R v. Vasic, Alex; Theodorellos, Konstanios; Ah Ta, Matavai
[2009] VCC 1070
•14 August 2009
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AT MELBOURNE CRIMINAL DIVISION
Case No. CR-09-01411
CR-07-01204 CR-07-01207 CR-06-02642
THE QUEEN V
ALEX VASIC
KONSTANIOS THEODORELLOS MATAVAI AH TA
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JUDGE: McINERNEY
WHERE HELD: Melbourne
DATE OF HEARING: 20 July 2009; 13 August 2009
DATE OF SENTENCE: 14 August 2009
CASE MAY BE CITED AS: R v. Vasic, Alex; Theodorellos, Konstanios; Ah Ta, Matavai
MEDIUM NEUTRAL CITATION: [2009] VCC 1070
REASONS FOR SENTENCE
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Catchwords: trafficking of large commercial quantity of drugs – serious drug offender – conspiracy to kidnap – plea of guilty – significant delay
Cases cited: R v. Giretti (1986) 24 A Crim R 112; R v. Bernath [1997] 1 V.R. 27; Tiburcy (2006) 166
A Crim R 291; R v. Pantsis [1998] VSCA 134; R v McLeish (1982) 30 SASR 486; R v. S [2006]
VSCA 134; R v. Sibic (2006) 168 VR VSCA 305; Ibbs v. R (1987) 163 CLR 447; R v Pidoto (2006) VR 269; R v. D'Aloia [2006] VSCA 237; R v. Cheun Wai Man [1991] NSWCA; R v Verdins (2007) 16 VR 269; R v Audino (2007) 180 A Crim R 371
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APPEARANCES:Counsel Solicitors
For the Crown Mr J. Saunders
For the Accused Vasic Mr A. Brand For the Accused Theodorellos Mr P. Haag For the Accused Ah Ta Mr A. Jackson
VICTORIAN GOVERNMENT REPORTING SERVICE
565 Lonsdale Street, Melbourne - Telephone: 9603 2403
HIS HONOUR:
Sentence of Alex VASIC:
1Mr Vasic, if you would just remain seated, please. Unfortunately the complexity of sentences these days means that it takes me some time to go through these issues until no doubt I get to the matter that most affects you, but to do that I have got to go through some requirements that are necessary to ensure that people, when they read the sentence, can ascertain that you have been given appropriate justice, so I ask you to be patient.
2In this matter Mr Vasic has pleaded guilty to two presentments. Mr Vasic is
29. He was born on 29 September 1979. He is a truck driver by occupation. He is married with three young children. Mr Saunders appeared on behalf of the Director, and Mr Brand appeared on behalf of Mr Vasic. Mr Vasic pleaded guilty to all counts in each of the presentments.
3Insofar as the first presentment is concerned, Presentment No. C0504703.6, there are two counts. The first is a count of trafficking in a drug of dependence, in this instance MDMA or ecstasy, in a quantity not less than the large commercial quantity applicable to that drug. The second count is a count of trafficking simpliciter in the same drug on a particular date. The first count concerns a period from 17 January 2005 through to 27 July 2005. Indicative of the seriousness of this offence is the maximum penalty prescribed by Parliament of life imprisonment and/or the imposition of a fine of not exceeding 5000 penalty units. Insofar as Count 2 is concerned, while not as serious as Count 1, it is clearly still a serious offence, reflected by the fact that the penalty imposed is one of 15 years by way of maximum period of imprisonment.
4By consent, the prosecution tendered Exhibit A, which was a summary of Mr Vasic's role in regard to those two counts. Essentially what is involved in this trafficking concerns, over the period that I have indicated, substantial and
large amounts of ecstasy involving large sums of money. The learned prosecutor preferred an assessment that insofar as assessing persons who traffic in large commercial quantities of such products, the proposition is that in this case it is mid level of such trafficking. It is necessary to go to that document to explain what this count involved.
5I have already sentenced a number of persons: Mr Cancer, Mr Velevski, the two Murones, and my brother Nixon has also sentenced a number of others involved in what was known as either Operation Fenks and Operation Rakus, which were investigations conducted by the police from the Victorian Major Police Drug Investigation Division into the trafficking of ecstasy tablets, cocaine, amphetamine and pseudoephedrine in Victoria.
6It seems to me, I should say, having now got almost to the end of the sentencing in these matters, that the endeavour, hard work and dedication of the police investigation squad over many years needs to be recognised. Indeed, I have been part of sentences of police in such squad who brought the squad down by way of reputation. The work, as I have observed in this case, shows utmost dedication in the work done on behalf of the community. Mr Prosecutor, you should convey those matters back through your sources.
7MR SAUNDERS: I will, Your Honour.
8HIS HONOUR: Coming then to understanding of Mr Vasic's role in this count on the first presentment, paragraph 10 talks of the circumstances which came to pass during the investigation, whereby the telephone intercepts identified numerous persons as the supplier of drugs to Mr Rios. Paragraph 25 sets out that such material established that Mr Vasic was in regular contact and a major supplier of MDMA in the form of ecstasy tablets to Mr Cancer.
9The allegations in this material disclose drug trafficking by Mr Vasic of substantial quantities of ecstasy with such a frequency that it
could clearly be said that Mr Vasic was in the business of trafficking in the terms and manner as defined in R v. Giretti (1986) 24 A Crim R 112.
10Some examples come from paragraph 28. On 22 September 2005, Mr Vasic, in discussion with Mr Cancer over the phone, talks about the sale of packages of some 2500 ecstasy tablets. The discussion continues and Mr Vasic tells Mr Cancer he could have 40,000 ecstasy tablets by Friday. Then at 10.33 that night there is a further telephone conversation where Mr Vasic phones Mr Cancer and asks Mr Cancer whether he could get together $100,000 in one hour. Cancer informs Vasic he would call him as soon as he had the money.
11Coming then to 7th of April, there is a further conversation between those two persons. There is discussion at approximately 7.52 where Mr Vasic phones Mr Cancer and informs him the best price that the supplier could sell tablets for, being discussed between them, was $150,000 for 10,000 tablets, and Mr Cancer agreed to purchase the tablets at that price.
12Further examples were on Thursday 26th of May, further discussions between Mr Vasic and Cancer, discussions as to the making of money and Cancer mentions the sum of $60,000. A further general conversation with Mr Vasic leaving Cancer and telling him to pop in tomorrow if he needs the money.
13There are similar type conversations throughout. In particular the learned prosecutor in his introduction took the court to paragraph 29 which detailed circumstances between 7 and 8 June 2005 where the monitoring of calls with Mr Vasic continued. As a result thereof, Mr Duncan was subsequently apprehended with some 5000 ecstasy tablets.
14As a result of just the matters that I have detailed, one gets an appreciation of the amounts involved of which Mr Vasic was concerned and the moneys involved.
15At paragraph 32 in the summary, the prosecution states that it is unable to precisely quantify the amount of ecstasy trafficked by Mr Vasic during the charge period. However it is agreed, and Exhibit A was tendered by consent of all parties on the basis the quantity was such that placed the accused in the mid level range of trafficking of large commercial quantity of such drug.
16Mr Vasic was given bail, as I understand it, after 12 days. Such amount will have to be taken into account by way of pre-sentence detention. There was a bail condition placed upon him by way of a curfew. That bail condition was removed in mid 2007.
17In the extensive plea put forward by Mr Brand for and on behalf of Mr Vasic there was an explanation given as to the circumstances whereby the removal of that condition led to Mr Vasic returning to the drug scene.
18That leads us to the second presentment in this matter, presentment no. X03393573. That concerns a period of 18 July 2007 through to 26 March 2008, a period of nine months. In this instance, the one count in the presentment charges Mr Vasic with trafficking in a large commercial quantity of a drug of dependence, in this instance cocaine. Again the penalty is the same. I point out that it is the harshest penalty that is prescribed in our criminal system.
19Going Exhibit B, which was tendered by the learned prosecutor as an indication of the background to the circumstances of this serious criminality, this criminality came to light by way of the work of the New South Wales police in an operation called Maybrook. I am sorry. The operation in New South Wales was called Waratah, and that led ultimately to the Maybrook operation in Victoria. That investigation focused on the activities of one Tan Arslan and ultimately ended up in 16 offenders being apprehended. I am not too certain when all the offenders were apprehended, but Clause 3 of the
summary notes that 16 offenders, of which the accused was one, were all arrested and large quantities by way of the totality of this operation of cocaine, ecstasy, methylamphetamine, cannabis and ketamine with a street value in excess of $1.3 million were confiscated. Obviously the broader aspects of that crime spree do not affect Mr Vasic.
20Insofar as the Victorian operation that I have referred to, which became apparently two operations, Maybrook and Trench, some 40,000 telephone calls were monitored over some 22 telephone lines. Paragraph 5 suggests that of those 40,000 telephone calls, some 20,000 were of evidentiary value, perhaps indicative of the degree of investigation in this matter. On 27 November Mr Vasic was arrested at his premises. On that particular day various items were confiscated.
21The evidence, of course, in this matter is based again on the telephonic intercepts and it is agreed that the volume involved in this trafficking is at the lower end. That is, while it is agreed that the quantity was in excess of one kilogram, therefore making it a large commercial quantity within the meaning of the Act, the prosecution cannot put the matter any higher.
22Insofar as the circumstances are concerned, this serious crime occurred while Mr Vasic was on bail for the offences that I have earlier referred to in regard to the first presentment. As a result therefore s.16 Sentencing Act applies which provides that:
"Every term of imprisonment imposed insofar as such an offence is concerned must, unless otherwise directed by the court, be served cumulatively on any other sentence."
23There is then attached to Exhibit B a schedule of various calls which give perhaps just by such reference some indication of the types of dealings that Mr Vasic was involved in. Call 49 relates to 18 July 2007. Mr Arslan offered Mr Vasic some 3 ounces of cocaine for $6000 per ounce, such having a purity
of 50 per cent.
24It should be pointed out that the calls demonstrate that both Arslan and Vasic would help each other out when one or other was short on sources so that the supply was mutual. Call 3336 at p.9. On 7 September 2007 at approximately 6.53, Mr Vasic told Mr Arslan he had not been able to get any cocaine for them. Tan indicated he would get some but only 7 grams. Mr Vasic indicated he needed heaps as it had never been like this before.
25Call 1253 on 22 January 2008 at approximately 20.06, Mr Arslan offered Mr Vasic 3 ounces of uncut cocaine for 11,500. There was some discussion about the price and Vasic finally agreed to buy the 3 ounces for $10,000 each. Further discussion detailed in call 1703 of 26 March 2008, there was discussion between Mr Vasic and Arslan as to uncut cocaine. Mr Vasic wanted a price for 10 ounces with cash up front and was offered by Mr Arslan 10 ounces at $10,000 each per ounce and the conversation continued in like form.
26As I said, this was a large operation, apparently run by Mr Arslan. As I have already remarked, there were some 16 offenders arrested. Mr Vasic, because of his decision to plead guilty at this stage is the first to be dealt with. Indeed he is pleading in circumstances where the case conference which is to take place, in regard to these crimes, is to take place in early October of this year.
27It is obvious from the materials that I have referred to not only that both Arslan and Vasic were mutual suppliers in such transactions, but both the quantity and the quality were high, the quality being uncut and of high level. I must say, from having perused this material overnight, it is somewhat scary to contemplate two persons so blithely talking about such activities in such a businesslike and unconcerned way.
28Remarkably, it seemed to me, 12 days after - if I have got these figures right,
Mr Prosecutor, and you will correct me at the end - but 12 days after being arrested for committing this offence while on bail, Mr Vasic is bailed again. The Director pointed out to the court that, as a result of the circumstances, should the court determine a prison sentence for the first count on the first presentment, Mr Vasic comes to be sentenced as a serious drug offender and the provisions of the Sentencing Act insofar as that would then apply.
29The appropriate schedule determines s.71 as a serious offence and sub- s.(6D), (6E) and (6F) of the Sentencing Act 1991 therefore apply. The learned prosecutor also sought disposal orders which I have signed, orders under the forensic provisions 464ZF and the pre-sentence detention in total as I understand Mr Vasic has served is some 25 days. 25 including today. Does that include - I should also ask you, Mr Vasic one day, as a result of a bail mix up, spent an extra day in gaol.
30MR SAUNDERS: That had not been taken into account so that should be.
31HIS HONOUR: That should be. It should be 26 days.
32MR SAUNDERS: It should then be 26 having regard to the fact that today would be the first day of the sentence and not included therefore.
33HIS HONOUR: Insofar as the first presentment was concerned, Mr Saunders pointed out that Mr Vasic must have been, by way of the very operation, closer to the source of the drug than Mr Cancer was, whom I have already dealt with. I have already pointed out as to the second presentment, Arslan and Vasic were mutual suppliers of cocaine and were both mutually close to sources of which we have no knowledge.
34The learned prosecutor also raised the question put in the plea of Mr Vasic's addiction and reminded the court of the principles in R v. Bernath (1997) 1
V.R. 271, being that where you get persons at this level and of this degree of
crime the questions of any link with addiction has to be closely considered as to whether it has any impact at all upon mitigation. I have balanced those factors.
35Insofar as the first presentment is concerned, the principles relevant to delay in Tiburcy (2006) 166 A Crim R 291 are appropriate. It is quite unsatisfactory that a person has to wait to be dealt with for a considerable period of time, in this instance some four years. I said when I sentenced the others, in particular Mr Cancer, that there can be no blame sheeted home to the prosecution in this matter, for, as Mr Brand said, prosecutions and judicial litigation or litigation within courts, insofar as large complicated drug prosecutions, develop somewhat of a life of their own. However, that does not take away the fact that persons who have to wait a considerable time have the problem of an impending sentence hanging over them for a considerable period.
36The learned prosecutor pointed out, however, that in these circumstances one perhaps tempers the role of delay when one takes into account that Mr Vasic quite deliberately determined to commit an equally serious offence some three years later. As best as I can, I have taken into account the principles of delay insofar as they relate to the first presentment only and tempered it moderately because of the reality that rehabilitation had not been effected and not only was that not so but unfortunately Mr Vasic chose to commit, while on bail, a similar serious offence.
37As to the relevant law, the pronouncements I am about to make apply not only to Mr Vasic but to Mr Theodorellos who I am to sentence later on today. I will refer to and make Mr Theodorellos’ sentence part of this so that there is consistency in regard to the principles. For the purposes of all the sentences today I have also taken into account, as best I can, the principles set out in the various sentences of Judge Nixon. The first of those was the sentence in
Rodriguez Rios which His Honour pronounced on 28 April 2008. The second was Mr Skubevski, the sentence pronounced on 27 May 2009. The third was the sentence in regard to Michael Tzitzidis and Tannar Stephens made by His Honour on 3 March 2008 and of course my own sentences in regard to Mr Cancer, the two Murones and Mr Velevski pronounced on 19 June 2009.
38I make the point that the fundamental principles in regard in particular to Count 1 in both presentments and in Mr Theodorellos' count are generally, insofar as trafficking, that the sentence must be related to the particular circumstances of the crime and role played by the prisoners.
39However, the matters that I want to refer to now relate primarily to Mr Vasic. The law, in particular to Count 1 in the first presentment and the only count in the second presentment, that is, traffic in a large commercial quantity of a drug of dependence, in this case respectively Ecstasy and cocaine, is a matter that is necessary to recite.
40Over many years in cases such as R v. Pantsis [1998] VSCA 134, courts have emphasised that one of the roles of the courts is to demonstrate to the community at large by reference to the principles of deterrence that if people traffic in prohibited drugs, then the consequences will be dire. In this instance I quote from the case of R v McLeish (1982) 30 SASR 486, a determination of Wells J in South Australia. At p452 His Honour said:
"It seems to me to follow that after making all due allowance for personal circumstances and antecedents of the prisoner, the facts of the particular case and the need to show mercy as is compatible with the safety of the public. A court should impose such a sentence as will spell out clearly to those minded to establish or continue an unlawful organisation for purveying drugs as well as potential recruits the simple truth, that a man who participates in such an organisation at any level - and I repeat at any level - must expect and will receive a heavy penalty."
41In 2001 the Act was amended in our Parliament to impose the current Statutory scheme which became operative on 1 June 2002. In the Second Reading Speech to this amendment the Attorney-General stated:
"The new maximum penalty of life imprisonment reflects the community's abhorrence of large-scale drug trafficking or cultivation and will warn potential offenders of the price they could pay for engaging in this illicit trade."
42In R v. S [2006] VSCA 134, the Court of Appeal noted that the seriousness with which such crimes are viewed by Parliament, given the amendment, could be gauged by the fact that the maximum penalty imposed by way of life imprisonment is the same sentences reserved for the most heinous in the criminal hierarchy. In R v. Sibic (2006) 168 A Crim R 305 the Court of Appeal referred to authoritative guidance provided by Parliament by way of maximum penalty prescribed for the worst type of offences in question. Of course the analysis required for any particular crime such as yours, Mr Vasic, and also ultimately when I sentence Mr Theodorellos today, within a class of heinous offences, is that as set out by the High Court in Ibbs v. R (1987) 163 CLR 447 at 452, which must, of course, be a process always which is individually carried out in regard to the individual person and that is why I am in fact pronouncing individual sentences as we go, but as I say, these general
principles need to be repeated.
43The Court of Appeal in R v Pidoto (2006) VR 269, considered the principles appropriate to the sentencing process. At paragraph 34, four of the Court of Appeal Justices noted the structure now adopted by Parliament has:
"Adopted a hierarchy of seriousness defined by, and only, the quantity of the drug of dependence which has been trafficked.”
44Further, Nettle JA in R v. D'Aloia [2006] VSCA 237 at paragraph 56, set out the general approach for sentencing judges:
"As far as the effects of MDMA are concerned, the matter may be approached on the basis that all of the drugs which are described have deleterious consequences of antisocial proportions and that trafficking in any of them is therefore appropriately to be regarded as a serious criminal offence."
45Finally, with the recital of these authorities I want to refer to the words of Sully J in R v. Cheun Wai Man, an unreported Court of Appeal determination in
New South Wales of March of 1991 which related to trafficking of drugs and is pertinent to the sentences I will pronounce in regard to Mr Vasic and in regard to Mr Theodorellos. His Honour said as to trafficking of drugs the following:
"Such a crime is in a very real sense a declaration of war on the community. It is a distinct challenge both to the concepts of human dignity and immoral values otherwise which are fundamental to our way of life. It is no less a challenge to the rule of law which is in the end the ultimate guarantee of personal freedoms and social stability which all of us Australians take for granted."
46In rehearsing all of those authorities it is necessary of course in pronouncing sentence to take those matters into account, primarily. By saying "primarily" that is not in any way to deny the other factors that have been put to this court, and put to this court most professionally, if I might say, by Mr Brand.
47I come to those matters now. Mr Brand first put, insofar as to both of these pleas but in particular to the second presentment, that this was a significant plea, saving the community both court time and police time. Insofar as an explanation of the offence, if there is one, I must say, Mr Vasic, as I said yesterday, it is almost beyond explanation, in my view, how, when one is bailed for such an offence and a person with your obligations by way of family, and to your broader family, how you go and commit such a serious offence on bail, again it just mystifies me.
48At any rate, on your behalf, Mr Brand tried to explain to the court what happened. As he said, the original matters involving Mr Cancer, et cetera, had developed a life of their own and you were, unfortunately, on bail for a considerable period. In 2007, as I have remarked, the curfew provisions in regard to you were dropped. Somehow you allowed yourself to go back to the very scene that had got you into such serious trouble previously, and the circumstances that I have referred to in regard to the second offence, and your trafficking in cocaine, came into being again. You got back into the drug scene and this further serious offence was committed.
49Mr Brand submitted that given the totality of the co-operation, that is leading to circumstances where both of these matters are now being able to be heard together, the particularly early plea, that I should accept by such cooperation that you are showing strong remorse. He took me back to the circumstances insofar as the first presentment is concerned. You had become, at that stage, part of the drug scene. You were totally immersed in it to the extent that you were finally - I use his words - thrown out of the home by your wife. She did not ultimately then see you again, you having been in the drug scene for at least a period of a year, if not a year and a half, until you were then arrested in the June of '05.
50After you were arrested you spent, as was described, a 12 day detox, which was really your 12 days on remand. You also went off to see Mr Lamberti, which Exhibit 3 demonstrates, where you sought by way of CREDIT bail assistance from him to deal with a cocaine dependency. Exhibit 3 supports those circumstances. You had in the period through to November '05, or subsequent to that, good drug screens, you were subject to curfew and you apparently were doing reasonably well.
51As to your personal matters, he described to me your background whereby your parents came from Yugoslavia, the hard manner in which they had worked to assist you and your broader family. He described to me your background and training and your work as a labourer and the manner whereby your beginning to work as a security guard led you into the scene which has been your undoing. He remarked that essentially as a person you have a very personal disposition. Somehow you fell into this milieu of "beautiful people" and became very much part of it. You had married your wife, who is of Maltese extraction, in 1999.
52You became so seduced by the scene of which you were in that I am told by Mr Brand that you were using cocaine to the extent of some $12,000 to
$16,000 per month. As he described it, you were part of the cocaine, gambling and the flash scene that goes on apparently at portions of the casino and in parts of Melbourne. Insofar as your role, he likened your role to that of Mr Cancer, and I will deal with that in due course. He referred to Mr Cancer's sentence.
53Insofar as the second presentment, the simple answer as to why you re- committed this serious crime was the answer put by Mr Brand of one of addiction. Because of the impact of drugs and the scene, you allowed yourself to be involved in this serious criminality.
54Insofar as sentencing was concerned, Mr Brand asked me to temper the issues of cumulation because of, in particular, the second presentment, the early plea, it being the first of others, and the delay that was involved in regard to the first presentment. He asked me to consider the impact upon you, even as a man of 29, of what was the likely sentence and the effect upon you given your relative young age. I think I already remarked on the matters as the tragedy for your family of your actions. I have no doubt from what I have read about the references to you that you are a good father and that you have - although some people would wonder how I could describe you as a good father given your actions - but from what I am told, certainly since the second event and obtaining bail, you have gone about re-establishing the rehabilitation that you had earlier effected. It is quite clear from the persons who were here yesterday, your family, that you have strong family support. Prior to 2005 you had no prior offences at all and you had indeed taken steps to get off the drugs.
55Your employment references refer to your capacity for hard work. I have heard of your mother's ill health and clearly they are matters that you should have been thinking about long ago. They may well impact you in your future, you will just have to wait and see.
56Mr Brand, in his submission, said that your sentencing was somewhat complicated in the sense that it requires me to re-look at the earlier sentences of Mr Skubevski, Mr Rios and Mr Cancer. I have indeed done that overnight. As to Mr Cancer, I find that you are not similar to Mr Cancer by way of culpability, but you were a step above him in the chain.
57Such is indeed, in my view, an important factor. Albeit that everyone in the chain is liable, as I have expressed on the authorities, to severe penalties, the higher one gets to the ultimate source calls for recognition both at the top and the bottom, and it seems to me clearly that you were higher than Mr Cancer. Mr Cancer had no priors at all and had effected an excellent rehabilitation, albeit while in prison. In looking at Mr Rios, of course it is very important to recall that Mr Rios was before the court on lesser counts than you. Mr Skubevski had priors for trafficking and his offences indicated that he was a person who had maintained and continued flouting the law. However, he did not have the aggravating factor that you have of having committed such a grave offence while being on bail.
58Having taken all the factors that I have rehearsed into account, and trying to bear in mind the effect upon both you and your family of the sentence I am about to pronounce, I have done as best as I can to take into account all of the matters put to me by Mr Brand but at the same time I have had to balance those against the principles that I have rehearsed insofar as sentences of this type are concerned.
59Mr Vasic, would you stand please.
60MR BRAND: Excuse me, Your Honour, I'm sorry to interrupt you at this stage but there's a matter that I should raise in your sentence. Your Honour referred to Mr Vasic having no prior convictions, I think Your Honour was meaning he had no relevant prior - - -
61HIS HONOUR: No relevant, yes.
62MR BRAND: Yes.
63HIS HONOUR: I heard the description of the matter yesterday about the issues in regard to the obtaining of finance for a house but I do not see those as relevant.
64Mr Vasic, on the first presentment (C0504703.6), on the first count, that is the large commercial quantity, you will be sentenced to a period of imprisonment of nine years. You now become a serious drug offender. The provisions under s.6D(a) of the Sentencing Act 1991 direct that the protection of the community must now be the primary purpose of any sentence. I can, should I wish, pass a larger sentence that is proportional to your criminality, however, I do not, in all the circumstances, need to do this. Further, it is indicated that unless so determined by the court, any sentence imposed on the count in the second presentment must be cumulative. You must be recorded and declared, as having been sentenced as a serious drug offender.
65On the second count on the first presentment you will be sentenced for a period of two years. That brings us to the second presentment (X03393573) and on that count you will be sentenced to a period of imprisonment of 12 years. For the purpose of the sentence I order that two years of the sentence on the first presentment be served cumulatively. I should say I do not make any cumulative orders in regard to the first presentment so the total period of imprisonment imposed on that is one of nine years. So I order that two years of the sentence in regard to Count 1 on the first presentment be served cumulatively with the 12 years imposed in the second presentment, making a total period of imprisonment of which you must serve of 14 years. I order that the period which you must serve prior to being eligible for parole is a period of nine years.
66The next words I have to say are prescribed by Parliament. It is necessary and I am required to say that had you not pleaded guilty, insofar as the totality of the sentences I have given you for both presentments, the period of imprisonment that I would have imposed would be a period of 18 years with a minimum period of 12 years. Are there any ancillary orders that have to made that we have not done?
67MR BRAND: Just the pre-sentence detention, Your Honour, I'm not sure if that's - - -
68COUNSEL: Twenty-four days.
69HIS HONOUR: Twenty-six we said, didn't we?
70COUNSEL: Twenty-six.
71HIS HONOUR: Mr Vasic, the end result of that in simple english for you is a head sentence of 14 years with a minimum of nine years, of which you have already done 26 days.
(Prisoner removed.) (Short adjournment)
Sentence of Konstanios THEODORELLOS:
72HIS HONOUR: Mr Theodorellos the sentence that I pronounce necessarily will take a little longer than you might have anticipated - and that is in deference to the significant plea that was put on your behalf - so I will ask you to remain seated while I go through the matters. It is necessary that I do it at some length so that people are aware why you have received the sentence you have and can appreciate the reasons for that. So, I ask you to bear that in mind.
73In this matter Mr Theodorellos pleaded guilty to Presentment No. C0504703.7. Mr Saunders appeared on behalf of the Director in this matter and Mr Haag on behalf of the prisoner. The count on the presentment concerns a count under s.71A(c) of the Drugs, Poisons and Controlled Substances Act 1981. The seriousness of such is gauged from the fact that the maximum penalty prescribed by the Parliament is one of 15 years gaol. It is important to understand that the period of offending in this matter as set out in the presentment is a period of six months from 17 January 2005 to 27 July 2005.
74Mr Theodorellos is aged 38, he lives in Centre Road South Oakleigh. He is a skilled timber worker, a student and a barrista. In addition he pleaded guilty to an uplifted summary offence under s.195 of the Crimes Act as it then was - or still is I think ---
75MR SAUNDERS: Sorry, Your Honour?
76HIS HONOUR: The 195 provision?
77MR HAAG: The uplifting provision?
78MR SAUNDERS: No.
79HIS HONOUR: No, the actual provision.
80MR SAUNDERS: For the crimes - 195, proceeds of crimes.
81HIS HONOUR: The sum involved there was proceeds of crime in the sum of
$892 for which a maximum penalty prescribed is one of two years.
82The circumstances that make up this offending are set out in Exhibit A, which was tendered by consent, being the summary of the prosecution opening. It is clear as detailed in that opening that these matters in which the prisoner is involved relate to investigations by the Victorian Major Drug Squad into trafficking in a wide number of drugs. In this particular instance they came about from the two operations and ultimately as a result of those operations the prisoner came to light. As set out it became clear during the investigation in particular Operation Fenks that Mr Rios was trafficking in large amounts of amphetamines, ecstasy and cocaine on a daily basis.
83Coming then to summary paragraph 19. Mr Theodorellos was identified as a supplier of cocaine to Mr Rios and in particular transactions as detailed in that paragraph. The materials show that not only was Mr Theodorellos a supplier to Mr Rios but also to others. Clearly he was in - as is described in the authorities - the business of trafficking. And as detailed in paragraph 25 the allegation was that such trafficking by the accused involved substantial quantities of cocaine on a frequency that could be said - as I have said - that the accused was in the business of trafficking in this period of six months. The principle referred to is one set out in the case of R v Giretti (1986) 24 ACrimR 112.
84I will go to simply some instances in regard to this activity. On 1 February 2005 paragraph 36, at a meeting with Mr Rios, Theodorellos has a discussion as to how they are both going to get rich. They design shirts - good designs, good quality cocaine - calls are made between the two to arrange delivery of drugs. On 3 February, paragraph 3 - this involves an undercover operative
which we have earlier referred - has a meeting and a discussion and bringing of a sample. Mr Theodorellos arrives and is identified, the undercover person arrives a short time later and purchases from Mr Rios one ounce of cocaine. It is to be noted that the purity at that stage is one of 25 per cent.
85Further reference at paragraph D in the period 4 February to 11 February - that is 39D - Rios arranges sales of one ounce of cocaine for $6,500 supplied by the prisoner. Going through to p.14 on 2 March the prisoner calls a male and tells him he is in St Kilda - he is running amuck. He has employed ten people under him to sell drugs on his behalf. Paragraph 60 at 106, Mr Theodorellos calls a Mr Hassain and asks him to get one ready - that is one ounce of cocaine. Mr Rios calls Theodorellos at 1.33 and agrees to meet at his apartment. Theordorellos then rings and arranges to meet Hassain again. And the trafficking goes on in a similar light.
86Finally at p.22, paragraph 74, is an agreed table which indicates both the extent of dealing and the amounts. Such table is clarified and has been identified by relevant telephone intercepts. As was pointed out by Mr Haag, it came about by way of actions from Mr Theodorellos' solicitors. One gets some perception when you look at the table when you realise that according to this material the cost of an ounce is somewhere between $6,000 to $7,500 and you see the types of dealing being undertaken - the covert purchase on the third of February for 28 grams. One in 7 February - 28 grams. Again on the sixteenth of February, the third of March for 56 grams, eleventh of March – 28 grams and so on.
87The importance of course, insofar as the quantity itself relates to the process of classification and sentencing in this state to which I have referred in the sentence today relevant to Mr Vasic and I will come back to comments I have made in that in due course. But in this particular instance - as I said - the plea here is for one of trafficking in cocaine simpliciter. The totality of the amounts
identified in the table come to 386 grams. It is to be pointed out they are the amounts identified from the intercepts. The figure which would take one into the commercial category of which a higher penalty of 25 years applies - as set out in Schedule 11 - is 500 grams.
88Theodorellos is described by the learned prosecutor within the level of a mid to upper range trafficker. But clearly it is necessary to understand that his role was a supplier to street level dealers. The learned prosecutor accepted that he was a user and submitted to the court that such was demonstrated from the materials that the prosecution held - that is the surveillance materials. However at the same time and understanding such it is necessary to remember the case of R v Bernath (1997) 1 VR 270 that the higher up the chain one goes the effect of any addiction to drugs becomes more and more reduced. There are eight days pre-sentence detention and but for some minor traffic matters there are no relevant priors.
89I refer to the earlier sentence I passed today upon Vasic. It will not be of assistance especially by way of time for me to go through the same precise details and principles of law and refer to the same cases. I do however, intend that this sentence should be part and parcel of the other sentence and as to the principles of law which I pronounced in Vasic such equally apply here. It is necessary - of course - to recognise in making that statement that this is of course, a much less serious offence that the two particularly serious offences that I was dealing with in regard to Vasic. Albeit that the maximum penalty in this case as I've rehearsed is one of 15 years.
90I adopt the cases that I referred to in Vasic as to the principles of sentencing generally - insofar as trafficking matters are concerned. In particular, that not only is one required to look at the amounts involved but the actual role and the circumstances of trafficking as they relate to a particular individual.
91Coming to the plea of Mr Haag - I am sorry, before I do that - I should say it was the submission of the learned prosecutor that the appropriate sentence in this matter should involve a head sentence which would exclude the operation of s.27 of the Sentencing Act. That was put despite the issues of delay and evidence of rehabilitation that has been put before the court. As I say, there was an extensive plea undertaken and particularly diligently - if I might say so
- by Mr Haag. The first comments that Mr Haag made are matters which I do not agree with.
92While accepting the learned prosecutor's summary as fair as classifying the quantity is in the mid-range, given its figure, one could hardly disagree, he then described his client as a dealer in small quantities of cocaine, selling to people who were street level users. In my view that is not an appropriate description. The appropriate description is put by the learned prosecutor whereby Mr Theodorellos was selling substantial quantities in my view of cocaine over a lengthy period and was supplying street level dealers.
93Mr Haag further submitted that the purity level at which such was dealt was some 20 per cent, indicating was its street level. However, that does not bear out on analysis. The only analysis shown on the material before me indicates substantial higher degrees of purity than Mr Haag submits. Paragraph 38, there is a reference to 25 per cent purity. Paragraph 42, there is a reference to delivery of cocaine of 90 per cent purity. Paragraph 50, is the delivery of 50 per cent purity. Paragraph 59B is the delivery of 60 per cent purity. Paragraph 61B is the delivery of cocaine at the level of 30 per cent purity. Those levels are far more consistent with the determination made by the prosecution, with which I agree, that is, the level at which Mr Theodorellos is trading is over and above that of the persons, in particular, Rios, to whom he was dealing.
94Insofar as the issue of delay, I accept totally the propositions put. The case of
Tiburcy clearly sets out these propositions. In this case the President of the Court of Appeal described a delay of three years between apprehension and sentence as being very significant. It is not necessary for me to refer to all of the other matters spoken about, however, the President's specifically at paragraph 13 of that determination said this:
"The mitigating effect of an early plea of guilty is quite distinct from the mitigating effect of delay and separate credit should ought to have been given".
95Coming then to the plea itself, I was first taken to the factors upon which Mr Haag indicated he would make submissions. They concerned issues of delay, of the life led since, the plea of guilty is truly indicative not only of a benefit to the community by way of its utilitarian benefit, but as of remorse. That as I have earlier described, there was cooperation by his client by way of not only the plea of guilt, but the acceptance of his guilt at committal, the maintenance of the plea, and indeed the provocative action in the sense of the provision of the table that I have already referred to and the acceptance by the Crown of that.
96Mr Haag took me to personal factors concerning Mr Theodorellos. Those factors are briefly summarised in this way: He was not able because of his background to achieve high academic results at school and was an early school leaver. He suffered from issues at the home, in particular from problems with his father. He had problems of socialisation in regard to his relationships, leading to a suicide attempt. He continues to reside despite all those issues with his parents. Upon arrest it was pointed out that there was no indication in his life of any great wealth, an indication of the reason why he was involved in this criminality, that is, to fund his own habit, and that to use Mr Haag's words, that here we have a situation where Mr Theodorellos has rehabilitated himself against the odds.
97His father is now 68 and apparently a lot of the earlier fire that he lived with
has apparently left him. His mother is 64. However, essentially the submission was that as a result of the background factors tied up with his father's violence and bullying, such impact has not left his son. I was taken to particular circumstances in regard to that background of which I will not necessarily repeat. His father was still of an explosive nature even as late as 1996. He has had some difficulties in his own relationships and, in particular, in October of 2003 when subsequent to having some problems with his then girlfriend, he had a circumstance where it would appear from the medical records there was an attempted suicide and he required thereafter visits from a hospital CAT Team and medication. Apparently, the background as it was put by Mr Haag to how a person with no indication of criminality despite the social deficits, is that it was put that essentially getting out into this world, getting into this social network, the dance network, gave him confidence, pleasure, also made him popular. As he became addicted, it was necessary ultimately for him to be selling and be involved in supplying this product to service his own habit. It was put that ultimately the best thing that could have happened for him was his arrest. It was put that his arrest broke the cycle, that since that time he has worked at turning his life around. Since being bailed, he has gone back to his skills in furniture. He has begun to work in a well-known restaurant in the city.
98As indication of that, a number of documents were tendered, and of the materials that were put to me, the first was Exhibit 4, medical materials which confirmed his suicide attempt. There were then the matters as to his steps, and significant steps, taken to reduce his drug dependence. It would appear initially from my understanding that he did not initially and was not able to get off drugs even after he was bailed. That is not unusual of course. There seems to be in the material confirmation that at least as of October 2005 he was still using cocaine. However, insofar as Exhibit 5 is concerned, that is the urine drug test results over the period of 7 July 2007 to 11 September 2008,
but for one reading which was non-cocaine related, Benzodiazepine, on 19 January 2008, he was completely clear. He has from Exhibit 6 had significant positive reports insofar as he had conformed to the credit bail program, in particular, as in the letters as set out in Exhibit 6.
99There are two reports from the psychologist, Ms Van Megchelen, Exhibits 3A and 3B. The first of those reports, dated 2 October 2007, Exhibit 3A, details the extensive steps taken by him to change his circumstances. There is reference again in that report to Mr Theodorellos, "being particularly glad of being apprehended by the police". It is noted that, "He was managing his legal affairs, attending his treatment, working long hours in the restaurant, enquiring about further education which he had been able to complete at a younger age, and working in such a manner as to effect rehabilitation". In that exhibit was a recommendation that he needed counselling, "Counselling by way of a year, by way of fortnightly sessions at a cost of $100 per hour". That recommendation insofar as the recommendation was made on p.5 to overcome the stressors in his life, if I could quote from p.5 of that report, "He has emotional distress and stress triggers. Coping well with everyday life. Ongoing stresses with legal matters pending".
100Exhibit 3B was a report, dated 22 June 2009, as to the consequences of such treatment. That has been such as to be able to continue to manage problems of stress and anxiety and anger in his life, and while this particular form of treatment did not involve assisting him in coming off drugs, it was noted that he had ceased drugs prior to his first attendance, and as I said, the records demonstrate in Exhibit 5 confirm that situation. There was a notation as referred to as he has returned to studies. The discovery through a neuropsychological assessment of prior issues of dyslexia which may well have accounted for his study problems, and the steps taken by way of his further study to recommence and re-establish himself. In that regard, in
particular, I had Exhibit 8 tendered which was the details and advisory letters of RMIT whereby he is enrolled for the Furniture Technology Course. He had to do a preliminary year to be accepted, and is partaking in a course called Diploma of Arts (Furniture Design). In addition to that, apart from carrying out his work at the restaurant, as demonstrated by his wage slips, Exhibit 7, he has undertaken and built a workshop to assist in his furniture design business. The high standard of such work was demonstrated by the tendering of Exhibit 9, which not only showed the workshop, but showed the types of material able to be produced by Mr Theodorellos.
101The end result as submitted by Mr Haag, was that this crime occurred when Mr Theodorellos was 35, now 38, and looking at the totality of these circumstances, accepting the background and the factors that may well have propelled him towards this crime (which I will come to in due course) that, to use the words of Mr Haag, a socially constructive sentence would be one which allowed the passing of an appropriate period of imprisonment. However given the drug-free environment, the self-education, the remorse and the law abiding and medical support, not to say the least family support that Mr Theodorellos has, that it would be appropriate in all the circumstances for a wholly suspended sentence of imprisonment to be imposed.
102In particular, although there was not a lot of time spent on this, I was referred to an earlier sentence of mine in regard to Fabian Murone. As I have said the learned prosecutor submitted that such was not appropriate in all the circumstances of this case because the maximum penalty involved insofar as Mr Theodorellos as he submitted, should be a figure that was higher than the maximum figure that would allow such a sentence to be imposed.
103MR HAAG: Did I understand Your Honour correctly there to say that the prosecutor's submission was such that the head sentence exceeded two years and would put Mr Theodorellos - - -
104HIS HONOUR: Three years.
105MR HAAG: It would exceed three years and put him outside the wholly range.
106HIS HONOUR: You can't get there over three years.
107MR HAAG: I understand that, but I'm not sure that was his submission.
108MR SAUNDERS: The submission I made and I can correct that Your Honour. My instructions I had noted in the book and the note that I took them from a particular prosecutor, was that three years head sentence is within range and bar logic, following from that, a suspended sentence was in range. I had a note of that submission that I made.
109HIS HONOUR: I apologise. I have read my notes incorrectly. I am sorry it is "head, not outside range."
110MR SAUNDERS: Yes three years head sentence is - - -
111HIS HONOUR: I apologise.
112MR SAUNDERS: The note I have got of my submission Your Honour was that a three years head sentence is within range, by logic therefore a suspended sentence is also in range.
113HIS HONOUR: I apologise; I did not read the other part of my note. "Head sentence of three years not outside range, hence suspended sentence applicable." Thank you Mr Haag. I then correct that position where I have incorrectly referred to it earlier, the learned prosecutor taking that position.
114I have already made findings in regard to Mr Theodorellos' position in the chain as a trafficker, to dealers who are above street level. Such trafficking as has been detailed when we are dealing with cocaine as it has been in substantial quantities; at a substantial cost and at high levels of purity.
Importantly it seems to me for consideration, such occurred over a considerable period of six months.
115Coming to the argument of moral culpability put by Mr Haag, despite his client’s background as a child and as a young adult, it cannot be forgotten that the criminality in this matter occurs at the age of 35.
116While I accept Mr Haag's proposition as to how he came to be involved in this criminality, that is, circumstances where because of his social state, he found that he enjoyed the club scene; he found that he enjoyed the self-medication involved in the drug scene; he found that he enjoyed the social acceptability of being a supplier in such circumstances.
117No doubt one can look back on any person's life and perhaps postulate pre- disposing factors as to why a person might commit, ultimately at the age of 35, a crime. However, for it to be taken into account to reduce moral capability, it requires me to find impaired mental functioning as determined in R v Verdins (2007) 16 VR 269 at 275 - and to find such impaired functioning and conclude that such behaviour impacted on the accused in such a way as to reduce culpability.
118I do not conclude that the personal circumstances explained here, that is within the home; his distorted social relationships; his limited education or his drug dependence would produce a conclusion that there was some connection between such behaviour and the criminality, as required by the authorities. See R v Audino (2007) 180 A Crim R 371. That does not say that I do not recognise all of those matters as appropriate matters for consideration in this sentence, and I do take them into account.
119The second major issue is whether a suspended sentence is appropriate. This is a submission made by Mr Haag in this matter and, as has been pointed out, the learned prosecutor has indicated the view of the Director is
that given that a sentence of three years is not outside the range, a suspended sentence may and could be applicable.
120In determining this sentence I am aware of the community interest and indeed, the humane interest in furthering the rehabilitation effected by Mr Theodorellos to date. Such clearly stands out as being commendable and a matter that comes as being appropriate for consideration in any sentencing.
121I have had to consider the sentence in regard to - I will just check this.
122MR SAUNDERS: Fabian Murone was the one who got the suspended sentence.
123HIS HONOUR: Was the one who got the suspended sentence?
124MR SAUNDERS: Yes Your Honour. Robert Murone had a prior relevant drug matter Your Honour and it was a determining factor I think Your Honour.
125HIS HONOUR: Yes I have had to consider the sentence in regard to Mr Fabian Murone, whom I sentenced on 19 June 2009 at the time of sentencing Mr Cancer. He faced three counts. One count of a single offence under s.71AC; one count for trafficking over a period of two months and a count of cultivation. In the end, I gave him an aggregate sentence of three years, or a total sentence of three years and suspended it for a period of three years.
126There were similarities between Mr Theodorellos and Mr Fabian Murone. That is, their ages were roughly similar; both had no priors of note and each had effected excellent rehabilitation. If I might say, perhaps Mr Theodorellos' evidence of rehabilitation is even more dramatic.
127There are, however, substantial differences. Firstly, Mr Theodorellos' offending was over a period of six months. His criminality was committed at a higher level in the chain in my view, Murone being a minion in the street
distribution business of Cancer. Mr Theodorellos was in fact a supplier to Mr Rios. As I have said, a supplier of substantial of cocaine of high purity and high cost.
128In considering the submission of Mr Haag as to a suspended sentence, it is necessary for the court not only to consider the principles of rehabilitation in effecting same which I do say specifically, but also the specific provisions of
s.27 of the Sentencing Act. I point out that s.71AC is not a defined serious offence under s.3 of the Sentencing Act. However, one is required even in considering an offence which is not a serious offence, to determine whether a sentence involving a suspended sentence would adequately manifest the denunciation of the conduct; deter the person involved and I have no doubt that I do not have to worry too much about personal deterrence in this matter, or reflect the gravity of the offences as set out sub-s.(3).
129I am also conscious in re-looking at my sentence in Mr Fabian Murone's case, that I stated that this court is always keen to give a chance to a first offender. However, in considering all of the matters that I have referred to, after close consideration I cannot accept this submission. In my view I would be failing in my duty if I did not impose an immediate period of imprisonment in this case, looking at the totality of the circumstances and the criminality involved.
130I also consider that a head sentence higher than that given to Mr Murone, is appropriate given that such would reflect my findings as to his level and degree of offence, and the period over which it occurred, apart from simply looking at the amount involved which I have detailed.
131Mr Theodorellos would you stand please? Mr Theodorellos I have determined that the period of imprisonment that should be imposed upon you for this offence is a period of imprisonment of three years. Insofar as the uplifted summary matter, I will impose a period of three months. I do not in any way,
intend to cumulate that figure. The period that I intend that you serve immediately is the period which I think is the minimum period which can be given, which seeks in all the circumstances, unfortunately because of the severity of your crime, to try to assist you in your rehabilitation. I have determined the minimum period you should serve in this matter is a period of 12 months.
132I declare that the eight days that you have served be declared as pre- sentence detention and make a declaration to that effect. Pursuant to s.6AAA of the Sentencing Act I declare that had you not pleaded guilty to this matter I would have imposed a period of imprisonment by way of head sentence of four years, with a minimum period of 18 months.
133I also consent to the application to order that you provide a forensic sample under 464ZF, although I understand the documentation in regard to same is not available.
134MR SAUNDERS: Yes Your Honour. There were certainly some around and I'm not sure where it is, but we'll make sure that those matters are - - -
135HIS HONOUR: I've got some here but it's not the appropriate one.
136MR SAUNDERS: Yes Your Honour, we'll have that and provide it to Your Honour.
137HIS HONOUR: I don't think it is.
138MR SAUNDERS: As Your Honour pleases.
139MR HAAG: As Your Honour pleases.
140HIS HONOUR: Yes either counsel, any more matters?
141MR SAUNDERS: No Your Honour.
142MR HAAG: No Your Honour.
143HIS HONOUR: Yes take the prisoner away and I will stand down until the next sentence.
(Short adjournment.)
Sentence of Matavai AH TA:
144HIS HONOUR: Yes, Mr Saunders, Mr Jackson. Do either of you want to say anything more?
145MR SAUNDERS: No, thank you, Your Honour.
146MR JACKSON: Perhaps just the one thing to formally tender the document I provided to Your Honour yesterday.
147HIS HONOUR: Thank you. I think we were going to make that Exhibit 2, weren't we? And this time, Mr Prosecutor, I'm not going to make a mistake. I see that you submitted immediate gaol. A range is in excess of three years. In that sense, a suspended sentence is not in range.
148MR SAUNDERS: Indeed, Your Honour.
149HIS HONOUR: I don't know whether such led to me mis-reading my notes or not in the Theodorellos sentence, but at any rate - - -
150MR SAUNDERS: Can I say to Your Honour I wasn't clear when Mr Hargraves was with me but given the proximity of it, I did check the notes that I had for 20 July when we did the plea, and I have those instructions noted specifically before I - - -
151HIS HONOUR: Yes, I apologise for the mistake.
152Mr Ah Ta, if you just remain seated. I've got to go through a number of matters which are necessary, unfortunately. In the end, I suppose you're ultimately only interested in the bottom line, but in order to ensure justice is done to you, I've got to go through the matters that are important for me to take into account and deal with the submissions put to me by your counsel. I ask you therefore to be patient and I'll get to the important part as far as you're concerned, in due course.
153Mr Ah Ta pleaded guilty to the one count in presentment C0504703.4. Mr Jackson appeared on behalf of Mr Ah Ta and Mr Saunders appeared on behalf of the Director. In such presentment, Mr Ah Ta was charged jointly with George Cancer in one count of conspiracy to kidnap, an offence by way of the combination of s.63A and s.321(1) of the Crimes Act 1958, which brings with it a maximum penalty of 25 years imprisonment. Suffice to say that that penalty, in itself, demonstrates the manner in which the Parliament of Victoria looks at such offence and the seriousness of which such an offence is taken.
154You are now aged 35, Mr Ah Ta. You were 34 at the time of the offence and were born on 25 April 1971. You're a store person by occupation. Insofar as Mr Cancer was concerned, I sentenced him on 19 June 2009 to five years gaol for this offence. He was ultimately sentenced to a period of imprisonment of 11 years and a minimum of six and a half, but that was because of the combination of other crimes which I had to deal with as well.
155Insofar as the circumstances of this case are concerned, the court was assisted by a written summary, Exhibit A, which was tendered by consent of both counsel. It is necessary of course, as I remarked in the sentence of Mr Cancer, and I perhaps went into more detail than I will with you, to understand the background of the circumstance.
156Mr Cancer had been trafficking in drugs for a considerable period, and during that time had found that from a garage next to his premises was missing by way of combined value, drugs and money in the sum of $460,000. As a result of that, Mr Cancer was somewhat keen to determine from his minions who were assisting him, who may have been involved. He initiated, somewhat bizarrely, one would think, lie detection tests which they all no doubt voluntarily undertook. As a result of that, one of the Murone boys failed the test, and as a result thereof, the suspicions of Mr Cancer necessarily became very much centred on one, Fabian Murone, who is the older brother.
157If I go to Exhibit A and simply read out a couple of the matters. I read similar matters out in Cancer’s sentence but it is again necessary as you are being sentenced individually. The first meeting arranged with you in regard to these matters was 15 June 2005. You also were involved with your cousin, a person called Ngu Satela, albeit he was never charged. Discussion came about as to the kidnapping of Fabian Murone.
158You were shown subsequently to attend upon Mr Cancer's premises on 28 June 2005. You were shown again to have discussions on 29 June about the risks involved in the kidnapping, because of your marriage and responsibilities, but you indicated at the time that you were prepared to do it because you needed the money. You proceeded on 30 June to go to Bundoora to case the premises, that is Mr Fabian Murone's premises. You had telephone calls with Mr Cancer while carrying that out. On 5 July there were a further number of calls. On 19 July there were another series of calls between you and Mr Cancer. Significantly, at paragraph 45 of the opening, at
7.01 on 19 July there was discussion as to the price of the job which was set at the sum of $50,000. Not surprisingly you expressed some concern about the risk of being involved if you were pulled over by police when Mr Murone was in your boot.
159On 24 July you had some discussion with Mr Cancer about wanting to split the money. You got, by way of the end of July, very close to the arrangements. On 26 July you went off work sick and told your employer that it was necessary because you were sick, and further, you informed your wife that you would not be around for a few days. You informed Mr Cancer that night that you were ready to go, that is 26 July, and wanted to do the kidnapping that night. Ultimately you had further discussions to this degree and decided to effect the kidnap on the Thursday or Friday of that week.
160Significantly, at paragraph 72, in a discussion with Mr Cancer you again
discussed the prospects of being caught by the police. You said that you might have to hit Mr Murone and you asked Mr Cancer would you still be paid if Mr Murone died. Mr Cancer advised you that you would only get paid if he did what he told you. Suffice to say, given those circumstances and the manner in which proceedings were moving, the police decided in the interests of Mr Murone that it was necessary to effect your arrest. That was indeed done.
161In submission as to the penalty relevant to you, Mr Saunders submitted to the court that there is indeed in these circumstances no other penalty appropriate but a period of immediate gaol. He submitted that the appropriate range was in excess of the range which would allow a suspended sentence.
162You have prior offences, Mr Ah Ta. They are not dramatic, however, they are relevant. In 2003 you were convicted of causing injury recklessly, for which you were fined $1,500. In 2004 you were convicted of unlawful assault, for which you were only fined a small amount. As your counsel, Mr Jackson, said to the court, the offence here is absolutely in another league.
163I have signed a forfeiture order, a disposal order, and an order under 464ZF, I understand - maybe I have not done the 464ZF, have I?
164ASSOCIATE: No, Your Honour.
165HIS HONOUR: No. I have done the other two. Insofar as Mr Jackson's plea made on your behalf, there was no doubt, as he opened it, that the only way one could describe this crime is outrageous and that it was clear these are stupid actions on your behalf. He conceded that such offence was serious. He had no dispute with the opening as such and admitted the priors.
166Mr Jackson submitted that it was important in this instance to take into account what has happened to you since that time. Like the persons involved
in the Cancer matters, and you are an ancillary to those matters, if I use that term, you have been subjected to a considerable period of delay. The principles set out in Tiburcy (2006) 166 A Crim R 291 apply. Those principles are essentially to the effect as stated by Chernov JA in R v Cockerell [2001] VSCA 239 where His Honour said:
"…the sentence should not jeopardise the continued development of this process but should be tailored to ensure as much as possible the offender has the ability to complete the process of rehabilitation. Secondly, from the point of view of the offender, the sentence should reflect the fact that this matter has been hanging over his or her head for some time, thereby keeping the offender in a state of suspense..."
167At paragraph 13 in Tiburcy Maxwell P said:
"The mitigating effect of an early plea of guilty is quite distinct from the mitigating effect of delay and separate credit ought to have been given."
168I intend to do that as best I can in your case. There is no doubt that the delay that you have suffered has nothing to do with you, that you, at the first instant as indicated, co-operated.
169Mr Jackson took me to your background. You had a strong family background, a family background based upon the principles of the Mormon Church. You had a good upbringing. You had the ability to play sport and your parents, despite a separation, ultimately came to Sydney and then to Melbourne. You in fact came to Sydney yourself in the year 2000. At that stage you were performing security at the Olympics. It was indeed that security industry, as Mr Jackson said, and inculcation into that type of field that led you on to the dangerous scene of the nightclubs, drugs and associated persons within such scene. You were also having problems with alcohol. The point was made that despite your stupidity in consenting to be part of this offence, since this offences you have essentially become a different person.
170Exhibit 1 was the report of Mr Joblin dated 11 June 2009. His report confirms the matters put to me by Mr Jackson that the background to this criminality was indeed your lifestyle, the manner in which you were living and the substance you were taking. He connected, by way of explanation, your lifestyle to this crime. However, he expressed that you were a person who was essentially not an anti-social person. Mr Joblin said that your remorse was genuine and he had an optimistic view in regard to your future.
171As an indication of your rehabilitation since your arrest you have not only pleaded guilty but, as Mr Jackon said, you have benefited from the period that you have suffered by way of delay. He submitted the arrest should be seen as a watershed in your life and your partner has strongly supported you, your relationship is strong, as is your love for your children. You have given up drugs. You do not associate any more with the security scene. You have been abstaining from alcohol.
172It has been pointed out the circumstances as to the impact that any criminal or any prison sentence would have upon your wife and children's lives, and indeed support was given, and indeed at the last hearing your wife's mother was said to be here and supportive of that change in your lifestyle. Since then she has filed a further letter, which I will come to in due course.
173Mr Jackson essentially submitted that given what you have done in the last four years, it essentially shows that you have returned to the life that you used to live prior to coming off that path in 2003. He submitted in the circumstances, despite the serious nature of these matters and making the appropriate balance, that is, taking into account the seriousness of the offences, the obligation to pass a sentence which effects deterrence, making appropriate discrimination of your role, that is, you were not the person who did the planning, you were the person hired as the worker and not the person to benefit, that in all the circumstances it would be appropriate, while passing
a period of imprisonment, to wholly suspend the sentence. That was Mr Jackson's primary proposition.
174The alternate proposition was that a relevant non-parole period should be imposed which is relevant and appropriate to effect rehabilitation.
175As I said, Mr Saunders in answer submitted that there should be an immediate custodial sentence. He stressed the issues that here you were as a gun for hire, so to speak, that you had gone into the commission of this serious offence knowing the consequences as shown, knowing the risks, and clearly because you wanted to obtain the said sum of $50,000. You were the muscles, or the person who was going to provide the muscles, and he submitted in those circumstances that a sentence greater than three years should be imposed, which would mean that it would not be appropriate in all the circumstances to pass a sentence which could in any way be suspended.
176I have, Mr Ah Ta, taken into account over some time the submission made by your counsel. Objectively, this is a very serious crime. That comes not only from its intrinsic facts, but from, as I have said, the Parliament prescribing a sentence of 25 years. Also, it was done, as I have just pointed out, for a relatively large financial reward.
177Given the seriousness of that crime, general deterrence must play a very strong part in this sentence, as does specific deterrence, and that is that a sentence must be such that you would not be involved again. I am not concerned so much about that, because given the rehabilitation that you have effected, I am sure that you will not be involved in crime again.
178Insofar as determining this sentence, I have had the benefit of Exhibit 2, the letter from Elizabeth Connell. She rightly points to the factors in your rehabilitation that I have alluded to. She adds a postscript subsequent to the last hearing which makes the discrimination between you and Mr Cancer, and
I accept that matter. She notes what I have already marked as a matter of aggravation that you attempted to commit this offence because of the financial motive, and she also points out the effect upon your wife and children of a sentence.
179No court aware of these circumstances is not humanely very cognisant of the effect on families of a prison sentence. Ms Connell asked the court, or states to the court, "We understand the need for justice, but we beg for reason too." I do not know whether the reasons in this case are sufficient, but in the end the circumstances of this offence and the need for general deterrence are such that I cannot accept the submission of Mr Jackson.
180It is necessary to balance all of the matters I have put, but for the purposes of the seriousness of the offence, the need for specific punishment for this offence, it is not an appropriate offence, in my view, to pass a sentence which in any way could contemplate a suspended sentence. Indeed, I agree with the learned prosecutor that the head sentence passed must be of such degree that it simply makes a suspended sentence inapplicable.
181If you would stand, please, Mr Ah Ta.
182In the circumstances, for this very serious offence, I have determined, after taking account of all of the matters, the appropriate period that you be sentenced to imprisonment is one of four years.
183In determining the minimum period that you must serve before being eligible for parole, I have taken into account the matters put to me and I have determined that in order to assist you in your rehabilitation, the period that you must serve is a period of two and a half years.
184I am required pursuant to the Act to declare pursuant to s.6AAA the period of time that I would otherwise have given you had you not pleaded guilty. This is
always difficult because there are myriad factors. However, doing as best as I can to comply with this statutory factor, I state that had you not pleaded guilty, I would have imposed a sentence upon you of six years with a minimum of three years and nine months.
185Were there any ancillary orders?
186MR SAUNDERS: I think we need to give Your Honour the appropriate form for a 464ZF(2).
187HIS HONOUR: I made the forfeiture and disposal orders, and I intend to sign the other order in due course. That will require you, if you have not already, to give a forensic mouth swab sample, and I advise you to do it because otherwise they will simply drag you back to the court and I will make an order enforcing it. All right?
188So, Mr Ah Ta, it is never easy for me to send someone to prison, especially a man with your responsibilities, but I am sure that once you serve your time, we will not have to bother with you again. So good luck.
189Yes, if you would take the prisoner away.
190MR SAUNDERS: If Your Honour pleases.
191MR JACKSON: If Your Honour pleases.
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