R v Bugeja and Johnson
[2013] VSC 191
•27 March 2013
| IN THE SUPREME COURT OF VICTORIA | Revised | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1553B of 2006
No. 1553C of 2006
| THE QUEEN |
| v |
| SHANE BUGEJA LANCE JOHNSON |
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JUDGE: | COGHLAN J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 6 October 2011 | |
DATE OF SENTENCE: | 27 March 2013 | |
CASE MAY BE CITED AS: | R v Bugeja & Johnson | |
MEDIUM NEUTRAL CITATION: | [2013] VSC 191 | |
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CRIMINAL LAW – Conspiring to traffick in a drug of dependence no less than a commercial quantity – Plea of guilty following the order of a re-trial – Significant delay in sentence – Sentence in normal circumstances would not be considered to be an appropriate sentence – Sentenced to a term of imprisonment of three years with one year suspended for one year.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr D. Brown with Mr S. Milesi | Office of Public Prosecutions |
| For the Accused Bugeja | Mr C. Boyce | Pica Criminal Lawyers |
| For the Accused Johnson | Mr T. Danos | Chester Metcalfe & Co |
HIS HONOUR:
On 6 October 2011, Shane Francis Bugeja and you, Lance Craig Johnson, pleaded guilty before me to one charge of conspiring to traffick in a drug of dependence, namely, methylamphetamine in not less than a commercial quantity.
There has been significant delay in this matter. The offence was alleged to have been committed between 3 November 2004 and 22 August 2005.
The co-conspirators were alleged to be the two of you, George Ernest Lipp, Brian David Zerna, and a man who previously publicly had been referred to as PTO but is now recognised to be a man called Carpenter. His role in the matter will emerge later.
You were first tried in 2008. You were each convicted of conspiring to traffick in not less than a large commercial quantity of methylamphetamine. You appealed against your convictions and sentences.
At first you, Johnson, had appealed only against sentence. That appeal was dismissed, but later the appeal by you and Zerna was allowed. That was in April of 2012.
On 26 November 2010, your appeal, Bugeja, was allowed and a retrial was ordered. You were released on bail and by that time you, Bugeja, had served 1197 days imprisonment and Johnson, by the time you were released, had served 1161 days imprisonment. In round figures that was three years, three months for you, Bugeja, and three years, two months for you, Johnson, although for you, Johnson, it was close to four years when other sentences were taken into account. You have both been at large for the last two years and four months. It has not been suggested to me that you have been otherwise of good behaviour except for one minor matter involving you, Bugeja.
Because of a number of events outside your control, your actual sentences have been postponed for an inordinately long time. The causes of that related in part to my circumstances and in part to the fate of your co-accused.
You each admitted prior convictions. You, Bugeja, had a relatively minor criminal record, mostly for traffic matters, but you had twice been before the courts for relatively minor drug offences involving cannabis.
You, Johnson, have a reasonably significant criminal record, largely for dishonesty offences and traffic offences, and although you were sentenced to a number of terms of imprisonment, none of them were ordered to be actually served.
The facts of the case were opened in detail by the prosecutor, and his opening will be attached to these reasons as Schedule A. Stated briefly, the offending involved an attempt to manufacture methylamphetamine at a laboratory in Knowsley, Victoria. It was a reasonably substantial enterprise which had continued from late 2004 until August 2005 when both you, Lipp and Zerna were arrested.
You, Johnson, were an organiser in the enterprise in a relatively general sense. In 2004, you contacted a former employee of Science Supply Australia and placed an order with him for chemicals necessary for the manufacture of methylamphetamine. You communicated with him on numerous occasions, ordering chemicals and making arrangements to collect and pay for them.
As an example, on 6 December 2004 you went with your contact to hire a utility, which was paid for by him, to collect 20 drums of chemicals from a scientific goods supplier. You later went to his home and collected the utility with the chemicals. Later that same day, you handed the loaded utility over to your co-accused, you, Bugeja. You, Johnson, purchased and collected chemicals of the same or similar kind on numerous occasions during the period.
It is the prosecution case that you Bugeja were a “cook” at Knowsley under the direction of your co-accused, Lipp. You were detected visiting the premises on about 11 occasions between June 2005 and August 2005. You were arrested at the laboratory. It had been your role to assist Lipp in setting up the laboratory to produce methylamphetamine, and you also delivered equipment and chemicals to Knowsley.
It is the prosecution case, and accepted by each of you by your pleas of guilty, that when the nature of the laboratory was examined together with the nature of the quantity of the chemicals found there, the frequency of the trips by you, Bugeja, to the laboratory, the whole of the dealings you, Johnson, had with your contact, the listening and other surveillance material, including discussion about preparation of methylamphetamine and footage showing you, Bugeja, assisting Lipp in the laboratory, the various documents found in the home of the co-conspirators and several others, there is an inescapable conclusion that you were all party to a conspiracy to manufacture methylamphetamine. Manufacturing is one of the means by which the crime of trafficking may be committed.
In the opinion of Michael Perkal, a forensic chemist, about 1kg of methylamphetamine could have been manufactured from the chemicals found.
A large commercial quantity of the pure drug is 750g and a commercial quantity was, at that time, 250g. You are taken to have conspired to manufacture a quantity between those amounts. On the available material, I am satisfied it is at the upper end of those amounts. It is not put on the available material that any methylamphetamine was actually produced. The maximum term of imprisonment is 25 years. When previously sentenced for the greater offence, the maximum was life imprisonment.
You, Bugeja, were arrested on 21 August 2005 at the laboratory where the manufacturing process had commenced and you, Johnson, were arrested the next day at your home.
The prosecution’s attitude to the plea is, I suspect, a pragmatic one. Although you were convicted at trial of the greater offence involving a large commercial quantity, it was reasonable for the parties to resolve the case in the way that it has. The saving to the community has been great, and it follows that the utilitarian value of the plea is significant. You have each served over three years for these matters, and I proceed on the basis that the serving of those sentences has been a powerful lesson to both of you. I treat your pleas as carrying some element of remorse.
It emerged on the plea before me that you, Johnson, had offered to plead to this count as early as May 2007 and that you maintained that offer up until the trial commenced in October 2007. It is not particularly surprising that the plea was rejected at that stage, but you are to have the benefit of that offer.
On the plea, it was put that during the period of offending you were often under the influence of alcohol and did not give the impression of having a management role. It was further put that your role was that of a “runner”, organising, collecting and paying for the precursor chemicals, and that in the performance of that role you had not attended at Knowsley.
You are now 43 years of age and live with your parents. You are employed by your father, who has a business at the South Melbourne Market and Prahran Market. Your father gave evidence before me and told me that you have been a keen worker and that you have not been drinking, although he would not have said you had a drinking problem during the earlier period in any event.
Ms Kelly Grococ also gave evidence on your behalf. She is a family friend. She told me that about seven or eight years ago you had a relationship with her sister, who had a son and daughter from a former marriage. You have maintained a relationship with the children and with Ms Grococ. She regards you as helpful, reliable and a good person.
Mr Bugeja, you are now 43 years of age. Your counsel, Mr Boyce, emphasised on your behalf that the offending concluded almost seven and a half years ago and it is almost six years since you were arrested.
You worked fulltime when on bail and you were working fulltime at the time of your plea. Your employer came to Court to support you and a reference from him was tendered.
After release, you re-established contact with your daughters, now 15 and 11. Your relationship with them had been interfered with, in particular by you going to gaol, but it has improved vastly since your release on bail and you see them most weekends.
You have reported three times a week on bail.
When you pleaded guilty, you took the chance that, separate from any prosecution submission, I might choose to send you back to prison, and I accept that you were nonetheless intent on putting the matters behind you irrespective of that risk.
You also would have pleaded to the count at an early stage, and I have had regard to that.
I was referred to two reports which had been filed at your earlier plea hearing from two forensic psychologists, Ms Carla Lechner (8 September 2005) and Mr J.E. Cummins (23 January 2008). Ms Lechner’s report was in support of bail, which was granted. Mr Cummins assessed you as a person in need of acceptance and affirmation, who would be relatively easily led and influenced. The accuracy of that finding is demonstrated by a fair amount of the material that was available. Mr Cummins’ findings go a long way to explaining your involvement in this offending. This is really a remark I say about all the men involved in this enterprise, but you may be better able to cope at 44 than when you were 37. Some references were tendered on your behalf on the earlier plea showing in particular your community involvement. His Honour Justice Bell, when sentencing you previously, took those matters into account, and I see no reason not to do the same.
I accept that although your role has been described in the opening, it was not as persistent as the role of others and to some degree intermittent, and you were regarded by some others in the enterprise as unreliable. It is not conceded that you were actually assisting Lipp in the manufacture of methylamphetamine, but more that you were acting as a laboratory assistant. I do not believe that it makes much difference at the end of the day.
As Bell J found, and I accept, your role was subservient to that of Zerna and Lipp. There were some issues raised about the forfeiture of property which has not yet been resolved. It makes it difficult to assess the impact of that, but I have had regard to the risk which you face.
I think that it is reasonable to say that the financial reward for both of you was meagre at best, although whether there might have been some further reward in the future has never been resolved.
As it was submitted on behalf of each of you, the time you have served should be regarded as sufficient in all the circumstances. The prosecution accepted that a sentence with a non-parole period of the time served would be within the range, and I have already indicated to you that that would be the result. That was in October 2011 or shortly thereafter. Since that time, the prosecution have accepted that, because the time has elapsed since these matters were heard, a different sentence might be available not in the sense that it would be in pure sentencing terms be an appropriate sentence, but that in purely pragmatic terms there seems to be little point in putting either of you in the care of the Parole Board. In ordinary circumstances, a suspended sentence would not be in the range for this offending. I had taken the view that I would attempt to manage your sentences at or about the time that Lipp and Zerna were dealt with after having missed the opportunity to deal with you at an earlier date. Unfortunately, the process involving Lipp and Zerna became protracted for a number of reasons, including the controversy which arose about the issue of warrants by the Victorian police force and then the availability of judges to hear the trial.
This sentence should not be seen as having anything to do with the question of parity or as an example of a sentence ordinarily in the range for conspiring to traffick in a quantity of methylamphetamine.
A sentence of six years or thereabouts with a non-parole period reasonably close to the time which you have already served would have been appropriate. You, Bugeja, have been at large since November 2010 and you, Johnson, since March 2011. In a broad and general sense I have taken that into account. I have also taken into account just punishment, general deterrence and denunciation.
To achieve the purpose I desire, which is for you to be subject to the suspended part of a sentence for one year, I will not give you the full credit of the time you have already served, but only two years of it. Those looking at this sentence need to understand that you have served more than an entire year pursuant to this sentence.
On the count of conspiring to traffick in a commercial quantity of methylamphetamine, you are each sentenced to be imprisoned for three years. I suspend one year of that sentence for one year and I declare that you have already served two years by way of presentence detention.
Had it not been for your plea of guilty, I would have sentenced you both to a term of imprisonment of six years with a non-parole period of four years.
I direct that the declaration relating to the two years by way of pre-sentence detention be entered in the records of the Court and I direct that my indication as to the sentence imposed had there not been a plea of guilty be entered in the records of the Court.
Schedule A
IN THE SUPREME COURT
AT MELBOURNE
(CRIMINAL TRIAL DIVISION)
DIRECTOR OF PUBLIC PROSECUTIONS
-v-
LANCE CRAIG JOHNSON AND SHAUN FRANCIS BUGEJA
PROSEUCTION OPENING ON PLEA
Conspiracy to traffick methylamphetamine in a commercial quantity:
The accused, Lance Craig JOHNSON and Shane Francis BUGEJA, are charged with having conspired together and with others, to traffick in a drug of dependence, namely methylamphetamine, in a quantity that is not less than the commercial quantity applicable to that drug of dependence, being 250 grams.
The conspiracy alleged against the accused men was on foot by late 2004 and continued until the accused were arrested in August 2005. BUGEJA was arrested on 21 August 2005 at the Knowsley laboratory. The manufacturing process had commenced as at that time. Co-accused LIPP was arrested on 21 August 2005 at 3.05pm after being seen departing the Knowsley property at 14.56pm that day in a car with registration OJG 684, registered to BUGEJA. JOHNSON was arrested on 22 August 2005 at his home address, 74 Altona Street, Heidelberg West. Co-accused ZERNA was arrested at his home address at 45 Mills Road, Hurstbridge on 22 August 2005.
Clandestine Laboratory set up:
The manufacture of methylamphetamine took place in a clandestine laboratory set up at a property at Knowsley which belonged to an associate of BUGEJA’s. The laboratory in situ was photographed by the Informant, Mark UPTON and is depicted in Photograph Book Number 8, at photographs: 1, 4, 19, 20, 52, 53, 58, 59, 67, 73, 76, 78, 79,80, 81, 82, 86, 87 and 90.
Roles performed by each accused:
JOHNSON was involved in the conspiracy in an organisational capacity, in addition to performing duties commonly known as, ‘running’ in this type of offending. In 2004 JOHNSON contacted Simon CARPENTER, former employee of Science Supply Australia, to procure chemicals for the purpose of the conspiracy. JOHNSON provided CARPENTER with a list of chemicals to be purchased (Depositions, pages 281 – 282), all of which are applicable to the manufacture of methylamphetamine at various stages of the, ‘cooking’ process.
Telephone intercept and surveillance device material captures JOHNSON communicating with CARPENTER on regular basis throughout the period alleged: requesting further chemicals; arranging for payment to be made in relation to them and collecting the chemicals on numerous occasions. For example, on 6 December 2004 JOHNSON went with CARPENTER and hired a truck, registration SVS 956, from Reliable Rentals, 73 Plenty Road Preston, for the purpose of picking up 20 drums of chemicals from, “Grale Scientific.” CARPENTER took the truck to collect the items and then attended at JOHNSON’s home address. JOHNSON left Reliable Rentals in a separate car, collected BUGEJA and both then met with CARPENTER at the Altona Street address. BUGEJA then left in the truck SVS 956, with the 20 drums of material of the kind applicable to the production of methylamphetamine.
On many subsequent occasions, JOHNSON was detected purchasing and collecting chemicals from CARPENTER of the same type of pre-cursor chemicals found later at the Knowsley laboratory.
BUGEJA was involved in the production of methylamphetamine at the laboratory at Knowsley as a, ‘cook’ a the direction of LIPP.
Over the period of the conspiracy alleged, BUJEGA is captured by various surveillance mediums including optical surveillance, tracking device and from telephone intercept material, having attended at the Knowsley property in relation to the production of methylamphetamine on approximately 11 occasions between 24 June 2005 and 20 August 2005. This was for the purpose of setting up the laboratory and to begin the production of methylamphetamine, at the direction of LIPP. BUGEJA’s role in the conspiracy also included making trips to Knowsley to deliver and collect chemicals and laboratory equipment.
Intention of accused to conspire to produce methylamphetamine:
The intention of the accused to conspire to produce and traffick methylamphetamine can be deduced from (and is not limited to) the following:
(i)The nature of the clandestine laboratory set up including the sophistication of the equipment (see for example the scale of condensers modified for use in the process of production of methylamphetamine, at photograph 103 of Photograph Book Number 8)
(ii)The presence, type and volume of chemicals in the vicinity of the Knowsley property, including:
o Methylamine (applicable in manufacture of methylamphetamine)
o 1-phenyl-2-nitropropene (starting chemical)
o Phenyl-2-nitropropene (key precursor)
o Toluene (which combined with Benzaldahyde, nitroethane, n-butylamine will make Phenyl-2-nitropropene)
o N-butylamine
o Methylamphetamine washings from reaction vessel lids;
o Sodium chloride (applicable in manufacture of methylamphetamine hydrochloride, a salt of methylamphetamine)
o Methanol (applicable in the manufacture of methylamphetamine)
o Hydrochloric acid (can be applied in the manufacture of methylamphetamine hydrochloride, a salt of methylamphetamine)
o Nitroethane & butylamine (can be used to manufacture 1-Phenyl-2-nitropropene)
o Iron (used in the manufacture of p2p)
o Aluminium (can be combined with p2p, methanol, mercuric chloride & methylamine to make methylamphetamine)
o Benzaldahyde
o Caffeine (can be used as diluent for methylamphetamine)
o Sodium hydroide (can be applied in manufacture ofmethylamphetamine hydrochloride a salt of methylamphetamine)
(iii)The frequency of trips by BUGEJA to the laboratory at Knowsley;
(iv)The regularity of communication between CARPTENTER and JOHNSON for the purpose of acquiring chemicals in large volumes between late 2004 and the date of arrest in August 2005;
(v)The list provided by JOHNSON comprising chemicals in varieties and amounts that are consistent with the production of methylamphetamine;
(vi)The product of listening devices and telephone intercepts capturing conversations between the accused pertaining to the organization of chemicals and preparation of methylamphetamine at the Knowlsly laboratory;
(vii)Optical footage of the setup and movements within the Knowsley laboratory depicting BUGEJA involved in the, ‘cooking’ process as directed by LIPP;
(viii)Documents, including: drug manufacturing documents, orders for chemicals, maps, plans and accounts found at the homes of co-conspirators;
(ix)The presence of amphetamine making paraphernalia at the home of ZERNA’s in Mills Road, Hurstbridge;
(x)The presence of Toluene at the residence of LIPP;
(xi)An item of scientific glassware at the home of BUGEJA;
Intention of accused to produce a commercial quantity can be inferred from:
(xii)Scientist Michael PERKAL analysed liquids seized from the laboratory, provided to him. The results indicate the presence of methylamphetamine in the washings obtained from the Knowsley laboratory.
(xiii)The total amount of 1-phenyl-2-nitropopene recovered at the Knowsley property was 2.183 kilograms. PERKAL estimates that 2.2 kilograms will yield approximately 1 kilogram of methylamphetamine if applied in the correct manner (Depositions, page 241). 1-phenyl-2-nitropopene was found in the reaction vessel, mid way through the vacuum distillation process, which occurs to remove toluene, leaving a crystalline substance. The prosecution contends that the quantity of 1 -phenyl-2-nitropropene produced (2.183 kilograms) is indicative of an agreement to produce a high-end commercial quantity of methylamphetamine.
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