R v Curran
[2012] VCC 688
•28 May 2012
| IN THE COUNTY COURT OF VICTORIA | Revised |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-10-00580
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MICHAEL JOHN CURRAN |
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JUDGE: | HER HONOUR JUDGE CANNON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 13 March -28 March and 13 April 2012 | |
DATE OF SENTENCE: | 28 May 2012 | |
CASE MAY BE CITED AS: | R v Curran | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 688 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Catchwords: Importation of a marketable quantity of amphetamine and Attempt to possess amphetamine -guilty verdict following trial.
Cases Cited:De La Rosa [2010] NSWCCA 194, R v Nguyen and Pham [2010]; Nguyen v R and Phommalysack v R [2012] VSCA and Hill v R [2010] HCA 45
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms Pillai | Commonwealth DPP |
| For the Accused | Mr Halphen | Robert Stary Lawyers |
HER HONOUR:
1 Michael John Curran, following a trial, you were found guilty of one Charge of importing a border controlled drug in a marketable quantity, being amphetamine and one Charge of attempting to possess that drug.
2 The Crown presented its case against you on the basis that you had imported amphetamine from Holland, a parcel of the drug being intercepted by Customs officials on 6 July 2009; and that you then attempted to possess the amphetamine on 27 July 2009 when you attended the shop of Simon Cayless, taking delivery of the package which had contained the amphetamine. Unbeknownst to you, of course, Customs officials had replaced the amphetamine with an innocuous substance and enlisted the help of Simon Cayless to effect a controlled delivery to you on the date that you attended his shop.
3 In sentencing you, I am not required to look into the minds of the jurors to interpret their verdict but I must sentence you in a way which is consistent with it. I do so, on the basis that you were the sole importer of the amphetamine insofar as the Australian end of this importation was concerned. In coming to this view, I should record that in answer to a jury question, I directed the jury that if they came to the view that there was a reasonable possibility that Mr Cayless had collaborated with you in the importation then they must acquit you. This was as a matter of fairness to you because of the way in which the Crown had cast its case. Therefore, the jury has rejected that there was collaboration from Mr Cayless, in reaching their verdict.
4 Although evidence was led from the informant on the trial that 333 grams of pure amphetamine was contained in the substance which Customs officials intercepted, Ms Pillai revised this weight upon the plea hearing to 306.5 grams. As your defence at trial was that you had nothing to do with the imported drug, the revised weight, which is still a marketable quantity, does not impact upon the trial proceedings as such. The amount is still a marketable quantity and is 150 times the threshold for marketable quantity of amphetamine.
5 It was conceded by the Crown that as they had alleged that you were the importer and, by reason of this, you had attempted to possess the amphetamine, any sentence which I impose in relation to Charge 2, ought be served concurrently with the sentence on Charge 1.
6 In her outline of submissions on the plea hearing, Ms Pillai referred me to R v De La Rosa [2010] NSWCCA 194, R v Nguyen and Pham [2010] and Nguyen v R and Phommalysack v R [2012] VSCA 32 at pages 11 and 12 as to the approach I ought take in sentencing you. In sentencing you I have had regard to the principles in those cases and have applied them in your case.
7 Amongst those principles are these which were enunciated by the President of our Court of Appeal, President Maxwell in Nguyen v R and Phommalysack v R:
“The difficulty of detecting importation offences, and the great social consequences that follow, suggest that deterrence is to be given chief weight on sentence and that stern punishment will be warranted in almost every case.
The sentence to be imposed for a drug importation offence must signal to would-be drug traffickers that the potential financial rewards to be gained from such activities are neutralised by the risk of severe punishment.
Involvement at any level in a drug importation offence must necessarily attract a significant sentence. Otherwise the interests of general deterrence are not served.”
The quote there is taken from p.12 of that decision. Notwithstanding that the case that I have just referred to involved importation of a commercial quantity of drugs, the principles apply equally to your case.
8 I must also factor in your role. As I have already indicated, I sentence you on the basis that you were the person solely responsible for bringing the amphetamine into Australia – that is, from the Australian end of the importation. It is evident from the chat log records where coded conversations were taking place between you and your associates, Angie and Steven Toth, who resided in Denmark, that you were most anxious to take delivery of the amphetamine which Customs had intercepted. You had arranged for the package to be sent to the florist shop of Simon Cayless, a person who was a close friend and married to your cousin. In doing so, you implicated him in serious offending. Mr Cayless has been subjected to extensive cross-examination both at committal, the aborted trial and the trial in which you were ultimately found guilty of these offences. You are entitled to plead not guilty and you are not to be punished for that or what Mr Cayless and other witnesses went through. However, your willingness to implicate your close friend in such serious criminal activity, then seek to blame him for your own actions, goes to your significant lack of contrition.
9 In my view, the case against you was a strong one. Even without the evidence of Mr Cayless, the video evidence of you taking possession of the package on 27 July 2009 was most telling. In the recorded phone conversations, before you took delivery of the package, you were most concerned to silence any direct talk about the parcel; and upon attending the florist shop you made it very clear that to Mr Cayless from the outset that he should not say anything.
10 You are then seen whispering and mouthing words to him whilst in the preparation room of his shop and you carefully inspect the package on two occasions. You then go to some lengths to conceal the package under your trousers and top whilst appearing to be most pleased about the package you have just received. This is a package that you believed contained a significant quantity of amphetamine, a drug which I am satisfied beyond reasonable doubt, you intended to sell for profit. As the learned prosecutor submitted, you had admitted to cannabis use in the course of your evidence, but you did not admit any predilection for amphetamine. Taking this into account, as well as the quantity of the drug, and the lengths you went to in order to secure its safe arrival from overseas, I have no difficulty in inferring your motive for the importation.
11 In the course of the conversation with Mr Cayless at the florist shop, Mr Cayless said that you told him that there was one kilo when referring to what was contained in the package. You had previously told Mr Cayless that you were expecting a package of ‘gear’ to be delivered to the shop in a conversation several weeks earlier. I am satisfied beyond reasonable doubt that you said both of these things to Mr Cayless and that your reference to a kilo on the date of collection of the parcel showed that you knew what to expect in respect of that package. In fact, there was 1.096 grams of substance which was a combination of amphetamine and caffeine, so you were not far wide of the mark. You also had scales in your car – no doubt to weigh the fruits of your “labour”.
12 In my view, the sworn evidence which you gave to the jury was ludicrous. To suggest that you were expecting a parcel of money to be coming to the shop, and that you were concerned that Mr Cayless might steal this from you, he being the one who told you the parcel had arrived; that you were suspicious of him having others listening in on his phone, having parked your car next to a car with people in it who you said you suspected were going to help Mr Cayless rob you, beggared belief. The suggestion that you thought that Mr Cayless would call you to say that money had arrived but intended to have others take it from you after you had driven 6 hours down the highway to collect your parcel, is incongruous, as was your evidence that you parked your car next to the car of people who you thought might rob you.
13 The level of chat material and contact with Angie and Steve Toth in relation to the amphetamine was quite significant and the content revealed that you were playing far from a passive role in the importation.
14 The quantity of amphetamine which you imported and sought to possess was nearly half of the ceiling for marketable quantity. Although there are more serious examples of offences of the kind that you have committed insofar as quantity is concerned, I regard your offending in all the circumstances as serious enough. As the maximum penalties for these offences reflect, Parliament regards these offences as most serious – in both cases the maximum penalty is twenty five years’ imprisonment. However, there is a view that as there is a significant difference between the maximum penalty for Charge 2 and the State equivalent, a sentencing Judge ought factor this in when dealing with the Commonwealth version. As I understand the position, the Court of Appeal has granted leave for this matter to be considered, but as at the time of my sentence, the matter is yet to be decided by a court of three. (See Rasimi v The Queen [2011] VSCA 365). In the circumstances, I have taken the view that in sentencing you in respect of Charge 2 I will take into account the substantially lesser maximum penalty in respect of the State equivalent offence. However, I do take into account the weight of the drug which was found, which, while substantial, is not the highest marketable quantity that the Courts have seen. Also, you have engaged in this conduct on an isolated occasion.
15 On the plea, an estimated value of the amphetamine was provided to me by the learned prosecutor, which was reflected in a police statement prepared by Mr Ellway, as follows:
The quantity of amphetamine for street deals is 0.1 gram and each ‘point’ is usually at 10 per cent purity. Each of these ‘deals’ is sold for between $30 and $60 per point. A gram of amphetamine is sold for between $200 and $300 while an ounce (28 grams) is sold for between $3000 and $7000 depending on purity. A kilogram typically sells for between $90,000 and $120,000.
16 Mr Ellway went on to say that it would be unusual for the amphetamine to be sold at street level at 28.1 per cent purity (the level of purity of the drug in your case), and would usually be cut down further so as to maximise profits. If the total weight of 109.6 grams of the substance which you imported was sold in point amounts at 10 per cent purity, you could expect a return of between $327,180 and $654,360. If sold in gram amounts at this purity the expected return would be between $218,120 and $327,180. The gross quantity of the substance of 1090.6 grams would be valued at between $116,850 and $272,650.
17 I do not speculate as to the way in which you intended to sell the drug, but even on the basis of the least of the figures just referred to, you stood to gain significantly from the importation of the amphetamine. I say this, even allowing that I am not in a position to know how much you paid for the drugs in the first place. In his closing address, Mr Halphen suggested to the jury (in the context of the lack of evidence concerning payment by you) that it would defy belief that such a quantity of drugs would arrive without payment first being effected. I agree with this proposition. I am unable to speculate as to whether you had already paid for the drugs or somehow credit had been extended to you for some reason. But I infer from the level of your industry and risk in securing delivery of the drug, that the profit margin was going to make your efforts worthwhile.
18 I was taken to a number of cases in relation to current sentencing practice, both by the learned prosecutor and by your counsel. I make it clear that insofar as actual sentences imposed in other importation cases are concerned, I only have regard to those involving marketable quantities rather than commercial quantities. In imposing sentence, I must also abide by an approach which promotes consistency in sentencing, being mindful of the principles set out in Hill v R [2010] HCA 45 at [57], and the principles distilled in Nguyen v R and Phommalysack v R [2012] VSCA 32 at pages 11 and 12.
19 A good deal of Mr Halphen’s submissions dealt with the approach I ought take in terms of current sentencing practice. On the one hand he cautioned me against embarking on a two tier approach and also submitted that I should not be fettered by any range provided by the Crown, taking me to various passages which endorsed the view that a Judge still ought sentence adopting an instinctive synthesis approach. However, on the other hand, Mr Halphen took me through a number of cases in the table which was helpfully prepared by the Crown, in a bid to compare your case with these, so as to submit that the range proffered by the Crown was too high. In any event, I have considered sentences which have been imposed in other cases concerning importation of a marketable quantity of drugs, and I have borne in mind the submissions made by your counsel with respect to these.
20 I accept that the submission made by the Crown as to appropriate sentencing range of between 6 and 7 ½ years, is just that, and I am free to accept or reject such a sentencing range.
21 As I have said, I regard your offending as serious, although somewhat unsophisticated. You were actively involved in the importation, being the sole importer from the Australian end of it, but as Mr Halphen said, you exposed yourself to some risk in attending the florist shop in order to collect the package. As I have already noted, you placed your friend, Mr Cayless at even greater risk in this regard.
22 It was put by Mr Halphen that the prospects for detection of your criminality were high. I have not heard evidence from Customs officials as to their procedures in dealing with parcels and so I am not sure as to how high the prospects for detection of the amphetamine were; it would appear that there was significant risk in you arranging for the drugs to be sent in this way. You did take some measures to avoid being detected, arranging for the parcel to go to Mr Cayless’ shop, addressed to the former owner, the coded conversations and the like, but the lengths to which you went to hide your identity and the nature of your discussions were fairly crude. On the other hand, I was told by the learned prosecutor that the chat logs which were tendered in evidence had been deleted from your computer and had to be recovered by the ‘E-crime’ police unit.
23 I do accept that the calls to Holland, from whence the drug came, were made from a phone using your own details or at least those of your brother, but I also note your explanation in evidence that it was Mr Cayless who used your phone on the two occasions that calls were made to Holland – an explanation which the jury have rejected. You made those calls, Mr Curran, no doubt to sure up or monitor the delivery of the amphetamine.
24 So in the end, while it may well be that detection of the amphetamine in the package was significantly high, and that you exposed yourself to some risk in being associated with this, I take the view that you did what you could to minimise this, albeit that your efforts were somewhat unsophisticated.
25 You are 50 years old and have a number of prior convictions, although save for two possession charges, none concern drugs and certainly none of these are as serious as the offending for which you have now been found guilty in the case before me. I note that the last of these prior convictions was a number of years ago.
26 I was also told by Mr Halphen that there are two subsequent matters – on 21 January 2010, you faced charges of theft and unlicensed storage of firearms, being matters which arose from the raid by police at your home in relation to the matters before me. You received a good behaviour bond in relation to these matters. I was told that the theft concerned a trailer which was located on your property at Tubutt and the firearm charge was in relation to a gun which had been stored on the property for twenty years and used for shooting rabbits. On 18 March 2010 you were convicted and received a good behaviour bond in relation to careless driving and driving an unregistered motor vehicle. Again, these matters are not overly relevant to the matters before me but both your prior convictions and the subsequent matters show that before and after committing the offences for which I sentence you, you have shown a disregard for the law.
27 In sentencing you, I take into account that at the age of fifty, this will be your first time in gaol, which will be more difficult for you than for someone more accustomed to such an environment. I understood that a medical report would be forthcoming which set out details pertaining to your physical health. Last year, your trial was aborted after I was told that you had been hospitalised for a particular medical condition but the medical report provided by Complete Family Care dated 8 March 2012, relates to purported diagnoses of anxiety, depression and Bipolar affective disorder. However I do take into account that it appears to me that you have had some serious physical health difficulties and you suffer from an ongoing condition which may expose you to further problems with your health whilst in gaol. In relation to the report from Complete Family Care dated 8 March 2012, I note that your General Practitioner (in this unsigned report with no author attributed) purports to have diagnosed and medicated you for nervous anxiety on 15 August 2003, and Depression and Bipolar affective disorder on 22 October 2009, not long after you committed these offences. As this report was provided by a General practitioner I was not prepared to accept that you suffered these conditions without more.
28 I have now been provided with a report prepared by Carla Lechner dated 18 May 2012 and further written submissions and authorities from Mr Halphen. A copy of these documents was provided to the Crown also and I have received further written submissions prepared by Mr Schubert, solicitor from the Commonwealth DPP. Having considered this further material, I accept that, notwithstanding that there was no mental condition which contributed to your offending, you are presently suffering from depressed mood state. Without more, I do not accept Ms Lechner’s assertion that you were ‘formally diagnosed’ with mental conditions some years ago. There was some suggestion in the report that your mood state was such that this may have contributed to your offending. If this be the suggestion from Ms Lechner, then I reject it, and I note that your Counsel does not seek to advance this aspect. Ms Lechner said that you found that, in the past, prescription medication helped with your psychological equilibrium, and that at the time of your interview with Ms Lechner, you had not received medication or treatment.
Upon receiving Ms Lechner’s report and the submissions from your counsel expressing concern for your wellbeing, I arranged for my associate to email the parties, asking your advisers whether the Court make an urgent request for assistance in this regard. However, this was said to be a matter which would be taken up with you today. In any event, I accept that you are suffering from a range of symptoms of major depression and that this condition will make time in gaol harder for you than for someone without such difficulties. I will do what I can to ensure that you receive timely treatment in gaol which will ease your symptoms by making direct representations through my associate in that regard but I will also make an appropriate allowance in your sentence in this regard.
29 At your plea hearing, a number of character references were tendered, attesting to your kindness and generosity towards friends and family. In particular, your daughters spoke most highly of you and have done very well in their own lives. They both travelled from interstate to support you at the plea hearing, and it is evident that you have their ongoing devotion and support. I was told that upon separation from their mother, they lived with her but you have a close relationship with them.
30 Mr Halphen submitted that your offending was isolated and out of character. As I have already mentioned, it is not out of character for you to commit criminal offences, although, you have certainly slowed down in this regard of recent times, and there has not been any offending of the magnitude of the offences which you have now committed and for which I now sentence you. I was told that your parents separated many decades ago and your mother runs a bed and breakfast in Williamstown. Your father has cancer of the bladder and he is in remission. Your mother, daughters and other family members and friends were at the plea hearing and it is clear that you have significant family and friendship support which you can look to upon your release from gaol. This is a positive factor in my assessment of your prospects of rehabilitation.
31 You have two sisters and a brother, all of whom are law abiding. You were educated to Year 9 , and embarked on various occupations through the years including importing timber from the Solomon Islands in the 1990s and a digital imaging business. Of course, there was the “Protect Angel” venture which you were involved in at about the time of this offending. You decided to relocate to Tubutt in more recent times, a township which has a population of 12 people.
32 I was told that the single most traumatic experience of your life was the breakdown of your relationship with the mother of your daughters – a relationship which had endured for some time. There were then protracted family law proceedings which took a significant emotional toll upon you. I was told that one of your daughters is studying law whilst the other is studying nursing and both reside in South Australia. It will be very difficult for you whilst in gaol because you will not be in a position to have them visit due to them residing interstate. This will be difficult also because I was told that they are about to embark on a number of significant life events and you will not be present for these. Mr Halphen submitted that in such circumstances you had a real motivation to mend your ways.
33 In relation to your prior convictions, these date from between 1979 and 2002 and the penalties imposed were fines at worst.
34 He submitted that you appreciated that you had brought considerable shame upon your family by this offending, although at the same time, he acknowledged that you maintain your position of being not guilty and therefore, I could not take into account that there was any contrition on your part for the offending. This is also a matter I must take into account in assessing your prospects of rehabilitation.
35 It is evident that you are finding gaol difficult and it is impacting upon your emotional and mental state. It is a place that you certainly do not want to revisit in the future. All matters considered, I regard your prospects of rehabilitation as being fair.
36 In the circumstances, I must give some weight to specific deterrence but I must give considerable weight to general deterrence. A strong message must be sent to others tempted to offend as you have, that they will be met with strong sanction, so as to deter others from behaving as you have. However, taking into account all of the matters particular to your case and having regard to current sentencing practice, I am of the view that the range proffered by the Commonwealth is slightly too high. I do not propose to embark on a case by case analysis but rather have regard to sentencing practice as one of the matters which helps inform my instinctive synthesis, bearing in mind the submissions that Mr Halphen made in respect of the Crown’s table. I also note that the range that was proffered by the Crown was made at a time when Ms Lechner's report was not to hand and I have been assisted in coming to appropriate sentence by submissions both from Mr Halphen and Mr Schubert who, in Mr Schubert's case, he acknowledges that Verdins considerations do come into play insofar as your present mental state will impact upon your experience whilst in gaol.
37 Would you please stand up Mr Curran.
38 I sentence you to a term of imprisonment because in all of the circumstances, I regard it as the only appropriate sanction in relation to your offending.
39 In relation to Charge 1, you are convicted and sentenced to 5 1/2 years imprisonment to commence today.
40 In relation to Charge 2, you are convicted and sentenced to 1 year imprisonment to commence today.
41 This produces a total effective sentence of 5 ½ years imprisonment.
42 I order that you serve three years four months before becoming eligible for parole.
43 I declare that you have already served 64 days of the sentence that I have just imposed.
44 Just take a seat for a moment, please. Are there any further matters, counsel?
45 COUNSEL: No, Your Honour.
46 HER HONOUR: Yes thank you, you may remove the prisoner.
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