R v Mr Z

[2005] VSC 90

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1529 of 2004

THE QUEEN

v

MR Z

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JUDGE:	TEAGUE J
WHERE HELD:	Melbourne
DATE OF HEARING:	22 March 2005
DATE OF SENTENCE:	1 April 2005
CASE MAY BE CITED AS:	R v Mr Z
MEDIUM NEUTRAL CITATION:	[2005] VSC 90	1st Revision: 1 April 2005

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Criminal Law – Sentence – Trafficking in a drug of dependence in a quantity not less than a large commercial quantity – 2 summary offences – Pleas of Guilty – Substantial past assistance to Police – Undertakings to give substantial future assistance – Major discounts warranted - Exceptional circumstances warranting suspended sentence of 3 years

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr G. Horgan S.C. With Mr K. Gilligan	Office of Public Prosecutions
For the Accused	Mr S. Langslow	Leanne Warren & Associates

HIS HONOUR:

1. Mr. Z, you have pleaded guilty to one count of trafficking in Methylamphetamine.  More specifically, you have pleaded guilty to having, between 9 January 2004 and 27 July 2004, trafficked in a drug of dependence namely Methylamphetamine in a quantity that was not less than a commercial quantity.  You have also pleaded guilty to two other related offences.  They are of trafficking on 9 June 2004 in drugs of dependence, in one case amphetamines, and in the other cannabis.

1. Before I come to the circumstances of the offences, I would note that I have made certain orders because of the opinion I formed as to the need to minimize the risk of endangerment to your physical safety.  A pseudonym order has been made with a view to your being referred to publicly only as Mr. Z.  I have also made an order closing the court on the hearing of the plea and handing down of this sentence.  I have also made an order prohibiting publication of any part of these sentencing remarks until after one hour after the handing down of this sentence.  For the reasons that I am about to give, I will be imposing a suspended sentence.  Included in the reasons is that you have undertaken to give evidence against certain persons.  You are likely to be called on to honour that undertaking soon.  I am informed that a committal hearing is scheduled for 18 April.  I am obliged to be somewhat circumspect in what I say today.  Media representatives will be aware of the need to be careful as to what is published by reason of the law as to contempt and under Witness Protection legislation.

1. I come back to your offending behaviour.  You came to be involved in drug trafficking for a combination of reasons.  Despite having two brothers who had had trouble with the law,  you had taken a very different path, one of stability, until two or so years ago.  You kept away from drugs.  You had no convictions.  You had stable work.  Indeed, you worked with one employer for over 8 years between 1994 and 2002.  You had a keen interest in football, as confirmed in letters tendered on the plea.  Two or so years ago, that stability was threatened because of a problem with a fellow employee, and a football injury which called for a knee reconstruction.  Not long after the time of those misfortunes, one of your brothers was approached to take up a heavy role with certain persons who were major players in what has come to be known as the gangland scene.  At the time, he was not interested, but through your brother those persons established a link with you, that they then exploited.  You were recruited as a middle man. 

1. You bought the drugs from your gangland sources, and you sold them for a profit generally in the Wantirna South and Knoxfield areas.  One of the purchasers was an undercover policeman with links to the Purana task force.  Between January and July 2004,  you were effectively used by the Purana task force as a means of enabling them to gain more information about your sources.  The main offence to which you have pleaded guilty is a very serious one.  It carries a maximum of life imprisonment.  On the other hand, both the amount of the drugs trafficked and the period of trafficking reflect very substantially that you were a form of means being used by the Purana task force for their own ends.

1. For some time after your arrest, you chose not to answer questions.  That led to your undergoing a period in prison on remand during the second half of last year.  That period of 141 days was to have major consequences as to your physical and mental health and generally as to your attitude to life.  The report of  the psychologist Ms Warren spells out much more of the detail of the privations, the fear and the change in approach resulting from that experience.  Towards the end of the year, you indicated your willingness to assist law enforcement authorities.  In December, you provided a detailed statement.  You have sworn before me as to the truth of the matters contained in that statement.  The credibility of much of what is set out in the statement has been verified from independent sources.  You have undertaken before me to give evidence at the trial or trials of others charged in relation to the matters detailed in the statement.  You have been admitted into the Witness Protection program.  In that respect, you are in a position akin to one of your brothers, who was sentenced last year by me as to another matter, after undertaking to co-operate with the authorities in relation to the same, or some of the same persons, who exploited you.  Being in the program is a mixed blessing, given that the protection comes at the cost of major restrictions.

1. As to your background, I add a little more to what I have already said.  You are now 30 years of age, having been born in October 1974.  You have a supportive mother.  While your home life was dysfunctional, you were able generally to work out ways of avoiding the worst of the adverse consequences.  There is also more as to that in the report of Ms Warren.

1. There are significant mitigating factors operating in your favour.  You have no prior convictions.  You have pleaded guilty at an early stage.  I accept that you are genuinely remorseful.  The indications from the experience in prison last year and otherwise are that the prospects of rehabilitation are very good. 

1. You have given an undertaking which is to be noted in the court records.  Specifically, you have undertaken to assist the police and give evidence for the prosecution against any accused charged in relation to the supply of drugs of dependence, as per your statement dated 13 December 2004.  Your choice to assist the authorities has several implications.  It warrants a very large reduction in the sentence imposed for purely utilitarian reasons dictated by the public interest.  It is now imperative that you be provided with a high level of protection.  If it had not been for the co-operation, past and future and the other mitigating factors, you would have been sentenced by me to a period of imprisonment of at least eight years.  Given the significance of the co-operation and other matters, it was understandable that, at the plea hearing, Mr Horgan prosecuting, should say that a sentence of imprisonment, wholly suspended, was within the range of appropriate sentencing dispositions.

1. For the main offence of trafficking in Methylamphetamine between January and July 2004, I impose a sentence of imprisonment of 3 years. On each of the other two offences I impose a sentence of 3 months, to be served concurrently with the sentence on the main offence. I direct that the whole of the period of 3 years be suspended. I specify 3 years from this date as the period during which you must not commit another offence punishable by imprisonment if you are to avoid being dealt with under s.31 of the Sentencing Act.  I declare that the period of 141 days is the period of pre-sentence detention already served by you as part of the sentence.  I direct that that declaration be entered in the court records.  I also direct that there be entered in the court records, your undertaking to assist, after sentencing, law enforcement authorities.  I have signed the retention, forfeiture and disposal orders as sought and not objected to.