DPP v Johnson, Zerna & Bugeja - [2008] VSC 330

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1553 of 2006

DIRECTOR OF PUBLIC PROSECUTIONS

LANCE CRAIG JOHNSON, BRIAN DAVID ZERNA AND SHANE FRANCIS BUGEJA

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JUDGE:	Bell J
WHERE HELD:	Melbourne
DATE OF HEARING:	24 April 2008
DATE OF SENTENCE:	28 August 2008
CASE MAY BE CITED AS:	DPP v Johnson, Zerna and Bugeja
MEDIUM NEUTRAL CITATION:	[2008] VSC 330

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Criminal Law – sentencing – conspiracy to traffick in a larger commercial quantity of a drug of dependence – methylamphetamine – three co-accused – one a principal organiser – another the “cook” – the other the buyer of the precursor chemicals – offence objectively very grave – denunciation, general and specific deterrence paramount considerations – rehabilitation and circumstances of offender lesser considerations – offer of plea of guilty to lesser offence not a relevant consideration – principal offender sentenced to imprisonment for period of 15 years with non-parole period of 12 years – other offenders sentenced to imprisonment for ten years with non-parole period of 8 years – Drugs, Poisons and Controlled Substances Act 1981, ss 71, 79.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr M Tovey QC with Mr S Milesi	Ms A Cannon, Solicitor for Public Prosecutions
For Lance Craig Johnson	Mr S Robertson	Chester Metcalfe & Co
For Brian David Zerna	Mr L Barker	Patrick W Dwyer & Associates
For Shane Francis Bugeja	Mr I Polak	Leanne Warren & Associates

HIS HONOUR:

Lance Craig Johnson, Brian David Zerna and Shane Francis Bugeja, on 20 December 2007 you were convicted by a jury of the offence that, at Ferntree Gully, Hurstbridge, Knowsley and diverse other places in the State of Victoria, between the 1^st day of October 2004 and the 22^nd day of August 2005, you conspired with each other and with a person whose nom de plume is PTO and George Ernest Lipp to traffick in a drug of dependence, namely methylamphetamine, in a quantity that was not less than a large commercial quantity applicable to that drug of dependence.

The maximum penalty for trafficking in a drug of dependence in a large commercial quantity is life imprisonment. The same maximum penalty applies to the crime of conspiring to traffick in a drug of dependence in that quantity.

By finding you guilty of conspiring to traffick in methylamphetamine in a large commercial quantity, the jury expressed its finding, beyond reasonable doubt, that each of you, as alleged by the prosecution, had entered into an agreement to manufacture that drug, mainly at premises at Knowsley in country Victoria, between the dates alleged. The evidence at the trial also satisfies me, to that standard, that activities associated with that manufacture, and undertaken by or with the knowledge of each of you, took place in the shed at your premises, Mr Zerna, at Mills Road, Hurstbridge.

The premises at Knowsley contained equipment and chemical precursors that enabled methylamphetamine to be manufactured, and which were placed there…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading DPP v Johnson, Zerna & Bugeja

Details

AGLC: Director of Public Prosecutions v Johnson, Zerna and Bugeja [2008] VSC 330
Case: [2008] VSC 330
Decision Date: 28 August 2008

CaseChat Overview and Summary

In the case of DPP v Johnson, Zerna & Bugeja, three individuals were before the court on charges related to conspiracy to traffic in a large commercial quantity of methylamphetamine. The case was heard in an Australian court of general criminal jurisdiction. The defendants were involved in different capacities within the conspiracy: Johnson was the principal organiser, Zerna acted as the "cook" responsible for manufacturing the drug, and Bugeja procured the precursor chemicals necessary for production. The court was tasked with determining appropriate sentences for the defendants, considering the gravity of the offence and the roles each played within the conspiracy.

The primary legal issue before the court was the appropriate sentencing for the defendants given the severity of the drug trafficking conspiracy. The court considered several factors, including the objective seriousness of the offence, the role of each defendant, and the purposes of sentencing such as denunciation, deterrence, and rehabilitation. Notably, the court emphasised that the offer of a plea of guilty to a lesser offence was not a relevant consideration in determining the final sentence. The court was also required to balance the need for general and specific deterrence with the potential for rehabilitation of the offenders.

The court found the offence to be objectively very grave and placed significant weight on the purposes of denunciation and deterrence. Given the roles of the defendants, the court recognised that Johnson, as the principal organiser, bore the greatest responsibility and was thus sentenced to imprisonment for 15 years with a non-parole period of 12 years. Zerna and Bugeja, who played supporting roles in the conspiracy, were each sentenced to ten years imprisonment with an eight-year non-parole period. The court's decision reflected the need to impose severe penalties to effectively deter not only the defendants but also others who might contemplate similar criminal activities.

The court's final orders reflected the sentences determined, with Johnson to serve 15 years imprisonment with a non-parole period of 12 years, and Zerna and Bugeja each to serve ten years imprisonment with an eight-year non-parole period. These sentences were intended to serve as a strong message regarding the serious consequences of engaging in large-scale drug trafficking.

Orders