R v Cabral & Ross
[2009] VCC 1534
•23 October 2009
| IN THE COUNTY COURT OF VICTORIA | Revised |
AT Melbourne
CRIMINAL DIVISION
Case No. CR-08-02134
CR-08-02089
| THE QUEEN |
| v |
| MICHAEL CABRAL CHRISTOPHER ROSS |
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JUDGE: | HER HONOUR JUDGE HAMPEL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 12 October 2009 | |
DATE OF SENTENCE: | 23 October 2009 | |
CASE MAY BE CITED AS: | R v. Cabral & Ross | |
MEDIUM NEUTRAL CITATION: | [2009] VCC 1534 | |
REASONS FOR SENTENCE
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Catchwords: Trafficking - methylamphetamine - manufacture -
methylamphetamine - possession - cannabis
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms M. Doyle | Office of Public Prosecutions |
| For the Accused Cabral For the Accused Ross | Mr S.P. Zebrowski Mr B.J. Bourke | Koutsantoni & Associates |
HER HONOUR:
1 Michael Cabral and Christopher Ross, you have pleaded guilty to charges arising out of a four-month Victoria Police Drug Task Force operation labelled Cvases. Ten people were arrested as a result of that operation in April 2007, nine of whom, including each of you, were committed for trial on 3 December 2008, 20 months after the arrests.
2 The long gap between the arrest and the committal for trial arises in large part because of the size of the operation, the number of people charged, the fact that much of the evidence was from telephone intercepts which then required transcriptions of the intercepts to be obtained as well as the need to conduct forensic testing on the substances found at various of the premises.
3 Whilst they are understandable in terms of the logistics of a large operation, it means that people in your position, charged with serious offences and who when the brief was able to be prepared and evaluated indicated an intention to plead guilty that the wait was much longer than it is for people caught up in smaller operations with fewer people being charged.
4 It is the Crown case that a number of men were operating a syndicate to manufacture methylamphetamine, and to store chemicals for that purpose at five separate locations around Melbourne. The Crown alleges that there are four principals, men by the name of Woodhead, Dicecco, Abou-Eid and Salera.
5 Clandestine laboratories stocked with precursor chemicals and equipment were located at Dromana Parade Safety Beach, which was the Salera holiday home, Leo Street Fawkner, the Salera work premises, Star Crescent in Hallam, the work premises of a man by the name of Moosa whose role was said to be that of assisting some of the syndicate principals when and where required, Malcolm Street Oak Park, Abo-Eid's home and Orchard Street Kilsyth, your home, Mr Ross.
6 Michael Cabral, you became involved in this through your friendship with Salera. You assisted him in the manufacture of methylamphetamine at his beach house at Dromana Parade Safety Beach. When the laboratory that had been established there was inspected on 18 March 2007, it was seen that a sophisticated chemical workshop had been established there. Equipment and chemicals sufficient to produce methylamphetamine were present. A chemical process was underway at the time of inspection to convert phenyl acetic acid to phenyl-2-propanone, or P2P This is the last step before conversion of P2P into methylamphetamine.
7 An analysis of the chemicals found at Safety Beach indicate that there was sufficient phenyl acetic acid, a precursor chemical, to produce 5.2 kilograms of P2P. That in turn is capable of producing between 2.1 and 2.6 kilograms of methylamphetamine.
8 Telephone intercepts between 8 and 11 March 2007 indicate that your role was to assist Salera by obtaining materials, visiting the laboratory site, and providing other help as directed by Salera. In return the intercepts revealed $400 was paid into a TAB account in your name. The intercepts reveal a number of conversations between you and Salera about the drug operation. It is clear from these that you knew that Salera was manufacturing amphetamines and that you were knowingly assisting him in that task.
9 When interviewed by the police you denied any involvement in, or knowledge of the operation. You have now pleaded guilty to one count of trafficking in a drug of dependence, namely methylamphetamine between 1 February 2007 and 4 April 2007. The trafficking is by reason of your participation in the manufacture of a trafficable amount of methylamphetamine. It is expressly stated in the Crown's summary that there was no evidence that you realised the large potential of the enterprise, either in terms of expected profits or quantities of drugs likely to be derived.
10 Your position is to be contrasted with that of your co-accused involved in the Safety Beach laboratory. On the basis of what the evidence is capable of establishing in relation to their knowledge, or what the Crown assesses the evidence is capable of establishing as to their knowledge. They have been charged in respect of that laboratory with trafficking in a large commercial quantity of methylamphetamine.
11 Although the presentment spans a two-month period it is common ground that the evidence relied upon for your participation is that revealed in the intercepts for that period in early March 2007. The Crown's summary expressly acknowledges that your involvement was "fairly minor”.
12 Your house was searched on 4 April 2007. An air rifle was found in your home. It was unregistered. That constitutes Count 2 on the presentment. A cross-bow was also found. As a result, pursuant to s.359A of the Crimes Act you have also pleaded guilty to an uplifted summary charge of possession of a prohibited weapon, namely the cross-bow. By the time of the committal you had indicated through your legal advisors that you would plead guilty to an appropriate presentment and a written offer reflecting the current presentment and the facts relied on by the Crown and its opening was made on your behalf.
13 You were committed on a hand-up brief and no witnesses were cross-examined. In the circumstances this constitutes an early plea of guilty, although having regard to your denials when initially interviewed, it is not a plea indicated or entered at the earliest possible opportunity, it is nonetheless early.
14 You, Christopher Ross, were arrested at your home on 3 April 2007. Woodhead was also in the house. When the police arrived, there was a pot of chemicals boiling on the stove in the kitchen and other chemical processes were underway at other places around the premises, namely in the shed and in the bathroom.
15 Amphetamines and precursor chemicals were found at various places around the house. There were also books on the manufacture of amphetamines and equipment associated with the manufacture of amphetamines at various places around the house. Your fingerprints and those of Woodhead were found on a number of those items.
16 The Crown case against you is that you manufactured methylamphetamine at your home at Orchard Street, Kilsyth at the behest of and in company with Woodhead. It is the Crown case that Woodhead controlled the operation and oversaw the laboratory in your house as well as in various other locations which did not involve you.
17 Telephone intercept and surveillance also revealed that in addition to manufacturing the methylamphetamine at your place, you assisted Woodhead by obtaining equipment and materials for him and maybe for others for use in the preparation and manufacture of methylamphetamine. When I say you obtained equipment and materials, that was acting in the role of ordering them or collecting them but not paying money for them. You were clearly doing it as the messenger.
18 Telephone intercepts between February and March 2007 reveal regular dialogue between you and Woodhead where you would discuss the progress of the drug making at the laboratory at your home and it is during that period that you were also detected ordering more chemicals for use in the amphetamine manufacturing process.
19 At the time of the execution of the search warrant at your home, there were sufficient chemicals there to produce approximately 160 grams of pure amphetamine. This is approximately 60 per cent of the amount required to establish a commercial quantity of methylamphetamine or amphetamine. However, it is also important to note that it is significantly in excess of the trafficable quantity of amphetamine which is only six grams mixed.
20 The Crown summary therefore correctly states that this was potentially a medium to large scale enterprise which was detected before the majority of the end product was or had been manufactured. It was also apparent from some of the matters that were put on your behalf on the plea that the batch that the police found underway at the time of the raid was not your first attempt to try and make amphetamines or methylamphetamine in the laboratory at your home.
21 However, despite the presence of books and other materials explaining how to make amphetamines which were found at your premises, it would appear that your attempts up until that time had been unsuccessful in deriving the end product.
22 When the police searched your home on 3 April, a significant quantity, 592.5 grams of dried cannabis was also located. As a result, you have pleaded guilty to one count of trafficking in a drug of dependence, namely methylamphetamine, between 14 February 2007 and 3 April 2007 and one count of possession of a drug of dependence, namely cannabis L.
23 Having regard to the evidence about your long term cannabis use, I accept that despite the sizeable quantity of it, I treat it as possession for your own use and not as possession for the purposes of trafficking.
24 So far as the timing of your plea of guilty is concerned, you are in a similar position to that of Mr Cabral. That is that by the time of committal on 1 December 2008, your legal advisers too had made an offer, yours in substantially the same terms as the presentment to which you have now pleaded guilty and to the summary which you have admitted. You too proceeded at committal by way of hand-up brief and no witnesses were cross-examined on your behalf. So as with Cabral, I treat this as an early plea of guilty, although not one that was indicated or entered at the earliest possible opportunity, immediately following upon arrest.
25 I consider that you, Mr Ross, are properly characterised as an amphetamines cook in respect to the manufacture of amphetamine in your home. I am satisfied that you also carried out some other tasks to assist Mr Woodhead including the ordering of some chemicals on his behalf. I am satisfied that you expected that you would benefit from your participation by keeping some of the amphetamines obtained as a result for your own use.
26 The material before me does not permit me to make a positive finding that that is all you expected to get, nor does it permit me to make a positive finding that you had an anticipation that you would also share in profits from the balance of the amphetamines manufactured in your home.
27 In my view, the tenor of your discussions with Woodhead in your role as the cook, as well as undertaking those specific tasks such as ordering the chemicals for Mr Woodhead, indicate to me that your role was greater, more active and over a longer period than that of Cabral. Your role was more than that of gopher which is essentially his role. As a cook, and using your own home as a laboratory for that purpose, your role was higher.
28 In the course of the plea, Mr Bourke put to me that you had obtained nothing out of your involvement in the process. That may be so but it seems to me from the material before me that that was due, at least in large part, to the lack of success in the attempts to make the previous batches. It is true also that the yield from the batch that was being manufactured at the time of the raid would have been small. But it is also necessary to note that your lack of success with the previous batches had not apparently made you desist. You were still trying, and your participation and continued participation was clearly in expectation of receiving a portion for your own use.
29 So although in fact at the time of the raid you had received nothing, that clearly does not present the whole picture. The fact that you had not was due more to bad luck in the sense of not being successful in producing a viable yield and bad timing in the sense that the police raided when they did.
30 The anticipated yield of the Salera batch in which Mr Cabral was involved was obviously large, and significantly larger than the batch that was being cooked in your place at the time of your arrest. But it is clear that Mr Cabral's plea was expressly put and accepted on the basis that he did not know the scale of operation or the expected yield from Mr Salera's activities. In the circumstances in which you were detected, it cannot be put that you were unaware of the anticipated yield from that batch or the likely yield from the other chemicals found in your house.
31 For these reasons I do not accept Mr Bourke's submission that your role should not be regarded as any higher than that of Cabral's. In my view it is considerably higher although clearly well below the way the Crown has sketched the case against the four principals or main syndicate members.
32 Those involved in amphetamines manufacture and trafficking are engaging in a pernicious trade at no matter what level they operate. It is common knowledge that amphetamines cause misery and great harm to significant sections of the community. There is a high correlation between amphetamine use and other crime. Crimes committed by those under the influence of amphetamines include violent crime. Crimes committed by those in the grip of amphetamine abuse or addiction steal, commit other offences of dishonesty, often violent and dishonest offences in combination in order to feed their habit.
33 Victims of the crime are not only those who are assaulted or stolen from by amphetamine users but the families, friends and associates of amphetamine users. They suffer the large ripple effect caused by amphetamine abuse in the community. Families, friends and associates of amphetamine users are often subjected to irrational and dangerous behaviour by the amphetamine using members of their family or broader circle.
34 So those who manufacture amphetamines or assist others in their manufacture for the purpose of sale and profit making are participating in calculated criminal conduct. It is also highly dangerous, the manufacture process itself, particularly when done by amateurs. It risks harm to other occupants of the houses which become the makeshift laboratories as well as to people in the vicinity of them.
35 It is clear therefore, that considerations of denunciation, punishment and general deterrence loom large. No matter what role people play in the process of manufacture or trafficking these considerations are important. Therefore it is important that the sentences imposed, whilst reflective of the respective roles of the individual players, also send a clear and stern message to others who think to involve themselves in such activity that when detected, they will be severely punished.
36 Balanced against these important sentencing principles is clearly the weight to be given to your personal circumstances and to the other matters which mitigate the seriousness of your respective involvements.
37 I will deal first with the matters which relate to you, Mr Cabral. Apart from one previous court appearance nearly 12 years ago when you were released on an undertaking to be of good behaviour for 12 months for possession and use of cannabis, you have no other convictions.
38 You are a 35 year old married man and the father of two young children. You come from a large, close-knit family of Portuguese origin. Your family story is the story of so many immigrant families to this country; your father came to Australia first, three years later your mother and older siblings joined him. You and your youngest brother were born here. When you were 15 your father died of cancer. He was only 50 and the family nursed him in his final illness at home. This clearly was a significant influence on your life.
39 You were the oldest male living at home and you felt it was your responsibility to leave school, obtain employment and support your mother and your younger brother. From that time on, you have obviously been hardworking and shown enormous skill and aptitude.
40 When you first entered the workforce, you went into unskilled work, early promises of apprenticeships were not fulfilled. You continued to move to try and improve your circumstances and by the age of 18 you had obtained employment with the Ford Motor Company. Whilst there, you obtained a welding certificate and by the age of 19 had been promoted to a position of leading hand.
41 You left Ford at 22 in order to increase your skills and experience in steel fixing work. You are, by all reports, a competent boiler maker but the path you took was learning by experience and therefore you do not have formal qualifications.
42 Between the ages of 24 and 31 you had stable employment in the maintenance and engineering department of a food manufacturer. During that time you were promoted on a number of occasions, clearly as a result of your work performance, ultimately achieving the position of production manager.
43 In 2005, at the age of 31, you were retrenched when the company was taken over and at 31, and without formal qualifications, you found it much more difficult to obtain employment that matched your skills and experience than you had when you were a young man looking to change jobs and improve your lot. By the time of your retrenchment you had significant financial commitments over and above those you had undertaken to assist in supporting your family when you had first entered the workforce.
44 By 2005 you were married, you and your wife had committed yourselves to a mortgage and your first child was born by mid-2006. It was difficult to find adequate employment, commensurate with your skills and experience immediately after your retrenchment and it was against this background I was told that in early 2007 you leant yourself to assisting Mr Salera.
45 He was an old friend of yours. You had been friends since primary school days and your family and his had been accustomed to spending summer holidays together at his family holiday home at Safety Beach. But it was during this early period of 2007 that Salera told you what he was doing and you agreed to assist him. Your involvement finished before your arrest and also just before your arrest you obtained a good job with an engineering company.
46 You spent nine days in custody immediately after arrest and after your release on bail you were able to resume that job. You have remained there for the last two and a half years. In addition to that, you have worked after hours in an engineering company set up by your older brother, Duarte and in which another of your brothers works full time.
47 Your wife has recently given birth to your second child and it is clear that you have resumed the industrious, hardworking life and family commitment that you had engaged in the period leading up to the time of your retrenchment in 2005. You instruct that you are deeply ashamed and remorseful and find it difficult to explain how you find yourself in the position you now do.
48 A large bundle of testimonials was tendered on your behalf and you have been supported in court by your wife, your siblings and your friends. I accept that you are well regarded by your family and friends and that they all see this as out of character behaviour. It is not suggested that you have or have had a drug problem or that you were participating in this in order to obtain a free supply of drugs.
49 Whilst I accept the evidence that this is out of character for you, I find it difficult to understand how an apparently good, moral man with a history of hard work and shouldering family responsibilities, with a stable and loving family, recently having become a father for the first time, even when faced with employment and associated financial difficulties, would lend himself so apparently casually to assisting an old friend, even in a minor role, in what is clearly a serious criminal enterprise and that you would risk all of that and your reputation and liberty for no more than what appears to be a sling of a few hundred dollars paid into a TAB account.
50 It is a powerful lesson that you have learnt and it is a significant cost you have to pay for what appears to be a short time of seriously clouded judgment.
51 In the course of his plea, Mr Zebrowski acknowledged that no sentence other than imprisonment was appropriate, having regard to the nature of the offence. However, he submitted that it should be fully suspended. He relied upon your age, your lack of significant or relevant prior convictions, the strong evidence of your good character otherwise, both before and since being charged, the positive evidence of your commitment to your family and the support you have provided your family over the years, the unlikelihood of further offending and your early plea of guilty.
52 The Crown submitted that no sentence other than one of imprisonment was appropriate but that a fully suspended sentence was in range, having regard to the minor nature of your role and the matters relied on. It was implicit in that submission that a sentence of up to but no greater than three years was within range.
53 I consider your involvement to be indicative of a lack of judgment at odds with the evidence of your behaviour since you left school and went to work at 15, and the other evidence of your family commitment, employment history and general evidence of positive good character.
54 So, general deterrence, punishment and denunciation are important and I consider that in the circumstances it is correct to submit and to acknowledge that no sentence other than imprisonment is appropriate to mark those considerations. However, I do consider that this is a case where the combination of your minor role, the positive evidence of past good character and post offence conduct are such as to justify the imposition of a fully suspended sentence.
55 I should say that but for your plea of guilty and the early stage at which it was indicated and the other matters relied upon, I would have imposed a sentence that required at least a portion of it to be immediately served. So far as the firearm offences are concerned, I propose to impose fines for them. I accept the explanation advanced that they were stored along with other old remnants of childhood family recreational activities, were not kept as weapons for any nefarious purposes, were not easily accessible and clearly not related to any other illegal activity.
56 Having indicated those matters, I will formally pass sentence on you after I have addressed the matters personal to Mr Ross.
57 You, Christopher Ross, are now 42. You have no previous convictions at all but you have a long history of amphetamine and cannabis use or abuse. You are a qualified plumber and your involvement in this came about as a result of your performing work for Mr Woodhead as a plumber. It would appear that you were paid in part in amphetamines, not only money, for the work that you were doing for Mr Woodhead.
58 Mr Bourke submitted, and if I have not made it clear already, I accept that you were not part of the syndicate as such but your involvement came about due to a pre-existing and it would appear, legitimate connection, with Woodhouse, one of the syndicate members, and also your involvement came about due to your drug use. There is no evidence that you had any involvement in laboratories other than the one in your own home. The only other involvement that you appear to have had is some very limited telephone contact with another syndicate member, Dicecco, but essentially your involvement comes about through that initial legitimate or innocent connection with Woodhead and your drug use.
59 Like Mr Cabral, you too come from a close and supportive family. Your childhood was affected not by the suffering and premature death of a loved father, but by the divorce of your parents when you were an adolescent and on what was on at least some of the evidence before me, an unhappy childhood due to your father's drinking and violence before your parents' divorce.
60
By the age of 15 you had started abusing drugs and alcohol and that pattern continued throughout most of your adult life. Since being arrested and charged, you have sought and continued counselling with a psychologist,
Ms Butler. You told her that you stopped drinking six years ago and that your amphetamine habit had escalated after that and that you had kept your amphetamine use a secret from your family, in particular from your mother and your sister.
61 Your mother and sister, both of whom gave evidence on your behalf in the course of the plea, said that they had been unaware of your drug abuse until after your arrest. Your wife who also gave evidence on your behalf on the plea was aware of your cannabis use and I think of your amphetamine use although perhaps not the extent to what you have reported it to Ms Butler.
62 Your wife did say she was unaware of your involvement in the manufacture of amphetamines but having now had the opportunity to look carefully at the photographs taken in and around your house on the day of the police raid, and heard what has been put about the attempts to make batches before the one that was actually in the process of being made at the time of the police raid, that is a difficult proposition for me to accept.
63 In any event, these matters are clear positives in your favour. Despite the extensive history of drug and alcohol abuse, you have had a very good history of hard work as a plumber throughout the whole of your youth and adult life. You too started work very young and you have had a very good and consistent history of hard work. It is obviously good work, good quality work and it appears that you have a real pride, not only in the quality of your own work but in how hard you work.
64 You have also, despite the drug and alcohol abuse, maintained excellent relationships with your extended family. I was impressed by the evidence given on the plea by your sister, your mother and your wife about your personal qualities, the way you have related to them and to the extended family and the clear regard in which they all hold you. The other testimonials tendered in the course of the plea further fortify that and I accept all of that evidence.
65 It shows the complexity of people who can have lives that in one part are blighted by alcohol and drug abuse but whose good human qualities and strengths despite that, can clearly be seen and recognised by those who love them.
66 In addition to those materials, the psychological report from Ms Pauline Butler of Yarra Valley Psychology was tendered. It is clear from her report that since you have been charged a number of significant matters have emerged. After your 15 days in custody (before you were released on bail) you very shortly after that sought psychological treatment from her and have continued that treatment up until now.
67 By the time you saw Ms Butler initially, and as a result of having been in custody, it appears that you had done the major detoxification or chemical detoxification from the amphetamines. Ms Butler noted that your initial presentation was not particularly favourable - that is her terminology, not mine. She noted this, that the drug withdrawal had created an identity crisis in you and that you were initially unhappy, depressed and that physically your body hurt in ways that it had not before and with an intensity that you had not experienced before.
68 But she notes that what you have done over the time is that you have let your past go and with it the old network of friends and associates who are part of the drug taking milieu. That is, I understand, the context in which she speaks about the creation of the identity crisis because for so long your whole circle of friends, your networking, your life, have turned around the drug taking. The people you associated with apart from your family were connected with that.
69 But even in those early days when things were particularly difficult for you, you expressed to her a desire to rebuild your life and significantly you have done that. Most importantly, it would appear that following the involuntary detoxification during your period on remand, you have not reverted to amphetamine use. A batch of screening test results was tendered on the plea. All bar one of those were negative. One, and only one of them, showed a presumptive indicator for cannabis and amphetamines. It is clear that a presumptive test is not a positive test, it is only a marker suggesting there may be that. Even if it does suggest that there was a lapse, what is important is this, that it appears and I accept on the material, that you have turned your back on amphetamine use and that you are now amphetamine free.
70 It is always to be expected with somebody who has had a long history of amphetamine abuse or any other alcohol or substance abuse that there may be temptations and lapses along the way that may be the explanation for the one bad screen test result. But it is the overall result rather than that one bad one that clearly needs to be focused on and for which you are rightly to be commended.
71 Ms Butler reported on your progress including the sense of relief that you have repeatedly expressed at no longer having to conceal the drug use from the family and therefore clearly getting rid of that cycle of feeling bad about yourself because you are lying as well as the dependency, psychological as well as physical, that you had on the amphetamines.
72 She notes, not surprisingly, as time has gone on, despite the buoyancy you have felt at times about your success in turning your back on amphetamines, that you have felt anxious about the outcome of the court proceedings and the effect of detection and what will happen on your family.
73 Ms Butler noted that you reported feeling depressed when she first saw you and that you are now expressing appropriate anxiety about your future but I also note that there is no diagnosis of any pre-existing or underlying depression and no diagnosis of a post arrest reactive depression linked to your current circumstances. She notes significant improvements in you over the time she has been counselling you. You have attended all counselling appointments. They were initially weekly and then extended to fortnightly. You have clearly found them to be of benefit to you and have participated well in them. They have clearly assisted you in managing to overcome your drug use and managing the issues that obviously arise when one faces the inevitable consequences of facing charges as serious as those you are facing.
74 Given your motivation to remain drug free, the time that you have managed to carry that through in practice, even when facing the stressors of the impending hearing, clearly points to your having very good prospects of remaining free of drugs. That also indicates that you have very good prospects of keeping away from not only using drugs but from drug using associates. Therefore you are much more likely also not to move in circles where people manufacture and sell drugs. I accept that it is unlikely, whilst you remain drug free, that you will be tempted to re-offend in a way that brings you before this court again.
75
Consistently with the progress that your family has charted and that
Ms Butler has referred to, you have returned to work full time as a plumbing contractor, you continue to be supported by your family, you expressed an intention to continue attending counselling, recognising your need for it and the benefits you have obtained from it. All of this is clear and positive evidence of successful efforts to rehabilitate yourself and all clearly point to specific deterrence not needing to be given great weight in sentencing you.
76 So it appeared to me that the drug history and the circumstances in which you came to be involved in the offending through that and your success in rehabilitation were the main matters that were relied upon by Mr Bourke in the course of the plea. In addition to that, and there is, of course, the family support to which I have already referred, your early plea of guilty and your lack of previous convictions.
77 All of these matters clearly count in your favour but they must, as I said also in respect of Mr Cabral, be balanced against punishment, denunciation and general deterrence. Your decision to participate in this activity in the way in which you did was a calculated and considered one and the conduct you engaged in as a result is such that in my view, leads to the conclusion that no sentence other than one of imprisonment, including a component immediately served, is appropriate.
78 For the reasons I have already expressed, your circumstances are not comparable with those of Mr Cabral and so neither the term nor the manner of service should be exactly the same.
79 Your efforts at rehabilitation and the other matters that I have referred to that count in your favour, clearly warrant a significant reduction in the sentence otherwise appropriate. I have also considered, having decided that a term of imprisonment including a component immediately served, is the only appropriate sentence. I have considered whether I should therefore fix a non parole period or partially suspend the balance of the sentence.
80 Ultimately, I have decided to partially suspend the balance of the sentence. Your efforts at rehabilitation to date suggest that you are not a person who is in need of parole supervision to maintain the efforts that through your own willpower and hard work and with the acceptance of the assistance provided by professionals and your family you have done to date. I also consider that those efforts of rehabilitation to date should be recognised by fixing a certain date for release because, if I were to fix a non parole period, that of course means that it is for the Parole Board not for me to decide when the appropriate time for your release is.
81 I also consider in the circumstances that the period of sentence to be suspended should be greater than the time you will be required to actually serve.
82 Pursuant to s.6AAA of the Sentencing Act I am required to state the sentences that I would have imposed but for your pleas of guilty and I will do that after I have actually passed sentence upon each of you. I am also asked to make ancillary orders in respect of each of you.
83 So far as Mr Cabral is concerned, an order under s.464ZF for the taking of a forensic sample, a forfeiture order, a disposal order and a pecuniary penalty order are sought and I propose to make all of those orders. So far as the 464ZF order is concerned, I am satisfied that the nature of the offence itself and the role you played in facilitating others is such that the making of such an order is justified.
84 So far as you, Mr Ross, are concerned, I have been asked to make an order under 464ZF(b) for retention of the forensic sample you have already provided and for a disposal order. I am satisfied that the making of the retention order is justified, again having regard to the nature of the offence and to your actual involvement in it.
85 Could you both please stand? Michael Cabral, on the three charges to which you have pleaded guilty, on the two charges and the uplifted charge, you are convicted. On Count 1 you are sentenced to be imprisoned for a period of six months and I suspend that for a period of six months. On Count 2 you are fined an amount of $700. On the uplifted charge, you are fined an amount of $700.
86 Because I am fully suspending the sentence that I impose upon you, I will not make any declaration in relation to the pre-sentence detention. I must warn you, Mr Cabral, that if you commit any offence punishable by imprisonment during the six month period of suspension of this sentence, that Parliament requires that you be dealt with for breach of the suspended sentence I am imposing today.
87 Parliament directs that unless you can establish exceptional circumstances which arise after today, after the passing of this sentence by me, that the period of imprisonment which has been imposed and suspended must be restored. Do you understand that? You can take a seat while I pronounce sentence on Mr Ross and do the ancillary orders.
88 Christopher Ross, on the two charges to which you have pleaded guilty, you are convicted. On Count 1 you are sentenced to be imprisoned for a period of 21 months. On Count 2, you are sentenced to be imprisoned for a period of two months. That two months is to run concurrently with the sentence on Count 1. That makes a total effective sentence of 21 months. I suspend 12 months of that sentence for a period of 12 months. That means you will be required to serve a period of nine months. I declare that you have already served 15 days of pre-sentence detention and direct that that be counted and reckoned as part of the sentence.
89 So far as the period of 12 months that I am suspending, I must also warn you that Parliament directs that if you commit any offence punishable by imprisonment during the period of suspension that you are required to be dealt with for breach of that suspended sentence and Parliament directs that the sentence must be restored unless you establish the existence of exceptional circumstances arising after the imposition of a sentence by me today, do you understand that?
90 You too can be seated while I pronounce the ancillary orders.
91 Pursuant to s.6AAA so far as Mr Cabral is concerned, I note the following. First, I would not have imposed a fully suspended sentence had he not pleaded guilty and the sentence that I would have passed would have been a sentence of imprisonment of 12 months with six months suspended for a period of six months on Count 1.
92 So far as Mr Ross is concerned, on Count 1 I would have sentenced him, had he not pleaded guilty, to a period of imprisonment for three years and six months and on Count 2, to a period of imprisonment of four months. That would have made a total effective sentence of three years and six months. That is outside the period in which a suspended sentence could have been imposed and I would have fixed a non parole period of two years.
93 I formally make, insofar as Mr Cabral is concerned, the 464ZF order, the forfeiture order, the disposal order and the pecuniary penalty order and so far as Mr Ross is concerned, the 464ZFB order and the disposal orders.
94 Do the sentences that I have pronounced reflect what I said I intended to do?
95 MR BOURKE: Yes, Your Honour, as Your Honour pleases.
96 MS DOYLE: Yes, Your Honour.
97 HER HONOUR: All right, I just need to sign the ancillary orders.
98 MR ZEBROWSKI: Would Your Honour consider granting a stay in relation to the payment of fines?
99 HER HONOUR: Yes, how long do you want, Mr Zebrowski?
100 MR ZEBROWSKI: Can I quickly obtain instructions, Your Honour?
101 HER HONOUR: Yes, Mr Zebrowski.
102 MR ZEBROWSKI: Your Honour, I would seek a stay of two months if I may.
103 HER HONOUR: Is that realistically enough? I will give you a stay of three months.
104 MR ZEBROWSKI: As Your Honour pleases.
105 HER HONOUR: Mr Cabral, so far as you are concerned, with the 464ZF order, that is the forensic order, I am going to direct that that sample be taken by way of a buccal sample, that is a mouth swab and not by way of a blood sample. A buccal sample is a less invasive means. I must warn you though that if you do not cooperate with the taking of that sample, that the police are authorised to use reasonable force and it is at least likely that if that is the case that they will use the more invasive means, namely the taking of a blood sample. Do you understand that?
106 Now, you must attend at a police station within four weeks after the expiration of the appeal period from the sentence that I have pronounced today. The appeal period is 14 days from today. You must attend at a police station within four weeks after that appeal period has expired, if you do not appeal or if the DPP does not appeal. That is a complicated way that the Parliament prescribes that but I am sure Mr Zebrowski will explain that to you if you have not followed it.
107 What is the closest police station, Mr Zebrowski? Perhaps if I hand down the list you can have a look and tell me which one it is.
108 MR ZEBROWSKI: Broadmeadows is, Your Honour.
109 HER HONOUR: Right, thank you. I will make that Broadmeadows.
110 MR ZEBROWSKI: I wonder if Your Honour's associate would be so kind as to call Court 7.1 and just advise His Honour that I am in here.
111 HER HONOUR: Certainly. What I will do, I have now made all of those orders. I do not need to stay on the Bench and sign them.
112 MR ZEBROWSKI: Yes.
113 HER HONOUR: I will sign them and provide them to the Crown later and we will adjourn.
114 MR ZEBROWSKI: As Your Honour pleases.
115 HER HONOUR: Could you remove Mr Ross, please.
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