Arico v The Queen [2018] VSCA 135

Arico v The Queen [2018] VSCA 135 - VSCA 2018 case summary — Zoe

[43]

Witness A: I'll see you Monday, all right?

Applicant: You don't want me to take your rort over?

Witness A: No.

Applicant: Hey? I cleaned already ya bastard.

Witness A: Bullshit.

Applicant: (Laughs) Yeah.

Witness A: Swear.

Applicant: Yeah, it's the best.

Witness A: Swear on your daughter.

Applicant: I'm not going to swear on my daughter on that shit. I recruited him already. You think I'm going to wait for you, you banana.

Witness A: Thanks.

Applicant: What do you means thanks? I haven't but I will. You want to be in on it or not?

Witness A: Yeah.

Applicant: Well ... bring him. I've got someone else that can take it to him otherwise.

Witness A: What for? Why?

Applicant: Well you bring him.

Witness A: He's my mate.

Applicant: Well, bring him. There's time now. Trust me.

Witness A: How many?

Applicant: Whatever you want.

Witness A: How much?

Applicant: How much you want a 'bomb'?

Witness A: Nah...How much?

Applicant: Hey? Hey? A little kick. (whispers) I'll give you (inaudible) one forty five dyno.

Witness A: Bollocks.[3]

Applicant: Dyno.

Witness A: Bollocks. Fucking bullshit.

Applicant: Here. Shake. My word.

Witness A: (Inaudible) Yeah ... How much did you do it for?

Applicant: No, no, no ...

Witness A: Swear.

Applicant: I give you my word.

Witness A: Swear.

Applicant: I just gave you my word you fucking idiot. What's wrong with you?

([Z] returns)

[Z]: That's the landscape yeah? The advertising, the whole thing comes to $20,950.

Applicant: Fucking cheap.

[Z]: All right? And there's been no interest incurred.

Witness A: Let's not pay interest, we're going to resolve this next week, all right? Hold on to it, hold on to it.

Applicant: Hey I give you my word.

Witness A: One hundred and forty five?

Applicant: Yeah.

Witness A: For one of that?

Applicant: Dyno. As many as you want.

Witness A: Bollocks, bollocks...(inaudible)...shit.

Applicant: I give you my word. Dyno. (inaudible word)

Witness A: How big is it?

Applicant: Huh?

Witness A: How big?

Applicant: (inaudible)

Witness A: How big?

Applicant: Fucking like that. They're 'Mickey'[4], they ... it's the best around.

Witness A: Yeah yeah.

Applicant: From the Asians.

Witness A: Asians?

Applicant: Yeah. From there. I give you my word you fucking idiot. Have I ever lied to you?

Witness A: No, I'll speak to you Monday.

Applicant: No problem.[5]

[252]

the applicant's apparent willingness, in 2010, to lend $50,000 in cash to someone who was not a close friend, and who could scarcely be regarded as a good credit risk;
the applicant's comments to B regarding her not being at risk from him, in response to his being accused of responsibility for the damage to Witness A and B's house and car;
the evidence concerning the return trips from Melbourne to Perth in 2011, said by the applicant to be mere 'coincidence';
the photograph of the injury to Witness A's jaw, which made it clear that the bruise inflicted upon him was the product of a significant blow to the jaw. In light of this, the applicant's claim that there had never been anything other than a 'bit of wrestling' between them was obviously untrue;
the applicant's explanation of why he had arranged for a false invoice, in an amount of just over $100,000, to be created, and to be backdated;
the suggestion by the applicant that his anger at Witness A in 2014 stemmed from Witness A not having paid a landscaper a relatively small amount of $4,000 or so;
the applicant's repeated use of 'code' in numerous recorded conversations with Witness A and others, over a lengthy period;
the applicant's extensive use of the jargon of drug trafficking, in the course of the recorded conversation. His explanation that he was just talking 'off the top of his head' could hardly have seemed credible;
the applicant's suggestion that the conversation recorded over the phone, with regard to B's brother, did not constitute any sort of threat;
the account that the applicant gave as to how the Vespa had come to be in his possession, without his having the slightest knowledge of the contents of the compartment under the seat to which he had the key;
the applicant's decision to call Andos, and the evidence that he gave regarding the purchase of the Vespa. This leant force to the prosecutor's suggestion that the applicant prevailed upon Andos to give a palpably false account of that matter; and
the same could be said of the implausible evidence given by J as to the applicant's discussion with him moments before the recorded conversation commenced.

[290]

HIS HONOUR: There is an issue in the trial as to whether [the applicant] owned the vehicle and when he possessed the pistol. The only - I'm sympathetic to the proposition that the charges, that in themselves are difficult to prosecute jointly, that is [charges] seven and eight, with the rest, because to prove that he was a prohibited person would be to put effectively such bad character evidence before the jury that it would prejudice his case.

[DEFENCE COUNSEL]: Yes.

HIS HONOUR: I don't take the prosecutor to argue with that.

[DEFENCE COUNSEL]: He doesn't seem to.

HIS HONOUR: No, and as to the drug, it's such a small amount that if there is to be a trial in relation to prohibited person possessing firearm, that would be conveniently dealt with at the same time. So for the order [sic.] for appropriate management of this trial, [charges] seven and eight should be severed. However, the only remaining issues is [sic.] what evidence from that search and investigation can be led, and that's what we're talking about.

[DEFENCE COUNSEL]: Yes.

HIS HONOUR: And the only thing that really is controversial is the finding of the pistol with the box of ammunition, and for the reasons that [the prosecutor] explained, I think that is relevant, your case is they're not mine away [scil., anyway?] and I didn't make the threats, and it's because that is the issue, the finding of the gun, if the Crown can put it in yes [scil., your?] client's possession, is of significance. If they contain [sic.] the jury will be told in no uncertain terms to ignore it.

[DEFENCE COUNSEL]: Yes, and I assume that Your Honour's in those comments has already looked at and considered s 137 [of the Act].

HIS HONOUR: 137 is the prejudice side of it.

[DEFENCE COUNSEL]: Yes.

HIS HONOUR: There is no prejudice if it's not yours. If it is yours the prejudice is perfectly appropriate if it is your pistol and the Crown can establish beyond reasonable doubt that you own that, that you were in possession of that pistol.

[DEFENCE COUNSEL]: Yes. There's one other ---

HIS HONOUR: It makes more likely and more credible the evidence of [Witness A], that you made the threats that he says you made.

[DEFENCE COUNSEL]: Yes.

HIS HONOUR: So that is the 137 - I don't see any unfair prejudice.

[DEFENCE COUNSEL]: Your Honour, the ---

HIS HONOUR: When you say it's not mine anyway and I'll demonstrate it's not mine.

[337]

In considering the significance of this evidence, the jury were, of course, not bound to consider the significance of each item standing on its own. The coffee grinder (item 4) was said to have a residue of white powder in it. A police witness gave evidence that Glucodin is used to 'cut' heroin, and that resealable plastic bags of the kind in question are regularly used by heroin dealers. A bag of the same kind contained the heroin the subject of the charge. The police officer also gave evidence of the market price of heroin in various quantities. Each of the items in question was perfectly capable of being used for an innocent purpose, but that does not determine the issue.

Evidence of this kind is frequently received on the basis that the Crown is entitled, in a case such as the present, to show that the accused was possessed of the implements or accoutrements of trade of a drug dealer. This, no doubt, is why there was no objection to most of the items, including the large sum of cash. ...

Where the issues are whether a person was found in possession of heroin, and whether he or she possessed it for supply, the fact that the person is currently in the business of a drug dealer is a fact relevant to the issues in the case. It is not mere evidence of propensity to commit crime, or bad character: cf Harriman [1989] HCA 50; (1989) 167 CLR 590; 43 A Crim R 221; Thompson and Wran [1968] HCA 21; (1968) 117 CLR 313 at 316-317. If, for some reason, in a civil or criminal case there were an issue as to whether a man was found in possession of clothing material with an intention of cutting it, it would ordinarily be of relevance to show that the man was carrying on the business of a tailor. That might be shown by evidence that, when asked his occupation, he said he was a tailor. It might also be relevant to prove that he owned a tape measure, a pair of tailor's scissors, a quantity of samples of cloth, and some books showing a collection of clothing designs. Evidence that tends to show that a person is in the business of dealing in heroin also tends to show a propensity towards crime, but in a case such as the present it is admissible on the former account, not the latter. Moreover, subject to discretionary considerations to be mentioned below, the fact that it bears the latter character does not detract from its relevance or render it inadmissible.

[463]

There are no other relevant mitigatory factors. You do not get the benefit that flows from a plea or pleas of guilty. You have exhibited absolutely no remorse. You have lied to the psychologist, as I said, as to the character and nature of your dealings with [Witness A]. ... You did not lend $50,000 in cash. You were not a rehabilitated man when you were released from prison in 2008 and you are a drug dealer and standover man. You intended [Witness A] to fear violence to himself and his family and indeed you violently assaulted him at a time his property and that of his family were being subjected to an orchestrated attack and damage. As I said repeatedly during your plea, I am not sentencing you for any crime save those [for which] the jury returned verdicts of guilty. I make it clear that I am not punishing you for your alleged drug dealing with Mitchell or [Witness A] between 2010 and 2013. I am not, in any way, holding you responsible for the attacks on [Witness A]'s home and vehicles.

Your evidence to the jury in your first trial was clearly rejected by the jury and the constructed false story exposed for what it was. Witnesses you have called at both trials lied about your involvement in extremely serious offending and, again, that evidence was rejected by the jury.

You threatened death and serious injury on three discrete occasions.

Your history for violence, shooting people, make those threats real. You punched [Witness A] to the chin, you possessed the means to inflict death or serious injury with a .45 calibre pistol and ammunition you possessed. You trafficked in a large commercial quantity of a drug of dependence.

I accept that the intentionally cause injury charge and the trafficking in a large commercial quantity of drugs charge fall towards the lower end of the ranges of sentences for such offending. Your extortion offences and firearms offence do not.

The maximum penalty set by Parliament for your offences clearly establishes how seriously the law regards each of your offences. The principles of general deterrence, specific deterrence and just punishment dictate that substantial terms of imprisonment must be imposed for your offending.

Trafficking in large commercial quantity of drugs threatens the stability of our society. You sought to profit from the weakness and addiction of others.

You were a complete outlaw at the relevant time. You saw Brunswick as your personal fiefdom. You controlled real estate agents, bankers and building contractors. You could persuade people like [Z], [J] and Pastras to do what you required to be done.

You were an experienced criminal with a serious, violent history. It is no coincidence that [Z] suggested that [Witness A] should be 'put in the boot'. On 5 February 2015 a telephone conversation between you and [Z] was recorded by police. At one stage during that conversation you said 'He's a fucking lying dog, this cunt'. [Z], 'Mate he's a fucking - he's got to go in the boot mate, that cunt, I'm telling ya. He's fucked'. You, 'Ah, you should never joke like that, Peter'.

Your conviction in December 2001 for kidnapping involved you and others attacking a man in his car. You were one of four men who pulled up near him in a car. He was then punched, kicked and pistol whipped, he was put in the boot of the car. You told [Z] not to joke. You were surveillance alert but clearly the conduct was the way you had acted in the past.

You continually threatened and sought to intimidate [Witness A]. The three charges of extortion for which you were convicted are to be viewed against a series of ongoing threats and implied threats by you.

On 5 December 2015 you were recorded saying to [Witness A] 'You and your fucking dog, missus, okay youse haven't - you dragged this - you heard what I fucking said. You and your fucking dog missus have dragged this out enough. If the money's not paid next week you fucking watch, cunt. I've had enough of ya, see ya later'.

On 26 February 2015 you told [Witness A] - [Witness A] said to you 'I'm returning your call'. You said 'Okay, if she wants to play games, tell her I'm gonna start playing fucking games too now, okay? Good luck to ya's'. They're just two examples of your ongoing attempts to threaten and intimidate [Witness A] and his wife.

It follows, in my view, that each of your extortion charges are serious examples of that offence. As for your pistol I was referred to a number of authorities by your counsel and obviously I have considered each of them. I consider your offence to be a serious example of the offence of prohibited person possessing a firearm for seven reasons.

You had a large quantity of ammunition, 150 rounds;

The weapon was a pistol;

The weapon was operational and functional;

You have prior convictions involving the use of firearms;

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