R v Williams
[2007] VSC 490
•15 November 2007
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
No. 1499/05
| THE QUEEN |
| V |
| GEORGE LESLIE WILLIAMS |
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JUDGE: | KING J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 8 October 2007 | |
DATE OF SENTENCE: | 15 November 2007 | |
CASE MAY BE CITED AS: | R v G Williams | |
MEDIUM NEUTRAL CITATION: | [2007] VSC 490 | |
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Traffic commercial quantity of methylamphetamine –plea of guilty – agreement between Crown and Defence – Crown submissions as to wholly suspended sentence – ill‑health at time of commission of offence – relevance as to sentence.
Sentence 4½ years’ imprisonment with a minimum of 20 months before becoming eligible for parole.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr G. Horgan SC | Office of Public Prosecutions |
| For the Accused | Mr S. Tyrell | Revill and Pappa Lawyers |
HER HONOUR:
George Leslie Williams, you have pleaded guilty to one count of trafficking between 11 December 2002 and 27 July 2004 of not less than a commercial quantity of methylamphetamine. The maximum penalty prescribed for such offence is imprisonment for 25 years.
You were born on 13 June 1946 and are now aged 61. You reside in 18 Jacaranda Crescent, Broadmeadows, and you have been on WorkCover benefits since suffering heart problems in approximately 1986.
You have some prior convictions which are aged in terms of time and relatively minor in nature, being offences in 1963 of larceny and assault for which you were placed on a Good Behaviour Bond. You would have only been about 17 years of age at the time as I calculated. In 1966 when you were aged 20, charges of factory break in and steal, you were placed on probation. In 1972, assault, wilful damage and assault by kicking, for which you were fined. In 1974, exceed .05, which resulted in a fine, and also in 1974 warehouse break in and steal, for which you received six months' imprisonment. In 1985, hindering a police officer, you were fined $250, and finally June 1989, cultivation of a narcotic plant and one count of possession and two counts of trafficking in a drug of dependence. You were fined in respect of the trafficking and possession charges and sentenced to nine months' imprisonment wholly suspended for 12 months in relation to the cultivation charge. I consider, whilst the earlier matters have no relevance to the sentence that I am going to impose, that the sentence for cultivation and trafficking has some albeit very minor relevance.
In relation to this matter there have been discussions between the Crown and the counsel appearing for yourself and your son, Carl Williams, and the result can best be described in the words of the prosecutor, which I found at p.6 of the transcript of the plea of 8 October 2007 wherein he stated:
Your Honour, I need to say this. As you know Carl Williams ultimately pleaded guilty to a number of offences; the murders of Jason Moran, Mark Moran, Lewis Moran and the conspiracy to murder Mario Condello.
I interpose in respect of this to say it is not correct that Carl Williams pleaded guilty to the murder of Mark Moran, it was the murder of Mark Mahlia to which he pleaded guilty.
And Your Honour was told at the time of that plea by Mr Ross, senior counsel appearing for Williams, that the Crown conceded that that cleared the slate as far as Carl Williams was concerned and that's so. There were discussions with lawyers representing Carl Williams that led up to that plea as Your Honour will appreciate. At that time, that is in February or so of 2007, the Crown conceded in relation to the prisoner that should he be able to demonstrate significant ill health, the Crown would submit to the court in all the circumstances, that is, in relation to Steven Thorneycroft in his position in relation to what would happen to Carl Williams, in that a wholly suspended sentence was within the range relation to the sentence Your Honour might impose. Now to that end, the Crown has been supplied with four medical reports on behalf of the prisoner. The learned prosecutor went through those reports, being one from Dr Dyna, of 1 June 2007, one from Dr Norman Lewis and two from a cardiologist, Dr Leanne Balding, dated 12 and 27 July 2007. At the conclusion of that he stated:
It's the Crown's submission, Your Honour, that the prisoner has demonstrated significant ill health and that in those circumstances the Crown is bound by the concession it made in February of this year to make the submission that a fully suspended sentence is within Your Honour's sentencing discretion.
There is no doubt that it is important that the court uphold, if possible, any concessions or so called “deals” that are made between the Crown and the defence, if they are proper and appropriate concessions. Here there is no doubt that the Crown were extremely anxious to conclude the potentially lengthy and costly series of trials that were being conducted in respect of these underworld murders, and there is no doubt that those involved in the prosecution of those matters determined that it was appropriate to make the concession.
That concession of course means no more than the Crown would not appeal a sentence of imprisonment imposed in respect of George Williams and his involvement in the charge of trafficking that was wholly suspended. The Crown also reduced the quantity involved from large commercial quantity to commercial quantity.
However it is ultimately for the court to determine what sentence is appropriate. The court is not bound, in any way, by the negotiations between counsel as to the appropriateness or otherwise of a sentence. That is clearly the role and function of the court. It is, however, extremely important that the court take heed of what has been agreed and if possible, within the proper principles of sentencing, to give effect to, or at the minimum to give considerable weight to such agreements.
As indicated whilst it is important, it is also to be noted as Coldrey J stated in R v. Kenneth Charles Jarrett delivered on 30 June 1994, when the Crown had submitted that a wholly suspended sentence was appropriate for Mr Jarrett, his Honour said:
It is however only one aspect of the broader sentencing considerations to which the court must have regard.
I agree with his Honour's comments. It is an aspect to which I will pay, in this case, significant regard, but there are many other aspects of sentencing that equally have to be considered. For reasons that I shall set out shortly, I do not agree with the Crown and defence submission that a wholly suspended term of imprisonment would be appropriate in this case.
The discovery of the offending in this case came about as a result of an operation set up by Victoria Police called Operation Droil. That operation subsequently led police to information relating to the conspiracy to murder Mario Condello, which is a matter unrelated to you, and of which I take no account for the purposes of imposing sentence.
Droil resulted from the police becoming aware that Witness X, was distributing large amounts of amphetamines and the police believed that the suppliers for those amphetamines, were you and your son Carl Williams.
From 28 January 2004, an undercover police operative was used to make purchases of amphetamines from Witness X. A total of nine purchases were made by the undercover operative and on the last purchase on 27 July 2004, Witness X was arrested. A total of nine purchases were made, at a cost of $108,000 and a total of 1.17 kilos of amphetamines were sold to the undercover. Neither you nor your son Carl was arrested at that time.
There was significant surveillance which indicated to the police that you and your son Carl were the suppliers, but it was equally apparent that the material alone was not enough to charge either of you with the trafficking.
In December of 2004, Witness X made a 44 page statement which I have had the opportunity to read. In that statement Witness X makes it clear that you and your son had been supplying him with amphetamines since about December 2002. A period of approximately two and a half years. From the first delivery of 4 ounces in December 2002 until the last delivery prior to Witness X’s arrest, you were involved in the transactions. Although a runner was used on some occasions, the money was still delivered to you alone, or you together with your son. If a runner was not used, you or you together with Carl would deliver the amphetamines.
The process that was set up for the delivery of the drugs and the payment of the moneys was that a call would be made to Witness X in which nothing in particular would be discussed. That was a code for a meeting to occur, usually next day at midday at a street in the vicinity of the Knox Shopping Complex or near an industrial area. You would arrive at the street at which Witness X would be waiting, he would get into the vehicle with you and Carl, and without any words being spoken you would drive to a street either near a court or near an industrial area, where clearly any comings and goings could be observed.
You would then leave the car and walk a distance whereon you would then have your discussions and make further arrangements, about future deliveries and payments. This system remained in place until about the time that Andrew Veniamin was shot, in late March 2004. The system then changed in that Witness X would deliver the money to your premises in Broadmeadows.
You delivered mainly ketone-based amphetamines, but occasionally pseudo-based amphetamines which were inferior, but the majority of the materials delivered by you were of high quality. Witness X, had never trafficked in what was described as “powders” previously, but had dealt at a relatively low level in the sale of marijuana. It was at the instigation of your son Carl and his wife Roberta initially, and continued and encouraged by you together with Carl as time went on, that he became involved and continued to be involved in the sale of amphetamines.
On the statement of Witness X, it is clear that you were involved in the delivery by yourself, with Carl or with the assistance of runners, for the supply of over 14 pounds of amphetamine during the period of your involvement with him. On a basis of a price of $2,200 per ounce or $35,000 for a pound, the amount that you, together with your son Carl, would have received would have been close to half a million dollars.
Your counsel has submitted that your role was really that of a “gofer”. He stated in his submissions:
That the leader in this was Carl Williams. That George Williams was essentially a gofer, that's what I'm drawing this to, focusing it to that point.
I cannot accept that you were in fact a gofer in the terms in which I understand that to mean. In my view a gofer is someone who carries out orders, with no real knowledge of what is happening in the organisation by which he is employed.
The statement of Steven Thorneycroft which was not disputed by your counsel, clearly indicates an involvement beyond that of a gofer. I refer to just some of the passages. Paragraph 17:
Both George and Carl said there was no pressure to sell it all and that I could pay whenever I had the money. We discussed about meeting up next time. Carl did most of the talking and George just went along with everything that was said. During this meeting George was walking behind us the entire time and was part of the conversation.
Paragraph 24:
Either Carl or George would ring me on one of my mobile phones. This was code to meet up at a time and place that had been arranged at the previous meeting. We never spoke about drugs over the phone or in cars. Wherever we met, it was always in the open. Most of the time I met it was with both George and Carl, but on a couple of times it was just George.
Paragraph 53:
There was another time that George came out on his own and I met him near the factories in Lewis Road. This time he gave me a pound of speed. He had it in the console of the Mercedes. It was in rock form and packaged in a plastic bag. I got into the car and we drove and parked just around where the bike track links with the factories. He got it out of the console and handed it to me, which I put down my pants. We both got out of the car and then talked about it. He said it was pseudo and that it would cost $55,000 for the pound.
Paragraph 55.
Michael and I both went to George's house in Broadmeadows. It was at night and probably about a month after that I first got the pseudo product. We went for a walk down the street from George's and we were talking about it. George said that it wasn't ours because he got it from someone else. He agreed to take the rest back, which was probably about 12 ounces. Michael did most of the talking with George because I'm scared of him. I told George that people were complaining and I can't sell it. I remember Michael telling me off, because when I was talking, I was moving and waving my hands around. Michael told me to put my hands in my pockets because the police would be able to read my body language. Michael was much more straightforward than me and just said it was shit and that he had to take it back. George said that he would organise someone to come to the house and pick it up.
Paragraph 61.
I remember asking George about the runners and if they're hot. This meant can they be followed or tracked by the police. George told me not to worry about it because he has 20 of them.
There are many other examples of this type that continue throughout the statement. Whilst I accept that Carl Williams was the man in charge, I do not accept that the role occupied by you was merely that of a gofer, doing only what you were told by Carl. You were clearly able to make decisions, such as accepting the return of the poor quality drugs, and organising runners for deliveries to occur. Whilst I do not act upon the basis that you were the head man of this group, I do act upon the basis that you were involved in the decision-making and played a significant assisting role to your son Carl.
I also have to take into account your personal circumstances. As I indicated you are currently aged 61 and you are the father of two children, both boys. You were married to your ex-wife Barbara for a lengthy period of time, separating in 1999 and it is clear that you remain friends, as she has been in court to support you during these hearings.
You have a current partner, Kathleen, who has been your partner since approximately that time. She was also in court to support you, as were other family and friends. I was unfortunately not given a great deal of your history, with the exception that you are a hardworking man who commenced with the Board of Works as an operator of digging machines and progressed onto a management role. Whilst occupying that position in 1985 you suffered your first heart attack. You had a lengthy period off work on WorkCover and then returned to work with another company called Vision Hire, where you were managing the hiring of televisions, the heart attack having rendering you unfit for your previous occupation with the Board of Works.
You had only been working at Vision Hire for a matter of months when you had your second heart attack in 1991, and since that time you have been on WorkCover benefits. You receive from those benefits $820 per week gross and I am informed that it comes to approximately $670 net.
I was also informed that you had been involved in community activities via the Jacana Football Club over many years, having been a junior coach with the under 14s and a manager within the club, in respect of several different football teams over a number of years.
You had a son named Shane who died in 1997 from an overdose of heroin, something that undoubtedly caused you and your wife Barbara, a great deal of grief.
Your counsel said that you, "undertook in your own mind and heart to be with Carl whenever and wherever he could. Essentially George Williams wanted to spend as much time as he possibly could with Carl. He realised since the death of his older son Shane, that spending times with your loved ones is extremely important. It affected him in such a way that basically everywhere that Carl went you found George as well."
That appeared to be put forward as some sort of explanation for your involvement in this criminality, on the basis that your son was engaging in this criminal activity and you were involved, merely as a basis for remaining close to him. I reject that, as an explanation for your behaviour. Having been a parent who had lost one child to the illegal drug trade and having been involved for many years with youth in the community, via sporting activities, it is inconceivable that you were helping your other son in precisely that evil trade, solely as a result of your desire to be close to him at all times.
You, as a result of your bereavement, must have been aware of the consequences that drugs have upon this community and more particularly, upon the younger members of our community. Yet you were actively involved in selling drugs of a significant purity, to a younger member of our community, specifically your own nephew.
Your health has been an issue for many years, and that is a factor that I must take into account in the determination of your sentence.
Counsel has submitted that if I sentence you to imprisonment, that I am passing a death sentence upon you, as a result of your chronic heart condition. I have examined the reports that have been tendered from your medical practitioners, and have also heard evidence from Dr Eugenie Mary Tuck, the medical clinical director from Port Phillip Prison.
The report from Dr Leanne Balding, cardiologist, stated that you had been her patient since June 2006. According to her reports you have a history of coronary artery bypass graft in 1984, with redo grafts in 1994. On 13 January 2006 you underwent further bypass grafting with a left radial graft to the posterior, left ventricular branch of your right coronary artery. You no longer have any revascularable arteries. If you were to suffer further heart attacks the only option open to you would be a heart transplant. It is hard to imagine that you are a good candidate for such an operation as you are a smoker, suffer from hypertension and borderline diabetes. You are currently on maximum medical therapy and in her view, your prognosis is obviously fairly guarded.
A report was also tendered from Dr Dyner from the Flemington Medical Centre, who you see on a regular basis. After discussing the treatment you received in respect of the grafts in January 2006, and the ongoing problems associated with that heart problem, Dr Dyner referred to your multiple risk factors, including smoking, hyperlipidemia, diabetes and hypertension. You also have no vision in your left eye, a result of being bashed some years earlier. He stated that you also suffer from anxiety and depression for which you see a psychiatrist on a regular basis. He referred to your regular blood testing and stated that on the last test done in May 2007 all functions were normal. He described your medical prognosis as poor, stating that you were on maximum doses of anti-angina medication and that should you get worsening angina, which he considered would not be surprising, you would be unable to have further bypass grafts and would have to be considered for transplantation.
The report of Dr Norman Lewis, psychiatrist, was also tendered. You were initially referred to him in 1988 for depressive symptoms associated with your original heart attack in 1984. He has been seeing you on a monthly basis since that time. I did not find that report particularly helpful as the doctor did not offer any opinions on the issue of your depression and its relationship to this offending, only what your opinions in respect of that depression were.
Under the heading of "Diagnosis" Dr Lewis stated:
Longstanding secondary depression to a moderate to a severe degree related to his original heart attack and his subsequent heart operations.
He then continued under the heading of "Conclusion":
George shows considerable remorse about what happened and he will try his hardest to stay out of trouble in the future. He is still on WorkCover, due to his heart attack and also the depression caused by that. George feels that many of his previous actions were influenced by his severe depression and the fact that he lost his older son in 1997 through a drug overdose. George feels that he was probably more protective of his second son, because of his condition and George used to drive him around, and the fact that after 35 years of a good marriage the marriage dissolved at the end of 1999/2000. George feels that he hasn't really got over those traumatic events, which still causes a chronic mourning reaction in him. I believe that it is very important that George continues his treatment for his psychiatric condition, which I'm able to provide in my private practice. Therefore, I believe that in George's best interest, incarceration would have the opposite effect that it should have and would not be conducive to his well being, because it would probably make George more depressed. Generally, George's prognosis for his depression is poor because he's had it for so many years.
Dr Lewis added that he had seen you on approximately 186 occasions at monthly intervals. It appears that he has been unable to help you with these particular problems. There is no indication in his report that you sought any assistance from him in relation to what you now say is your chronic mourning reaction. I would have expected his report to contain references to those matters and the treatment that he recommended and that you undertook, in respect of those issues, if they were matters that you raised with him. Instead, he relates your depression, in his diagnosis, to your original heart attack and subsequent heart operations only.
There is no doubt that you suffer from serious heart problems. There is equally no doubt that you have suffered from those heart problems for a lengthy period of time. The problem that faces this court is how to sentence a person who commits a crime over a lengthy period of time, whilst suffering from the very health problems that are submitted, should prevent him from being incarcerated. In this case, at the time of the commission of these offences, you had already had two of your bypass operations. You were suffering from angina, diabetes, hyperlipidemia, hypertension and depression.
You were assessed as being unable to work and were being compensated for that inability to work by way of WorkCover. You were assessed as being chronically unfit for work and had been assessed in that manner for many years, at least 15 years at that stage.
Your health was being managed by a series of doctors, including a psychiatrist, with appropriate medication and yet you chose to engage in this very serious illegal activity, whilst having these health problems, and you were able to manage it quite well.
It is now submitted, that if I sentence you to a term of actual imprisonment, it would be the equivalent of passing a death sentence upon you, as you would not be able to get the care required whilst in prison. I do not accept that that is the situation in the prison system. Dr Tupp gave evidence before me that you would be assessed on the afternoon of your arrival at Melbourne Assessment Prison and probably transferred to Port Phillip and a determination would be made as to your suitability for placement within the prison system.
That would vary according to the condition that you were in. If you were still having constant angina attacks, you would probably be placed in the in-patient unit at Port Phillip, St John's, to assess your condition. Depending upon the result of the assessment, you could be placed in one of many options, including St John's, which has 24 hour nursing staff. It also has a bell press to call for assistance.
The law cannot be that if you are physically unwell and commit crimes over a lengthy period of time, that your physical health will excuse you from the consequences of that crime. If that was the law, then those involved in law breaking would recruit the frail and medically unwell to carry out crimes such as the importing or delivering of drugs, perpetrating of frauds and deceptions and the like.
What the law does say about this is what was stated in R v. Smith by King CJ when he identified two different ways in which ill health might be a factor mitigating punishment:
Generally speaking ill health will be a factor tending to mitigate punishment only when it appears that imprisonment would be a greater burden on the offender by reason of his state of health or when there is a serious risk of imprisonment having a gravely adverse effect on the offender's health.
Such statement was cited with approval in the recent case of R v. Verdins V.S.C.A. at p.102.
The sentence imposed must be moderated, due to your ill health, and the hardship that may occasion to you in the prison system, but it does not in any way eliminate the need for appropriate punishment. In relation to the aspect of your depression, the court in Verdins restated the law very clearly in relation to psychiatric conditions and the application that they have to the sentence to be imposed, when they stated in paragraph 25:
It is of the nature of the sentencing discretion that views will differ as to how and to what extent impaired mental functioning may reduce the blameworthiness of the offender's conduct. The effect on the court's assessment of culpability will, of course, vary with the nature and severity of the condition, and with the nature and seriousness of the offence. It is not appropriate for an appellate court to be prescriptive in this regard, nor is it possible to be exhaustive. It may assist sentencing judges, nevertheless, if we list the various ways in which impaired mental functioning has been held, correctly in our view, to be capable of reducing moral culpability. Impaired mental functioning at the time of the offending may reduce the offender's moral culpability if it had the effect of (a) impairing the offender's ability to exercise appropriate judgment; (b) impairing the offender's ability to make calm and rational choices or to think clearly; (c) making the offender disinhibited; (d) impairing the offender's ability to appreciate the wrongfulness of his conduct; (e) obscuring the intent to commit the offence; or (f) contributing causally to the commission of the offence.
It is my view that your depression did not in any way impact upon your moral culpability in relation to the commission of the offence. Close examination of the offending, together with the period of time over which it occurred, your lack of cooperation with the police, or the courts for such a lengthy period are indicators of your mental capacity to make decisions such as have been referred to in the judgment, and whilst not exhaustive, provide me with a strong indication, that your moral culpability was not compromised by your depression.
Your sentence must however be moderated in relation to both your mental and physical health, as imprisonment will be a harsher reality for you, than for other prisoners. As indicated, your counsel submitted that should you be incarcerated, you would have an astoundingly high risk of dying due to that environment. That was submitted on the basis that whilst you are in your own home, you have ready access to assistance, compared to being in a cell, or even a hospital room on your own or with other prisoners.
That was due to the fact that you were not at home alone, but residing with your partner Kathleen in the same bed, who could assist you. I noted however in the report of Dr Norman Lewis of 7 June this year under the heading of, "Family Life" that he recorded:
George says he lives with a lady but they live in separate rooms.
It is clear in my view that you are at serious risk of death from your chronic heart disease, but that risk is with you whether you are in hospital or at liberty in the community, and you may well have a better chance of survival in a prison with ready access to medical staff, than alone in your room at home.
General deterrence must play a part in sentencing and although it would be appropriately modified, as explained in Verdins, it is certainly not to be eliminated.
The aspect of specific deterrence has a lesser role to play and I accept what your counsel says about that. Everyone that you knew or associated with in respect of any criminal activity is now either in gaol or dead. Your son, about whom I do accept you care very much, is currently serving a lengthy term of imprisonment and as stated earlier, I determined, that he was the leader in this particular criminal activity.
I am of the view that you will be unlikely to offend again whilst he is in custody, and most of your friends, and acquaintances are either dead or in custody also.
Your counsel submitted that you are in a similar position to that of Witness X who received a three year sentence of imprisonment, wholly suspended from his Honour Justice Teague, and that there is an issue of parity between you and Witness X. I do not accept that you are equal, in many respects. Your son Carl brought Witness X into the dealing of these drugs, when he was only a small-time dealer of marijuana. He was young and to a degree impressionable. He was further down the chain of distribution. He pleaded guilty at an early opportunity. He co-operated fully with the police and put his life at risk by being prepared to give evidence against your son Carl and yourself, in respect of these matters.
The type of co-operation that he provided was invaluable to the authorities who were trying to break the stranglehold that your son Carl had upon the criminal underworld, and it merited great discounts in sentencing.
Balancing all the matters that I have to take into account, which I have already mentioned and, also, the need to impose a just and fair sentence, balancing both the community interests and yours, I intend to impose a sentence of imprisonment to be served immediately. To impose a wholly suspended sentence, I would have to be of the view that a sentence of three years is sufficient punishment for the offence that you have committed, and I do not believe that to be correct.
I further take into account the fact that you have pleaded guilty, albeit at a late stage, and although I do not find any indication of remorse, as a result of that plea, you are still entitled to a discount for the time and cost that you have saved the community, by your actions. I also take into account the fact that a pecuniary penalty order of $108,000 has been made.
Accordingly, in relation to the one count on the presentment of trafficking in a commercial quantity of methylamphetamine, I convict you and sentence you to be imprisoned for a period of four and a half years. I intend to impose a lower than normal minimum term, in all of the circumstances relating to your health both physical and mental, and the other factors to which I have referred.
I therefore direct that you are to serve a period of 20 months before becoming eligible for parole. I declare that you have spent 24 days in pre-sentence detention and such should be noted on the records. I direct that copies of your medical reports be provided to those transporting you to prison and that they be passed immediately to the medical authorities today.
I make the disposal orders as sought and the 464 sample. Any other matters?
COUNSEL: No, Your Honour.
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