Director of Public Prosecutions v Waters
[2012] VCC 1547
•11 October 2012
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-11-02322
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JOHN WATERS |
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JUDGE: | HER HONOUR JUDGE HAMPEL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 13, 14, 20 September 2012 | |
DATE OF SENTENCE: | 11 October 2012 | |
CASE MAY BE CITED AS: | DPP v Waters | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 1547 | |
REASONS FOR SENTENCE
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Catchwords:
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr P. D’Arcy | OPP |
| For the Accused | Mr S. Holt with Ms Z. Broughton | Victoria Legal Aid |
HER HONOUR:
1 John Waters, on 18 January 2006 you were arrested and charged with, amongst other offences, trafficking in methylenedioxy-N-methylamphetamine (MDMA). A month later you were released on bail, but were arrested again in September 2006, charged with further trafficking offences and again remanded in custody. You have been in custody ever since.
2 Three years after your first arrest, you faced trial in the County Court, on charges including trafficking in a large commercial quantity of MDMA between August 2005 and January 2006. After a 49 day trial, you were found guilty of the charge of trafficking in a large commercial quantity of MDMA.
3 At the commencement of the trial, you had pleaded guilty to some other trafficking and related charges. Following the guilty verdict on the charge of trafficking in a large commercial quantity of MDMA, all outstanding charges were resolved by guilty plea or withdrawal of charges. On 30 October 2009, you were sentenced to a Total effective sentence of 21 years' imprisonment, with a non parole period of 15 years for this and the other drug charges to which you pleaded guilty.
4 You appealed your conviction on the charge of trafficking in a large commercial quantity of MDMA, and your sentences on all charges. In December 2011, the Court of Appeal allowed your conviction and sentence appeals. It quashed your conviction on the charge of trafficking in a large commercial quantity of MDMA and directed you be re-tried on that charge. You were re-sentenced on the other charges to a total effective sentence of eight and a half years with a six year, three month non parole period. By then, you had spent over five years in custody[1].
[1]Waters v the Queen [2011] VSCA 415 at [138]
5 As the judgment of the Court of Appeal makes clear, the prosecution opened its case against you on the basis that you had acquired about 10,000 MDMA tablets from a supplier (Samac), and had trafficked by on selling them. By the time it closed its case, it was put on the basis you had trafficked in about twice that quantity, some by sale, some by offering for sale and some by possession for sale. The recasting of the case and enlarging of the number of tablets trafficked and the means by which the trafficking occurred, was, the court found, justified by the closer analysis of the evidence to which it was subjected by the trial judge and ultimately the prosecutor, after the case had been opened. However, your defence, as opened to the jury after the prosecutor had opened, became untenable once the additional transactions and means of trafficking were added. This, the court held, gave rise to a miscarriage of justice.
6 In directing a retrial, the Court of Appeal rejected a defence submission it should substitute a verdict of guilty of trafficking in not less than a commercial quantity of MDMA. It also rejected a defence submission the Crown should be confined to putting its case on retrial on the basis it had opened the first trial; that is, only on the purchase and on sale of 10,000 tablets from Samac. Ashley JA held it would be wrong to shut the Crown out from attempting to prove a very serious offence by available evidence, and the Crown should not be held to a case based solely on sales. He observed, “there would appear to be much evidence of trafficking in a variety of ways in amounts far exceeding the large commercial quantity threshold”[2].
[2]At [114]
7 So, the matter proceeded to retrial. Despite the extensive scrutiny of the evidence and the way in which the case could be put against you by the Court of Appeal, there were further complications caused by the nature of the proof required when framing a charge of trafficking in a large commercial quantity of drugs when the case is put, not on the basis of a single transaction, but on a series of transactions occurring over a period of time.
8 Drug trafficking charges in this State are unnecessarily complex. Instead of having one charge of trafficking, carrying a maximum penalty sufficient to punish the range of trafficking activities, from the lowest level to the worst, highest volume activity, separate offences, carrying separate maximum penalties have been created. Although the activity is the same for each offence, namely trafficking in drugs, higher maximum penalties apply if the prosecution can prove the offender trafficked in quantities described as “not less than a commercial quantity” or “not less than a large commercial quantity” (those offences carry 25 years and life imprisonment, respectively). If the amount trafficked cannot be proved, or is less than the amount specified as constituting a commercial quantity, a maximum of 15 years' imprisonment is prescribed. Because the amount trafficked in the commercial quantity and large commercial quantity offences is an element of those offences, it is necessary to prove an accused intended to traffic in at least the specified quantity, or in no less than the specified quantity. The intent must be present at the time the accused committed the relevant act of trafficking.
9 Since the decision in Giretti[3], charges are often laid alleging trafficking constituted by an accused’s engagement in a continuing trade or business of dealing in drugs over a period of time, on a regular and commercial basis. If a Giretti charge of trafficking in a commercial or large commercial quantity is laid, it is necessary to prove not only that the accused engaged in a business of trafficking, but that he or she intended to traffic in not less than the prescribed commercial or large commercial quantity from the beginning of the period covered by the charge[4].
[3]R v Giretti (1986) 24 A Crim R 112.
[4]Mustica v R [2011] VSCA 79; R v McCulloch (2009) 21 VR 340
10 A feature of an illegal trade such as drug trafficking is that those engaged in it take steps to conceal their activities. There is no prospectus or business plan setting out the traffickers intended or projected volume of trade over any period. Nor are there book keeping practices of the sort usually employed in legitimate businesses, which can establish the actual volume of trade over any period and from which the intended volume of trade could be inferred.
11 Proof of a trafficker’s intention to trade in quantities which would meet the prescribed amounts for the higher level offences must therefore come from other sources. Most commonly, intent is inferred from the amount of drugs found in a trafficker’s possession when arrested, the oral testimony of undercover operatives, informers or co-offenders turned prosecution witness of what they have seen, heard or done, or the recordings of conversations between those engaged in trafficking about the quantities supplied or to be supplied.
12 Again, as this is an illicit trade, the conversations do not usually conform to the conversations we would expect to hear between people operating legitimate businesses, trading in legitimate goods. Code, much of it crude, is often used. The conversational tone employed by many traffickers is crude, too, in a different sense.
13 This can make assessments of the likely acceptance of evidence relied on to prove and intent to traffic in particular quantities of drugs difficult. As a result, charges are often laid in the alternative, from trafficking in an amount not less than a large commercial quantity, through trafficking in not less than a commercial quantity, to simple trafficking where, although it is necessary to prove drugs are trafficked, it is not necessary to prove intent to traffic in any particular quantity.
14 In addition, if the prosecution case is based in proof of a regular trade or business in not less than a large commercial, or commercial quantity of drugs, it must prove the accused intended to conduct a drug trafficking business in a large commercial or commercial quantity from the start of the period framed by the charge. Working on the basis that intent to trade in a particular quantity can be inferred from actually trading in that quantity, a practice has developed of fixing the start date of a Giretti large commercial or commercial quantity charge, by reference to a single transaction or a series of transactions closely linked in time, where not less than a large commercial or commercial quantity of drugs is trafficked.
15 This resulted, in this case, in the prosecution bringing two large commercial quantity trafficking charges against you on your retrial. The start date for the first was chosen by reference to three separate transactions, all within a short time of each other. The total weight of the drugs trafficked in those three transactions exceeded the large commercial quantity threshold for MDMA. Over the three month period alleged in the first charge, there were 20 further transactions which it relied on to prove you were engaging in a regular trade or business. The second charge covered a shorter period, just under two weeks. Its commencement date was fixed by reference to a single transaction in which, the prosecution alleged, not less than a large commercial quantity of MDMA was trafficked. There were two further transactions then relied on to establish a regular trade or business. Given the state of the law, the logic of the decision to frame two separate charges, in order to maximise the prospect of a conviction for trafficking in a large commercial quantity, can be easily understood. But the artificiality of the device, when it was clear the prosecution case was that you were running a continuing business for the whole period framed by the two presentments, was equally apparent.
16 If the sentencing discretion for trafficking was not circumscribed by this complicated scheme which imposes a three tiered penalty range, there would be no need for such complicated and artificial devices.
17 To add to these unnecessary complexities, a further complexity is introduced when dealing with charges of trafficking in a drug such as MDMA. Unlike drugs like heroin or amphetamine, which are usually sold in powder form with prices fixed and quantities traded by reference to its weight, MDMA is almost invariably supplied, and traded, in tablet form. Prices and quantities are usually expressed by reference to tablet numbers.
18 The nature of the illegal operations which produce MDMA for sale means there are no guarantees of consistent and reliable practices in relation to weight of MDMA tablets available in Victoria, or Australia.
19 However, the Drugs, Poisons and Controlled Substances Act 1981 defines commercial quantity and large commercial quantity for MDMA by reference to weight, not to the number of tablets.
20 No MDMA was found in your possession when you were arrested. All the conversations about trafficking in MDMA relied on by the prosecution to prove its case against you referred to quantities by reference to numbers of tablets. At your original trial, it was agreed by the prosecution and counsel then representing you that the minimum weight of MDMA tablets was 0.2 g, and that the minimum weight in grams of MDMA said to be trafficked by you could therefore be calculated by multiplying the number of tablets trafficked by you by 0.2.
21 In the days leading up to the commencement of your retrial, counsel now appearing for you advised the prosecution that the weight of the MDMA alleged to have been trafficked by you was in issue on retrial. Inquiries then made by the prosecution revealed the weight of MDMA tablets seized and examined by the Victoria Police Forensic Services Department during the relevant period covered by the charges ranged between 0.1 g and 0.47 g. That meant, for the purposes of establishing the weight of MDMA trafficked during the relevant period, the minimum weight of tablets known to be trafficked during that time, as evidenced by an analysis of all MDMA seized during that time, was 0.1 g. That was half that used as the multiplier at the first trial.
22
That reduced the total provable weight of MDMA for the initial transactions relied on to prove an intent to traffic in a large commercial quantity from
1.28 kg to 0.644 kg for Charge 1, and from 1 kg to 0.5 kg for Charge 2.
A large commercial quantity of MDMA is 750 g pure, or 1 kg mixed. The prosecution alleged you had trafficked in 13,743 tablets in the period covered by Charge 1, and 6,300 tablets in the period covered by Charge 2. The halving of the multiplier meant the total weight of MDMA relied on by the Crown for the two charges combined went from 4.009 kg to 2.004 kg.
23 As a result, your offer to plead guilty to trafficking in not less than a commercial quantity of MDMA, first made nearly four years earlier, was accepted by the prosecution, and you were duly arraigned and pleaded guilty to a single charge of trafficking in not less than a commercial quantity of MDMA over the whole period originally split between the two charges. That occurred on 11 September 2012. The charge to which you pleaded guilty carries a maximum penalty of 25 years' imprisonment.
24 The acceptance by the prosecution of your guilty plea to this charge did not end the contest between you and the prosecution. The number of trafficking transactions, and so the number of MDMA tablets, and so the minimum weight of the tablets traded during that period was also in issue.
25 The prosecution relied on 25 separate transactions, which it argued showed trafficking in a total of 20,043 pills, or, on the final calculator, 2.004 kg. Each transaction, it argued, was supported by an intercepted telephone conversation to which you were a party. Some were also supported by the evidence of a co-accused who had co-operated with the prosecution, or other evidence which, when combined with the intercepted calls and other evidence, was sufficient, argued the prosecution, to establish your involvement in trafficking that identifiable quantity of pills.
26
The unchallenged transactions evidenced by the intercepted calls show you sourcing MDMA from your suppliers, Tomislav Samac until his arrest on
6 October 2005, and Boris Trajkovski from then until your arrest, and selling, offering to sell, or admitting to having sold MDMA in quantities ranging from 100 to 3000 tablets to your purchasers. There were also two conversations where you were chasing a small quantity, ten pills each time. These would appear to be more in the nature of assessing or offering samples than representative of your general level of dealing. You were not a street level dealer, and were supplying, or offering to supply MDMA in quantities which themselves were likely then to be on sold to at least one lower level supplier before eventually finding their way to individual users.
27 It is clear from the unchallenged transactions you were willing and able to supply in quantities as large as 3000 tablets, and there are frequent references in the intercepts to you buying pills in lots of a thousand or more. You were urging those to whom you supplied to buy in greater quantities then they were, and pursuing your business of trafficking with application, commitment and vigour. It is also clear that you were trafficking in various other drugs at the same time, again at a level well removed from street dealing, and again with a commitment admired in those running and building up legitimate businesses.
28 Mr Holt who with Ms Broughton appeared on your behalf, submitted three of the transactions relied on by the prosecution, involving a total of 900 pills, were double counted. That is, they referred to the same pills that you were speaking of in other intercepted calls occurring at about the same time. He submitted a further two “transactions”, involving 2000 and 5000 pills respectively, should not be counted as acts of trafficking. They were, he submitted, boastful overstatements, not statements of fact.
29 The first asserted double count is call 420, on 27 October 2005, and call 641, on 2 November. Both calls are with Clay, a regular purchaser of MDMA from you. Both calls, according to the prosecution schedule tendered on the plea, evidence offers to sell MDMA (as opposed to evidencing possession for sale or an actual sale). On 27 October, Clay asked you to supply 100 pills. You derided him for ordering in such small quantities. You offered him 400 pills. There was a long discussion about the price at which you could obtain MDMA, and the price you would charge Clay if he purchased in greater quantities than 100 at a time. You referred on a number of occasions to the price you were charged when you purchased in 1000 or 2000 lots. You have accepted that call establishes an offer to supply 400 pills.
30
On 2 November, Clay rang you. You told him you would deliver to him if he ordered 200 pills, but he would have to collect them from you if he ordered only 100. It is accepted this establishes an offer to sell 200 pills, but Mr Holt argued this was in effect a continuation of the transaction commenced on
27 October. I am satisfied this is a separate offer for sale of 200 pills.
31
The second asserted double count is call 2135 on 4 December, and 2525 on 10 December. It is accepted both calls establish an offer to supply 200 pills. In the 4 December call, you called Clay and offered him 200 pills, to be supplied immediately. He complained about the difficulties of making arrangements to place the pills and arrange the money to pay you at such short notice, and said he would make a call and call you back in half an hour. There is no intercept of a return call later that day. The next intercepted call between you and Clay was on 9 December and was initiated by you. You said, “What’s going on with that bloke that wanted them what’s a names?” and Clay said he had just spoken to him but was waiting for him to call him back. He again said he would call back in half an hour. Again there is no intercept of a return call later that day. The next intercepted call is the following day,
10 December. This one was initiated by Clay, and he told you he had someone who wanted to buy 200, and you then made arrangement for delivery in the next couple of hours.
32 I am satisfied the call of 4 December constitutes an offer to sell 200 pills to Clay. He was not prepared to accept your offer unless he had a buyer. I am satisfied the calls of 9 and 10 December relate to an offer to sell 200 pills to Clay to on sell to a particular person. I am not satisfied these calls are linked to the same MDMA referred to in the call of 4 December. I am not satisfied the 200 tablets referred to in the 4 December conversation are the same as those referred to in the conversations of 9 and 10 December.
33
The third asserted double count is call 295 on 17 December and call 615 on 21 December. On 17 December, Clay called you and asked (in what was clearly a follow up from an earlier inquiry) whether you had been able to obtain supplies of MDMA. You told him you could not source it at the price Clay’s contact wanted to pay, but could supply it for 18 if the source took up to a thousand. There was a discussion about the types available. You told Clay it would probably be the green mitsies, and you would find out whether it, and what other types were available. Clay said he would find out what his source wanted. There are no intercepted calls between you and Clay until
21 December. On that occasion, Clay rang you and asked whether you were able to supply him with MDMA. You asked him what he wanted and he said he wanted 500 green ones to finish the job off. There was a discussion about which of the other types available Clay’s source would also like to take. Then the conversation turned to price. You said, “What sort of figures do you expect to pay?” and Clay said, “Oh well, you gonna say that figures of what you did the other day?” You replied, “Should be able to”.
34
I am satisfied this discussion about the colours and the amount, in particular the reference to the same figures as those on the other day in the
21 December conversation, demonstrate this is a conversation about further supply, in addition to the supply discussed on 17 December.
35
Turning then to Mr Holt’s submission, the other two contested transactions, for 2,000 and 5,000 pills respectively were, properly regarded, no more than idle boasts of having supplied or being able to supply MDMA in such quantities.
I agree they must be viewed in context. It is true many of the other admitted transactions concerned the supply, or offer to supply smaller quantities: generally between 100 and 500 tablets. But on the uncontested evidence there were also offers to sell pills in quantities ranging from 900 to 3,000. It is not, in my view, correct to characterise you as a person who generally traded in quantities of 100 to 200 pills, so as to make it unlikely you would actually trade in the quantities the subject of these two contested transactions.
36 The intercepted conversations you were having at about the same time as the one concerning the supply of 2,000 pills, indicate you were dealing in like quantities: 2,448 on one occasion; 3,000 on another; 1,000 on another. At about the time of the conversation concerning the 5,000 pills, the largest single quantity you discussed supplying was 1,000 pills. However, you were offering quantities of between 500 and 1,000 to those you supplied, and with such frequency that a statement you had sold 5000 is not inconsistent with that being the truth. You had, as I have noted, been assiduous in trying get those you supplied to increase their orders. I do not think this can be discounted as big talk.
37 I am satisfied the telephone intercepts in respect of these two transactions, viewed in the context of the evidence as a whole, establish offers to supply both amounts.
38
I am satisfied therefore, that each of the 25 transactions identified by the prosecution represented separate sales, offers for sale or possessions for sale, and they provide the scale by which the trafficking in MDMA over the period covered by the charge is to be assessed. I am satisfied the quantity trafficked in those various ways in those 25 transactions was at least
2.004 kg.
39 When His Honour Judge Howard sentencing you for the charge of trafficking in a large commercial quantity of MDMA, he described you in respect of that trafficking as, “an energetic, determined and unrelenting trafficker”. He characterised you as a wholesaler, who, with two minor exceptions, traded mostly in multiples of 100 tablets, and occasionally in thousands.
40 Having read the all the intercepts relied on to establish the 25 transactions, and a number of the other intercepts which provide context to them, I am satisfied they are correct characterisations.
41 It is clear that considerations of just punishment, denunciation and deterrence, both general and specific are important sentencing considerations. This was a money making venture for you. You had, and had demonstrated you had a capacity for hard work, and you could well support yourself and live in comfort by honest endeavour. You chose to take a different course, a deliberate, extended course of amoral, criminal behaviour, by trafficking in a commercial quantity of MDMA, whilst at the same time, also trafficking in other drugs. You worked to build up your MDMA trafficking business, at times pressuring those you were selling to buy more.
42 The drug trade is pernicious, and adversely affects not just the end users, and those around them who suffer from their drug abuse. It also erodes the moral values of all who deal in drugs. It exploits the greedy, the corrupt and the vulnerable, and those seduced by the false, tawdry glamour of so called recreational drugs. Your moral culpability is not reduced because those you sell to, and the end users, may be willing to be exploited. Those who set up to profit from the weak, the vulnerable or the sensation seekers must be seen for the greedy, profiteering criminals they are, and punished accordingly. Your sentence must reflect the denunciation of the values and activities which attach to the drug trade. It must stand as a real deterrent, so the lure of making easy money by drug trafficking is seen to be not worth the risk.
43 The task of fixing on the appropriate sentence for this offence is complicated by a number of factors:
44 First, when you were sentenced by His Honour Judge Howard for trafficking in the MDMA now covered by this charge, he too was dealing with these same 25 transactions, but in a different context: a charge of trafficking in a large commercial quantity, carrying life imprisonment, and an agreed minimum weight of just over 4 kg, or as he described it, five times the threshold of 750 g pure MDMA.
45 Now, I am dealing with a charge of trafficking in a commercial quantity, carrying a maximum of 25 years' imprisonment, an agreed minimum weight of just over 2 kg. That is 20 times the threshold for a commercial quantity, and, in fact just over two and a half times the threshold of pure MDMA stipulated for a large commercial quantity.
46
Secondly, His Honour considered he was not constrained by current sentencing practices, and sentenced you to a term of imprisonment of
16 years for that offence. It represented a significant percentage of the Total effective sentence of 21 years' imprisonment imposed by him.
47 The Court of Appeal held His Honour was in error in considering himself not bound by current sentencing practices. I must, and do consider myself bound to sentence you in accordance with current sentencing practices.
48 Thirdly, I must graft the sentence for this offence onto the sentences fixed by the Court of Appeal on re-sentencing for the other offences, in a way which fixes the appropriate sentence for this offence, and conforms with the principle of totality.
49 I have set out, in my written reasons, a table identifying the sentences imposed by the Court of Appeal with a brief description of each of the charges. I will not read it now but it is in the written reasons, and will be provided in due course.
50 The Court of Appeal imposed the following sentences:
First Presentment
Trafficking, Methylamphetamine, (buying and selling, Giretti count, 44 transactions) 11 Aug 05 – 18 Jan 06 4 years Trafficking, Methylamphetamine, (manufacture, giretti count) 6 Dec 05 – 18 Jan 06 3 years, 1 year cumulative Trafficking, Methylamphetamine, (possession for sale) 18 Jan 2006 1 year Trafficking, Cannabis (selling) 11 Aug 05 – 18 Jan 06 4 years, 1 year cumulative Conspiracy to cultivate Cannabis 1 Nov 05 – 18 Jan 06 3 years, 1 year cumulative Possession of Cannabis (2.5g, personal use) $250 fine TES 7 years
Second presentment
Trafficking, Methylamphetamine, 12 May – 31 July 06 1 year 6 months Trafficking MDMA 32 June 06 1 year 6 months, 6 months cumulative TES 2 years
51 Eighteen months of the sentence on the second presentment was ordered to be served cumulatively on the sentence on the first presentment, so resulting in the Total effective sentence of eight years, six months. Then, as I have noted, a non parole period of six years and three months was fixed.
52 Considerations of totality are complex. The partial cumulation orders made by His Honour Judge Howard added a further five years to the 16 year large commercial quantity sentence, and that was how the total effective sentence of 21 years was arrived at. When the Court of Appeal re-sentenced you on the other charges, it reduced the sentences on two of the lesser charges - one on the first, one on the second presentment - but upheld the balance. Having noted the whole structure of the sentences imposed by His Honour Judge Howard became disorganised once the 16 year sentence was removed, it made new orders for cumulation. It said the cumulation orders it made on the other charges:
“must reflect totality in the absence of conviction and sentence on Count 7, and of course making no assumption about what might happen on a retrial of the applicant on that count”[5]
[5]At [137]
53 Count 7 was the charge of trafficking in a large commercial quantity of MDMA.
54 When one looks at the new cumulation orders imposed by the Court of Appeal which resulted in the total effective sentence of eight and a half years, one appreciates that the Court of Appeal found that totality required, in the absence of a conviction for trafficking in a large commercial quantity of MDMA, a greater total effective sentence for the other offences than His Honour Judge Howard could allow for when the 16 year sentence he did for the large commercial quantity trafficking charge.
55 In looking at the individual cumulation orders and the total effective sentence imposed by the Court of Appeal, it is also necessary to bear in mind that the second presentment dealt with by His Honour Judge Howard and the Court of Appeal concerned offences committed whilst you were on bail for the other charges, so bringing s.16(1A)(e) and s.16(3C) of the Sentencing Act 1991 into operation. They require sentences for offences committed whilst on bail to be served cumulatively on the sentences imposed for other offences, unless the court otherwise orders.
56 Although the offences committed whilst on bail attracted lesser sentences than all but one of the one of the charges on the first presentment, a significantly greater proportion of them was ordered to be served cumulatively on the sentences imposed for the offences covered by the first presentment. His Honour Judge Howard fixed a total effective sentence of three years on the second presentment, and directed two years of it be served cumulatively upon the total effective sentence on the first presentment. As a result, two years of the five years of partial cumulation ordered by His Honour was imposed for the offences committed whilst on bail. On re-sentencing, the Court of Appeal, having reduced one of the sentences on the second presentment by 12 months, and fixed a total effective sentence of two years, one year less than that fixed by His Honour Judge Howard, and directed that 18 months of its two year total effective sentence be served cumulatively on the total effective sentence on the first presentment.
57 When looking at the individual sentences imposed or confirmed by the Court of Appeal, it also needs to be borne in mind that none of them were for trafficking in not less than a commercial quantity of a drug. All trafficking charges to which you pleaded guilty before His Honour Judge Howard were for simple trafficking, and carried a maximum penalty of 15 years' imprisonment.
58 The Court of Appeal adopted His Honour’s description of the offending in respect of these other charges[6]. I adopt that description and, without reading it aloud, incorporate them into my reasons. Those circumstances provide context for evaluating the relative seriousness of this offence, and considerations of totality.
[6][116] and [21]
[116] It is not in question that the judge accurately described the offending which was the subject of counts 2, 5, 6, 9 and 10 on the first presentment, and the two counts on the second presentment.
[21] Count 2:
Count 2 is a Giretti count involving a business of trafficking by sale 707.14 grams of methylamphetamine mix between 11 August 2005 and 18 January 2006. You pleaded not guilty to this count on arraignment but changed your plea to guilty during the course of the trial.
This was your second drug business. You sourced the drug principally from Trajkovski from August until his arrest on 29 December 2005. Thereafter, you sourced it from various identified and unidentified suppliers. You sold the drug to a number of Jedi offenders, namely Cheryl Beckerton, Michelle Scott and Anthony Scott from Ballarat; to Danny Vasic, Peter Dafalias and Craig Bennett in Melbourne; and to a number of other persons, including in Shepparton.
In all, there were 128 coded telephone intercepts substantiating 44 separate transactions, of which 14 involved amounts of 28 grams or more. There was a total of 560 grams transacted at a wholesale level and 147 grams at a street level.
Count 5 – manufacturing methylamphetamine with Samac
Count 5 is a Giretti count of trafficking methylamphetamine simpliciter between
6 December 2005and 18 January 2006, which involved you and Samac manufacturing the drug for sale. Samac’s culpability is greater as he was offending whilst on bail and he set up the clandestine laboratory.
Count 6 – trafficking methylamphetamine by storing at home for sale
Count 6 concerns you trafficking methylamphetamine simpliciter by possession for sale of 129.1 grams of the drug in a mixture. This was located by police at your home at Melton when they searched it on 18 January 2006. In all, you had eight containers of methylamphetamine powder or tablets with a purity of between 8 to 10%, except for approximately 3 grams of mixture with an approximate purity of 60%.
Whilst you accept you possessed these drugs for sale, it is conceded by the prosecution that throughout the period of your offending you had an extensive methylamphetamine habit evidenced by these drugs which had been set up for use, along with pipes which you used to smoke crystal methamphetamine or ice (you are not to be sentenced for involvement with this latter drug). Such use was confirmed by the evidence of the accomplice, Stephen Murphy, that he used ‘speed’ with you on one occasion when he visited your address on behalf of Trajkovski.
Your plea has been entered on the basis that a significant amount of these drugs was for personal use, but you would have taken the opportunity to sell amounts of it had you been able to. I accept this as a proper consideration to take into account, but the essence of the offence is trafficking by possession for sale, not possession for personal use. If it was only the latter, there would be no offence of trafficking, only one of possession.
The amount of the drug was well below the commercial quantity threshold of 1.25 kg, and the offence is to be categorised as low-level trafficking.
Count 9 – the third business – trafficking cannabis
Count 9 involves you conducting a third Giretti business of trafficking cannabis simpliciter between 11 August 2005 and 18 January 2006. You were jointly presented on this count with Trajkovski, but he was far less involved in this offending than you were in that he purchased cannabis from you on only two occasions.
Over that 5 month period you sold 41.4 pounds, or approximately 18.8 kg, of cannabis to Samac, Trajkovski, and six other Jedi offenders, namely, Clay, Beckerton, Vasic, Briggs, Bennett and Anthony Scott; as well as to a few others.
None of these drugs were seized, but the sales were proved by 68 coded telephone intercepts. The evidence revealed that on some occasions you sourced cannabis from these persons for purchase by you, and on other occasions you sold the drug to them. The intercepts reveal you to have been an energetic and enthusiastic trafficker in this business.
Count 10 – the ‘grow-house’ conspiracy to cultivate cannabis
Count 10 involves you in a conspiracy with Craig Bennett and David Reilly to cultivate cannabis in a ‘grow-house’ between 1 November 2005 and 18 January 2006. You purchased a property at 6 Scott Street, Melton from your former wife who was Bennett’s sister. It was then set up to grow cannabis hydroponically.
and
Significantly, you set about sourcing 16 cannabis plants with which to start the operation. During this time you were liaising with an independent finance advisor and mortgage broker, who was arranging the housing loan. It would appear from the telephone intercepts that you made it clear to him that the property was to be used for growing cannabis, and steps were taken to avoid a valuer from getting inside the house. Ultimately, this approach was unsuccessful as the valuer insisted interior access was necessary. Reilly therefore cleaned up the premises and you escorted the valuer in and later said that you had kept him talking so as to divert his attention from your scheme.
On 18 January 2006 police executed a search warrant at the premises where black plastic tubs, black water tubing and electrical equipment and wiring had been set up for hydroponic cannabis growing. But the scheme had not yet reached operational status. Reilly was effectively ‘camping’ at the premises. There was still work to be done, including setting up more efficient irrigation, growth tubs, potting mixture and the like.
The judge described the applicant’s offending with respect to the second presentment as follows:
You were arrested on 18 January 2006. You were released on bail on 15 February 2006. You were re-arrested on 18 September 2006 and have been held in custody thereafter without bail.
and
Your release on 15 February 2006 was on strict bail terms and conditions, including that you report daily to police. During this time information was obtained by police and further lawful telephone intercepts were placed on telephone services used by you. Regrettably, this investigation revealed you continued to offend whilst on bail. Obviously, you were undeterred by being charged and bailed on serious drug charges.
Count SP1 on the second presentment involves you trafficking methylamphetamine between 12 May and 31 July 2006. A number of coded telephone intercepts reveal that you were sourcing an unknown amount of methylamphetamine from Peter Dafalias. You also sold small amounts of methylamphetamine totalling 19.5 grams between 23 June and 24 July 2006.
As the trafficable quantity of methylamphetamine was 6 grams, I will proceed on the basis that this was low level trafficking. It is not possible to put a realistic price on these transactions.
Count SP2 involves you trafficking in MDMA on or about 23 June 2006. You confirmed with Defalias that you were in possession of 500 MDMA tablets for sale and you wanted him to give 50 tablets to a particular customer. It was agreed between you that you would sell the 500 tablets. The street level price for 500 tablets was from $12,500 to $25,000 if sold on a per pill basis; or $10,000 to $15,000 if sold in lots of 100. Obviously, the wholesale prices would be lower. Selling in lots of 50 tablets, as here, would suggest wholesale rather than street dealing.
Initially, in its written submission, the prosecution said it did not know the weight of these tablets. In a later submission as to penalty, it suggested the amount was 185 grams. Using the agreed divisor of .25 grams per tablet, the correct weight should be 125 grams which is 25% of the commercial quantity threshold. As the trafficable quantity of MDMA was 3 grams, I will proceed on the basis that this, too, was low level trafficking.
59 The Court of Appeal summarised the matters relied on in mitigation before His Honour Judge Howard[7]. They were adopted by Mr Holt as equally relevant to the sentence for this offence as well. Again, I adopt them, and, without reading them aloud, incorporate them into my reasons.
[7]At paragraphs [118 – 127]
[118] The applicant called in aid on the plea – (1) his pleas of guilty to the various counts; (2) the persuasive evidence that, throughout the period of offending, he was a consistent drug user; (3) his ill health. He had a history of sinus bradycardia, a heart rhythm abnormality problem; and (4), his family and personal circumstances.
[119] As to the last-mentioned, the applicant had endured a dysfunctional childhood. His education had been limited, but he had completed an apprenticeship as a mechanic, and had established his own business.
[120] Having run away from home at age 15, the applicant had lived on the streets for a period. He had established a relationship and fathered a child. The relationship had soon broken down. He had raised the child very well. At age 36, he had established a new relationship, and fathered a second child. That relationship had, eventually, also failed.
[121] The applicant had begun drug use when in his early thirties. He had given up his business as a mechanic, and begun a home renovation business. Later on, he had purchased and run a nightclub at Melton, through which, it appears, drugs were run. All this time, he was using drugs in quite large quantities – at first amphetamines, then MDMA and occasionally cocaine.
[122] The applicant had incurred a substantial criminal history between 1978 and 2005. It involved 13 court appearances, with multiple convictions for motor vehicle offences, and offences of dishonesty. The applicant had not, however, previously incurred convictions for drug offences. The offences on the first presentment were committed whilst the applicant was undergoing a suspended sentence which had been imposed in the County Court in May 2003.
[123] There was positive material that, having been in custody since 2006, the applicant had taken steps to overcome his drug habit. A number of tests had been administered. All had proved negative. The same situation, I interpolate, was shown to be the case – in the event that this Court came to re-sentence the applicant – between time of sentence and March this year.
[124] There was also positive material that the applicant had, whilst in custody since 2006, successfully completed a number of courses. Again, I interpolate, there was material which showed that the applicant had continued to successfully undertake courses since being sentenced.
[125] Before the judge there was a psychologist’s report. His Honour was prepared to accept that it gave some explanation why the applicant became involved in the initial offending, but not that it explained his substantial and multi-faceted drug trafficking. He did accept that the psychologist’s opinion that the applicant had lack of insight into the gravity of his offending and its repercussions for drug users.
[126] Also before the judge were written testimonials. The authors spoke well of the applicant.
[127] One other matter should be mentioned. There was material before the judge that the applicant was being held in protective custody at time of sentence; and that this had been the situation for some time. We were informed, in the context of possible re-sentencing, that this continued to be the situation. It is a circumstance bearing upon the hardship of imprisonment.
60 At [123] and [124], the Court of Appeal noted it had been provided with additional material showing you had continued to return negative drug screens, and to participate in courses between the time of original sentence and the appeal. Similarly, I was provided with, and take into account in your favour, the evidence you have continued to pass all drug screen tests, and to participate in courses, between resentencing and the plea hearing before me.
61 You have very strong family support. Present at court throughout the plea hearings were your 24 year old daughter Tamara, the child you had raised alone from the time she was one, your 15 year old son Jordan, and your oldest daughter Tania, who had been raised by her mother, believing you were dead, and who had come into your life, and that of Tamara and Jordan, only five months ago. Tamara and Tania, and Jordan's mother wrote moving letters of support. It must have been confronting for Tania to discover the father she had believed was dead was alive, but in prison for serious drug offences. She met Tamara and Jordan, then went to visit you in prison. She has continued to do so every week, and to speak to you daily.
62 The psychological report prepared for your original plea hearing before His Honour referred to Jordan’s difficulties in coping following your arrest. They have continued, and he has struggled with depression and with his schooling. The bond between your children, including Tania, is so strong, that by the time of the plea before me, Tania had taken Jordan into her own home, and was providing him with stability, family life (she has two children of her own) and assistance in a fresh start in a new community and school.
63 Tamara, at 24, has a stable career and life. She is devoted to you. She is looking forward to providing you with a home and employment on your release. She puts it in terms of looking forward to having the opportunity of repaying the devotion you have displayed to her throughout her life.
64
It follows you have much to look forward to on release, the stability provided by a loving and supportive family, a home and the prospect of employment.
I accept this indicates the weight to be given to your prospects for rehabilitation is greater than might be thought likely in a man of mature years, with significant prior convictions, who had participated in large scale, protracted, poly drug trafficking for gain.
65 The next matter relied on was the delay between your original arrest and charge, and the plea and sentence for this charge. You have been in custody for over six years. You have served almost all of your current non parole period. This is an inordinately long time to spend with charges dating back to 2005 unresolved, and without the certainty of a final, total sentence, and a final non parole period; that is, without knowledge of when you can look forward to the possibility of release.
66 Linked to that is the weight to be given to your plea of guilty to this charge. It was a plea first offered four years ago, before your first trial. Had the legislative framework not been so complicated, and had the sentencing discretion been left in the hands of sentencing judges once an offence of trafficking had been established, I have no doubt this matter could have been resolved long ago, even if there had been factual disputes to resolve upon a plea, and you would have been serving a certain sentence, and had a certain non parole period fixed long ago.
67 You are entitled to have the sentence reduced in your favour as a result.
68 I cannot backdate your sentence for this charge. It must commence today, the day it is imposed. Normally, when sentence is passed, all pre-sentence detention referable to an offence must be declared and reckoned as part of the sentence served. That is so, whether an offender’s presentence detention is referable to a number of offences or just one. The time you have spent in custody since being charged with this offence and until today should therefore be taken into account as pre-sentence detention for this offence.
69 Had you been sentenced for this offence at the same time as the Court of Appeal re-sentenced you for the other offences, by operation of s.18(1) of the Sentencing Act, the time you had spent in custody up to then in respect of this, as well as the other offences, would had to have been the subject of a pre-sentence detention declaration, in respect of all charges, and would have had to have been reckoned as the period of imprisonment already served for this, and all the other charges.
70 However, s.18(2)(d) prevents me from making a declaration in respect of the time you have spent in custody up to the time the Court of Appeal made the pre-sentence declaration when it re-sentenced you for the other offences. That is because s.18(2)(d) does not permit the making of a pre-sentence declaration in respect of pre-sentence detention for an offence, if the period had previously been the subject of a pre-sentence declaration.
71 Nor can I make a pre-sentence detention declaration in respect of the period you have been in custody since you were resentenced by the Court of Appeal. Although it is properly to be regarded as pre-sentence detention for this offence, it is also properly to be regarded as time you are serving your sentences for the other offences. This is an anomalous situation, brought about by the quashing of the conviction for the large commercial quantity charge and the direction you be re-tried for it, whilst re-sentencing you for the other charges which were originally dealt with at the same time.
72 After hearing from Mr Dickenson from Central Prison Records, and with the assistance of Mr D’Arcy and Mr Holt, it was agreed the only way to adjust for this anomaly was to reduce the sentence otherwise appropriate for this offence by the period of time you would have been entitled to have reckoned as pre-sentence declaration in respect of this, and the other offences. On the information provided to me, you have now spent a total of six years and two months in custody since being charged with these offences. You are one month short of the earliest release date under the current declared non parole period.
73 Mr Holt acknowledged that there should be an increase in the head sentence but submitted the delay, your plea of guilty to a charge for which a plea was first offered four years ago, the unfairness of the consequent uncertainty about your earliest release date, and the rehabilitative factors counting in your favour warranted no increase in the non-parole period previously set.
74 I disagree. In my view, this is the most serious of the offences you committed over that time and, in my view, it significantly adds to the overall criminality of your offending during this period.
75 The sentence, the degree of cumulation, and the non-parole period I propose to fix have all been moderated to take into account the factors I have recounted.
76 Had your plea of guilty been accepted at the time the other pleas were offered, and had it been offered on the factual basis I now proceed upon, it still would have been the most serious offence, for the reasons I have already canvassed.
77 Had I been sentencing you at the same time as you were sentenced for the other matters, but taking into account the additional matters which now count in your favour, I would have imposed a sentence of eight years' imprisonment for this charge. I would have considered, having regard to totality, that three years of that should be served cumulatively upon the sentences imposed for the other offences. That is, to make the total effective sentence for this and the other offences, 11 years and six months. In my view, you should serve a further 18 months before being eligible for parole.
78 Taking into account the six years and two months you have already served, and my intention to cumulate three years of this sentence on your current sentences, I sentence you to a term of imprisonment for this charge of five years and four months. I direct that three years of that sentence be served cumulatively upon the sentences you are currently serving. That makes a total effective sentence for all offences of 11 years and six months.
79 Sorry, let me just check that calculation. Let me say this: the reason I have not stood you up and formally pronounced sentence is that I wanted to make sure I had this right.
80
I would have imposed a sentence of eight years for this charge, if I had been at large, and I consider that three years should be served cumulatively upon the sentences imposed for the other offences. That is, had the sentences all been passed at once, there would have been a total effective sentence for everything of 11 years and six months. It is my intention to add a further
18 months to your non parole period. Taking into account the six years and two months you have already served, and my intention to cumulate the three years of this sentence on your current sentences, I calculate that the appropriate sentence, therefore, to pronounce today is a sentence of five years and four months. I intend to direct that three years of that be served cumulatively upon the sentences you are currently serving, making a total effective sentence for all offences of 11 years and six months.
81 I intend to fix a new non-parole period in respect of all sentences of seven years and nine months. That runs from the commencement of the original sentences and, by virtue of the pre-sentence detention declaration made by the Court of Appeal, when it directed that the time you had served up until then be reckoned as time already served, the effect of that should be to increase your overall non parole period to seven years and nine months.
82 Is my arithmetic correct?
83 MR HOLT: Yes, Your Honour.
84 HER HONOUR: I intend to add three years to the total effective sentence currently serving.
85 MR HOLT: Yes, Your Honour.
86 MR D'ARCY: And 18 months further to serve.
87 HER HONOUR: Yes.
88 MR D'ARCY: Yes, that seems right.
89 HER HONOUR: But because of the six years and two months that has already been served that I want to reduce the overall sentence by, that means, on my calculation, the actual sentence to be passed today is five years and four months. Agree with that?
90 MR HOLT: Yes.
91 HER HONOUR: I am going to make a s.6AAA declaration too, but what I was going to do was to do it in respect of the sentence that I would have imposed had I been able to sentence at the time of the other sentences. That is, I am doing it by reference to the eight years, rather than by reference to the five years, four months. The 6AAA declaration is ten years.
92 Do you want me to do the declaration in respect of the actual sentence as well, or is that sufficient?
93 MR D'ARCY: That is sufficient, Your Honour.
94 MR HOLT: That is sufficient, Your Honour.
95 HER HONOUR: Certainly, once there is a transcript and this is set out, that will make my reasoning clear.
96 MR HOLT: With respect, to do other would be utterly meaningless. To attempt to do it otherwise would be meaningless.
97 HER HONOUR: Thank you, Mr Holt.
98 MR HOLT: I do not ask you to.
99 HER HONOUR: Yes. Mr Waters, could you now please stand.
100 On the charge of trafficking in not less than a commercial quantity of MDMA, to which you pleaded guilty before me, you are convicted. You are sentenced to be imprisoned for a period of five years and four months, and I direct that three years of that be served cumulatively upon the sentences that you are currently serving.
101 I fix a new total non parole period, taking into account the sentences you are currently serving and existing non parole period, of seven years and nine months.
102 I declare, pursuant to section 6AAA Sentencing Act that but for your plea of guilty I would have sentenced you, instead of the eight years, to a period of ten years' imprisonment.
103 Does that reflect all the orders that are now required to be made?
104 MR HOLT: Yes, there are no additional orders, thank you, Your Honour.
105 HER HONOUR: In that case, you can remove Mr Waters.
106 I have a draft of my reasons which I will provide to you, which is not the revised reasons. You will see that there are some minor corrections that require to be made, but given the complexity of this matter and the assistance you have provided to me, and the need to make sure it is right and to make sure Mr Waters understands and central records understands, I will provide you with that draft now. The revised reasons will be provided as soon as they are to hand.
107 MR HOLT: Thank you.
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