passed under your current sentence, I order that you serve five years before parole eligibility on my sentence.
56I reckon 100 days' pre-sentence detention as served.
57Were it not for your pleas of guilty in this case, I would otherwise have imposed a total effective sentence of ten years and six months' imprisonment with an order for parole eligibility.
58I will just go through the ancillary orders. Thank you. There are two forfeiture orders and a disposal order. Mr Tomlinson, I'll just take you through those orders to make sure they're the subject of agreement. The disposal order relates to items seized primarily relating to drugs and liquid substances and blister packs, sealed packets, drug packaging items. No issue in relation to the disposal, I imagine, of those items?
59MR TOMLINSON: No issue with that, Your Honour, no.
60HER HONOUR: Next is forfeiture of: firearm, two rounds; ammunition in a Ziploc bag; an ammunition round; and two rounds from the firearm and the two rounds. I can go ahead and forfeit those items?
61MR TOMLINSON: You can, Your Honour.
62HER HONOUR: And, lastly, knuckle dusters, Department of Justice documents in another name, $300,840 and Exhibit 84, Bendigo MC Ioannou Cederas Tsikas. Any issue with my forfeiting those items?
63MR TOMLINSON: No issue with any of that, Your Honour, thank you.
64HER HONOUR: I will make those ancillary orders as requested. Are there any other orders that I need to make?
65MS WORRELL: No, they were all. Thank you, Your Honour.
66HER HONOUR: Thank you, we'll adjourn sine die.
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