R v Otene

[1998] VSCA 92

SUPREME COURT OF VICTORIA

COURT OF APPEAL Not Restricted

No. 91 of 1997

THE QUEEN

v

SONNY VICTOR OTENE

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JUDGES:	WINNEKE, A.C.J., BROOKING and BUCHANAN, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	26 October 1998
DATE OF JUDGMENT:	26 October 1998
MEDIA NEUTRAL CITATION:	[1998] VSCA 92

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Criminal Law - Sentence - Trafficking in commercial quantity of amphetamine - Two counts - Complete concurrency inappropriate - Nine years with seven-year non-parole period not manifestly excessive.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr. T. Gyorffy	P.C. Wood, Solicitor for Public Prosecutions
For the Applicant	Ms. L. Lieder, Q.C.	Alex Lewenberg

WINNEKE, A.C.J.:

1. I will invite Brooking, J.A. to give the first judgment in this application.

BROOKING, J.A.:

1. On 23 April 1997, after a trial lasting eight sitting days, Sonny Victor Otene was convicted in the County Court on two counts of trafficking in a commercial quantity of amphetamine, between 4 and 10 October 1994 and between 11 and 17 October 1994 respectively, and one count of possession of amphetamine on 17 October 1994. He had pleaded guilty and was fined in respect of a count alleging possession of a small quantity of cannabis. The maximum penalties were 25 years' imprisonment for each of the two trafficking counts and 5 years for the possession of amphetamine. On 8 May 1997 he was sentenced to six years' imprisonment on each trafficking count and two years on the possession count. Three years of the sentence on one of the trafficking counts was made cumulative, giving a total effective sentence of nine years. The non-parole period was made seven years.

2. Otene applied for leave to appeal against both conviction and sentence. His telephone conversations had been monitored by authority of a warrant and much incriminating material had been garnered as a result. A raid on his home had resulted in his being caught red-handed. He told what the jury no doubt regarded as a series of cock and bull stories to explain the telephone conversations and the presence in his home of a large quantity of the drug which was in the process of being weighed and re-packaged. He has at the last minute abandoned his application for leave to appeal against conviction and is proceeding in respect of the sentence, which he says was manifestly excessive.

3. The charges against him arose out of a joint investigation by the Victoria Police and the National Crime Authority into a large-scale amphetamine manufacturing and distribution network, which had extended from Victoria into Queensland. In all, about a dozen persons were charged, all but three of them being dealt with in Queensland. In February 1995 a huge quantity -180 kilograms - of amphetamine was seized at a clandestine laboratory in Queensland. In the latter part of 1994, various sources of police intelligence had suggested that one Gary David Maguire was responsible for the distribution in Victoria of amphetamine produced at the Queensland laboratory, and in September and October 1994 many of the applicant's telephone conversations were, as I have said, monitored. In May 1995 a man named Vinall pleaded guilty in the Supreme Court in Brisbane to trafficking in amphetamine. He was sentenced to 12 years' imprisonment and was given a non-parole period of only 5 years in view of his co-operation with police in respect of his co-offenders and his undertaking to give evidence in subsequent proceedings. Maguire came before the judge who sentenced the applicant, pleading guilty in February 1998 to one count of trafficking in a commercial quantity of amphetamine between 1 January 1994 and 8 February 1995 and to one count of possession of cannabis. He was sentenced in July to 15 years' imprisonment on count 1 and six months on count 2, giving a total effective sentence of 15 years, a minimum term of 8 years being fixed.

4. Vinall was called by the Crown on the joint trial of the applicant and one Stewart John Smith. Smith was charged with one count of trafficking, being the second of the two trafficking counts against the applicant. He was acquitted, although the endorsement on the presentment does not record this acquittal, recording only his conviction after a plea of guilty on a count of possession of a small quantity of cannabis.

5. Vinall gave evidence that in October 1994 he was engaged in the manufacture of amphetamine in Queensland with Maguire and others and that Maguire was distributing the drug into Victoria. He said that early in October 1994 he drove from Queensland to Maguire's home with 16 pounds of amphetamine packaged in snap-lock bags and that on arrival he gave 10 pounds of the drug to Maguire, who telephoned the applicant. The applicant came to Maguire's home and, having tested the product and found it to his satisfaction, departed with the 10 pounds. Vinall had met the applicant about a month earlier, when a trailer was hired to move amphetamine manufacturing equipment from Maguire's home to the Queensland laboratory. The 10 pounds received by the applicant from Maguire gave rise to count 1.

6. Count 2 concerned a much larger quantity. Vinall and Maguire wanted to have 22 kilograms of amphetamine brought from Queensland to Victoria. It did not suit them to undertake the journey personally and so the applicant first tried unsuccessfully to arrange for a particular truck driver to do the job. He then made successful arrangements for another driver to bring in the drug, and as a result he himself took possession of it (packed in two fire extinguisher boxes) and took it to his home in Yarrambat, where he set about repackaging it. The following afternoon, 17 October 1994, the police raided his home and seized 15.839 kilograms of amphetamine. The other six kilos or so must have already been distributed by the applicant. The telephone intercepts show that a number of people were urgently waiting on him to supply them from the 22 kilos which he received on 16 October. A number of visits were made to his home in the hours preceding the raid. Seized in consequence of the raid, in addition to the 15.839 kilos of the drug and equipment and bags for repackaging it, were two handguns, one of them loaded.

7. So far I have been speaking in terms of substance rather than drug. What I have described as 15.839 kilograms of amphetamine was of a purity of 72.4 per cent, giving a weight of pure amphetamine of about 11 kilograms. A commercial quantity was two kilograms. The value of the seized drug was estimated to be in excess of $1.2 million if sold in pound or half-pound lots. The Crown case was that sales in those quantities were actually occurring and in contemplation. The estimated street value was $13.7m. if the drug was reduced to street level purity (five per cent) and sold in gram lots.

8. The judge was told without objection that the seizure from the applicant was the largest seizure of amphetamine in Victorian history, not only down to the date of the seizure itself but down to the date of the plea.

9. The plea was heard just after s.10 of the Sentencing Act 1991 expired. The section had applied to the offences and the judge was invited by both counsel not to pass a higher sentence in consequence of its expiration.

10. The applicant was 36 at the time of sentence. He had eight prior convictions from two court appearances in 1992 and 1994. These included one for possession of and one for using a drug of dependence. The judge described his prior convictions as demonstrating to some extent an anti-social attitude, but as of minor significance in relation to the offences for which he was to be sentenced. Evidence on the plea was given by the applicant's wife and from his former employer.

11. On behalf of the applicant, Ms Lieder has not attacked any of the individual sentences. This is not surprising, in view of the quantities of the drug the subject of the offences and the applicant's role. The judge described him as the Victorian Distribution Manager, a finding which was appropriate and has not been challenged. It was he who was to distribute in Victoria the whole of each of the two consignments the subject of the counts. Ms Lieder's submission is that the sentences on the two counts of trafficking should have been made wholly concurrent. It is said that, although the applicant participated in two separate activities relating to trafficking in amphetamine, the course of conduct was the same in each case. I cannot accept this contention about concurrency. Not only was it open to the judge to order partial cumulation, but it would have been wrong not to do so. Trafficking in the first quantity was a very serious offence. Trafficking in the second quantity was a further very serious offence and one for which the sentence passed strikes me as moderate. Complete concurrency would not have marked the gravity of the applicant's criminal conduct in trafficking in these two large quantities of amphetamine. Moreover, it is wrong to say that in the two cases the course of conduct was the same. In the first case it was Vinall who brought the drug down from Queensland: the applicant collected it at Maguire's home. In the second case it was the applicant who made the arrangements which resulted in the transport of the amphetamine from Queensland to Epping, where the applicant took delivery of it, having monitored its progress.

12. In the alternative to her primary submission in favour of total concurrency, Ms Lieder argued that the cumulation of three years ordered was too great. I do not think this is so. The three-year cumulation ordered by the judge so as to give a total effective sentence of nine years with a non-parole period of seven resulted in a sentence which fell well within the range open to him.

13. I think it is clear that we cannot interfere with this sentence.

WINNEKE, A.C.J.:

1. I agree.

BUCHANAN, J.A.:

1. I agree.

WINNEKE, A.C.J.:

1. The formal order of the Court is that the application for leave to appeal against sentence is dismissed.