Director of Public Prosecutions v Wallace
[2016] VCC 1769
•22 November 2016
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR-16-00944
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MATTHEW WALLACE |
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| JUDGE: | HER HONOUR JUDGE QUIN |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 10 November 2016 |
| DATE OF SENTENCE: | 22 November 2016 |
| CASE MAY BE CITED AS: | DPP v Wallace |
| MEDIUM NEUTRAL CITATION: | [2016] VCC 1769 |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Office of Public Prosecutions | Ms. E. Jaber | Office of Public Prosecutions |
| For the Accused | Mr. N. Goodfellow |
HER HONOUR:
1Matthew Jarryd Wallace, you have pleaded guilty to Commonwealth and State offences with the maximum penalties for those offences being as follows:
i.Charge 1, theft, Level 5; 10 years.
ii.Charge 2, dealing with money which was the proceeds of crime where the value of money was $100,000 or more; 20 years.
iii.Charge 3, importing a marketable quantity of a border-controlled drug by way of joint commission; 25 years.
2In respect of Charge 2, the importation offence, on 31 October, 6 November and 21 November, 2014, you opened mail boxes at MBE Business Services Centres in Glen Waverley, Elsternwick and South Yarra respectively. Each were opened in the name of Nathan Sultan, using a passport you had stolen from his house in mid-2014. Each box was hired for approximately six months. On 30 April 2014, you renewed the Elsternwick mail box agreement for a further six months.
3Between 9 November 2014 and 24 April 2015, a total of 43 packages, usually in sets of three, were sent to Nathan Sultan at the Glen Waverley, Elsternwick and South Yarra MBE mail boxes. Each of those packages were from the consignor, Lords Immigration in Los Angeles and weighed between .9 to one kilogram. Those packages were described as “document” and were not examined by Australian Border Force.
4On 1 May 2015, three DHL Express envelopes sent from Los Angeles were examined by ABF officers working at the Sydney DHL bond store. The envelopes were addressed to Nathan Sultan, to each of the three mail boxes. The consignor was the same as above, as was the description document and weight. Package one was examined by an ABF officer and found to contain a white powder, which gave a positive presumptive test result for cocaine.
5Subsequent deconstruction of the three DHL envelopes found they each contained aluminium forms holder, concealing a quantity of compressed white powder. The total weight of the white powder located in the three packages combined was 987 grams. Upon testing, the powder was found to contain a purity of 54.8 per cent. In total, the three packages were found to contain 540.9 grams of pure cocaine. These three packages are the subject of Charge 3.
6On 4 May 2015, two phone calls were made by you to DHL regarding the packages. In the first call, you identified yourself as Matt and said you were calling on behalf of your boss, Nathan Sultan, and cited the tracking number for package one. You were told the package was with Customs and was provided with a contact number to make further inquiries. In the second call, you cited the tracking number for package two and identified yourself as David. In the call, the DHL operator asked where the package was being sent and you replied, "Elsternwick." You were provided with a phone number to contact Customs to find out why the package was on hold.
7In respect of Charge 2, Foreign Exchange cash transactions in excess of $10,000 are required to be reported to Austrack. During the period 31 August 2014 to 1 May 2015, you conducted seven Foreign Exchange transactions in your own name using your passport number or driver's licence. Those transactions were conducted at Foreign Exchange businesses located in the Melbourne CBD. In each transaction, AUD $10,000 or less were exchanged for US$. In total you exchanged $57,260.50 in AUD$ to US$. A Table summarising the exchange transactions is included in the prosecution opening, Exhibit A.
8During the period 19 November 2015 to 16 July 2015, you conducted 52 Foreign Exchange transactions using Nathan Sultan's passport as identification. These transactions, were conducted at Foreign Exchange businesses located in the Melbourne CBD. In each transaction, AUD$ were exchanged for US$. In total, $828,962.89 in AUD$ was exchanged to US$ by you using Nathan Sultan's passport. A Table summarising these exchange transactions identifying the exchange facility and the amount exchanged, is included in the prosecution opening.
9CCTV imagery from the transactions at Ezy Exchange on 16 July 2015 was obtained, and you were depicted in it. The total amount of funds, the subject of Charge 2, relates to 59 Foreign Exchange transactions on 28 separate occasions totalling $886,223.39. The funds exchanged in US$ were subsequently sent to Los Angeles.
10On 4 February 2015, you attended the DHL office in Port Melbourne and attempted to send two packages to J.C. Gomez, 1223 Wilshire Boulevard, Santa Monica, Los Angeles. You identified yourself to DHL staff as Ian Jones of 20 Upton Street, Prahran.
11The two packages were inspected by DHL staff and found to contain a large number of US hundred dollar notes. The packages were subsequently provided to ABF officers who confirmed they contained US$69,000. You were not charged in relation to those funds.
12DHL records confirmed that two earlier consignments were sent from Matt Wallace to the same L.A. address and person from the Port Melbourne DHL office on 20 January, 2015.
13On 11 November, 2015, AFP and Victoria Police attended your house in Elwood. You were arrested and interviewed. During the interview you made the following admissions regarding the drug importations. You took Nathan Sultan's passport from his house in mid-2014. You set up the MBE mail boxes at the direction of a third party to whom you owed a debt of $60,000 or so. You knew the third party was a drug dealer. You were given a Blackberry and received messages from the third party, instructing you to pick up packages sent to the MBE mail boxes. You previously collected packages from the MBE mail boxes, on approximately 10 to 15 occasions. You were told that the imported packages contained money from interstate, but you worked out that they were from overseas. You said you initially believed the contents to be steroids, however when the third party upgraded their car to a Mercedes around Christmas-time, you thought it was more than just steroids being imported.
14You admitted you regularly obtained cocaine from the third party. In terms of payment, you were sometimes paid for your involvement and at other times, you were told you were working off your debt. You stated you received up to $500 or sometimes cocaine, for collecting packages.
15You also made the following admissions regarding the Foreign Exchange transactions. You were most involved with this aspect of the business. You conducted the Foreign Exchange transactions for the third party and were paid for your assistance. You would receive a back pack with the money from the third party and then would go to different places in the city. You were instructed by the third party not to do over $10,000 at one place and to try and change around the locations of the exchanges as much as you could. You also confirmed in your record of interview that the third party wanted further mail boxes opened, so you enlisted a friend, David Habberfield, who did the same as you, under your guidance. You went with him to open MBE mail boxes at the same places that you had.
16By the same method as you, he received 15 packages. Three of those packages were analysed and found to contain 775.7 grams of pure cocaine. You are not charged in relation to those packages.
17You also confirmed that you had involved Habberfield in the Foreign Exchange transactions and would return the cash to the third party when the transactions were complete. During the period 6 January 2015 to 9 April 2015, David Habberfield exchanged $269,372.50 to US$ in 30 transactions conducted on nine separate dates.
18On 17 May 2016, David Habberfield pleaded guilty before Her Honour Judge Hannan in the County Court to one money laundering charge and was sentenced to 12 months imprisonment to be released forthwith, pursuant to him entering a recognisance. No question of parity with Habberfield arises, given your much higher level of involvement and that you are pleading guilty in relation to the drug importation charge as well.
19I note in respect of your offending, that the period of offending for Charge 3 commences before that for Charge 2, however some DHL packages were received prior to the commencement of Charge 3 and were not examined. Your involvement with the third party appears to extend from August 2014 to July 2015.
20In sentencing for Commonwealth matters, s.16A(2) of the Code provides an unexclusive list of factors that the court must take into account where relevant and known to the court.
The nature and circumstances of your offending.
21The circumstances of the offending is set out above. I was informed you became involved in the offending as a result of a large drug debt of approximately $64,000 that you owed to your drug dealer, referred to as the third party in the prosecution opening.
22You began using cocaine when you were 21, though your use increased until you were about 26. Additionally, you said in your record of interview that you had significant other debts including with credit cards. The debts to the third party were initially about $9000 but by 2014, it had increased to $64,000. Your dealer told you that you could reduce the debt if you set up the mail boxes, collected packages, and sent money overseas. You initially believed the packages contained steroids, but after a period of time, you realised it was something probably more serious.
23Your initial involvement was motivated by a concern you had in repaying the debt, but as time and your involvement progressed, you became trusted in order to enlist others to do similar tasks to you, and you received some financial benefit or cocaine, other than just the reduction of your debt.
24The prosecution highlighted aspects of the importation offending, namely your role;
i.you used a passport you had stolen to open the mailboxes,
ii.you received instructions with regard to the arrival and collection of packages,
iii.you monitored the progress of some of the packages.
25The prosecution submitted you played an essential and significant role in the facilitation of this importation, such involvement extending over a period of time. I note that the offence is limited to a short period of time. You also enlisted a friend to become involved in this criminal activity. You were more than a mere courier involved on an isolated occasion.
26The quantity of cocaine imported had a street value of over $500,000. You had an awareness of the contents of the package as time progressed, but also the extent of the operation having regard to the number of packages with which you were involved. You were motivated to be involved for financial gain, including the repayment of the debt, but also some profit.
27I note in your record of interview you said that you did not really ask questions yourself. When they asked you to jump, you jumped. It is apparent from the material in your record of interview you felt compelled to act in accordance with the instructions given.
28The prosecution highlighted aspects of the money-laundering offence, namely that it is the second most serious money laundering offence, in the scale of offences under this section of the Code. As to your role, you took the funds from a person you knew was a drug dealer. You did this over a period of 11 months conducting 59 transactions on 28 days. You were well aware of the significant amounts of money you were dealing with, in total $886,223.39, eight times the threshold for an offence under this provision.
29You were described by the prosecution as performing a significant and ongoing role, enabling the third party to prosper, given your availability, willingness and position of trust to be involved in the manner in which you were.
30Your offending involved some planning, attending different exchange offices on the same day, use of a false name and passport, and ensuring the exchanges were less than $10,000, though your involvement was relatively simplistic.
31You said in your interview, you were paid up to $1000 for each $100,000 exchanged. You admitted you were aware the funds were from proceeds of crime and that in the course of your offending, you became aware the funds probably related to the importation of cocaine. In respect of both offences, it is accepted that you were not the instigator and that you followed directions given to you.
Cooperation: Plea of guilty, contrition and remorse.
32You made full admissions in your interview. You provided a detailed explanation of all aspects of your offending, the extent of your involvement, the methodology, and you did not seek to conceal any information. I take into account your level of cooperation as submitted by your counsel.
33I take your plea of guilty into account. You indicated before the committal hearing, that you would plead guilty and your early plea of guilty reflects your willingness to facilitate the course of justice. Further, there is a utilitarian benefit in your plea, saving the cost and time to the community, of a trial.
34Your early plea and full cooperation are indicative of remorse and acceptance of your responsibility for your offending. I heard and accept evidence from one of your personal training clients, a retired police officer, who gave evidence of your remorse in relation to your involvement in this offending, and insight into the wrongfulness of your actions. This is also consistent with the material in the character references provided to me.
Personal Circumstances:
35You were born on 27 February 1985, and were aged between 29 and 30 at the time of your offending. You are now aged 31. You were born and raised in Melbourne. You have strong family support from your parents and sister, and reside with them in Kallista, east of Melbourne. Family and friends were in court to support you. Additionally, I received a number of character references and I take that material into account.
36It would appear that none of them had an awareness of your drug issues, and view this offending as out of character. I understand their support will remain on your release from custody.
37You completed Year 12 in 2003, then gained qualifications and employment in the Fitness and Personal Training industry between 2003 and 2009. You then gained employment as the National Sales Manager for Go-Blue, a fuel company. In 2006, you commenced a double degree in Commerce and Arts, majoring in Marketing and Indonesian at Deakin University. You are in the final stages of this course.
38Since March 2016, you volunteered on a weekly basis with the Collingwood Knights Football Club in a coaching role with under-privileged young people. Reference is made to this work in some of the material exhibited in these proceedings.
Prospects for Rehabilitation:
39There are a number of features that auger well for your rehabilitation. You are well-educated and have continued with your studies. You have no prior convictions, nor any matters outstanding. You successfully completed the CISP program on bail. You have ceased using drugs. I was provided with clean urine screens for the period between December 2015 and September 2016.
40You have strong support from your family and friends. You have a stable and good employment history. I accept that on your release from custody you are unlikely to re-offend and that your prospects for rehabilitation are good. The prosecution did not dispute that you had good rehabilitation prospects. Specific deterrence, though relevant, is of more limited application to you.
General deterrence and punishment:
41General deterrence and punishment are important sentencing considerations. Money laundering is considered serious criminal activity at the heart of organised professional crime syndicates; in your case, relating to the importation of cocaine.
42
In respect of the importation offence, it is noted in respect of this kind of offending, that its' features include the difficulty of detecting the offence and the great social consequences that follow from its' commission. The former suggests that deterrence is to be given chief weight in the sentencing task; the latter that stern punishment will be warranted in almost every case.
See Wong v R [2001] HCA 207 CLR 584 at 607 to 608.
43Your counsel properly conceded that a term of imprisonment would be imposed. The prosecution submitted that the objective seriousness of the offending, denunciation, the need for general deterrence and the maximum penalties dictated that a term of imprisonment was the only sentencing option.
44Although I accept your found yourself in such financial strife that you felt this offending was a way out of trouble, you allowed yourself to participate in very serious offending. If the level of seriousness was not apparent to you at the outset, on your own admission you knew as your involvement progressed, that you were assisting with the importation of drugs and converting significant amounts of money relating to the drug business.
45The objective seriousness of your offending needs to be balanced against all matters in mitigation put on your behalf, particularly your positive rehabilitation prospects and all relevant sentencing considerations.
46If you could please stand Mr Wallace.
47In respect of the State Charge 1, I impose a sentence of one month imprisonment.
48In respect of Charge 2, I impose a sentence of 3 years imprisonment.
49In respect of Charge 3, I impose a sentence of 4 years' imprisonment. In relation to Charge 2, the sentence of 3 years is to commence 25 months before the expiration of the sentence on Charge 3. That will impose a total effective sentence of 5 years and I set a non-parole period of two and a half years. I declare pre-sentence detention for a period of 14 days, and pursuant to s.6AAA of the Sentencing Act I would have imposed a sentence of 8 years with a non-parole period of 6 years if you had not pleaded guilty to these matters.
50Ms Jaber, is that the correct way to indicate that sentence. Does it have the effect that I have said..
51MS JABER: Yes, Your Honour.
52HER HONOUR: It is the four years. Yes, I am sorry.
53MS JABER: Your Honour - - -
54HER HONOUR: What I have done, I can see exactly what I have done. What I was proposing was a total effective sentence of five years, so in respect of Charge 3, it is a sentence of four years, I am sorry, and in respect of Charge 2, it is a sentence of three years, the 25 months still is correct.
55MS JABER: Your Honour, for Count 3 - - -
56HER HONOUR: Four years.
57MS JABER: The importation offence, four years. Count 2, the dealing with the proceeds is - - -
58HER HONOUR: Three.
59MS JABER: - - - is three years.
60HER HONOUR: Yes. I am sorry.
61MS JABER: And Your Honour, just to confirm for the one month of the State, I think Your Honour has to set a separate commencement date for the State.
62HER HONOUR: Yes, the Charge 3 will commence at the expiration of the sentence imposed on Charge 1, the one month.
63MS JABER: So Count 3 commences on the expiration of Charge 1.
64HER HONOUR: Yes. So that leaves, you have the one month served on Charge 1, then you have the Charge 3 sentence.
65MS JABER: Yes.
66HER HONOUR: Which is four years, which gives you four years and one month, and then you go Charge 2 which commences 25 months before the expiration of Charge 3 which gives you another 11 months, which then gives you a total of five years. Is that correct?
67MS JABER: Yes, Your Honour.
68HER HONOUR: Thank you.
69MS JABER: Just to confirm the non-parole period.
70HER HONOUR: Two and a half years.
71MS JABER: Two and a half years for Count 2 and Count 3.
72HER HONOUR: No, it is a two and a half year non-parole period for the whole sentence.
73MS JABER: I am not sure if it can be combined for the State and Federal, if it has to be expressed separately, Your Honour.
74HER HONOUR: But there isn't one. There isn't a non-parole period for a one month sentence.
75MS JABER: There is no non-parole period for the State. Thank Your Honour.
76HER HONOUR: So that is how that works. All right, if there is any difficulty with it, could you please contact my associate immediately if you can stay here and work that out, but I think that that is correct the way that is been declared. It becomes very complicated when you have Commonwealth offending and State offending at the same time. All right. Thank you.
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