Director of Public Prosecutions v Weightman
[2013] VCC 970
•9 July 2013
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No CR-12-00591
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| RODNEY DALE WEIGHTMAN |
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JUDGE: | His Honour Judge Maidment | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 3-5, 8-12, 15-19, 22-24, 26, 29 and 30 April 2013 | |
DATE OF SENTENCE: | 9 July 2013 | |
CASE MAY BE CITED AS: | DPP v Weightman | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 970 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr R Pirrie | |
| For the Accused | Mr Parker |
HIS HONOUR:
1 Rodney Dale Weightman, you can remain seated. You pleaded guilty to a charge of trafficking in a drug of dependence, namely methylamphetamine. That offence having taken place on 7 April 2011. And you were found guilty of a charge of trafficking in a commercial quantity of methylamphetamine. That offence having taken place between 13 May 2010 and 7 April 2011.
2 The offence of trafficking simplicita carries a maximum term of imprisonment of 15 years and the offence of trafficking in a commercial quantity of methylamphetamine, a maximum term of imprisonment of 25 years.
3 You admitted prior convictions and court appearances. The last of those on 19 September 2011 for trafficking in a drug of dependence, that being MDMA or ecstasy and two offences of possessing a drug of dependence, resulted in you being sentenced to a term of imprisonment for a period of 15 months on the trafficking offence, and a term of imprisonment of one month on each of the two charges of possession.
4 Those sentences to be served concurrently, making a total effective sentence of one year, three months, of which all but 90 days was suspended, I have been supplied with the sentencing remarks of His Honour Judge Smallwood in relation to that matter. It is plain that that resulted in you not having to serve any more time on the sentence that was imposed upon you.
5 I note that in relation to that matter, having been supplied with the sentencing remarks of His Honour Judge Smallwood, which are Exhibit B on the plea hearing, that that offence involved in you in trafficking in MDMA between 18 March and 6 August 2008. It involved you trafficking in ecstasy tablets to members of the Bandidos motorcyle gang, in connection with your association with the brothers Manariti. There were a number of others also involved in that offending, associated with the Manariti's as I understand it. The total of number of ecstasy tablets alleged by the prosecution in relation to that matter could not be ascertained, but it was said to be in excess of 400 tablets.
6 The other matter involved a court appearance at the Ballarat Magistrates' Court on 13 October 2004, which was for a number of offences, including possession of cannabis and possession of a restricted substance and for dishonesty offences and possession of ammunition whilst unlicensed. You were convicted and fined $4,000 on Charges 1 to 4 and put placed on a good behaviour bond in relation to the possession of cannabis charge.
7 The offence of which you were found guilty by the jury, of trafficking in a commercial quantity of methylamphetamine, between 13 May 2001 and 7 April 2011, involved you in the conduct of a business of trafficking in that drug, throughout that period. It is plain from the jury verdict and from the evidence that was led in the course of the trial, that your offending was of a high level and involved substantial quantities of methylamphetamine.
8 The precise quantity trafficked again, not possible to ascertain, but it is clear from the evidence provided in the course of the trial and helpfully summarised in the transactions document, Exhibit A, which was provided to me on the plea by the prosecution, that the total quantity trafficked was of a wholesale value in the illicit drug trade, in the order of $1.2m and a street value of in the order of $2.6m.
9 There is no doubt that you were involved more or less continuously throughout the period covered by the charge in virtually every facet of a trafficking business and that your activities were as the prosecution put it, in the nature of high level organised crime, involving as they did your association with a number of others who were clearly professionally involved in the drug trade and involving persons interstate, who were also professionally involved in the drug trade.
10 It did, as the prosecution pointed out, involve you negotiating the purchase of meth oil, actually purchasing the meth oil, frequently through intermediaries, frequently from Sydney, testing the quality of the oil purchased, converting the oil to powder, packaging it and transporting it, selling it directly, collecting debts owed through the trafficking business and paying suppliers. You were clearly heavily involved with Mohammed Oueida. You were aware that Oueida was himself heavily involved in the drug trade, particularly in the trafficking of methylamphetamine. You were aware and indeed asserted that he had a reputation in the drug trade as the "new Mokbel" and therefore was regarded as a very significant figure in the drug trade in Australia.
11 It may be that Mr Oueida's place in the hierarchy within the drug trade in Australia was higher than yours. It is difficult to assess. There is no doubt that Oueida conducted himself in a flamboyant way and in a way which did not seek to conceal profits that he had made from the drug trade. He possessed an aircraft and a Ferrari, lived in an expensive house and apparently participated in an expensive lifestyle.
12 One of the questions that I have to consider is the question of parity of sentencing. Mr Oueida was sentenced for a number of offences, which in part involved drugs with which you were also involved. Oueida was sentenced by Her Honour Judge Gaynor on 20 December 2012 in relation to his participation in the trafficking in methylamphetamine. He was sentenced to a total effective sentence of eight years and six months imprisonment and required to serve a minimum of five years and six months imprisonment, before being eligible for parole.
13 I note however that he pleaded guilty to those offences and that it was accepted by Her Honour in imposing sentence that he was in fear of his own safety as a result of his association with others, even more senior in the Lebanese community and drug trade in Australia and that he had been and was likely to continue to be the subject of a very harsh and onerous regime within the prison system during the period of his incarceration, involving substantially solitary confinement and little time out of his cell. In addition to taking into account the plea of guilty, Her Honour accepted that there was genuine remorse on Mr Oueida's behalf.
14 I will come back to the question of parity a little later.
15
Turning to matters personal to you. Your counsel provided me with a report of forensic and consultant psychologist, named Mr Ian MacKinnon, dated
18 May of this year, which resulted from Mr MacKinnon's assessment of you at the Melbourne Remand Centre on 10 May of this year. The report helpfully sets out much of your background history. That history shows that you were born in Australia and grew up in the Ballarat area.
16 Your childhood was apparently not an opulent one, but you had a normal childhood with good relations with your parents and your siblings. Your father, who is now aged 77 years worked as a factory worker and as a horse trainer. Your mother, had primary responsibility for bringing up you and your siblings. She also worked in a factory until she was injured in a workplace accident and subsequently underwent severe surgical procedures.
17 You are 47 years of age. You are unmarried and apparently do not have any children. Apparently you have been involved for the last 16 months in a relationship with a person who Mr McKinnon refers to as "Maddy".
18 You were educated in the Ballarat area to Year 10 and thereafter went into what Mr McKinnon described as itinerant factory work and abattoir work. You later completed a part of a spray painting apprenticeship and started buying cars and repairing and restoring them and reselling them. You also worked part-time with your father, training race horses. In 1999 you purchased a property in Symthes Creek and developed it into a horse training facility. You apparently became a successful trainer. You expanded the number of horses on your property from two to 20 and became one of the most successful trainers in Victoria in harness racing.
19 Unfortunately you were disqualified from working in the industry for a period of six years as a result of having been found by the authorities to have used banned substances on your horses. It seems that you regarded that as an injustice in that you had taken steps through seeking veterinary advice to ensure that the substances could be used legitimately and apparently had been led to believe that they could. Nevertheless it clearly brought to a sudden end in 2005 your participation in the harness racing industry and clearly with your subsequent convictions for criminal offences, it may reasonably be supposed that you will not be permitted to return to that way of life.
20 According to Mr McKinnon, as a result of his interview with you, after your disqualification from acting as a trainer, your life descended into a personal and social mess. In 2005 you purchased a property in Delacombe, the property in which you committed these offences substantially as I understand it from the sale of lots on the horse training property which you had subdivided. You also had some other monies left over upon which you lived during the period after your disqualification as a race horse trainer.
21 You have some physical problems. You have suffered from a peptic ulcer for 15 years. You currently suffer from sleep apnoea and apparently booked for treatment of that condition prior to your imprisonment. You also suffer from high blood pressure. You have never apparently had any psychological or psychiatric treatment, but Mr McKinnon diagnosed that you were suffering from symptoms that met the clinical criteria for major diagnosable psychological disorders, namely adjustment disorder and substance abuse disorder.
22 According to what you told Mr McKinnon in the wake of your disqualification from the racing industry, you started abusing ice, methylamphetamine with persons you have described as "freeloaders" and other negative persons. You started hanging out with them at your Delacombe property.
23 I note that in 2008 you participated in the offences for which you were sentenced by His Honour Judge Smallwood on 19 September 2011 and that the offences for which I have to pass sentence today, were committed whilst you were on bail for those offences.
24 Since you have been on remand in relation to these matters, you have been visited regularly by family members and by your partner, Maddy.
25 You have apparently coped reasonably well in the prison environment and your counsel supplied me with correspondence relating to your participation in a school's program within the prison system, whereby prisoners such as yourself meet with parties of school children and talk to them about the disadvantages of drug abuse and the consequences of being sent to prison in relation to such matters. It was submitted on your behalf that that was consistent with what Mr McKinnon describes as your expressions of remorse for your offending conduct.
26 I have to say that I am not persuaded that, having participated in a contested trial and having presented a defence which seemed to me to be not only a relatively hopeless one in all the circumstances, but a false defence, that I am not prepared to accept in the absence of clear evidence that you are genuinely remorseful for your conduct, arising or in relation to the two offences for which I have to sentence you.
27 I am quite sure that you are sorry for where you are and sorry for yourself, but I am not satisfied, having listened to hours and hours of your discussion about your criminal activities and to the manner in which your case was presented, that you are genuinely remorseful.
28 Mr McKinnon suggests that the disorders that he identified, to which I have referred to, contributed to your criminal conduct, in that they “significantly degraded your ability to reason and make sound judgment and engendered a self-centred and impulsive tendency in you, lowered your ability to appropriately consider the likely adverse consequences of your actions on other individuals and the wider community and upon yourself”.
29 I note, despite that reference in Mr McKinnon's report, that your counsel made it clear, during the course of the plea hearing, that he was not submitting that the Verdins principles applied, so at to reduce your moral culpability. I might say it seems to me that that was a sensible approach on behalf of your counsel. There was nothing in the report to persuade me that your moral culpability is reduced by either of the impairments, if that is what they are, identification by Mr McKinnon.
30 That said, I do take into account what he has to say about your adjustment disorder, which he submits arises from the disqualification from the racing industry and your sense of injustice, arising from the manner of that and the basis for that disqualification. I accept that what he says is correct about that and I accept that it was likely to have been subsequent to that disqualification that you became heavily involved yourself in substance abuse. No doubt, the adjustment disorder will impact to some extent on your ability to cope with your time in prison, although it does not seem to me that that it is such as gives rise to any basis for a significant reduction in sentence. It is nevertheless relevant and I do take it into account.
31 It was submitted on your behalf that Mr Oueida was substantially higher in the pecking order, so far as the drug trade was concerned and that I should apply the principles of parity in a way which would reduce the sentence that might otherwise have been appropriate for you, to one that was on a par with his. The prosecution submits in terms that parity or strict parity does not really arise here. The offences for which Mr Oueida was sentenced were different. There is no doubt they were.
32 Also although there was clear intersection between your participation in the drug trade and that of Mr Oueida during the relevant period, you were not partners, you were co-participants. Clearly you were running other business interests in the drug trade other than those which were a part of Mr Oueida's business in the drug trade. I accept the prosecution's submission that strict parity does not arise, although it does seem to me that there is such a link between your role and that of Mr Oueida, that I should take into account, to a degree, the sentence imposed on Mr Oueida.
33 It was pointed out to me that there were Restraining Orders on the house at Delacombe and another property at Sebastapol and there may be other properties as well, and that there was likely to be further application for those properties to be forfeited, as a result of their link to your offending conduct.
34
I was told by your counsel that you opposed the applications. I was supplied with and referred to a copy of the report of the case of
R v McLeod[2007] VSCA 183, where the Court of Appeal dealt with the question of the extent to which a sentencing judge may or should take into account prospective forfeiture of property, arising from its link to offending conduct of this nature.
35 As I understand the thrust of the Court of Appeal decision, where there is no clear evidence as to the facts relevant to the question of forfeiture and no basis upon which a trial judge can make an assessment of the likely success of applications of forfeiture of property, arising from participation in offences of this nature, then there is no sentencing error in the judge not taking that matter into account in reduction of sentence. Clearly where there is evidence upon which a judge can form a view as to the likely success of litigation of that nature and the prospects of an offender losing substantial interest in property, then that is a matter which can be taken into account in reduction of sentence.
36 I was not supplied with any significant information, much less admissible evidence, upon which I can form any firm conclusions about those matters. And I decline to take those into account. However, it seems to me that it is relevant to note that these are matters which are clearly hanging over your head and are likely to be the subject of real concern to you. They will to some extent make serving your sentence harder as a result. I do take those matters into account in that sense.
37 I note that Mr McKinnon, in his report, suggests that you do not appear to posses an inherently anti-social or criminal disposition and he essentially paints your prospects of rehabilitation as being good to reasonable. It seems to me that you do have reasonable, though guarded prospects of rehabilitation. You are obviously an intelligent man and a person who is resourceful and capable of working. I regard your prospects of rehabilitation as reasonable.
38 Mr McKinnon suggests that your rehabilitative aspirations are likely to be enhanced considerably by the structure of a long Community Based Order or Parole Order with treatment conditions attached. He goes on to say, "In the pre-release stage and the immediate post-release period, Mr Weightman is likely to be assisted by ongoing individual psychological therapy, accountability to a professional, supervising staff, and other assistance as required." He goes on, "In my opinion, Mr Weightman is a genuinely troubled individual who is likely to benefit from professional intervention that assists him to be accepting of his past career difficulties, relieves the effects of his prolonged adjustment disorder and helps him to re-establish and maintain stable and enduring circumstances in the future."
39 I have no doubt that is true and it will be very much for you to determine the extent to which you are prepared to take advantage of opportunities that are offered to you.
40 The prosecution put forward a range of appropriate sentences. The prosecution submitted that a total effective sentence of between nine years and ten and a half years, with a non-parole period of six and a half to eight years was a sentence appropriate for your offending conduct. Clearly these are serious offences, particularly the offence of which you were found guilty by the jury.
41 On your behalf, I did not understand that there was significant dissent from the range put forward by the prosecution, rather your counsel submitted that a long non-parole period would be appropriate in all the circumstances.
42 Clearly rehabilitation is an important principle of sentencing and it does seem to me that you do stand to benefit from a substantial period on parole. I propose to take that into account in assessing an appropriate sentence. However, I am also required to express the denunciation of this court of offending conduct of this kind and punish you appropriately for this offending conduct, noting as I do that you apparently were not deterred by your having been arrested in connection with the offence of trafficking in MDMA, that arrest having taken place in August 2008. These offences were committed whilst you were on bail for that offending conduct.
43 It is therefore necessary in my view to pay proper regard to specific deterrence, that is deterring you from committing other offences of this kind in the future. Also, and perhaps most significantly, the principle of general deterrence, that is deterring others from engaging in high level commercial drug trafficking of this kind, is important and perhaps the most important sentencing consideration.
44
It is true that you did not lead the same flamboyant lifestyle as that of
Mr Oueida and did not display your own profits from your drug trafficking. It is difficulty to assess the extent to which you had actually reaped profit. It was submitted on your behalf that you were not very good at what you were endeavouring to do and had not been terribly successful in the period covered by the offending conduct. Nevertheless, it is clear that you were seeking to make very substantial profits. Sums of money in amounts of hundreds of thousands of dollars were frequently discussed between you and others involved in your trafficking business.
45 Taking all those matters into account and doing the best I can to balance where you stood in the hierarchy of serious drug trafficking, I am now in the position to impose sentence upon you.
46 Would you please stand?
47
On Charge 1 of trafficking in a commercial quantity of methylamphetamine,
I convict you and sentence you to imprisonment for ten years. On Charge 2, to which you have pleaded guilty of trafficking in methylamphetamine,
I sentence you to imprisonment for two years and six months and I convict you, that makes a total effective sentence of ten years imprisonment. I order that you serve a period of six years and eight months, before you become eligible for parole.
48 I was told on the date of the plea, which was 31 May, that the pre-sentence detention was 261 days. I calculate that we have arrived at 300 days, is that correct counsel?
49 MR PARKER: (Indistinct) that doesn't include today.
50 HIS HONOUR: That does not include today? No well I think it's - - -
51 MR PARKER: (indistinct)
52 HIS HONOUR: Yes?
53 MR PARKER: 300 not including today.
54 HIS HONOUR: 300 Not including today. All right.
55 HIS HONOUR: I declare that 300 days of pre-sentence detention be reckoned as time served on the sentence that I have imposed and deducted administratively from the sentence you will actually have to serve. And I order that that fact be entered into the records of the court.
56 I was asked also to sign a Disposal Order in relation to a number of items of property that were seized by police, including the 70.6 grams of methylamphetamine, the subject of Charge 2. And I have signed that order, as of today's date.
57 Are there any other orders that I need make, gentlemen?
58 MR PARKER: No, Your Honour.
59 HIS HONOUR: No, all right. Yes, thank you. You can take him down.
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