Waters v The Queen
[2011] VSCA 415
•9 December 2011
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2009 0892
| JOHN WATERS | |
| Applicant | |
| v | |
| THE QUEEN | Respondent |
---
JUDGES: | ASHLEY and WEINBERG JJA and HARGRAVE AJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARINGS: | 14 April 2011 and 15 April 2011 | |
DATE OF JUDGMENT: | 9 December 2011 | |
MEDIUM NEUTRAL CITATION: | [2011] VSCA 415 | |
JUDGMENT APPEALED FROM: | The Queen v Waters (Unreported, County Court of Victoria, Judge Howard, 30 October 2009) | |
---
CRIMINAL LAW – Conviction – Drug offences – ‘Operation Jedi’ – Whether judge excessively intervened in prosecution case – Change of Crown case mid-trial as a result of judge’s intervention – Application for leave to appeal granted – Appeal allowed – Re-trial ordered in respect of one count.
CRIMINAL LAW – Sentence – Multiple counts of drug offences – Total effective sentence of 21 years’ imprisonment with non-parole period of 15 years – Appeal against conviction allowed on one count – Whether other sentences manifestly excessive – Whether sufficient weight given to mitigatory factors – Application for leave to appeal granted – Appeal allowed – Appellant re-sentenced on certain counts.
--
| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr D Grace QC with Mr D A Dann | C Marshall & Associates |
| For the Crown | Mrs C M Quin | Mr C Hyland, Solicitor for Public Prosecutions |
ASHLEY JA:
John Waters, the applicant, was arraigned on two presentments in the County Court. His trial commenced on 23 February 2009. The jury was empanelled on 13 March, that being the ninth day of hearing. The jury returned its verdict on 25 May, the forty seventh day of the trial, having retired on 20 May.
The first presentment, in respect of which there were two accused – a man named Trajkovski and the applicant – and in respect of which some counts referred only to the co-accused, underwent repeated amendment in the course of the trial. Focussing on the counts upon which the applicant was presented, the situation as it developed was as follows:
Count 2 Trafficking in methylamphetamine between 11 Aug 2005-18 Jan 2006 Plea guilty on re-arraignment on 19 March 2009, after jury empanelled but before opening, Crown having amended presentment to delete reference to commercial quantity Count 3 Trafficking in a large commercial quantity of methylamphetamine on 29 December 2005
Acquitted by direction. Count 5 Trafficking (by manufacture) in methylamphetamine between 6 Dec 2005-18 Jan 2006 Plea guilty in course of trial Count 6 Trafficking methylamphetamine (by possession for sale) on 18 Jan 2006 Plea guilty on re-arraignment on 19 March 2009 - after jury empanelled but before opening, parties having agreed that most of drug possessed was for applicant’s own use. Count 7 Trafficking in a large commercial quantity of MDMA between 17 Aug 05 -18 Jan 2006 Plea not guilty. (The commencing date was amended on 24 March 2009 from 11 to 17 August 2005).
Count 9 Trafficking cannabis between 11 Aug 2005-18 Jan 2006 Plea guilty at trial. Count 10 Conspiracy to cultivate cannabis between 1 Nov 2005-18 Jan 2006 Plea guilty at trial. Count 11 Possession of 2.5grams of cannabis (for personal use) Plea guilty at trial.
In short, there finished up being one contested count – that is, count 7. On that count, the jury eventually found the applicant guilty.
On the second presentment, there were two counts, to both of which the applicant pleaded guilty. Shortly described, the counts were as follows:
Count 1 – Trafficking methylamphetamine between 12 May and 31 July 2006.
Count 2 – Trafficking MDMA on or about 23 June 2006.
The jury having returned its verdict on the counts contested by the applicant and a co-accused, Boris Trajkovski, on 25 May 2009, on 1 and 2 June 2009, a plea was advanced by counsel for the prisoners.
On 30 October 2009 the judge sentenced the applicant on the first presentment as follows:
Count 2
4 years’ imprisonment
Count 5
3 years’ imprisonment
Count 6
2 years’ imprisonment
Count 7
16 years’ imprisonment
Count 9
4 years’ imprisonment
Count 10
3 years’ imprisonment
Count 11
Fine $250
On the same day, the judge sentenced the applicant on the counts on the second presentment:
Count 1
1 ½ years’ imprisonment
Count 2
2 ½ years’ imprisonment
On the first presentment, the judge cumulated nine months of each of the sentences on counts 2, 5, 9 and 10 on each other and on the base sentence on count 7. The total effective sentence on that presentment was thus 19 years’ imprisonment.
On the second presentment, the judge cumulated six months of the sentence on count 1 on the base sentence on count 2. The total effective sentence on the presentment was three years’ imprisonment.
The judge cumulated two years of the total effective sentence on the second presentment on the total effective sentence on the first presentment.
In the result, his Honour imposed a sentence, overall, of 21 years’ imprisonment. He fixed a non-parole period of 15 years’ imprisonment.
He made a tentative statement that, had the applicant gone to trial on all counts, he would have imposed an overall sentence of ‘something in the order of 25 years’ imprisonment with a minimum of 19 years’.
In the course of his sentencing remarks, the judge stated that he was ‘satisfied that [he] should fix a sentence [on count 7] unconstrained by current sentencing practices.’ The prosecutor had submitted that he should do so.
Conviction Application
Now the applicant seeks leave to appeal against his conviction on count 7. At the hearing of his application, senior counsel stated that he relied only upon the following :
2:The Learned Trial Judge erred in law by intervening in the prosecution case in suggesting to the Crown that it change its case on count 7 mid-trial, with the Crown so amending its case, thereby giving rise to a substantial miscarriage of justice.
Sentence Application
In the event that his conviction application and/or appeal concerning count 7 is unsuccessful, and in any event in respect of the other sentences imposed, the applicant seeks leave to appeal against sentence on the following grounds:
1:Each of the sentences imposed upon the Applicant was manifestly excessive, in that it was outside the range of sentences open to be imposed by the Learned Sentencing Judge in the proper exercise of his sentencing discretion, having regard to all of the circumstances of the offences and of the Applicant.
2:The Learned Sentencing Judge erred in failing to give sufficient weight to mitigatory factors.
Particulars
(i) The pleas of guilty to all counts except for count 7;
(ii)The Applicant’s role on count 7 as a ‘mid level’ trafficker within the range of large commercial MDMA trafficking;
(iii)The Applicant’s regular and consistent drug use during the period of offending;
(iv) The Applicant’s family and personal circumstances;
(v) The Applicant’s heart problems.
3:The Learned Sentencing Judge erred in finding that the sentence to be imposed on count 7 (trafficking in a large commercial quantity of MDMA) should be ‘unconstrained by current sentencing practices.’
4:The total overall sentence of 21 years’ imprisonment breached the totality principle of sentencing in all of the circumstances of the offences and of the Applicant.
There is no challenge to the fine imposed on count 11 on the first presentment, and so it may be put to one side.
Circumstances generally described
Between August 2005 and January 2006, Victoria Police conducted a substantial investigation, codenamed ‘Jedi’, into the drug trafficking activities of the applicant and 15 other persons.
Sixteen persons were charged. Fourteen pleaded guilty. Only the applicant and Trajkovski went to trial; and neither of them contested every charge; rather, the converse.
The same judge presided at the trial and sentenced all 16 offenders.
Of the other offenders, nine sought leave to appeal against sentence. All the applications have been heard and determined. In five instances, leave to appeal was granted and the appeal allowed. In none of the matters thus far dealt with did the judge treat himself as unconstrained by current sentencing practices.
According to the judge’s sentencing remarks, the applicant and Trajkovski stood to be sentenced –
as principals, the Mr Biggs (sic) of the drug trade who conducted sophisticated businesses trading at a wholesale level.
The judge described the applicant’s offending concerning the first presentment as follows:
First, I will deal with count 7 which you contested and on which you were convicted. This was a Giretti count of trafficking MDMA in a large commercial quantity.
…
The circumstances of your offending were that between 20 August 2005 and 18 January 2006 you conducted a business in trafficking vast numbers of MDMA tablets. There were 25 specific transactions with only 8 persons, as disclosed by 25 coded telephone intercepts. Initially, your major supplier of MDMA was Tomislav Samac with whom you were involved in one disclosed transaction for almost 2500 tablets on 20 August 2005. You also dealt with Trajkovski on one occasion; and with other Jedi offenders Daryl Briggs, Danny Vasic and Craig Bennett. However, the majority of your transactions, 14 in all, were with Paul Clay from Ballarat. Clay gave evidence for the prosecution.
You were an energetic, determined and unrelenting trafficker. Samac was arrested on 6 October 2005. You were undeterred by this development, which you spoke about on the intercepts. Thereafter, you obtained the drug from Trajkovski and Briggs and other unknown sources. When Trajkovski was arrested on 29 December 2005, you continued the business, including selling 5000 tablets to Clay on 6 January 2006. Indeed, a few days later, on 11 January, when you knew Samac had been released on bail, you were again negotiating a sale of tablets with him.
You trafficked a total of 20,043 MDMA tablets by sale; offer for sale; and possession for sale. The specific intercepts were surrounded by 151 other calls, which gave context and meaning to your activities. With the exception of 2 minor transactions, you transacted wholesale amounts, mostly in multiples of a 100, but often in the 1000s. In addition to the specific calls, you spoke about having for sale 1000s of MDMA tablets in no less than 15 of those surrounding calls.[1]
[1]Footnotes omitted.
and
The prosecution relied on an aggregation case, based on the 25 transactions, which was evidenced by the telephone intercepts and those surrounding them. To assist the jury in its interpretation of the coded drug language, the prosecution also relied on the evidence of an accepted drug expert, Detective Martin, that various statements on the intercepts were consistent with a reference to MDMA tablets and their quantities. That witness also gave general evidence as to relevant drug issues. I gave a strong warning to the jury as to how it should and could approach Martin’s expert evidence, to which no exception was taken.
You provided the jury with a lengthy written chart and argument in which each of the 25 calls were analysed and cross-referenced to other calls, which was designed to refute the prosecution case on this count. This was supplemented by powerful oral argument in the final address by your very experienced criminal counsel … as to why the prosecution interpretation of the relevant intercepts was unreliable and should be rejected.
The prosecution case had been continually refined on this count throughout the trial so as to make clear the precise categories of trafficking. This necessitated rulings permitting this course although, at one point, on your application, I prevented the prosecution from further refining its case. I do not consider there was any doubt as to any of the transactions, nor any basis to distinguish between the various intercepts. It was abundantly clear to me that you were discussing and transacting MDMA tablets in wholesale lots. After listening to hundreds of coded conversations on this and other counts, it became a simple exercise to see through the veiled and, at times, highly unlikely language so as to understand what was being said and transacted. Indeed, at times the coded language used was laughable, if given its literal meaning. I have no doubt the jury had the same experience and response.
The jury deliberated for about 3 days and did not at any time suggest they were having difficulty in distinguishing between the various transactions or the categories of trafficking to which they were attributed. Significantly, the jury did distinguish the prosecution case concerning Trajkovski on count 1 and returned a verdict on the alternative count. Obviously, the jury was satisfied beyond reasonable doubt as to all the elements the prosecution was required to prove on this count.
I see no reason to conclude other than that the jury accepted the prosecution case in its entirety and that you trafficked a total of 20,043 MDMA tablets in the three ways I have described. You should be sentenced on this count on the basis that you trafficked five times the relevant threshold.
…
I will now deal with the counts to which you have pleaded guilty. The circumstances of your offending on those counts are set out in an agreed prosecution opening and it is only necessary to give a brief outline of your conduct. It is agreed that I should be constrained by current sentencing practices on these counts and I accept that.
Count 2:
Count 2 is a Giretti count involving a business of trafficking by sale 707.14 grams of methylamphetamine mix between 11 August 2005 and 18 January 2006. You pleaded not guilty to this count on arraignment but changed your plea to guilty during the course of the trial.
This was your second drug business. You sourced the drug principally from Trajkovski from August until his arrest on 29 December 2005. Thereafter, you sourced it from various identified and unidentified suppliers. You sold the drug to a number of Jedi offenders, namely Cheryl Beckerton, Michelle Scott and Anthony Scott from Ballarat; to Danny Vasic, Peter Dafalias and Craig Bennett in Melbourne; and to a number of other persons, including in Shepparton.
In all, there were 128 coded telephone intercepts substantiating 44 separate transactions, of which 14 involved amounts of 28 grams or more. There was a total of 560 grams transacted at a wholesale level and 147 grams at a street level.
Count 5 – manufacturing methylamphetamine with Samac
Count 5 is a Giretti count of trafficking methylamphetamine simpliciter between 6 December 2005 and 18 January 2006, which involved you and Samac manufacturing the drug for sale. Samac’s culpability is greater as he was offending whilst on bail and he set up the clandestine laboratory.
Count 6 – trafficking methylamphetamine by storing at home for sale
Count 6 concerns you trafficking methylamphetamine simpliciter by possession for sale of 129.1 grams of the drug in a mixture. This was located by police at your home at Melton when they searched it on 18 January 2006. In all, you had eight containers of methylamphetamine powder or tablets with a purity of between 8 to 10%, except for approximately 3 grams of mixture with an approximate purity of 60%.
Whilst you accept you possessed these drugs for sale, it is conceded by the prosecution that throughout the period of your offending you had an extensive methylamphetamine habit evidenced by these drugs which had been set up for use, along with pipes which you used to smoke crystal methamphetamine or ice (you are not to be sentenced for involvement with this latter drug). Such use was confirmed by the evidence of the accomplice, Stephen Murphy, that he used ‘speed’ with you on one occasion when he visited your address on behalf of Trajkovski.
Your plea has been entered on the basis that a significant amount of these drugs was for personal use, but you would have taken the opportunity to sell amounts of it had you been able to. I accept this as a proper consideration to take into account, but the essence of the offence is trafficking by possession for sale, not possession for personal use. If it was only the latter, there would be no offence of trafficking, only one of possession.
The amount of the drug was well below the commercial quantity threshold of 1.25 kg, and the offence is to be categorised as low-level trafficking.
Count 9 – the third business – trafficking cannabis
Count 9 involves you conducting a third Giretti business of trafficking cannabis simpliciter between 11 August 2005 and 18 January 2006. You were jointly presented on this count with Trajkovski, but he was far less involved in this offending than you were in that he purchased cannabis from you on only two occasions.
Over that 5 month period you sold 41.4 pounds, or approximately 18.8 kg, of cannabis to Samac, Trajkovski, and six other Jedi offenders, namely, Clay, Beckerton, Vasic, Briggs, Bennett and Anthony Scott; as well as to a few others.
None of these drugs were seized, but the sales were proved by 68 coded telephone intercepts. The evidence revealed that on some occasions you sourced cannabis from these persons for purchase by you, and on other occasions you sold the drug to them. The intercepts reveal you to have been an energetic and enthusiastic trafficker in this business.
Count 10 – the ‘grow-house’ conspiracy to cultivate cannabis
Count 10 involves you in a conspiracy with Craig Bennett and David Reilly to cultivate cannabis in a ‘grow-house’ between 1 November 2005 and 18 January 2006. You purchased a property at 6 Scott Street, Melton from your former wife who was Bennett’s sister. It was then set up to grow cannabis hydroponically.
and
Significantly, you set about sourcing 16 cannabis plants with which to start the operation. During this time you were liaising with an independent finance advisor and mortgage broker, who was arranging the housing loan. It would appear from the telephone intercepts that you made it clear to him that the property was to be used for growing cannabis, and steps were taken to avoid a valuer from getting inside the house. Ultimately, this approach was unsuccessful as the valuer insisted interior access was necessary. Reilly therefore cleaned up the premises and you escorted the valuer in and later said that you had kept him talking so as to divert his attention from your scheme.
On 18 January 2006 police executed a search warrant at the premises where black plastic tubs, black water tubing and electrical equipment and wiring had been set up for hydroponic cannabis growing. But the scheme had not yet reached operational status. Reilly was effectively ‘camping’ at the premises. There was still work to be done, including setting up more efficient irrigation, growth tubs, potting mixture and the like.
The judge described the applicant’s offending with respect to the second presentment as follows:
You were arrested on 18 January 2006. You were released on bail on 15 February 2006. You were re-arrested on 18 September 2006 and have been held in custody thereafter without bail.
and
Your release on 15 February 2006 was on strict bail terms and conditions, including that you report daily to police. During this time information was obtained by police and further lawful telephone intercepts were placed on telephone services used by you. Regrettably, this investigation revealed you continued to offend whilst on bail. Obviously, you were undeterred by being charged and bailed on serious drug charges.
Count SP1 on the second presentment involves you trafficking methylamphetamine between 12 May and 31 July 2006. A number of coded telephone intercepts reveal that you were sourcing an unknown amount of methylamphetamine from Peter Dafalias. You also sold small amounts of methylamphetamine totalling 19.5 grams between 23 June and 24 July 2006.
As the traffickable quantity of methylamphetamine was 6 grams, I will proceed on the basis that this was low level trafficking. It is not possible to put a realistic price on these transactions.
Count SP2 involves you trafficking in MDMA on or about 23 June 2006. You confirmed with Defalias that you were in possession of 500 MDMA tablets for sale and you wanted him to give 50 tablets to a particular customer. It was agreed between you that you would sell the 500 tablets. The street level price for 500 tablets was from $12,500 to $25,000 if sold on a per pill basis; or $10,000 to $15,000 if sold in lots of 100. Obviously, the wholesale prices would be lower. Selling in lots of 50 tablets, as here, would suggest wholesale rather than street dealing.
Initially, in its written submission, the prosecution said it did not know the weight of these tablets. In a later submission as to penalty, it suggested the amount was 185 grams. Using the agreed divisor of .25 grams per tablet, the correct weight should be 125 grams which is 25% of the commercial quantity threshold. As the traffickable quantity of MDMA was 3 grams, I will proceed on the basis that this, too, was low level trafficking.
Conviction Application
The applicant’s case
For the purposes of the conviction application, the judge’s remarks concerning count 7 on the first presentment expose, but far from fully reveal, the issue which was agitated in this Court. His Honour’s summation of the circumstances, based upon his view of what the guilty verdict implied, was not put in issue on the conviction application. Indeed, applicant’s counsel in substance relied upon it.
The gist of the applicant’s case on the conviction application was that the Crown opened its case against him on count 7 – that is, the count of trafficking a large commercial quantity of MDMA – on the footing that the applicant had acquired about 10,000 MDMA tablets from a supplier, Samac, and that he had then trafficked that number of drugs by on-selling them. That case was exposed by a long written opening, which had been discussed between counsel and the judge before the prosecutor and counsel for the applicant made their opening addresses to the jury.
But, contended the applicant, the Crown changed its case against him in the course of the trial. It did so because of the judge’s excessive intervention. A case opened as one of trafficking a particular quantity of MDMA tablets by sale became a case of trafficking about twice that quantity of MDMA – in part by sale, in part by offering for sale, and in part by possession for sale. The judge’s intervention, so counsel contended, took the form at several points of his Honour effectively cross-examining the prosecutor into conceding that a different and larger case should be pursued; the judge then ruling that this should be permitted.
Counsel submitted that in such circumstances it was the judge’s interference which constituted a miscarriage of justice; it was unnecessary to show that the interference had consequences which met that description. But, in any event, counsel submitted, in this case the judge’s interference did have such consequences. That was because the defence case, opened to the jury, became untenable once the judge permitted the Crown case to be enlarged.
The Crown’s response
Counsel for the Crown submitted that – (1) the defence always had the material which was ultimately introduced; (2) no evidence had been led concerning count 7 at the time of the critical ruling; (3) the jury thus knew nothing about the judge’s rulings; (4) (really a repeat of above propositions) the evidence itself was not new evidence; (5) the judge considered that the Crown’s original case had always carried the Crown over the large commercial quantity threshold.
Counsel particularly emphasised that all authorities concerning interference to which reference had been made had involved interference by the judge in the presence of the jury.
Changes in the Crown case? The judge’s role
As will be seen, the Crown’s particularisation of count 7, and the way in which evidence was deployed in its proof, did repeatedly change in the course of the trial.
To repeat and expand upon what I have already said, the submission agitated on the conviction application was, in substance, that the judge intervened so as to construct a new case for the Crown; and then ruled that the Crown should be permitted to rely upon the new case. To be clear, applicant’s counsel did not submit that the judge’s intervention evidenced actual bias or was such as to give rise to reasonable apprehension of bias. Nor did he argue that his Honour’s rulings about the purpose for which particular evidence was receivable were wrong.
In order to understand the applicant’s complaint, it is necessary to understand when, how and in what circumstances the Crown’s case did change, and was permitted to change.
That case, with respect to count 7, very largely rested upon telephone intercepts. No MDMA referable to count 7 was ever found in the applicant’s possession. Nor did any police witness give evidence about observations of purchases or sales.
In addition to the intercepts, a former associate of the applicant named Clay was called by the Crown to give evidence that the applicant had made some sales of MDMA tablets to him. Clay’s evidence was a mixed bag. On the one hand, he gave evidence that the applicant had made sales to him of relatively small quantities of MDMA; and gave evidence of statements by the applicant that he had possessed or transacted sales of large quantities of MDMA to unnamed other persons. On the other hand, he gave evidence to the effect that the applicant was a big talker. The latter evidence was relied upon by the defence to cast doubt on what were said to be trafficking transactions revealed by the telephone intercepts.
Because count 7 was a Giretti count, the Crown intended from the outset to rely upon certain conversations between the applicant and other persons to prove that the applicant had engaged in a business of trafficking, and that throughout he had an intention of trafficking in a large commercial quantity of the drug. For those purposes, the Crown always intended to rely upon conversations in which, inter alia, the applicant discussed with others the availability of MDMA tablets, and told of things that he had done with others in respect of consignments of tablets.
It is crystal clear, however, that it was not the Crown’s case at the outset that any of these other conversations were to be led as evidence of trafficking by the applicant in MDMA, whatever kind of trafficking might have been arguably revealed by the particular conversations.
Before the jury was empanelled, the prosecutor described the Crown case on count 7 to the judge. He stated that he would prove the receipt by the applicant of 10,500 tablets containing MDMA, and outgoings of 10,242. He said that he would ask the jury to assess the weight of the drugs by assuming, consistently and conservatively with evidence which would be led, a weight of .25 gram per tablet. In answer to the judge’s question, he stated that he was only counting the tablets once – so that the weight of the drug trafficked was about 2.5kgs. A large commercial quantity of a mixture containing MDMA is 1 kg.
Not long thereafter, counsel for the applicant made it clear to the judge what the attack would be in respect of count 7. He said –
… when it comes to the trafficking of a large commercial quantity of MDMA, [t]he amounts and the tablets and whether the figures that Mr Regan has added up are rubbery or sustainable is the principal issue there.
The trial ran a tortured course. Counsel for the applicant repeatedly requested the prosecutor – both before and after the jury was empanelled – to finalise the list of the intercepts (‘calls’) which were to be relied upon, and to address requests to edit calls which were to be relied upon. The Crown’s response, whatever the reason, was pathetically and continually inadequate. As early as 3 March, the judge said that he agreed with counsel for the applicant that there was a need to ‘draw a line in the sand’. His Honour often expressed his dissatisfaction with the Crown’s lack of preparation.
The ‘10,000 in/10,000 out’ Crown case was further explained by the prosecutor – still before the jury was empanelled – on 10 March. He told the judge what number of telephone calls he intended to rely upon in that connection, and between what persons the calls had taken place.
The jury was finally empanelled on 13 March. But not until 19 March did the prosecutor open the Crown case. In the interim, there had been discussion between counsel and the judge, inter alia, about the incomplete consideration by the prosecution of requests to edit the calls upon which the Crown intended to rely.
The prosecutor made a power point presentation to the jury in opening. He spoke to it, and expanded upon it. The first thing that he said, apparently by intention with respect to Count 7, was this:
Now again the significant dates in this case are start date, 11 August. Another significant date that you will become aware of is the 6 October, which is the arrest of Tomislav Samac at Broadford on 6 October. The next date is 29 December 2005, which was the arrest of Mr Trajkovski, and finally 18 January 2006, that’s the period when Mr Waters was arrested and the second arrested, Mr Samac.
Now this case is all about trafficking. And trafficking, the definition of trafficking in the Drugs, (indistinct) contains those first three sub headings, a, b and c. Trafficking includes, (a) preparing drug of dependence for trafficking, (b) the manufacture of a drug of dependence, or (c) sell, exchange, agree to sell, offer for sale, or have in possession for sale, a drug of dependence.
Now his Honour will give you directions in due course about that. I will also add that in this case, Counts 1, Count 5, Count 7 and Count 8, are in the context of what we say is an ongoing business, a business of trafficking a drug of dependence.
The prosecutor’s reference to different forms of trafficking, unrelated to any count, led the judge to ask the prosecutor, in the absence of the jury, what was the ‘relevant means of trafficking in this case’. The prosecutor gave specific answers in respect of Counts 3 and 5. Then the judge said
it doesn’t matter about the counts, I’m just asking generally, do you say all of these categories are relevant?
The prosecutor replied ‘yes’. This exchange was later said by the judge to show that in respect of count 7 the Crown case had always involved allegations of trafficking in different ways. Such an all-embracing proposition sat ill with what counsel had said. Several of the categories of trafficking which he had mentioned had no possible relevance to count 7.
When the prosecutor revisited count 7 in his opening, this is what he said:
Mr Waters, trafficking large commercial quantity, and that’s over a five month period between 11 August 05 and 18 January 06, we’re going to adjust the dates slightly, and probably bring 11 August up to 17 August, probably tomorrow morning. Not less than large commercial quantity, meaning one kilogram or a thousand grams mixed substance, with an alternative verdict of commercial quantity, half a kilogram, 500 grams mixed substance. The evidence as disclosed by the telephone intercept material. Importantly, ladies and gentlemen, in this case Mr Waters was not actually discovered with any MDMA, there was no MDMA seizure relating to Mr Waters. There is a related seizure of MDMA in the hands of Samac, but no seizure of MDMA in relation to Mr Waters. The evidence therefore arises from the telephone intercept activity. It’s the phone calls, ladies and gentlemen, that we say underpins and evidence (indistinct) this large, this business of trafficking large commercial quantity.
Essentially the telephone intercepts that you’ll hear unfold in this way, it is open, ladies and gentlemen, to you, by a process of aggregation to find that about 10,000 tablets came across from Samac to Waters in the first eight weeks before Samac was arrested. The Crown ask you infer from the telephone calls that a sale activity, transaction, is taking place. Similarly, when Mr Samac is arrested and taken off the scene, there’s also evidence of Mr Waters seeking tablets from Mr Trajkovski, and we say that Mr Trajkovski was involved in the trafficking of not less than 2600 MDMA tablets across to Mr Waters. There is one call actually involving Waters and Trajkovski that occurs before Mr Samac was arrested, but in general you’ll see that Waters was getting all of his, or most, the vast majority of his MDMA from Samac up until the time when Samac was arrested, and then of course Mr Waters then seeks alternative sources of supply, one is Mr Trajkovski, and another one is fellow by the name of Briggs, Daryl Briggs, who on one occasion provides or supplies Mr Waters.
Now incoming, and when I say incoming from Briggs, it means that there is a phone call where Mr Waters and Mr Briggs are present and you’ll hear quite clearly, you’ll hear that Briggs is describing the tablets as being green aliens and you will also be able to trace in fact where those tablets go to. Those tablets ended up with a fellow in Ballarat called Paul Clay, and you’re going to be hearing evidence from Paul Clay in this proceeding about how he was regularly supplied with ecstasy tablets from Mr Waters. Paul Clay is another – he’s an accomplice and he’s giving evidence in relation to Mr Waters MDMA trafficking pills.
When I say outgoing tablets, right, outgoing tablets, what I mean to say with that is that you are going to be hearing from Mr Clay. When Mr Clay is in the witness box there you are going to be hearing the Waters to Clay phone calls played. All right? So Mr Clay is sitting there, the phone calls are played. I ask Mr Clay what does he say about that call, what does he say about the next call and so forth and so on. So Mr Clay is the only downstream customer, if I can put it that way, that we have as a witness. All of the other downstream activity, in this case the outgoing tablets, is derived from phone calls, the playing of phone calls. So after Mr Clay has left the witness box we then will continue on playing phone calls where Mr Waters is offering for sale a substance of MDMA, or tablets that we say are MDMA to a number of other people.
The evidence is at this time 151 intercepted phone calls, 47 with Samac, 16 with Trajkovski and one with Daryl Briggs. We’re going to have the testimony of Paul Clay. There’s 35 calls with Paul Clay as an MDMA client and 62 other calls with other people as clients.
Emphasising that he was adhering to the 10,000 in/10,000 out case – though he had now identified something over 13,000 ‘incoming’ tablets – the prosecutor also referred to a conversation had on 2 October 2005:
… in fact on 2 October of 2005 you’ll hear some telephone intercepts where Waters is describing to one of his regular small scale customers, a man by the name of Ray Fagan, that there’s ten large coming over and that on the same day Mr Waters also tells Daryl Briggs in a phone call, ‘There was 10,000 of it on Tuesday night and now there’s only 1500 left. I got rid of two straight away.’
The context of that is simply this, that Mr Waters appeared to be communicating to two of his regular customers or two of his downstream customers that there’s a delivery, a big delivery on a plane. We’re not saying that Mr Waters was part of that big delivery, but we say that he was being supplied MDMA tablets regularly by Mr Samac and that he knew that there was a large consignment coming down. In general terms he knew there was a large consignment coming down.
Further, referring to the calls which he intended to play to the jury, the prosecutor referred to calls which pertained to sales to Clay and other customers.
Counsel for the applicant took objection to that part of the prosecutor’s opening cited at [44] above. In the absence of the jury, he informed the judge that there had been a request to edit out that part of the particular call; but that the request had not been addressed.
There were then these interchanges between the judge and the prosecutor:
MR REGAN: I don’t think that any amounts referable to that call would be in an aggregation table.
HIS HONOUR: Would not be?
MR REGAN: I don’t think there would be, sir. I have a fairly good working knowledge of this case and the purpose of that call was to establish an awareness on Mr Waters’ part that a large incoming delivery was imminent.
HIS HONOUR: That’s on the face of it not what he’s saying, it’s an admission of having had a substantial amount of MDMA which he offloaded, which he traded, sold, or got rid of very quickly. That’s what Mr Rochford [for the accused] is saying, but it’s not an awareness, it’s not showing an awareness of him understanding a large – as a large incoming quantity, but rather that he was talking about actually personally trafficking in a substantial amount of the drug.
MR REGAN: We’ll try an work it out, sir. All I can say is that it’s not an intentional sleight of hand. I apologise to my learned friend, we’ll work on it.
Counsel for the applicant applied for the discharge of the jury. There was this interchange between the judge and counsel:
MR ROCHFORD: I’m instructed to ask for a discharge of the jury, your Honour, on the basis that this is now highly prejudicial material that’s been introduced and not consistent with the purpose that Mr Regan has indicated, your Honour, that he sought to open. It’s … capable of being interpreted by the jury as an actual transaction involving eight and a half thousand odd tablets and in my submission that is not – if that wasn’t what was meant to do, it’s capable and only capable of being interpreted that way, and therefore a high degree of necessity arises, bearing in mind the stage of the trial we’re at, that the jury could well be thinking, and we’ll never know, ‘Well, the prosecutor told us about Mr Waters telling Mr Briggs he had 10,000 tablets and there’s only 1500 left, he’s got rid of the lot.’
HIS HONOUR: Why wouldn’t that be evidence of him selling MDMA as part of the Giretti Count 7?
MR ROCHFORD: Mr Regan hasn’t said to your Honour that’s what it is, so the Crown doesn’t put it that way.
HIS HONOUR: But why wouldn’t it be? Why wouldn’t it be put that way?
The obvious gravamen of the submission by applicant’s counsel was that the call could be interpreted as an admission that the applicant had trafficked 8500 tablets on the particular occasion; a matter inconsistent with the Crown’s opening.
There was further discussion between the judge and the prosecutor:
HIS HONOUR: Can I ask you this, Mr Regan, why isn’t it probative of the Crown’s case that there was a sale, that is sale of this amount, assuming that the jury could be satisfied as the truth or an accurate statement as part of Giretti trafficking?
MR REGAN: It is capable, sir. The issue at hand is that my learned friend requested that it be considered for editing.
HIS HONOUR: … all right we know that but why isn’t it relevant to your case?
MR REGAN: It is relevant to the case because my learned friend, Mr Rochford, and his instructor, appear to hold the view that – or submit, rather, that those calls that – were what could be construed as a boast or what – where sometimes he talks in terms of very large amounts having been sold. My learned friends have always represented to me that they consider them to be boasts.
HIS HONOUR: I know but why isn’t it part of your case? Why do you say that it’s something which shows awareness by the second accused of a large incoming amount as opposed to saying it’s an admission by the accused that he sold 8500 MDMA tablets very quickly?
and
HIS HONOUR: It seems to me there isn’t a – on what you just read to me, isn’t it clear conclusion that he’s saying he’s moved eight and a half thousand tablets at all.
MR REGAN: No, sir…
The judge returned to the matter the following day, taking a different approach. He obtained the agreement of counsel for the applicant that the particular call was capable of being an admission by the applicant that he had trafficked 2000 – not 8,500 MDMA tablets; and then asked counsel to explain what his objection to admissibility was.
Counsel referred, in response, to the way that the prosecutor had put the matter in opening. He said this:
Mr Regan’s case is, and Your Honour will recall I requested this very early on, that what Mr Waters does is gets 10,000 tablets in, 10,000 tablets out. This is a different 10,000 tablets. This is not the Crown case as opened, this is not the Crown case as detailed in the documents, this is not the Crown case that I’ve been expecting to meet. This is an extra 10,000 tablets and the Crown can’t say if it’s true or not, the Crown can’t say it’s accurate, the Crown can’t tell the jury, ‘You can rely upon this because we know from surveillance, from undercover buyers, from someone who was involved, from someone who had purchases of these large amounts from Mr Waters, 2000 or 8500 or anything of that nature, that this actually happened but he said, “That’s the highest we can put.”‘ And then Mr Regan says to Your Honour when it’s raised, ‘That’s not, in fact, what he wants to use it for and that’s not, in fact, what the call is about.’ The call is about 10,000 tablets apparently on the way down on a plane being delivered, not already here and gone, not already having been transacted. And that’s the real prejudice to Mr Waters, that that impression has been left and the Crown specifically disavow themselves of that and say, they don’t want to use that for this purpose.
HIS HONOUR: Where is it found that the Crown is relying on 10,000 tablets?
MR ROCHFORD: It’s the first opening and it’s very early on, the 200-odd page, the original opening.
HIS HONOUR: The original opening.
MR ROCHFORD: The original opening, yes, sir. And it’s one of the very first times we were in court after 23 February – I asked how the tablets were being put and it was 10,000 in and 10,000 out, actual sales, actual transactions, not offers to sell, not possession of stock for sale, …
The judge then challenged, as I read it, the submission of applicant’s counsel that the Crown case had been opened as 10,000 in/10,000 out. Counsel referred him to the power point presentation which the prosecutor had used. Then his Honour said this to the prosecutor:
HIS HONOUR: Yes, all right. So in [the opening] you described about 10,000 tablets coming in from Mr Samac in eight weeks, not less than 2600 from [Trajkovski] and 785 from Briggs and outgoing tablets, about 10,000, and then the next page identifies the particular intercepted calls identifying one with Mr Briggs which was the one described. It then goes on to talk about Mr Clay. So, Mr Rochford, there does seem to be confirmation of what you said was the initial position of the Crown but it’s been amplified by the addition of 2600 tablets from the first accused and 785 from Briggs.
After still more debate, the prosecutor stated that the ‘in’ quantity was now 13,885 tablets, and the outgoing quantity, of about 10,000, included the 2000 tablets referred to in the call of 2 October. The judge was critical of what had occurred:
HIS HONOUR: You didn’t actually say to the jury that the Crown was relying on an admission on his part that he had trafficked 2000 tablets, did you?
MR REGAN; No, sir, not with that degree of precision.
HIS HONOUR: Is there any reason why you didn’t tell the jury that? That is your case, isn’t it?
MR REGAN: Yes, sir. For the, the primary purpose of that section of my opening was to - - -
HIS HONOUR: It is your case, isn’t it, that he trafficked 2000 tablets? That’s what you’ve said at p 140?
MR REGAN: Yes.
HIS HONOUR: And you’ve added that into the total of 10,242?
MR REGAN: Yes.
HIS HONOUR: So why not say it to the jury?
MR REGAN: I regret that I didn’t with such precision, sir.
Ultimately, the judge obtained the prosecutor’s agreement to it being made clear to the jury that the 2 October call was relied upon only to prove trafficking of 2000 tablets, which had been included in the original count. The prosecutor did so. Applicant’s counsel did not pursue his discharge application.
A number of observations should be made about this incident. First, after full argument, the judge appears to have been persuaded that the Crown case respecting count 7 was one of trafficking by sale. Second, the judge appears to have been persuaded that the Crown did intend to adduce some evidence simply to prove that the applicant was in the business of trafficking, not to prove the extent of trafficking. Third, the judge provided for the first time an analysis of the use to which particular evidence could be put which had not been the Crown’s intended use. It had no impact on this occasion. But it informed later-occurring events.
After this incident, counsel for the applicant opened his client’s case. He stated that his client was a drug trafficker, that he had pleaded guilty to some charges, that he was not going to walk out of the court. With respect to count 7, he said this:
Again, intention is in issue. It has to be an intention … to traffic a large commercial quantity and it has got to … co-exist, be contemporaneous with the transactions as they take place. It’s in issue that the Crown can prove that beyond reasonable doubt. An example of what I’m talking about here is, you may recall from the Power Point presentation that was put up on the screen, that in this area here Mr Regan had the phrase, ‘ball park figures.’
Ball park figures, ladies and gentlemen, aren’t good enough. They have to prove, and it is a quantification case, I agree with Mr Regan about that, but it’s an intention and a quantification case that are in issue here, and the Crown have to prove the amount is not less that a large commercial quantity and that he had that requisite intention, and so ball park figures beyond reasonable doubt aren’t going to be good enough, ladies and gentlemen. It is in issue that the figures amount to what the Crown say they are. The figures are rubbery.
and
But the figures the Crown put up here are in issue and they are rubbery, and I’ll address you again about that in the fullness of time.
Counsel also referred specifically to the 2000 (out of 10,000) tablets, concerning which the prosecutor had just explained the Crown’s position. He said it was just a particular example of alleged trafficking.
On 24 March, the fifteenth day of the trial, counsel for the applicant complained in the jury’s absence about certain calls upon which the prosecutor was apparently intending to rely in respect of count 7:
This is a piece of paper that [the prosecutor] handed on Friday to my learned junior and myself. Two 31 August calls, seven, six, seven to nine. 5 October and an extra 2,550 MDMA tablets. I know ever since Mr Clay came here and gave evidence on his Basha there are references in phone calls that he intends to play to Mr Clay where Mr Waters is talking about ‘I got rid of four, five, six thousand’ on two separate calls that I’ve asked to be edited out.
It adds up to an extra 11,000 tablets that aren’t part of the 10,000 in and 10,000 out, aren’t in any list of any quantification that Mr Regan relied upon ever and when it was just referred to then Mr Regan looked at [counsel for Trajkovski] and said there’s one MDMA call that we’ve still got to talk about now. He’s totally wrong. He’s totally wrong.
and
These are extra calls. He said to your Honour the calls will only reduce. Well, he adds calls. All the time. He keeps on going over and I’ve asked for the line to be drawn in the sand a long time ago. He keeps on revising, going over, checking, tricking it up, changing it, whatever. But I know for a fact that there’s some 11,000 tablets that Mr Waters has said to Mr Clay he’s sold or got rid of, whatever expression, that aren’t included in any of the figures that Mr Regan has opened to the jury, any of the documents he’s given, and I want edited out along the same lines as we’ve already discussed.
There followed this discussion between the judge and the prosecutor:
MR REGAN: My learned friend Mr Rochford indicates, as I understand it, that those calls where Mr Waters is declaring to people like Clay that he’s got rid of x, y or z, those calls in my submissions are still relevant insofar – and probative as to the scope and the nature of the business, notwithstanding the fact that it could be a boast. Your Honour, it’s a declaration against interest. It’s an admission.
HIS HOUNOUR: But it is correct to say these two calls that add up to something like 11,000 tablets are not in the mix as to the 10,000 in, 10,000 out to use that expression?
MR REGAN: They have not been calculated into the quantification simply because the calls usually are – these types of calls that I said last week, there’s perhaps about a dozen of them where there is a general discussion, there is a declaration about what they say is occurring, generally, they’re - - -
HIS HONOUR: But if you’re putting them into the mix now, it’s not surprising that counsel’s - - -
MR REGAN; Your Honour, those calls, those particular calls where there is an off-the-cuff remark about ‘got rid of this’, or ‘got rid of that’, but no other context, have [n]ever been quantified into the figures, for the purpose - - -
HIS HONOUR: Well isn’t there a danger that if they haven’t the jury will take them and say well there’s another 11,000 tablets? And the Crown’s not even saying that themselves.
The judge continued to criticise the Crown’s preparation of its ‘paperwork’ with respect to both accused – particularly its failure to deal with requested edits in transcripts of calls upon which it relied. For instance, on 26 March his Honour said that he was ‘not going to tolerate’ the Crown asking for more time; and that he was contemplating making a costs order against the Crown as a result of what he considered was ‘a scandalous situation, namely its inability to continue the trial.’
Not deterred, two days later, on 1 April 2009, the prosecutor informed the judge that, so far as the ‘MDMA calls’ were concerned, ‘the final product is not yet available.’ He stated that the edits had been settled between the parties. Counsel for the applicant immediately denied that this was so.
Later that day, one dispute was resolved by a ruling favourable to the applicant. The ruling is only notable because the judge said this:
The Crown ... contends the disputed evidence is probative of the scope and scale of the operation undertaken by [Waters] and shows he was trafficking in ecstasy tablets. That submission is inconsistent with the Crown’s reliance upon the specific amounts which are set out in its opening, which amount to the sale of approximately 10,000 tablets.
I am not satisfied that the evidence has the probative value which the Crown attributes to it. Not because the evidence is that [Waters] was a boaster – that would be a matter for the jury to determine in a given case – but because the Crown does not rely upon this suggested order in compiling the figure of 10,000 tablets. If it did, then the figure would be 15,000 or 16,000 tablets, not 10,000.
The significance of his Honour’s observation is that it confirms his understanding, consistent with the Crown’s case as thus far articulated, that count 7 was to be proved by the trafficking by sale of approximately 10,000 tablets.
On 2 April, the twentieth day of the trial, again in the absence of the jury, counsel for the applicant objected to the admission into evidence of two calls, numbered 1888 and 775. The former was a conversation between the applicant and Clay on 6 January 2006. The latter was a conversation between the applicant and Briggs on 1 September 2005.
The gist of call 1888 was that Clay rang the applicant, seeking to purchase MDMA tablets. Then –
MR ROCHFORD: Mr Waters says ‘What requirement do you need?’ ‘Same requirement probably.’ Mr Waters says ‘Probably not, cause I just finished doing one and it’s finalised. If you’d have rung me earlier I could have done it.’ ‘I told him it’s his own bad luck.’ ‘We’re talking how many?’ Mr Waters says ‘I bought 5000,’ and Mr Clay says ‘You can’t do the same?’ Mr Waters: ‘They’re already gone, they’ve gone out, gone.’ ‘Have you got any left?’ ‘No, all his, that was a special order.’ He goes on to say ‘Could have put an order for an extra thousand and made six.’
There was this interchange between the judge and applicant’s counsel:
HIS HONOUR: It’s not part of the 10,000 tablets.
MR ROCHFORD: It’s not part of the 10,000.
HIS HONOUR: Either in or out.
MR ROCHFORD: Correct. It’s an extra five and again, as I said yesterday sir, there’s nothing in the surrounding intercepts to indicate that any such order was ever made and/or - - -
HIS HONOUR: Well, there’s a statement against interest that he actually purchased 5000 presumably Ecstasy tablets and it’s in the context of him discussing matters with Clay. That’s very different to, it seems to me, the evidence that I excluded last afternoon.
MR ROCHFORD: It’s an extra – and this by itself is sufficient to establish a large commercial quantity. It’s not included in the opening and the reason I mention that is because there is no supporting material on which the jury could determine if this occurred or didn’t occur.
HIS HONOUR: But it’s his admission. Presumably the Crown say he is admitting to having purchased 5000 Ecstasy tablets. ‘I bought 5000 and it’s gone’ so it’s meaning he’s already sold them so it’s an admission of buying 5000 and selling 5000.
MR ROCHFORD: Well, it’s capable of being that, I agree Your Honour. But that’s the very vice of it, Your Honour, because it’s never been included in the Crown case as such.
HIS HONOUR: Why is that? It seems like a very significant omission.
The judge stated that the telephone conversation was an admission against interest by the applicant, and that it was corroborative of Clay’s evidence that he and the applicant had engaged in drug-trafficking. Counsel for the applicant cogently replied that it was not in dispute that the applicant had trafficked MDMA tablets to Clay. The witness had been examined on a Basha enquiry, and no such suggestion had been made.
Counsel argued that the reference to 5000 tablets sold was not probative of the Crown’s case as it had been advanced; and otherwise that the prejudicial effect of the evidence outweighed its probative value.
There followed a lengthy interchange between his Honour and the prosecutor:
MR REGAN: … That exchange, or that utterance does, I concede, appear isolated in the sense that a review of calls, especially calls that would have been around the New Year’s Eve period, has resulted in no other corroborative calls that can be considered as being possibly relevant to the assertion of 5000, and it’s in that context, sir, that we regarded the exchange as being one which was not introduced into the calculation.
HIS HONOUR: But you’ve got an admission, a direct admission against interest of him saying he purchased 5000 ecstasy tablets and he sold them. What better evidence could you have of trafficking in ecstasy tablets?
and
[HIS HONOUR]: … But I don’t understand your reasoning. You’ve got an admission made by an accused that he’s purchased 5000 tablets and sold 5000 tablets. What better evidence could you have of complicity in trafficking in a large quantity of ecstasy tablets?
MR REGAN: Yes.
HIS HONOUR: Why wouldn’t you use it?
MR REGAN: Your Honour, on that analysis there would appear to be no reason why. I had been classifying it as an assertion of scope and magnitude of his business. In other words - - -
HIS HONOUR: But that’s what you said yesterday, and it seems to me that was, in that circumstance, as I ruled, that low probative value, and if it had any at all, it was outweighed by its prejudicial effect, a statement that he knew there was a rave party on … because he’s had some order for 5000 or 6000 tablets.
MR REGAN: Yes.
HIS HONOUR: Now having an order doesn’t mean that he’s agreed to it.
MR REGAN: No, whereas - - -
HIS HONOUR: Whereas here is a definitive statement of having purchased a large amount. Would 5000 ecstasy tablets constitute a large commercial quantity?
MR REGAN: Most likely, sir, depending on tablet weight.
HIS HONOUR: Yes, but on your analysis of multiplying each one by the weight of one tablet, what does it work out at?
MR REGAN: Point 25 grams per tablet, so it’s a quarter of 5000, which is one point - - -
HIS HONOUR: It’s 1.25 kilos, so it’s right on a large commercial quantity.
MR REGAN: It’s .25 over the - - -
MR ROCHFORD: One kilo is a large commercial, Your Honour.
HIS HONOUR: Yes.
MR REGAN: No, one is - - -
HIS HONOUR: One kilo. So it’s well over a large commercial quantity. What do you say is its probative value, its probative effect to the Crown case?
MR REGAN: Well, it’s an admission against interest clearly, sir. But how I had categorised it is probably erroneous because I had been concerned as to the isolated nature of it and the fact that I couldn’t find any corroborative evidence anywhere else which suggests that such a transaction had occurred. There’s nothing else in the call, so I was approaching it very conservatively, sir, in that respect and it’s perhaps my error.
HIS HONOUR: But there’s often no corroboration of what you say is proof of a transaction. If you look at p.139 of your opening, a large number of these calls that you’re saying the second accused, for instance, is having with Mr Vasic - - -
MR REGAN: Yes.
HIS HONOUR: There’s no corroboration that on a particular date there was a transaction of, say, 880 ecstasy tablets on 8 September, is there?
MR REGAN: Not generally with Vasic, no.
HIS HONOUR: So all of this is an interpretation you want the jury to make.
MR REGAN: Yes.
HIS HONOUR: And that on that day, as a result of that telephone conversation, 880 tablets were transacted?
MR REGAN: Yes.
HIS HONOUR: And you keep adding up all these figures until you get to 10,000 tablets?
MR REGAN: Yes.
HIS HONOUR: So what’s the difference between that and this one?
MR REGAN: When analysed in that way, sir, there isn’t.
and
HIS HONOUR: To use the expression Mr Rochford used yesterday in relation to the other matter, this is an uncharged act. You don’t rely on this as conduct from which the jury could infer there was 5000 tablets transacted, and hence add that to your 10,000 figure, do you?
MR REGAN: Well sir, on the analysis that Your Honour has brought to the matter, it’s becoming clearer and clearer that definitive assertion that ‘I bought 5000 and they’re already gone’ is a misclassification by me.
HIS HONOUR: Is it significant that this is a conversation with an accomplice, and hence is corroborative of him in a direct sense, quite unlike the other one?
MR REGAN: Yes. I concede that Mr Clay is in no position to advance that, or does not appear to be in any position to advance whether 5000 was actually transacted in any way.
HIS HONOUR: No, but it reflects on the nature of the relationship though.
MR REGAN: Yes.
HIS HONOUR: Doesn’t it make it easier for a jury to accept Mr Clay as a truthful and honest witness because they know that the second accused is willing to admit to him that he purchased 5000 tablets and sold them?
MR REGAN: Yes sir.
HIS HONOUR: Well you say you’ve made an error, what’s the consequence of that?
MR REGAN: Well the error, the consequence would be that when we say not less than 10,000, it takes it up to not less than 15,000.
HIS HONOUR: So you say that you want to use this as part of the – in a different way to what you did previously?
MR REGAN: Yes sir, I’m afraid that I can see no other way that I can discharge my responsibilities without approaching it in that way.
What order should be made?
Counsel for the applicant informed the Court that, if the conviction application succeeded, his client would not object to the Court entering a verdict of guilty on a count of trafficking in not less than a commercial quantity of MDMA. He submitted that, if a new trial was directed, in light of the Crown’s unsatisfactory behaviour at the first trial, it should be confined on count 7 to a case based on actual sales. The number of sales relied upon, he further argued, should be adjusted downward to reflect the figure upon which the prosecutor finally settled at trial.
Counsel for the Crown submitted that, if the application succeeded, the applicant should be remitted for re-trial on count 7, and that the Crown should be free to conduct the case in accordance with the available evidence.
In my opinion, the Crown’s submission should be accepted. Whilst the Crown’s conduct of the trial was a significant contributor to the chaos which ensued, I think that it would be wrong to shut it out from attempting to prove a very serious offence by available evidence. Nor do I consider that the Crown should be held to a case based only upon sales. Subject to possible exercise of the power to exclude, there would appear to be much evidence of trafficking in a variety of ways in amounts far exceeding the large commercial quantity threshold.
The Sentence Application
The sentence on count 7 was the base sentence on the first presentment. The effect of allowing the appeal against conviction on that count will be that the whole structure of the sentences becomes disorganised. The orders for cumulation cannot stand. The starting point, however, is whether the applicant can satisfy the Court that a different sentence should have been passed on any of the individual counts. In that connection, applicant’s counsel submitted that each of the sentences was manifestly excessive, and that the judge erred by failing to give sufficient weight to identified mitigatory circumstances. He argued those matters together. In light of what I consider should be the outcome of the conviction application, I put grounds 2(ii), 3 and 4 of the sentence application to one side.
It is not in question that the judge accurately described the offending which was the subject of counts 2, 5, 6, 9 and 10 on the first presentment, and the two counts on the second presentment. I have set out his Honours’ characterisation of the offences at [21] above.
The offences the subject of the second presentment were committed whilst the applicant was on bail. Section 16(3c) of the Sentencing Act 1991 applied.
The applicant called in aid on the plea – (1) his pleas of guilty to the various counts; (2) the persuasive evidence that, throughout the period of offending, he was a consistent drug user; (3) his ill health. He had a history of sinus bradycardia, a heart rhythm abnormality problem; and (4), his family and personal circumstances.
As to the last-mentioned, the applicant had endured a dysfunctional childhood. His education had been limited, but he had completed an apprenticeship as a mechanic, and had established his own business.
Having run away from home at age 15, the applicant had lived on the streets for a period. He had established a relationship and fathered a child. The relationship had soon broken down. He had raised the child very well. At age 36, he had established a new relationship, and fathered a second child. That relationship had, eventually, also failed.
The applicant had begun drug use when in his early thirties. He had given up his business as a mechanic, and begun a home renovation business. Later on, he had purchased and run a nightclub at Melton, through which, it appears, drugs were run. All this time, he was using drugs in quite large quantities – at first amphetamines, then MDMA and occasionally cocaine.
The applicant had incurred a substantial criminal history between 1978 and 2005. It involved 13 court appearances, with multiple convictions for motor vehicle offences, and offences of dishonesty. The applicant had not, however, previously incurred convictions for drug offences. The offences on the first presentment were committed whilst the applicant was undergoing a suspended sentence which had been imposed in the County Court in May 2003.
There was positive material that, having been in custody since 2006, the applicant had taken steps to overcome his drug habit. A number of tests had been administered. All had proved negative. The same situation, I interpolate, was shown to be the case – in the event that this Court came to re-sentence the applicant – between time of sentence and March this year.
There was also positive material that the applicant had, whilst in custody since 2006, successfully completed a number of courses. Again, I interpolate, there was material which showed that the applicant had continued to successfully undertake courses since being sentenced.
Before the judge there was a psychologist’s report. His Honour was prepared to accept that it gave some explanation why the applicant became involved in the initial offending, but not that it explained his substantial and multi-faceted drug trafficking. He did accept that the psychologist’s opinion that the applicant had lack of insight into the gravity of his offending and its repercussions for drug users.
Also before the judge were written testimonials. The authors spoke well of the applicant.
One other matter should be mentioned. There was material before the judge that the applicant was being held in protective custody at time of sentence; and that this had been the situation for some time. We were informed, in the context of possible re-sentencing, that this continued to be the situation. It is a circumstance bearing upon the hardship of imprisonment.
In this Court, applicant’s counsel acknowledged that the judge had noted each of the mitigating circumstances relied upon on the plea. He submitted, however, that, all things considered, the sentence imposed were manifestly excessive; and that this bespoke a failure to accord the mitigating circumstances sufficient weight. Sentencing Snapshots were called in aid, as providing a general picture of the range of sentences passed for the various offences. Counsel also submitted that there was an unjustifiable disparity between sentences passed on the applicant and upon co-offenders for the same offences.
Resolution of Sentence Application
In my opinion, the challenge to the sentences imposed on counts 2, 5, 9 and 10 on the first presentment and count 1 on the second presentment fails. Giving full weight to the matters relied upon in mitigation, I am not persuaded that any of those sentences were manifestly excessive.
The offending the subject of count 2 was substantial and prolonged.
In the case of the offending the subject of count 5, the more serious offender was Samac. He was sentenced to 4 years imprisonment, and the sentence was sustained on appeal.[11] His greater involvement was fairly reflected in the lesser passed on the applicant.
[11]Samac v The Queen [2011] VSCA 171, [81].
In the case of count 9 offending, Trajkovski was a co-offender. His involvement was much less than that of the applicant, which satisfactorily explains why he was sentenced to 12 months’ imprisonment – a sentence confirmed on appeal.[12]
[12]Trajkovski v The Queen [2011] VSCA 170, [137].
The offending the subject of count 10 also involved men named Bennett and Reilly. The first of them was sentenced to 2 years’ imprisonment for this offence, and the latter to 2 years and 6 months’ imprisonment. Those sentences withstood appeal.[13] I could not say that the applicant’s somewhat greater sentence bespeaks error – either considered discretely, or considered in light of the sentences passed on the other offenders.
[13]Reilly v The Queen [2010] VSCA 278; Bennett v The Queen [2010] VSCA 280.
The offending the subject of the first count on the second presentment was, in my opinion, unremarkable when it is remembered, inter alia, that it was committed whilst the applicant was released on bail, and was not a single-instance offence.
That leaves the sentence imposed on count 6 on the first presentment and count 2 on the second presentment. In my view, each of them was outside the range of a sound exercise of discretion. The offending the subject of count 6 involved possession for sale of a smallish quantity of methylamphetamine on a particular day, it being conceded by the Crown that most of the drug was for the applicant’s own use. The offending the subject of count 2 on the second presentment was low level trafficking of MDMA on a single day.
I would grant the application for leave to appeal against sentence on those two counts, allow the appeal, and re-sentence the applicant to 1 year’s imprisonment on count 6 on the first presentment and to 1 year and 6 months’ imprisonment on count 2 on the second presentment.
There will need to be new orders for cumulation. They must reflect totality in the absence of conviction and sentence on count 7, and of course making no assumption about what might happen on a re-trial of the applicant on that count.
In the event, and allowing for all the matters urged in a re-sentencing context, I propose that the applicant be sentenced, and re-sentenced so as to produce the following outcome:
First Presentment
Count 2 4 years’ imprisonment (Base Sentence)
Count 5 3 years’ imprisonment
Count 6 1 year imprisonment
Count 9 4 years’ imprisonment
Count 10 3 years’ imprisonment
Count 11 Fine $250
I would cumulate 1 year of each of the sentences imposed on counts 5, 9 and 10 on each other and on the sentence on count 2, the total effective sentence on this presentment then being 7 years’ imprisonment.
Second Presentment
Count 1 1 year and six months’ imprisonment (Base Sentence)
Count 2 1 year and six months’ imprisonment
I would cumulate 6 months of the sentence on count 2 on the sentence on count 1. The total effective sentence would then be 2 years’ imprisonment.
I would cumulate 1 year and 6 months of the total effective sentence on the second presentment on the total effective sentence on the first presentment. To be clear, I would direct that there not be the total cumulation of sentences which is the prima facie position established by s 16(3C) of the Sentencing Act.
The overall total effective sentence would then be 8 years and six months’ imprisonment.
I would fix a new non-parole period of 6 years and 3 months.
I would confirm the other orders made below.
Not derogating from what I said in Samac,[14] doing the best that I can, had the applicant gone to trial on the counts on which he pleaded guilty, and had he been
convicted, I would have imposed an overall total effective sentence of 10 years’ imprisonment and fixed a non-parole period of 7 years and 9 months.
[14]Samac v The Queen [2011] VSCA 171, [88].
WEINBERG JA:
I agree with Ashley JA.
HARGRAVE AJA:
I agree with Ashley JA.
---
8
4
0