Director of Public Prosecutions v State
[2022] VCC 1547
•13 September 2022
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
CR-21-00161
CR-21-00160
| THE DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| STELIAN STATE & NICHOLAS ST JAMES |
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JUDGE: | HER HONOUR JUDGE CHAMBERS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 9 September 2022 | |
DATE OF SENTENCE: | 13 September 2022 | |
CASE MAY BE CITED AS: | DPP v State & Anor | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1547 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Sentence – attempt to traffic in a commercial quantity of drug of dependence – cocaine – co-accused – plea of guilty – attempted trafficking by agreement to purchase of 1 kg of cocaine for $100,000 from police undercover operatives – role of police covert
operatives - entrapment principles – burden of imprisonment - general deterrence, just punishment and denunciation principal
sentencing considerations – parityLegislation Cited: Drugs, Poisons and Controlled Substances Act 1981
Cases Cited:The Queen v. Mihalo & Ors [2002] VSCA 217; Kada v. The Queen [2017] VSCA 339; R v. Worboyes [2021] VSCA 169; Dawid v. DPP VSCA 64
Sentence: Four years, six months' imprisonment, with a non-parole period of
two years, nine months.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr A. J. Gray | Office of Public Prosecutions Victoria |
For State For St James | Mr C. Pearson Ms N. Keddeche | May Lawyers Emma Turnbull Lawyers |
HER HONOUR:
1
Mr State and Mr St James, you have each pleaded guilty to one charge of attempting to traffic in a drug of dependence, namely cocaine, in a quantity that was not less than a commercial quantity contrary to s71AA(1) of the
Drugs, Poisons and Controlled Substances Act1981.[1] The maximum penalty for this offence is 25 years' imprisonment.
[1]Mr State entered his plea following a sentence indication hearing held on 8 September 2022
2At the time of the offending you, Mr State, were a 69-year-old Romanian national. You also held a Canadian passport. You, Mr St James, were a 66-year-old Romanian national with dual Australian citizenship. Both of you usually resided in Romania. Neither of you have any prior criminal history.
Circumstances of offending
3
Your offending arises out of your interactions with two Victoria Police undercover operatives (‘UCOs’) that commenced following your arrival in Australia in
September 2019. These dealings are detailed in the Summary of Prosecution Opening dated 5 September 2022.[2] Through your counsel, you accept the accuracy of this summary as the agreed basis on which you are to be sentenced.
[2]Exhibit A.
4You, Mr St James, first spent two months in Australia between May-July 2019. You returned to Australia on 17 September 2019. On your flight arrival card, you stated that you were entering Australia to visit friends and relatives and listed your address as an address in Longwarry, Victoria.
5You, Mr State, flew into Australia on 18 September 2019, stating you intended to remain in Australia for a 29-day holiday. You listed your country of residence as Canada.
6Following your arrival, police began monitoring the activities of you both, during which you were seen meeting with a number of people in Victoria and Queensland, often engaging in ‘walk and talk’ meetings and utilising public phones. After a period, the two UCOs successfully engaged with you both, leading to a meeting at the Pan Pacific Hotel in South Wharf on 31 October 2019.
7
At that meeting, following discussion, you both reached an agreement with the
UCOs that:
·the two of you would purchase 500 kilograms of cocaine from the UCOs, with the drugs to be imported into Australia;
·
you would initially purchase a sample of one kilogram of cocaine, described by you, Mr State, as 'one pieces' for the sum of $100,000 which you would then show to your 'Family' to establish quantity and trust. After this, the 'Family' would put up the money. You, Mr State, also said,
'We want to show the Family what we have, then after that, I tell you on the phone, prepare me 50s, hundreds';
·
after successfully showing the one kilogram of cocaine to your 'Family', you said you would purchase the cocaine in varying amounts until the
500 kilogram total was met;
·
Mr State, you said the 500 kilogram purchase would be completed within
2-3 weeks of receiving the initial one kilogram sample;
·the UCOs indicated the cocaine would be sent from Colombia and would arrive in Fiji where it would be sent to Australia, taking approximately 7-10 days to arrive; and
·the two of you would travel from the Gold Coast to Melbourne upon confirmation the shipment had arrived and would attend a meeting place after being given the details by the UCOs.
8You both returned to Queensland after this meeting. You had been provided with a phone by the UCOs with whom you continued to exchange text messages. In one of those messages, the UCOs confirmed the shipment had arrived and made arrangements for you to meet with them in Melbourne on 26 November 2019.
9On Monday 25 November 2019, you contacted the UCOs advising that you had arrived in Melbourne. You were then directed to attend an area in Springvale at 11 am the following day, when you would then be provided with the meeting location.
10At 10.50 am the following day, the UCOs sent you a message to meet at the Waverley International Hotel in Glen Waverley which you attended shortly thereafter at 11 am. Once there, you contacted the UCOs and were directed to their hotel room. At that meeting, the two of you discussed a number of matters with the UCOs including:
·you, Mr State asking how the transaction was to be conducted;
·when one of the UCOs asked for the money, you said you did not have cash on you. In response, the UCOs reminded you that the agreement was for cash on delivery;
·you, Mr State, tried to tell the UCOs that the arrangement was for you both to take the sample and then return the next day with $100,000;
·you also asked if it was, 'Okay to talk,' in the hotel room and then outlined how the 500 would be transacted;
·during the negotiations, you Mr State, told the UCOs not to worry about payment for the sample, saying they would receive ‘the larger payment’ tomorrow. You spoke of 'one piece' as opposed to 500 pieces and this transaction only being worth $100,000 as opposed to $50 million;
·Mr State, you offered to remain with one of the UCOs while Mr St James went to collect the $100,000 and said that you would take the sample so it could be checked by the 'Family';
·
during the conversation, you Mr State asked if the product was present in the room. The UCOs then pointed to a black one kilogram block of
imitation cocaine which was on a table next to a cash counter.
11Following this conversation, operatives from the Victoria Police Special Operations Group entered the hotel room at approximately 11.26 am and you were both arrested. You, Mr State were found to be in possession of three mobile phones, two of which were encrypted. One of the phones in your possession was the phone provided by the UCOs on 31 October 2019. You, Mr St James, were found in possession of a mobile phone and wallet. You were also carrying a bag the police considered was to be used to take the sample away with you.
12Following your arrest, you Mr St James, made 'no comment' in answer to questions asked by police at your interview, in accordance with your rights.
13During your record of interview, you Mr State, provided a version of events to police in which you stated that you were in Australia to purchase ‘Ugg’ boots. In relation to the attempted purchase of cocaine, you told police you had done so with the intention of later reporting this activity to police to receive a reward. You claimed the police had slipped the mobile phone into your bag. You also said you had been entrapped by police, a topic I will return to later in my reasons for sentence.
Objective gravity of offending
14
The gravity of the offence of attempting to traffic in a commercial quantity of drugs is reflected in the maximum penalty of 25 years' imprisonment. The maximum penalty prescribed by s71AA(1) of the Act does not distinguish between an attempt to commit this offence and the actual commission of the offence of trafficking. The rationale for this outcome was discussed by the Court of Appeal in the case of
The Queen v Mihalostating:[3]
…this is a category of criminal enterprise where, as in this case, many arrests are made by the employment of undercover law enforcement agents. Parliament might well conclude that in such circumstances the culpability of those who attempt to traffic drugs, but are thwarted in their attempt, may in some cases be no less than that of offenders who succeed in their endeavours to traffic drugs. There is, in other words, nothing illogical in treating attempted trafficking as worthy of the same maximum penalty as applies to a completed offence.
[3]The Queen v Mihalo & Ors [2002] VSCA 217 at 12, [40]
15Here, the gravity of your offending is marked by the quantity of cocaine you attempted to purchase for a trafficking purpose. The threshold for a commercial quantity of cocaine pursuant to Schedule 11 of the Act is 250 grams. The amount of cocaine involved in this transaction was many times in excess of this threshold.
16The quantity-based hierarchy of trafficking offences and associated maximum penalties, have been deliberately constructed to reflect Parliament's view of the ascending order of offence seriousness.[4] The quantity of drugs attempted to be trafficked is therefore highly relevant in assessing the objective gravity of your offending. However, it is not determinative. Other factors remain relevant, including an offender's role in the trafficking, the duration of the offending and the motivation for the offender's involvement.[5]
[4]Gregory v The Queen ( 2017) 268 A Crim R 1, 7 [23]; Quah v The Queen [2021] VSCA 164 at [54]
[5]Gregory, [23] – [24]
17It is relevant therefore, that you attempted to purchase the cocaine for a trafficking purpose on one day only. However, although this could be characterised as an isolated event, your offending could not be described as unplanned or spontaneous. To the contrary, you were engaged in discussions with the UCOs over a period of weeks. You had many opportunities to desist from your involvement in this activity but did not do so.
18The role played by the undercover operatives is also relevant in my assessment of the gravity of your offending. The principles to apply in determining what weight to attach to the degree of 'entrapment' involved in the transaction, were distilled by the Court of Appeal in Kada v The Queen.[6] In that case, in a factual scenario that more commonly arises, the drugs in question were ultimately sold to a covert police operative. In Kada, the Court of Appeal confirmed that the involvement of police in the commission of a trafficking offence is a relevant sentencing consideration. The Court is required to focus on the degree to which the circumstances of the police involvement bears on the culpability of an offender. In Kada the Court of Appeal detailed five factors relevant to the level of culpability, as follows:[7]
(i)The manner in which the involvement of police contributed to the offending, including the nature and degree of any pressure or coercion applied, or encouragement or inducement offered, by police to secure the commission of the offence;
(ii)The extent to which the involvement of the police contributed to the offending;
(iii)Whether the police dealt with the offender directly or through an intermediary. Ordinarily, the more remote the police involvement – including any pressure, coercion, encouragement or inducement by them – is to the offender, the less weight it will have on the sentencing synthesis;
(iv)The readiness with which the offender responded to any requests for drugs by the police. The involvement of the police will carry greater weight if the will of the offender is overborne by them, compared to a situation where the offender regards the request for drugs from the police as a welcome expansion of his or her trafficking operation. Conversely, police involvement will carry less weight if the offender, rather than the police, instigated the relevant trafficking transaction.;
(v)Whether the police became involved at a time when the offender was already trafficking the relevant drug and, if so, the scale of his or her operation at that time and the scale of operation resulting from the police involvement. The involvement of police will carry less weight if their requests for a drug can be accommodated within the offender’s existing supply lines, compared with a situation where those requests can only be accommodated by material changes to the offender’s scale of operation and supply lines.”
[6]Kada v The Queen [2017] VSCA 339
[7]Kada, pages 25 - 26 [72]
19It is readily apparent that the principles outlined in Kada were framed by reference to the more commonly understood situation where an offender sells or on-sells drugs to a covert/undercover police operative. Here the situation was reversed. The attempt to traffic in 1 kg of cocaine arose in the context of a proposal by the undercover operatives to sell the drugs to the two of you. Nonetheless, I consider the principles as stated in Kada have equal application to the facts here.
20
Mr Pearson, in submissions made on behalf of Mr State (that were adopted by
Ms Kaddeche on behalf Mr St James) highlighted the distinctive aspects of the police involvement in this offending. Both defence counsel argued that the gravity of the offending was lessened by the fact the UCOs were the ‘initiating force’ in the offending; that they contributed to the offending at each and every stage; that the dealings occurred through face-to-face meetings with the undercover operatives in the absence of an intermediary; and that there was no evidence that either of you were involved in trafficking at any level at the time you were introduced to the undercover operatives.
21The defence submissions also emphasised the unusual nature of this transaction, namely, that it was never intended that the offenders would supply drugs to the police, but rather, the drugs would be supplied to you by the police. Moreover, that no drugs ever existed and in the circumstances of this case, there was no prospect that any drugs could have been released into the community. This, it was submitted, is also relevant in reducing the objective gravity of your offending.
22I accept that, having monitored your movements upon your entry into Australia, it was the police who initiated contact with you through the undercover operatives. On the plea, there was no evidence as to why you were being monitored by police upon your entry to Australia, and I make no finding adverse to you in that regard. I accept that the undercover operatives were involved in each and every step of the transaction and that, somewhat unusually, it was the police who proposed to sell the cocaine to you, advising of a supply source in Colombia. It was the police who contacted you to advise of the 'arrival' of the drugs and in discussing arrangements for you to return to Melbourne where the transaction would be conducted. Notably, there is no cogent evidence that you were involved in any drug-related activity prior to your engagement with the undercover operatives, despite being under surveillance. These factors all moderate the objective gravity of your offending.
23Against that, however, you were willing participants in the proposed transactions. You each actively engaged with the undercover operatives, negotiating the initial purchase of a sample of one kilogram of cocaine and in having further discussions regarding the prospect of securing larger amounts into the future. There is no evidence that either of you were coerced, induced or otherwise overborne by police to engage in this activity. You both willingly, voluntarily and actively participated in the proposed transaction.
24Moreover, I give some but only limited weight, to the fact that the transaction was a pretence and that there was no risk of any drugs being distributed into the community. In this regard, I adopt the observations made by the Court of Appeal in Kada, in stating the following:[8]
The fact that no actual harm arises because the involvement of the police prevents the drugs from being distributed to the community is a relevant consideration. However, ordinarily, this fact will be accorded little, if any, weight as a mitigating circumstance. This is because it would be anomalous for the offender to receive a more favourable sentencing disposition due to a circumstance which, from his or her perspective, is fortuitous, namely, the involvement of the police.
[8]Kada, at 26 [72(f)]
25
What motivated the two of you - both mature-aged men with no criminal
history - to participate in this illegal activity must also be considered. The explanation given by you, Mr State, when interviewed by police of doing so with the intention of then notifying police is, in my view, implausible. I am satisfied on the evidence before me, that you both attempted to purchase the cocaine for the purpose of distributing or otherwise on-selling it to others. However, I am not able to determine, beyond reasonable doubt, that yours was involvement in a larger drug trafficking syndicate or that you played any particular role in a larger criminal enterprise. There is insufficient material before me to make such a finding.
26That fact notwithstanding, it is relevant that your attempt to purchase one kilogram of cocaine occurred in the context of a discussion of ultimately accessing a much larger quantity of cocaine through the undercover operatives. To be clear, you are not being sentenced for anything other than the attempt to purchase one kilogram of cocaine. However, the context in which this attempted purchase took place remains relevant in my assessment of the gravity of this attempt.
27Balancing each of these considerations, I cannot characterise your offending as low level, but nor is it at the upper end of the scale of seriousness for this type of offending. Your moral culpability for your roles in this attempt to traffick in a commercial quantity of cocaine, even allowing for the role played by police, is significant.
Personal circumstances
28I turn now to your personal history and background.
29Mr State, you were born in Romania in June 1950 and are now 72 years old.
30Both of your parents worked and you had a comfortable childhood. You completed the equivalent of year 12 at school and then completed compulsory military training. You served in the armed forces for five years and, following your discharge, worked in the civilian maritime industry. Your role was piloting commercial freight boats in Eastern Europe. You are a qualified maritime engineer and have worked hard in that capacity, both for State-run enterprises and in private industry in Romania. You travelled widely during your career.
31You have been married for the past 46 years and your wife and adult daughter live in Romania. Upon your eventual release from custody, you intend to return to Romania to live with your family.
32You retired approximately 10 years ago and have since been living on your savings.
33
You have family living in British Columbia, Canada and also hold a
Canadian passport.
34You have no prior criminal history, either in Australia or in Romania.
35Mr St James, you were born in Romania in October 1953 and are now 68 years of age. You have lived in Australia periodically since 1988 and became an Australian citizen in 1991. Your main country of residence is Romania.
36With your first wife, you had a daughter who is now aged 49. After divorcing your first wife in 2008, you remarried but your second wife passed away from cancer in 2013. Your second wife had a son from her first marriage and you consider that son as a son of your own. He is now 28 years old. Your immediate family, including a grandchild, all reside in Romania. Following your ultimate release from custody, you also intend to return to live in Romania.
37You completed your secondary school education in Romania and attended university to undertake business studies. You found it difficult to secure employment in this field at the time of communist rule in Romania and worked where you could; in calligraphy, as a chef and as a bartender.
38After arriving in Australia in 1988, you were involved in a serious car accident. This made it difficult for you to continue working and you have remained on Centrelink payments when in this country. A character reference tendered on your behalf, authored by Mr Nicu Bombi dated 7 September 2022, refers to your difficult life in Romania, including the impact of the loss of your wife from cancer leaving you responsible for the care of your two children at that time.
39You were using cocaine for a period leading up to your arrest. However, you also have no prior criminal history, either in Australia or elsewhere.
Matters in mitigation
40Having considered the objective gravity of your offending, I now turn to consider the matters raised by both defence counsel in mitigation of sentence.
41
First and foremost is your plea of guilty to the charge. In doing so, you both saved the court and the community the cost and time associated with what would have been a lengthy trial involving the evidence of multiple police operatives. Your plea facilitates the administration of justice. By your plea you each acknowledge responsibility for your offending, upon resolution of the matter to the single charge.[9] Additionally, at a time when there is a backlog of trials in the wake of the
COVID-19 pandemic, your plea has heightened utility. You are entitled to ‘an actual and palpable amelioration of your sentence’ in these circumstances.[10]
[9]Previous charges of attempted trafficking in a LCQ and conspiracy to traffic in a LCQ having been withdrawn. The matter resolved the a plea, in respect of Mr St James and to a plea, following a sentence indication, by Mr State after I ruled in respect of an application to release certain subpoenaed documents on 29 April 2022.
[10]R v Worboyes [2021] VSCA 169 at [35]
42Secondly, at the ages of 72 and 68 respectively, neither of you have any prior criminal history. You are entitled to the benefit of your previous good character in mitigation of your sentence.
43
There is, however, no basis upon which I can find that your moral culpability for your offending is moderated due to poor mental health or otherwise. Neither counsel submitted that the principles in Verdins apply and there was no psychological material provided on your plea that may support such a finding.
Ms Kaddeche, who appeared on behalf of you, Mr St James, accepted there was no material before me that would justify any application of the principles in set out in the authority of Bugmy[11] or that your difficult life experiences under communist rule should operate in mitigation of your sentence.
[11]Bugmy v The Queen (2013) 249 CLR 571
44I do, however, accept that your experience of having to serve a substantial sentence of imprisonment will be onerous for a number of reasons. Firstly, for both of you the most significant source of support, your immediate family, all reside in Romania, making your experience of custody far more difficult and isolating. You are limited to telephone contact with your family. Neither of you has had any social visits. Given this is your first experience of prison, this is a significant matter for both of you.
45Secondly, your time on remand has run in parallel with the restrictions imposed by prison authorities necessary to respond to the risk posed by the COVID-19 pandemic. These restrictions, including periods in isolation and lockdown, have made prison life more onerous and isolating.
46
Mr State, you also suffer from a number of medical conditions, including being an insulin dependent diabetic with sciatic-related back pain. Since being remanded, your cataracts have led to a deterioration in your eyesight, particularly in your left eye. Mr St James, you too have health concerns, including a diagnosis of
Hepatitis A and, since 2007, Hepatitis B, in addition to arthritis in your knees.
47For both of you, given your relatively advanced age and health concerns, I accept that the risk of contracting COVID-19 has been an additional source of anxiety for you whilst in custody.
48Moreover, for you, Mr St James your English is limited. For you, Mr State, although your English has now improved, at the time of your early remand, you were not as proficient in English. Again, this is another reason why, for both of you, custody has been more difficult and isolating.
49I have moderated the sentence I have imposed on both of you, recognising the additional burden of your imprisonment for all of those reasons.
Prospects of rehabilitation
50I turn now to assess your prospects of rehabilitation. A number of factors have bearing on my assessment of your future prospects, including your age, previous good character and the absence of any prior history of criminal offending. Against these factors, however, is the fact that you both engaged, as first time offenders, in extremely serious criminal conduct involving an attempt to traffic in a large amount of cocaine.
51Given your age and the conditions in custody that prevail at this time, I have no doubt that your experience of custody will be a salutary one. You both plan to return to Romania to be with family upon your eventual release. In custody, you have both taken up the opportunity to participate in courses that have been available to you. You have both undertaken work in custody. You, Mr St James, work in cleaning services and the staff trust you to clean their offices. Mr State, you also undertake cleaning and maintenance duties in your unit and occupy yourself playing chess with other inmates. Neither of you have been in trouble or been subject to disciplinary measures whilst remanded.
52For both of you, given your previous good character and the fact that you both are of a relatively advanced age with no other history of offending, I assess your prospects of rehabilitation to be positive.
Other sentencing considerations
53Given the nature and gravity of the offending, the sentencing principles of general deterrence, denunciation and just punishment are the paramount sentencing considerations in this case.
54In sentencing you both for this offending, I must send a clear and unequivocal message to individuals who contemplate any aspect of the trade in trafficking or attempting to traffick in drugs, that they do so in the knowledge that, if detected, they will be sentenced to lengthy periods of imprisonment.[12]
[12]Dawid v DPP [2013] VSCA 64, at [35]
55I accept that the need for the sentence to deter each of you specifically is mitigated in this case by your age, the absence of any prior criminal history and my finding regarding your positive prospects of rehabilitation.
56
Trafficking in a drug of dependence in no less than a commercial quantity is a
Category 2 offence under the Sentencing Act 1991. In this case, both defence counsel accept that a sentence of imprisonment with a non-parole period, is the only sentencing option available, but urged the court to give weight to the matters in mitigation, particularly in formulating an appropriate non-parole period.
57Both parties acknowledged there were no comparable cases which may inform my sentence, given the unique circumstances of this case. I have, however, had regard to the authorities to which I was referred by Mr Pearson, who appeared on behalf of Mr State, to the extent to which they may be of guidance more broadly.[13]
[13]Sharbell v The Queen [2018] VSCA 324; Chen v The Queen [2015] VSCA 253
58Finally, the sentencing principle of parity requires that co-offenders, all other things being equal, should receive the same sentence. Here, there was no relevant distinction in the roles you each played in the attempted trafficking of cocaine. This was accepted by the prosecution. Moreover, I do not consider that any of the matters raised in mitigation of sentence on behalf of either of you, should be given any greater or lesser weight so as to justify any disparity in sentence. For those reasons, I consider that the sentencing principle of parity justifies imposing the same sentence on the two of you.
Sentence
59Balancing each of the matters to which I have referred whilst guided by the maximum penalty applicable to the offence, I now sentence you both as follows.
60On Charge 1, attempted trafficking in a commercial quantity of a drug of dependence, you are each convicted and sentenced to a term of four years, six months' imprisonment.
61In fixing a non-parole period I have had regard to your respective ages, your previous good character, the burden of your imprisonment and my assessment of your prospects of rehabilitation. I fix a period of two years, nine months' imprisonment to be served before you are each eligible for parole.
62Pursuant to s18 of the Sentencing Act, I declare 1022 days already served by way of pre-sentence detention by you both, to be reckoned as served under this sentence.
63I declare, pursuant to s6AAA of the Sentencing Act that, but for your plea of guilty, I would have sentenced you both to six years and six months' imprisonment, with a non-parole period four years, three months' imprisonment.
64Finally, I make the disposal orders sought by the prosecution, noting that they are not opposed.
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