R v White, Higgins & Dines

[2005] VSC 437

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1422 of 2005

THE QUEEN

v

MATTHEW JOHN WHITE
LIAM MICHAEL HIGGINS

No. 1513 of 2005

THE QUEEN

v

WARREN PETER DINES

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JUDGE:	TEAGUE J
WHERE HELD:	Melbourne
DATE OF HEARING:	30 May 2005 (White & Higgins)
DATE OF HEARING:	19 August 2005 (Dines)
DATE OF SENTENCE:	7 November 2005
CASE MAY BE CITED AS:	R v White, Higgins & Dines
MEDIUM NEUTRAL CITATION:	[2005] VSC 437

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Criminal Law – Sentencing – Trafficking in Methylamphetamine – recruitment by middle level trafficker – combination of circumstances warranting Community Based Orders

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr D. Trapnell (30 May) and Mr G. Horgan S.C. (19 August)	Office of Public Prosecutions
For the Accused White	Mr W. Stougiannos	Paul Vale & Associates
For the Accused Higgins	Ms C. Burnside	Paul Vale & Associates
For the Accused Dines	Mr D. Dann	David Wilkinson & Co

HIS HONOUR:

1. Matthew White, Liam Higgins, and Warren Dines, each of you has pleaded guilty to one count of trafficking in amphetamine.  More specifically, you have pleaded guilty to having, between 9 January 2004 and 27 July 2004, trafficked in a drug of dependence namely Methylamphetamine. 

1. Liam Higgins and Warren Dines, each of you has also pleaded guilty to the possession of marijuana.  More specifically, you have pleaded guilty to having had in your possession on 27 July 2004 a drug of dependence namely Cannabis L. 

1. Before I come to the circumstances of the offences, I would note that your offences and the sentences to be imposed are only explicable by reference to a fourth man who is not present.  I will refer to him only as Z.  Z is in the Witness Protection Program.  Z has previously been sentenced by me for trafficking in Methylamphetamine.  After this, for convenience, I will refer to Methylamphetamine by its street name of speed.  I imposed on Z a suspended sentence of imprisonment.  It was for the longest time within my power.  It was a sentence of three years, suspended for three years.  The main reason for my imposing a suspended sentence was that he had undertaken to give evidence against certain persons.   They recruited Z, just as Z recruited you, into the illegal trafficking of speed.  I will not name those persons as their trials for trafficking and other offences are pending.  Media representatives will be aware of the need to be careful as to what is published by reason of the law as to contempt and Witness Protection legislation.

1. Over the first seven months of 2004, all three of you were in regular contact with Z.  You were not recruited together, but quite independently of each other.  You each came to know Z in quite separate ways.  From his underworld sources, Z acquired the speed for sale at a profit.  He then recruited his friends and acquaintances like you three to help him traffick the speed.  The help was given, either by providing Z with a safe place from which he could retrieve it when he needed it, or by selling it.  Your respective involvements with Z were the subject of conversations either recorded by listening devices in cars or intercepted over the telephone over several months in 2004.

1. Matthew White.  You came to know Z from the football club where he and your brother played.  You held onto the speed for Z at your home.  The speed came in taped-up bags.  You kept it for Z until he came to pick it up.  You usually hid the speed in your bedroom.  Once or twice, you  placed it in a freezer.  For looking after the speed for him, Z would give you $50 in cash from time to time.

1. Liam Higgins.  Z was a friend of yours for five or more years from the Knox City area.  Z supplied the speed that you sold to a handful of friends.  At times, some hundreds of dollars per week were involved.  You had the scales and other equipment linked to your role as an on-seller.  It is apparent from the telephone conversations intercepted by the police that, during the months from January to July 2004, you and Z talked regularly and at times in code.

1. Warren Dines.  You were also involved in selling to close friends the speed that you bought from Z.  You also had the scales and other equipment of an on-seller.  You are the subject of  relatively few police telephone intercepts. It is still apparent from what there are and from the listening device transcripts that there was regular talk in code between you and Z about drugs during the first half of  2004.  The indications are that your comparable involvement with Z was less, but not a great deal less, than that of Liam Higgins.

1. On 27 July 2004, the police searched the homes where you were then living.  At the homes of each of Liam Higgins and Warren Dines, they found a small amount of marijuana.  Each of you claimed that it was just for personal use, and there is no evidence to the contrary.

1. The three of you were trafficking in speed at close to the lowest level.  That was most clearly so in the case of you, Matthew White.  Nevertheless, the expectations of the community are that courts will impose heavy penalties for trafficking in illegal drugs.  Only rarely will it be appropriate not to impose an immediate term of imprisonment.  The personal use of marijuana is also to be condemned.  But trafficking in speed is a great deal more serious.  Immense harm is caused by both drugs.

1. I am satisfied that, because of the combination of several factors, the situation of all three of you is that an immediate term of imprisonment is not the only appropriate option.  The first is that the trafficking was at a relatively lower level.  The second is that Z was not sentenced to an immediate term of imprisonment.  Accordingly, parity factors apply, although his undertaking to give evidence against others makes his position more difficult to compare.  The third is that you have all pleaded guilty.  The fourth is that your personal circumstances in each case operate to your advantage.  None of you has had any prior convictions.  Each of you has a good work record.  Each of you has family support.  Each of you has placed before the court letters of commendation.  Finally, I have been provided with pre-sentence reports that support the imposition of a community based order subject to certain conditions.

1. I need refer only shortly to your ages and jobs.  Matthew White.  You are 27.  You were born in September 1978. You are a plasterer.  Warren Dines. You are 24.  You were born in June 1981.  You work as a manager in the family’s sportswear business.  Liam Higgins. You are 22.  You were born in March 1983. You are an apprentice mechanic.

1. In all three cases, you have each been convicted. A pre-sentence report has been obtained.  I will still need to be satisfied, before making a community based order rather than imposing a sentence of imprisonment, that each of you understands the effect and conditions of a community based order, and that each of you is prepared to accept the conditions under which such an order is made.  For you, Matthew White, I propose that the period for which the community based order will continue will be one year.  For you, Liam Higgins and Warren Dines, it will be two years.  The difference reflects the relative seriousness of the character of the trafficking, namely the holding as against the on-selling.

1. The orders contain conditions that you must satisfy as to  supervision, community work, assessment and treatment for drug use, and undergoing programs designed to reduce the risk of re-offending.

1. I have signed the retention, forfeiture and disposal orders as sought and not objected to.