R v Starr & Smith
[2002] VSC 110
•12 April 2002
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
No. 1521 of 2000
| THE QUEEN | Plaintiff |
| v | |
| AARON JAMES STARR AND ALLAN JOHN SMITH | Defendant |
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JUDGE: | Bongiorno J | |
WHERE HELD: | Mildura 28 November 2001 and 14 January 2002 | |
DATE OF HEARING: | 28 November 2001 | |
DATE OF JUDGMENT: | 12 April 2002 | |
CASE MAY BE CITED AS: | R v Starr and Smith | |
MEDIUM NEUTRAL CITATION: | [2002] VSC 110 | |
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Criminal law - Sentencing traffick - in a drug of dependence –amphetamine, ecstasy and cannabis – s 71 Drugs, Poisons and Controlled Substances Act 1981.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr. A. Moore | Office of Public Prosecutions |
| For the Accused (Starr) | Mr. B. Lindner | Victoria Legal Aid |
| For the Accused (Smith) | Mr. S. Grant | Michael Gleeson & Associates Pty |
HIS HONOUR:
Aaron James Starr and Allan John Smith, on 28 November 2001, in the Supreme Court at Mildura, you each pleaded guilty to one count of having trafficked in a drug of dependence between 1 March 2000 and 4 May 2000 without being legally authorised to do so. The drugs alleged in the presentment were those commonly known as amphetamines, ecstasy and cannabis. The presentment upon which you were arraigned also contained a count of conspiracy to murder in respect of both of you and a count of using a firearm with intent to resist or prevent lawful apprehension in respect of you, Starr. You were both subsequently tried and acquitted on the conspiracy to murder count and you, Starr, are still awaiting trial on the count of using a firearm to resist arrest. It is now my function to sentence both of you in respect of the count of trafficking to which you pleaded guilty.
Early in the year 2000 the Victoria Police conducted a drug investigation, code named Operation Nix. In the course of that investigation an undercover police officer who used the assumed name of “Alex Saba” made contact with you, Starr, at a house which you were painting at Patterson Lakes, a south eastern suburb of Melbourne. He arranged to buy $500 worth of amphetamine from you. You met him on Friday 14 April when the deal was completed at the Patterson Lakes shopping centre. You handed Saba a clear plastic bag containing amphetamine and he gave you $500.
Subsequent to this transaction, and pursuant to appropriate warrants, the police began extensive interception of telephone calls made to and from a number of mobile telephones including those used by each of you. These telephone calls eventually provided the evidence upon which you were both charged with the offence with which I am presently concerned as well as the offence of conspiracy to murder of which you were both subsequently acquitted.
At the time Saba approached you, Starr, you were painting a house at Patterson Lakes in the course of your employment by your co-offender Smith. Normally you plied your trade in the Mildura area but on this occasion Smith had a contract to paint the house at Patterson Lakes.
Shortly after the initial drug transaction to which I have referred you, Starr, told Saba that you could supply him with a ¼ ounce of amphetamine at the rate of $4,500 per ounce. You subsequently told him that you were getting a big bag of amphetamine and that if he wanted to do business with you he would get more for his money if he purchased more. You then offered him amphetamine for sale – one of the statutory definitions of trafficking.
Between your initial contact with Saba and your ultimate arrest on 3 May you engaged in a number of other transactions which together with the matter to which I have referred, constituted the trafficking charge to which you have pleaded guilty. Indeed, even before your initial contact with Saba there is evidence in the depositions of your having sold amphetamine in Mildura to one Jamin Tiller.
Whoever may have been supplying drugs to you prior to your contact with Saba it is clear that during the latter half of April you obtained amphetamine and ecstasy from one Andrew Tsoungarakis with money supplied by you, Smith. Some of this you on-sold to Alex Saba when he eventually came to Mildura. It was out of these transactions with Tsoungarakis and your apparent dissatisfaction with the quality of some of the ecstasy supplied to him which he supplied to you that the circumstances which gave rise to your also being charged with conspiracy to murder arose. Of course, those circumstances are no longer of any relevance to the matter with which I am presently concerned.
During the same period, that is to say in about April 2000, you supplied cannabis to one Sharon Price and, in the month before, you had supplied amphetamine, for re-sale, to one James Davis in Mildura.
So far as your dealings with Tsoungarakis were concerned, he described himself as a “middle man”, obtaining his supply from somewhere further up the distribution chain.
You, Smith, were Starr’s employer. He had worked for you as a painter for some years. You said in your evidence on your trial for conspiracy to murder that your relationship with him so far as drug trafficking was concerned commenced only a relatively short time before you were both arrested. You told the Court that you were approached by Starr who told you that he had a few problems with his health and had some outstanding court warrants, totalling $5,000 or $6,000, and needed money. You said you agreed with him that you would both deal in drugs for the purpose of clearing this debt of Starr’s and that you, Smith, would share in the profit to be made. The impression you sought to convey was that you were a relative newcomer to the drug scene, that the idea of dealing in drugs had arisen only as a response to a particular financial problem and that the enterprise would last only a short time; sufficient to clear Starr’s debts.
Notwithstanding this explanation as to the way in which you and Starr began dealing in drugs, in the course of your evidence you displayed a knowledge of the drug culture completely inconsistent with this somewhat disingenuous explanation. You spoke of getting cannabis and amphetamine from Queensland. You spoke of dealing with “clients”. You demonstrated an easy familiarity with the profit margins to be made from the sale of amphetamine and cannabis. You acknowledged having spoken to Tsoungarakis in terms of having had access to a large amount of marijuana.
In the course of the plea made on your behalf, Smith, I specifically asked your counsel if you adhered to the evidence you gave as to the way in which you commenced the drug selling operation to which you have now pleaded guilty and its intended very limited scope. He said that you did. I do not accept your evidence in this regard. Having regard to the rest of your evidence, the way you gave it and the telephone intercepts in which you incriminated yourself, such an explanation is so unlikely as to defy belief.
However, you have conceded that you financed the drug dealing undertaken by Starr on behalf of both of you and that you and Starr sought to profit from that activity over the period to which the charge to which you have pleaded guilty relates. It is in respect of this activity that you will be sentenced.
Although you, Starr, did not give evidence on your trial you were interviewed on two occasions by police, during which interviews you told them a number of things about your drug dealing activities. How much of what you said was true is difficult to determine. You said that you had sold marijuana, speed, ecstasy, some steroids and ephedrine. You told them that your involvement with Smith commenced when you were 16 or 17 and that you progressed from there to a situation where you were selling drugs regularly on behalf of Smith. You said he gave you a mobile phone and, on the occasion that you were painting at Patterson Lakes, left you with $7,500 in cash to buy drugs. You asserted that Smith continuously phoned you to tell you what to do, how to do it and what to pay for various drugs. None of this is, of course, evidence against you, Smith, although, as I have already noted you have conceded being the effective financier of the drug operation.
You, Smith, did not take part in a police interview but, as I have said, you gave evidence upon the trial of both of you for conspiracy to murder. Although much of that evidence went to issues which are now irrelevant, in the course of it you conceded that you were engaged with Starr much in the way which he described to the police: at least to the extent necessary to explain your criminality sufficiently for it to be a sound basis for your sentence to be assessed.
The maximum penalty in respect of the offence to which you both have pleaded guilty is 15 years imprisonment and/or a fine of $100,000. However the drugs in which you dealt were not those which normally attract penalties at the very high end of the sentencing range. Amphetamines, ecstasy and the like might be said to fall into a middle range of illicit drugs in respect of which lesser penalties than those which would be imposed in respect of heroin or cocaine are usually applied. On the other hand these drugs are of considerably greater significance than marijuana, particularly perhaps marijuana grown for personal use. Amphetamines, ecstasy, and similar drugs are however dangerous and illegal. They represent a significant proportion of the illegal drug trade which wreaks such havoc, destruction, misery and evil upon those associated with it.
So far as the extent of your trafficking during the relevant period is concerned it is difficult to define with precision. However, it involved drugs worth thousands of dollars rather than tens of thousands. You could both be described as middle level distributors. Both the prosecutor and your counsel Smith submitted that the roles of each of you, although different, were roughly equivalent. Although your counsel, Starr, sought to minimise your participation, and hence your culpability, I am inclined to accept that you should be treated equally so far as sentencing is concerned, especially as, as I will note in a moment, any differences in your role is compensated for by your not inconsiderable criminal history as against Smith’s clean record.
You each pleaded guilty to this offence at an early stage of the proceedings. Whilst it would not be unduly cynical to regard those pleas of guilty as convenient forensic responses to the more serious charge of conspiracy to murder which you were facing I am required by law to take the fact that you pleaded guilty into account as well as the time at which you did so in fixing your sentence. Your counsel urged me to consider those pleas of guilty as expressions of remorse. However, as I said in the course of your pleas, the concept of remorse as it might apply to offences against the person or even offences against the property of other citizens is somewhat more difficult to apply to an offence where the illegal activity engaged in is directed towards profit making from persons who, at the point of which a sale is made, appear to be willing, if misguided, participants. I would have thought that remorse with respect to drug dealing would need to involve an acceptance and acknowledgment of the devastation which drug distribution wreaks upon a community. The tenor of your evidence, Smith, did not convey any remorse of this type. Listening to it, one might have thought that you were describing the events which lead to your arrest as an unfortunate interruption to an otherwise appropriate course of commercial activity.
Likewise, Starr, you have expressed no remorse in the sense in which I have described it. You will each be entitled only to any mitigation based upon remorse (if any) as is inherent in your pleas of guilty.
I turn then to your individual circumstances.
Aaron James Starr
Aaron James Starr you were born in Mildura on 23 March 1972 and are accordingly now 30 years of age. You have a large number of prior convictions going back to 1990. Some of them are for crimes of violence; some for driving offences. You have been sentenced to imprisonment on prior occasions. None of these convictions are directly relevant to the sentencing task I must undertake. However they demonstrate a long history of lawless behaviour which disentitles you from relying upon any past good character.
You underwent extensive psychological appraisal by Mr Bernard Healey, clinical psychologist, on 11 November 2000 and again on 5 January 2002. The Crown does not accept much of the history you gave to Mr Healey as part of those examinations. Neither do I. Of particular significance in this regard is Mr Healey’s conclusion that you suffered from a serious amphetamine addiction in the eight months leading up to your arrest. This conclusion can only have been reached by Mr Healey on the basis of your instructions. Those instructions run counter to the evidence given on your trial for conspiracy to murder and contrary to the answers you gave to police when you were interrogated. I am not prepared to find that you suffered from amphetamine addiction at any time relevant to the matters the subject of the charge upon which I am about to sentence you. Your trafficking in amphetamines was driven by greed not need and you will be sentenced on that basis.
Having formed the view that the history you gave Mr Healey with respect to your use of amphetamines was untrue I approach the rest of his report and the opinions he proffers with considerable caution. However, notwithstanding that there is much of value in his reports upon which it is probably safe to rely.
If the history you gave Mr Healey in relation to your early life is true, even in broad detail, it appears that your parents separated when you were 13 and you lived with your mother and sister. Apart from a period in 1995/1996 in which you lived in Queensland you have spent most of your life in the Mildura area.
Following the break down of your parents’ marriage your mother apparently became alcoholic and you looked as much and perhaps more to your now co-accused Smith as to your biological family for emotional support.
You attended Mildura South Primary School and Mildura Technical School but left at the age of 15 after completing year 10. Again, if I can accept the history you gave Mr Healey, you progressed reasonably well at school and when you left undertook a painting apprenticeship with your co-accused Smith. You told Mr Healey that you raced BMX bikes for several years and that your were Victorian and South Australian champion in this sport. You also claimed to have been “apprentice of the year” in your second and third years at the Ballarat School of Mines which you attended during your apprenticeship. It is not necessary for me to make any finding on these peripheral matters. It is sufficient to say that I would not accept their accuracy without corroborative evidence.
You apparently progressed well as a painter with Smith and have been employed by him for many years. Mr Paul Mahoney, who gave evidence on your behalf, attested to your capacity in this regard. Indeed he described you as being in the top five painters he has met in the last 20 years. It is reasonable to assume that if you decide to cease your criminal activity when you are released from prison it is in the area of painting and decorating that you will find effective rehabilitation. Mr Mahoney deposed to being willing to employ you.
Psychological testing conducted by Mr Healey showed you as having average capacity with a full scale IQ of 99, placing you in the 48th percentile. Personality testing indicated mild depression, mild anxiety and a hypomanic trend reflected in raised excitability and impulsivity.
So far as your physical health is concerned it appears that you have suffered a number of injuries over the years, the most significant being a left knee injury requiring total reconstruction in 1999 in respect of which you have claimed you used cannabis for pain control and amphetamine to improve your confidence and motivation.
You have been in a defacto relationship as a result of which you have a son aged five or six. It appears that that relationship is not presently subsisting which is not surprising having regard to the revelations as to your relationships with other women which was revealed in the evidence.
The principal stabilising feature in your life, so far as I can see other than the malevolent influence of your co-accused, is that of your sister Mrs Cogan who gave evidence before me. She has made considerable sacrifices to stand by you in your present predicament. If for no other reason, it behoves you to repay her concern by ceasing your illegal activity when you are released from gaol.
Your counsel has submitted that you should be sentenced to a period of imprisonment such that you would have a very early release date. He submitted that you were the “pick up and delivery man” or the “foot soldier for a drug business financed by Mr Smith”. He said you have expressed remorse. I have already commented on this aspect of the case.
In the circumstances it seems to me that there is no basis for distinction between you and Smith with respect to sentence. If your role was less, then Smith’s lack of prior convictions is a balancing factor which renders it appropriate that you each receive the same sentence.
It has been often said, and is clearly the law, that the principal sentencing consideration in cases of drug trafficking is general deterrence. Certain detection followed by condign punishment is the only way the criminal justice system can respond to the scourge of drug distribution. In your case I also take into account the reasonable prospects you have for rehabilitation and the need to deter you specifically should you be inclined in the future to again seek the apparently easy profits which you think might be able to be made from drug dealing.
Allan John Smith
You were born on 18 September 1963 and accordingly are now 38 ½ years of age. You are married and have two children aged about six and four respectively. You have no prior convictions.
In January of this year you were the subject of an extensive psychological assessment by Ms Wendy Northey, psychologist. Again, insofar as you gave a history to Ms Northey one has to be somewhat cautious. Much of the evidence you gave upon your trial for conspiracy to murder was factitious. There is, accordingly, no reason to believe that in giving a history to Ms Northey you were not equally mendacious when you thought it might be of assistance to you. I have therefore assessed Ms Northey’s report of 9 January 2002 from this commencing position.
It seems that you were born in Mildura and attended local Catholic schools. You had an ambition to become a chef. Upon completing year 9 you were offered an apprenticeship as a painter and decorator and decided to follow that career. You have been in business as a painter and decorator for some 20 years. Your business has been generally successful and the evidence I heard in the course of the plea made on your behalf attests to your having been able, if you had wished, to continue to prosper as a business man in Mildura.
You have been married since 1992 which marriage has come under significant strain, largely as a result of matters surrounding the criminality in which you have been recently involved. However, it appears the marriage is at least subsisting. My assessment is that your ultimate rehabilitation, if it is going to occur, will be best achieved in the context of a continuing marriage to your present wife. Whether that context will be available to you only time will tell.
So far as your general physical health is concerned it would appear that you have no current adverse medical conditions.
You told Ms Northey that your involvement in serious drugs coincided with your commencing a relationship with Ms Sharon Price, a prostitute who gave evidence in your trial. This was said to be in the year 2000 when Ms Price moved to Mildura from Melbourne. For the reasons already stated I would not be prepared to find, even on the balance of probabilities, that your history to Ms Northey in this respect was accurate. It may be but, equally, you may have thought it advantageous to your case to have limited your involvement with drugs to the period immediately prior to the criminality with which I am presently concerned. Likewise your history to Ms Northey as to the agreement you claim to have had with Mr Starr in respect of the financing of outstanding warrants is problematic for the reasons I have already expressed.
In the history you gave Ms Northey you said that you Starr and Tsoungarakis were rapidly getting way out of your depth in terms of offending behaviour at the time this offence occurred. You said that whilst you thought you were “in control”, it was not until you had read the police brief following your arrest that you fully realised what had been happening. I do not accept this part of the history at all. It is inconsistent with the evidence which I have heard, particularly that derived from the telephone intercepts.
Ms Northey reports that you accept that your career in drug trafficking has already cost you a great deal financially as well as emotionally. She describes that career as “brief”; a conclusion she could have reached only be accepting your history to her. I have considerable difficulty in accepting that proposition but then, for the purposes of sentencing, it doesn’t matter. You will be sentenced only in respect of the drug trafficking to which you have pleaded guilty.
Not surprisingly, it appears that your parents have been mortified by your involvement in this offence and are ashamed of your behaviour. Your father’s health has apparently deteriorated.
You are described by Ms Northey as ambitious, capable and hard working. She says that you have been hard on yourself and have been driven to achieve a level of material success unknown in your family of origin. She describes your involvement in this offence as indicative of a form of stress break-down due to a combination of stressors and pressures together with an undeveloped moral capacity to resist the negative influences of Aaron Starr and Sharon Price. Again, I find this conclusion somewhat difficult to accept. It may be partly true. In my opinion the principal motivating factor in your offending in this instance was, as with Starr, greed. Further, as between you and him, you were clearly the leader even if your involvement in drug dealing with him was really an equal business partnership.
Ms Northey considers that you have a low risk of re-offending, particularly if you receive specialised counselling to address a number of personal and relationship issues which underlie your offending behaviour. She makes a plea on your behalf for community based supervision. However, as you will have already realised from what I have said to Starr the principal consideration in the fixing of a sentence in respect of drug trafficking is general deterrence; the need which the community has to demonstrate to others that the detection of drug dealing of the kind in which you engaged leads almost inevitably to a prison sentence. It may be that some form of non-custodial punishment might be sufficient to ensure your rehabilitation. However it would be inappropriate having regard to the need to deter others, and you, from re-offending.
I have heard evidence in the course of the plea made on your behalf from those who hold you in high regard. They regard your work as good and your capacity as a painter and businessman to be exceptional. It is reasonable to infer that your being in prison will seriously diminish the chance of your business continuing. If it does continue it will be because of the tenacity and dedication of your wife. If it does not you will be faced with the prospect of having to try to resurrect it upon your release if, in fact, you feel able to return to live in the Mildura area. It may be that you will have to try to re-build your life in some other place. In the mean time your wife and children will suffer as a direct result of your being engaged in this criminality. That is a matter upon which you would do well to reflect seriously.
Taking into account the principal of general deterrence to which I have referred and giving appropriate weight to the other sentencing principles of specific deterrence, denunciation and protection of the community and making due regard for Ms Northey’s opinion that you are unlikely to re-offend it is still appropriate that you be sentenced to a term of imprisonment. In this instance that term will be the same as that I propose to impose on Starr.
Before announcing the periods of imprisonment to which you will each be subject however, I must rule on an application by the Crown for an order in respect of you, Smith, pursuant to s 464 ZF Crimes Act 1958. I note that you, Starr, have already consented to such an order which I made in Mildura.
Section 464 ZF (2) Crimes Act 1958 permits this Court to make an order directing a person convicted of any one of a number of certain specified offences, set out in Schedule 8, to undergo a forensic procedure for the taking of a sample from any part of the body of that person, such sample to be placed on a data base. The application for such an order must be made by a member of the police force. I assume that insofar as he sought an order against you, Smith, Mr Moore was acting on behalf of the police informant in your case, although he did not specifically say so.
The Act is silent as to the criteria which the Court must apply in deciding whether or not to order the forensic procedure referred to. The legislature’s conferring of a discretion upon the Court, however, indicates that it is not in every case that such an order will be made.
In this case Mr Moore has argued that the seriousness of the offence is one matter to be taken into account but so much can be assumed. The legislature has selected a range of offences for inclusion in Schedule 8 of the Crimes Act – presumably because they are serious offences.
The taking of a forensic sample, no matter how simple or how apparently trivial, is an invasive procedure. To attempt to take such a sample other than in accordance with an order made under s 464 ZF or some similar statutory provision would constitute a trespass. The applicant for such an order bears the risk of non persuasion in relation to the making of that order. It is him to satisfy the Court that it is appropriate to grant such an order. Having regard to what Mr Moore said and your opposition, Smith, to the making of such an order I am not satisfied that the onus of persuasion has been discharged. There will be no order pursuant to s 464 ZF Crimes Act 1958 in respect of you, Smith.
Sentence
The sentence of the Court is that each of you be imprisoned for 4 years. It is further ordered that each of you serve a minimum of 2 years 9 months before being eligible for parole.
In your case, Starr, I declare that the period of 368 days be reckoned as the period of pre-sentence detention already served in respect of this sentence and I order that that declaration and its contents be noted in the records of the Court.
In your case, Smith, I declare that the period of 166 days be reckoned as the period of pre-sentence detention already served in respect of this sentence and I order that that declaration and its contents be noted in the records of the Court.
Finally, I note that there is still outstanding an application by the Crown against you, Smith, for confiscation orders in respect of various items of property. I gave informal directions for the trial of that issue when this matter was heard in Mildura. I do not know whether those directions have been complied with or whether the matter is still extant. I shall accordingly reserve liberty to the Crown and to you, Smith, to apply to either bring the application on for hearing or to dismiss it for want of prosecution on notice to the other party on a date to be arranged with my associate.
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