R v Strawhorn
[2006] VSC 462
•11 December 2006
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
No. 1427 of 2003
| THE QUEEN |
| v |
| WAYNE GEOFFREY STRAWHORN |
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JUDGE: | HABERSBERGER J | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 15 and 29 NOVEMBER 2006 | |
DATE OF SENTENCE: | 11 DECEMBER 2006 | |
CASE MAY BE CITED AS: | R v STRAWHORN | |
MEDIUM NEUTRAL CITATION: | [2006] VSC 462 | |
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Criminal Law – Sentence – Trafficking in a drug of dependence in a quantity not less than the commercial quantity – Accused a police officer – Member of Drug Squad – General deterrence – Drugs, Poisons and Controlled Substances Act 1981, s. 71AA.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr R. Elston SC with Mr M. Tinney | Ms A. Cannon Solicitor for Public Prosecutions |
| For the Accused | Mr P. Morrissey with Mr J. O’Sullivan | Galbally & O’Brien |
HIS HONOUR:
Wayne Geoffrey Strawhorn, you have been found guilty by the jury empanelled on your trial of one count of trafficking in a drug of dependence, namely pseudoephedrine, in a quantity not less than the commercial quantity applicable to that drug of dependence, contrary to s.71AA of the Drugs Poisons and Controlled Substances Act 1981.
My first task is to identify the facts which are relevant to the charge upon which you have been convicted. Any finding of fact which I make in that process must be consistent with the jury verdict and consistent with the manner in which the Crown put its case against you to the jury.
In 1999 and 2000 you were a Detective Senior Sergeant attached to unit 2 of the Drug Squad. That unit was responsible for the investigation of clandestine amphetamine laboratories. One investigative technique used by unit 2 was that of a controlled chemical delivery. This involved the police purchasing sought after precursor chemicals and other products and then selling them to illegal drug manufacturers via informers or covert operatives. The plan was that the chemicals would be followed by physical and/or electronic surveillance with a view to locating the whereabouts of clandestine laboratories. In fact, you were largely responsible for the introduction of this innovative method of investigation in Victoria following an overseas study tour in 1996. Controlled chemical deliveries were thereafter successfully used on numerous major drug operations on which you worked.
One such operation was codenamed Operation Vere. It targeted the Moran family, in particular Mark Moran. This operation was instigated following an approach to the Drug Squad by two former policemen, whom I shall call “BC” and “DE”. The latter was friendly with Mark Moran and his father, Lewis Moran. It was agreed that BC and DE would work as informers under your control although they were never registered as such.
Contact was made by DE with Mark Moran, who indicated that he was interested in purchasing all sorts of chemicals, including pseudoephedrine. These requests were passed on to you by BC. Your initial response was that pseudoephedrine was not available. Authorisation was obtained for the delivery of other chemicals or products, usually pseudoephedrine based tablets, such as Sudafed tablets, from the officer in charge of unit 2, Detective Inspector Reid. You then arranged for Detective Senior Constable Paton, who was a member of unit 2 and responsible for liaising with the pharmaceutical industry, to order the chemicals or products at wholesale prices from a pharmaceutical company and collect them when available. You arranged for surveillance and after the chemicals or products were delivered to you by Paton, you handed them to BC, who passed them on to DE, who in turn delivered them to Moran or one of his associates. The State Surveillance Unit would attempt to follow the latter stages of the transaction in the hope of locating a clandestine laboratory. At some stage in the transaction, the payment by Moran for the chemicals or products at the black market rate would be given to you by BC. The cash was deposited by you in the Drug Squad trust account.
As you knew, the authority to make a controlled delivery of pure pseudoephedrine had to be given by a very senior officer, probably an Assistant Commissioner or Deputy Commissioner. The reasons for this restriction was that pure pseudoephedrine was regarded as too dangerous a product to be sold to criminals because it could easily be converted into amphetamines. Also, the black market value of pure pseudoephedrine was such that the risk of corruption of those involved was considered to be high.
Consistent with the jury verdict, I find as fact that on or about 15 May 2000 you informed BC that a quantity of pseudoephedrine was available if Mark Moran was interested in purchasing it. When the message came back that Moran did want the pseudoephedrine, without any authorisation from your superiors you instructed Paton to place an order for two kilograms of pseudoephedrine with a pharmaceutical company. On 19 May 2000 Paton purchased the pseudoephedrine at a cost of $340 and, at your request, delivered it to you at a service station on the Westgate Freeway in Port Melbourne. You then delivered the product to BC at another location near the freeway in exchange for $12,000 in cash. BC then drove to another service station on the Western Ring Road and passed on the pseudoephedrine to DE. Some days or weeks thereafter, DE delivered the pseudoephedrine to Mark Moran or one of his associates.
The Crown alleged that the $12,000 in cash which you received from BC was kept by you. The evidence of Mr Curtin, forensic accountant, indicated that there were four cash transactions totalling $7,494 by you in the four months following 19 May 2000 in respect of which he was unable to find the source of the cash.
Paton resigned from the police force in December 2000. He was subsequently charged with a number of criminal offences. In June 2003 Paton pleaded guilty in the County Court to two counts of trafficking in a drug of dependence in not less than a commercial quantity. One count related to trafficking in pseudoephedrine between 28 October 1999 and 19 May 2000, including the transaction in respect of which you have been found guilty. The second count related to a number of unauthorised sales of Sudafed tablets by Paton between 9 May and 6 December 2000. You prepared a report dated 22 December 2000 in which you confirmed that Paton had been involved in a number of unauthorised Sudafed tablet collections from the pharmaceutical company. There was no mention of any unauthorised pseudoephedrine collections.
You continued to serve in the Police Force for close to three years after the offence, during which time the Ethical Standards Department commenced investigations into the corrupt activities of members of the Drug Squad. You were arrested on 17 March 2003.
Trafficking in a commercial quantity of a drug of dependence carries a maximum sentence of 25 years' imprisonment. A fine not exceeding 3,000 penalty units[1] may be imposed in addition to but not instead of a term of imprisonment.[2] These penalties reflect the seriousness with which Parliament and the community view drug trafficking on this scale. Illicit amphetamines, for which pseudoephedrine is a precursor chemical, are an unmitigated social evil. In accordance with the approach laid down by the Court of Appeal in R v Pidoto & O’Dea[3] and R v Yacoub[4] I say no more other than to note that, in the words of Nettle JA in R v Duncan[5]:
“all drugs proscribed by the Drugs, Poisons and Controlled Substances Act 1981 have deleterious consequences of anti-social proportions and that trafficking in any of them is therefore properly to be regarded as a serious criminal offence.”
Further, Charles JA said in R v Berisha[6]:
"The courts have repeatedly stigmatised the offence [of trafficking] in the strongest terms. Offenders play for high stakes and persons detected in the business of trafficking … can expect condign punishment and little mercy from the courts."
[1]Section 109(2) of the Sentencing Act 1991.
[2]Section 109(3A) of the Sentencing Act 1991.
[3][2006] VSCA 185.
[4][2006] VSCA 208.
[5][2006] VSCA 239 at [14]. See also R v D’Aloia [2006] VSCA 287 at [56] per Nettle JA, with whom Vincent JA and King AJA agreed.
[6][1999] VSCA 112 at [23]
You have been convicted of a single instance of trafficking in pseudoephedrine. The quantity in which you trafficked was two kilograms, which is the bare commercial quantity. Were the amount trafficked any less, you would have faced a lesser charge. Nonetheless, you chose to instruct Paton to order this amount, knowing the seriousness of trafficking in such an amount. You exploited a structure put in place to facilitate the capture of drug traffickers, and effectively orchestrated the delivery of two kilograms of pure pseudoephedrine to one of the principal drug manufacturers and dealers in Victoria.
The single most aggravating feature of your offending is that you committed the offence in your capacity as a member of Victoria Police, and while working in the very squad whose specific function it was to prevent and detect the trafficking of illicit drugs. You committed the very crime which you were entrusted to detect and eliminate. In doing so, you betrayed your oath as a member of the police force, and you breached the trust which the community placed in you. The trust placed in you, as a Detective Senior Sergeant, was higher than that placed in other members of lower rank, and therefore the breach of that trust is proportionately more serious. In your position as the effective head of unit 2 you were able to use your knowledge about drug manufacturers, the relationship which the police force had with the pharmaceutical companies and your ability to operate with less supervision than your subordinates to pervert your own role as a police officer for personal gain.
Although Inspector Reid may have been the titular head of unit 2, I have described you as its effective head given the following description of your position in your August 2001 statement:
“Since the commencement of 1999 I have been in charge of operations in the Clandestine Laboratory Unit. I approve all operational directions and investigations undertaken. I am aware of all investigations and controlled chemical deliveries conducted by the Clandestine Laboratory Unit during this time”
Your corrupt conduct has inevitably had the effect of undermining public confidence in the Victorian Police Force. It was a betrayal of the thousands of other serving police officers who daily work with dedication and integrity under the same kind of pressures and constraints as you did. Your conduct potentially undermined the enforcement of the law and the administration of justice in this State.
You did not plead guilty, and your counsel informed me on your plea that you still maintain your innocence of this crime. You therefore cannot get the benefit that a demonstration of remorse may have afforded you.
I turn then to consider your personal circumstances in order to ascertain whether there are any mitigating features which I should take into account when determining the sentence which is to be imposed on you. You are now 51 years of age, having been born in May 1955. You were the second of five children. According to your younger brother, Phillip, who gave evidence on your plea and who is also a police officer, because your eldest brother suffered from mental difficulties and your father was often absent from the family home, you were looked up to as both the "much respected older brother" and the "father figure" by your younger siblings. Phillip's loyalty and support at this difficult time is indicative of the high regard he has for you and it does him great credit.
You left school at the end of year 11 when you were aged 16. After a short time working for the National Bank, you joined the police force on 17 February 1974 at the minimum age of entry. You trained to be a detective in 1980. You were promoted to Sergeant in the CIB Racing Bureau in 1984. You joined the Drug Squad at the same rank in 1986. Between 1991 and 1996 you were involved in numerous investigations as a covert operative. In December 1995 you established the Chemical Diversion Desk of the Drug Squad. You became a Detective Senior Sergeant in 1998. You remained at the Drug Squad until December 2001 when you were moved to the Fraud Squad.
Throughout your life you have been a keen and celebrated sportsman. You were an outstanding athlete and footballer at school. You continued your career as a footballer with the police force team until knee and shoulder injuries forced you to stop.
You met your wife, Lorraine, a nurse, while you were working at the bank. After you married you had three children: Adam, now aged 25, Travis, now 23, and Amanda, now 16. Your wife died of sudden unexpected heart attack in the early 1990’s, when Amanda was three. This was devastating for you. You made arrangements to change your working program so that you could care for your three children alone. Your mother, Lorna, also provided a lot of support. Sadly, she died on 9 June 2000 of cancer. You brother gave evidence that at the family Christmas gathering in 1999 you were shocked and deeply upset by your mother’s rapidly deteriorating health. Your success in bringing up your children as a sole parent whilst holding down a responsible position does you great credit.
I turn now to your achievements within the Police Force. From the outset, and until your offending, you had a highly successful career in your chosen occupation. You excelled at Detective Training School, and were promoted swiftly through the ranks. Your "Record of Service" is a testament to the very fine impression you made on your superior officers over your decades of service. According to that document, you received two commendations, one in June 1987 for "initiative, enthusiasm and dedication to duty during operations which resulted in the arrest of fifteen persons for numerous drug related offences" and the other in December 1988 for "leadership and administrative ability displayed during the planning and execution of [an Operation which involved] a major drive against organised criminals engaged in drug trafficking."
John Murray Thexton, an Inspector in Victoria Police, with 32 years of service, gave evidence on your plea. You had worked under him first at the Fitzroy CIB and later in the Drug Squad. He described you as "one of the most competent and highly skilled investigators of the Drug Squad." In terms of your reputation, Mr Thexton said you were "one of the most highly regarded investigators at the Drug Squad and … within the Crime Department". Mr Thexton also said that within the police force, prior to these events you were held "in the highest regard … both in respect of integrity and honesty." In a letter of support from Victor John McKoy, who was formerly a Detective Chief Inspector in charge of the Drug Squad, Mr McKoy said that you were "arguably the most dedicated and hard working sub-officer" who served under his control. On a more personal note, Mr McKoy said that following the death of your wife you "gained the respect and admiration of all who knew" you and that you were a "decent man, a devoted father and an outstanding police officer". You brother confirmed your dedication to your work. Your counsel identified several still serving police officers who were present at your plea to demonstrate their support for you.
As to why you, with this most impressive record of dedication, competence, intelligence and integrity, should have so drastically fallen from grace, by this isolated but very serious instance of offending, remains a mystery. Your counsel, in the course of a very helpful plea and acting within the confines of your maintenance of your innocence of the crime, pointed to the stresses that were in your life at the time: the strain of raising your family alone after your wife’s sudden death and your mother’s battle with cancer. Your counsel described it as an opportunistic crime. Your offence took place within the structure of Operation Vere which had been put in place for legitimate controlled chemical deliveries. Your counsel submitted that, knowing that the Morans were interested in purchasing pseudoephedrine, it did not require much planning or cunning to make one illegitimate delivery of pseudoephedrine within that existing structure in order to bolster the relationship between DE and Moran. Your counsel also relied on the way in which the prosecution had put their case on the question of motive – that you were motivated partly by the desire to obtain a successful outcome in respect of Operation Vere and to see criminals arrested. Mr Morrissey emphasised the concession by the Crown that you were not motivated solely by greed. He submitted that your offending was a spontaneous and short-lived aberration from your otherwise exemplary police conduct. He described you as an otherwise unusually good police officer who made a "colossal error of judgment and … committed an offence which has brought [you] to imprisonment."
The Crown rejected the suggestion that your crime was an opportunistic lapse and triggered by stress. Mr Elston said that it was an orchestrated and carefully conducted activity which involved a number of people and careful planning by you. He pointed to the evidence of your post-offence conduct of attempting to prevent this trafficking of pseudoephedrine from being discovered to demonstrate that your criminal conduct continued for many months beyond the date of the transaction. Thus, Mr Elston submitted that your offending was not a momentary slip in an otherwise laudable career.
Mr Elston correctly submitted that the Crown relied heavily on this post-offence conduct as part of its case against you on this count. However, I consider that the jury verdict does not necessarily carry with it the conclusion that the jury accepted this evidence and I am not satisfied beyond reasonable doubt that the post-offence conduct in question did in fact occur. On the other hand, I am not prepared to take into account as a mitigating factor (on the balance of probabilities) the submission that your three years’ of service after this offence were without fault.
I accept that, in the context of your wife’s death, your mother’s ill health in early 2000 would have been especially stressful for you. I also accept that the structure for the delivery of chemicals to the Morans was in existence, and that this single illegitimate transaction managed by you did not require special planning or orchestration. The structure was there to be abused quite easily and quickly when an opportunity presented itself. I find, in your favour, therefore, that the planning of this offence probably did not span more than a week.
There can be no doubt that for over two decades you served the State of Victoria excellently as a committed, intelligent and hard-working investigator. Your reputation as a policeman and prior good character are factors I take into account in your favour. However, I note that it was this good character and impressive history which put you in the position to be able to commit the offence of which you are now convicted. I accept that you were dedicated to the success of Operation Vere and your offence was therefore partly motivated by a desire to further the purposes of that Operation. I consider that you believed a delivery of pseudoephedrine would maintain the Morans’ interest in DE as a supplier and that authority for such a delivery would not be forthcoming. Nevertheless, that motivation is still reprehensible. Members of the police force are not above the law and it is simply no excuse that your serious breach of the law may have resulted from some misguided belief that the end justified the means. Although I am satisfied that you were prepared to receive and use for yourself the profits of your crime, it would seem that the pursuit of money was not the prime motivating factor. Your brother gave evidence that you had never shown any signs of ostentatious living, and the evidence of the forensic accountant, Mr Gerard Curtin, at your trial showed that the unsourced cash transactions involved very modest purchases. One was simply the payment of car insurance.
Courts have held that general deterrence is a priority of sentencing in drug trafficking cases. This is particularly so in your case as your crime involved a breach of trust. Other police officers and people in positions of privilege and trust must understand that abuse of their position will be harshly treated by the Courts. With respect to the trafficking of amphetamines, Winneke P said in R v Spaull and Rush[7]:
"It should not be forgotten that the manufacture of amphetamines is a form a drug trafficking where general deterrence is regarded as high on the ladder of sentencing priorities. These offences are an attack upon the health and welfare of the community of this State, particularly the young community and it must be expected by those who commit them, to be met with condign punishment."
[7][1999] VSCA 18 at [15]
The principle of specific deterrence has played a lesser role in my considerations of your sentence. Upon your release from prison, you will not be able to return to the police force, and therefore the circumstances which created the opportunity for your offending will not be open to you in the future. This leads me to consideration of rehabilitation. You have no prior convictions, and have been convicted of one isolated act of trafficking. I am of the view that the shame and humiliation which you have brought upon yourself and the loss of your former outstanding reputation will have taught you an important lesson, despite the fact that you have expressed no remorse. In addition to this, you will have the strong support of your family. I am confident, therefore, that there is a good prospect that you will not transgress again.
I turn now to the question of health and the likely effect of imprisonment on your well-being. The psychiatric report of Dr Paul Brown dated 10 November 2006 was tendered as an exhibit on your plea. The report states that you are currently suffering from ulcerative colitis, major clinical depression and post-traumatic stress disorder. All three conditions are brought on by stress. Combined with the stresses of several deaths in your family in the last 15 years, the chief causes of your stress have been your arrest, trials and incarceration. Your counsel told the Court that what causes you the most stress is the fact that your incarceration impacts adversely on your children’s well-being and prevents you from contributing to their lives as a bread-winner, father and protector. You have suffered from ulcerative colitis for a number of years and are currently heavily medicated for it. Your post-traumatic stress aggravates the ulcerative colitis, and has also caused other somatic disorders such as anorexia and migraines. While the prison authorities will do all they can to accommodate your health needs, and while you are making every effort to manage your stress, I am persuaded that imprisonment will be more difficult for you than for somebody without such health problems. I take this into account when sentencing you.
Another fact which is likely to make your term of imprisonment more onerous, is the success you have enjoyed in your career in the police force. I accept that throughout your years in the police force, and particularly in your years as a Detective Sergeant and Detective Senior Sergeant in the Drug Squad, you were a highly committed investigator responsible for the arrest and subsequent imprisonment of many high profile, well-resourced and influential criminals, many of whom may still harbour a desire for vengeance against you. For this reason it is most likely that you will serve a large proportion of your prison term in protective custody or in a protective prison. I also accept that, notwithstanding the best efforts of the prison authorities, you may be apprehensive about your safety while in prison. The anxiety brought on by this fact is likely to further exacerbate your ulcerative colitis. I accept that for these reasons imprisonment for you is likely to be more burdensome than for other former police officers, and certainly more burdensome than for other prisoners at large. I consider this a factor going towards mitigating your sentence.
Mr Morrissey submitted that the principle of parity required that you should receive a significantly lesser term of imprisonment than your co-offender Paton. He pointed out that the two counts to which Paton pleaded guilty involved 2.5 times the commercial quantity in respect of the pseudoephedrine transactions (in fact I think it was 2.75 times) and 13 (I think it was 12.75) times the commercial quantity in respect of the Sudafed tablets transactions. Both counts were over a lengthy time frame. Mr Morrissey further submitted that Paton had been motivated purely by greed. For those serious offences Paton received a sentence of six years’ imprisonment on each count to be served concurrently with a minimum non-parole period of three years.
Whilst you and Paton were co-offenders in the trafficking offence committed on 19 May 2000, your circumstances are considerably different. It is true that you have been found guilty of only one offence, whereas Paton was guilty of numerous offences. On the other hand, you held a more senior rank than Paton and in respect of your offence the evidence on which the jury have convicted you is that you directed Paton to collect the two kilograms of pseudoephedrine. Moreover, Paton pleaded guilty and agreed to give evidence against other police officers, including yourself, which no doubt earned him a significant discount. Mr Morrissey submitted that Paton’s plea of guilty was inevitable in that it was necessary in an effort to reduce the certain term of imprisonment. Nevertheless, I consider that Paton’s plea of guilty would have played some part in reducing the term of his imprisonment.
Mr Elston submitted that there was no basis for the principle of parity between you and Paton. He submitted that your situations were just not comparable. Apart from anything else, it is not possible to work out what part this particular offence played in Paton’s overall sentence.
Despite these difficulties, I have taken Paton’s sentence into account when considering what sentence I should impose on you.
Your counsel also submitted that your assistance to the Ethical Standards Department in the investigation of Paton should be taken into account in your sentencing, just as Paton was given a reduced sentence for his assistance in bringing about your arrest and his willingness to give evidence against you at your trial. I do not consider that you should receive any benefit in sentencing for simply doing what was your duty, as a serving police officer and as Paton’s superior, to do.
Mr Morrissey also urged that account should be taken of the delay between your arrest on 17 March 2003 and the commencement of the committal in January 2004, during which time you were on remand; the delay between the end of the committal in March 2004 and the commencement of argument in the first trial in December 2004; the delay of about three months as a result of that trial having to be aborted in March 2005 due to evidence given by one of the Crown witnesses; and the overall delay of three and a half years between arrest and conviction. It is not necessary to discuss whether any of these periods could be considered excessive in the rather special circumstances of your prosecution because I accept that to some extent your sentence should “reflect the fact that the matter has been hanging over”[8] your head for some time. You will, of course, receive credit for the time spent on remand.
[8]R v Cockerell (2001) 126 A Crim R 444 at 447 per Chernov JA, with whom Winneke P and Buchannan JA agreed.
I also note that you have consented to a pecuniary penalty order in the sum of $12,000 pursuant to ss.58 to 60 of Confiscation Act 1997. This is, of course, simply the disgorging of your ill-gotten gains and therefore, pursuant to s. 5 (2A) (d) of the Sentencing Act 1991, I am required not to have regard to that penalty. Apart from this order, as there has been no suggestion that I should impose a fine as well as sentencing you to a term of imprisonment I do not propose to do so.
Further, during the plea I was informed that there was a restraining order made in respect of your property, in particular your home, under the automatic forfeiture provision of the Confiscation Act 1997, but that your application for an exclusion order, which should by now have been heard, would not be opposed by the Crown. I have assumed this to be the case.
I have also taken into account that Mr Elston on behalf of the Director of Public Prosecutions has applied for a superannuation order under s.83E of the Sentencing Act 1991. I heard argument about this application on 29 November 2006. It now appears to me that I need still further information about your superannuation before I can decide what, if any, superannuation order I should make. I will discuss with counsel at the conclusion of this sentencing the future conduct of that application.
It is necessary that any sentence imposed by the Court take into account all matters properly urged on your behalf. But the Court must also impose a sentence that adequately punishes you in a just manner, imposes a sentence which deters you and any other persons from committing offences of a same or a similar character, and reflects denunciation by the Court of the type of conduct in which you have engaged.
Wayne Geoffrey Strawhorn, having regard to the above matters and to the purposes set out in s.5 of the Sentencing Act 1991, I sentence you to a term of 7 years’ imprisonment. I direct that you serve a minimum of 4 years’ imprisonment before you become eligible for parole. I declare that pursuant to s.18(4) of the Sentencing Act you have already served a period of 419 days in custody and I direct that this declaration and its details be entered into the Court record.
Pursuant to s.464 ZF(1) of the Crimes Act 1958 I order that the forensic sample and any related material and information obtained pursuant to the informed consent given by you, Wayne Geoffrey Strawhorn, on 17 March 2003 be retained for placement on the database. I am satisfied that, in all the circumstances, the making of the order is justified having regard to the seriousness of the circumstances of the offending and the fact that the granting of the order is in the public interest.
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