DPP v Johnson, Zerna & Bugeja [2008] VSC 330

Supreme Court of Victoria|2008-08-28|Before: Bell J

CRIMINAL LAW - sentencing - conspiracy to traffick in a larger commercial quantity of a drug of dependence - methylamphetamine - three co-accused - one a principal organiser - another the "cook" - the other the buyer of the precursor chemicals - offence objectively very grave - denunciation, general and specific deterrence paramount considerations - rehabilitation and circumstances of offender lesser considerations - offer of plea of guilty to lesser offence not a relevant consideration - principal offender sentenced to imprisonment for period of 15 years with non-parole period of 12 years - other offenders sentenced to imprisonment for ten years with non-parole period of 8 years - Drugs, Poisons and Controlled Substances Act 1981, ss 71, 79.

1 Lance Craig Johnson, Brian David Zerna and Shane Francis Bugeja, on 20 December 2007 you were convicted by a jury of the offence that, at Ferntree Gully, Hurstbridge, Knowsley and diverse other places in the State of Victoria, between the 1st day of October 2004 and the 22nd day of August 2005, you conspired with each other and with a person whose nom de plume is PTO and George Ernest Lipp to traffick in a drug of dependence, namely methylamphetamine, in a quantity that was not less than a large commercial quantity applicable to that drug of dependence.

2 The maximum penalty for trafficking in a drug of dependence in a large commercial quantity is life imprisonment. The same maximum penalty applies to the crime of conspiring to traffick in a drug of dependence in that quantity.

3 By finding you guilty of conspiring to traffick in methylamphetamine in a large commercial quantity, the jury expressed its finding, beyond reasonable doubt, that each of you, as alleged by the prosecution, had entered into an agreement to manufacture that drug, mainly at premises at Knowsley in country Victoria, between the dates alleged. The evidence at the trial also satisfies me, to that standard, that activities associated with that manufacture, and undertaken by or with the knowledge of each of you, took place in the shed at your premises, Mr Zerna, at Mills Road, Hurstbridge.

4 The premises at Knowsley contained equipment and chemical precursors that enabled methylamphetamine to be manufactured, and which were placed there and used in furtherance of the criminal conspiracy of which you have been found guilty. That a very substantial quantity of methylamphetamine was capable of being manufactured in the period alleged, and was capable of being manufactured in the future, is clear beyond any doubt from the size and sophistication of the equipment, the extent of the secrecy surrounding the operation, the quantity of chemical precursors purchased, stored and used, the waste material generated (which contained significant quantities of the drug itself) and the obviously significant monetary investment required to establish a facility of this kind.

5 For example, it was the evidence of a witness, "PTO", who was the main supplier of the precursor chemicals for the manufacture of the methylamphetamine, that he was paid about $60,000 by you, Mr Johnson, up to the time when he was arrested by the police in August, 2005. The police chemist, Michael Perkal, said in his evidence that the condensers found at Knowsley were so large as to be in the largest two or three he had seen. His evidence was the drug-making operation at those premises was in the top six in size, out of hundreds he had seen.

6 The very substantial nature of the criminal enterprise can also be inferred from the fact that the covert police operation by which the facility at Knowsley and your activities were discovered was a major one, involving extremely extensive listening device, telephone intercept and optical surveillance activity, and hundreds if not thousands of hours of police time. The unchallenged police evidence at the trial was that the drug-making facility at Knowsley was one of the largest ever uncovered by the police.

7 The jury has found you all guilty of a conspiracy that was constituted by an intentional agreement to manufacture methylamphetamine in a large commercial quantity at the Knowsley premises. I am myself satisfied beyond reasonable doubt that each of you was fully aware of what was being done at those premises. Even in the absence of evidence of your physical attendance at those premises, Mr Johnson and Mr Zerna, and in the absence of evidence of your DNA at those premises Mr Zerna, and in the absence of any fingerprint evidence implicating you Mr Zerna, I am satisfied that all three of you had that full knowledge. The other evidence of your actions and words, demonstrating your practical support for or full knowledge of the methylamphetamine manufacture being undertaken at Knowsley, was simply overwhelming.

8 The jury inferred from the evidence that the quantity of methylamphetamine in which you conspired to traffick, by manufacturing it, was not less that the large commercial quantity for that drug, namely 750.0g. There was no direct evidence of the actual amount manufactured. The actual amount is not known. However, I am satisfied beyond reasonable doubt that the amount manufactured, as contemplated by the conspiratorial agreement, was conservatively "multiple kilograms", as the prosecution put it. That conclusion is demanded by the nature of the facility at Knowsley, which I have already described, and other matters to which I will now turn.

9 The conspiracy involved careful and deliberate planning over a significant period of time. It would have taken at least many months to establish the methylamphetamine manufacturing facility at Knowsley. The premises had to be found, the equipment had to be obtained or made, the chemical precursors had to be sourced, bought and transported to Knowsley, which all had to be financed before any profit from the sale of manufactured drugs could be made. Actually using the facility also required careful planning, as making methylamphetamine is a potentially hazardous operation for which proper preparations must be made.

10 There is evidence that the facility at Knowsley had been used for methylamphetamine manufacture before the period alleged in the presentment, but not sufficient to enable me to find beyond reasonable doubt that it had been so used by or with the knowledge of each of you. However, the evidence does satisfy me, to that standard, that it was intended by each of you that the facility would be used for that criminal purpose well into the future. I draw that necessary inference from the extent of the planning, effort and expense involved in establishing, resourcing and using the facility. I think no other reasonable inference is open.

11 For these reasons, I consider your offence to be a very serious example of the crime of conspiracy to traffick in a drug of dependence in a large commercial quantity, which itself is a very serious crime. Clearly the offence warrants sentences of immediate imprisonment for substantial periods, my main sentencing task being to set those periods justly and in accordance with the applicable sentencing principles. Those principles require me to identify the circumstances of the offending and the nature of the crime, which I have already done. They also require me to identify the kind and degree of your individual participation in, and moral culpability for, the crime, which I will now do.

12 Although each of you all had full knowledge of what was being done at Knowsley in furtherance of the conspiracy, the evidence showed you had different roles and responsibilities in the criminal enterprise, which bears on the sentences that I should individually impose. However the prosecution may have described your roles at different points in the trial, the evidence conclusively revealed there was a hierarchy in which you, Mr Zerna, were significantly higher than Mr Bugeja, and in which you, Mr Bugeja, had a different role to, but were at about the same level as you, Mr Johnson. It would not be accurate to say of either of you, Mr Johnson or Mr Bugeja, that you were at the bottom of the hierarchy for criminal enterprises of this kind, as your roles were well above that of a drug distributor or street dealer.

13 Mr Zerna, you were a principal organiser of the conspiracy and the methylamphetamine manufacturing enterprise which it involved. On the evidence in this trial, I cannot be satisfied beyond reasonable doubt you were at the same level or lower than Mr Lipp in the hierarchy although, as I have said, I am satisfied you were higher than Mr Bugeja and Mr Johnson. In fairness, I will sentence you on the basis that, in the hierarchy, you were above them but not as high as Mr Lipp.

14 I have taken into account the absence of any DNA or fingerprint evidence against you, Mr Zerna, and that only $80 cash was found at your Hurstbridge premises by the police, and the absence of any evidence of your physical presence at Knowsley, and of any incriminating interceptions of your telephone conversations. However, your role as a principal organiser was established by many other features of the evidence.

15 Your co-conspirators were frequent visitors to your shed at the Hurstbridge property, at which the manufacture of drug-making apparatus was carried out. The police found methylamphetamine on an item at that property. They also found materials relating to methylamphetamine manufacture, including funnels, condensers, a stirring arm, bottles of sulphuric acid and so on. Mr Johnson saw a large quantity of money at those premises. You had a book on making amphetamine there, which would have been useful to you in understanding how methylamphetamine was made, and files on your computer contained the same kind of information, even accepting it probably came from Mr Lipp.

16 You directed Mr Johnson in relation to the substantial and on-going chemical purchases that had to be made to support the operation at Knowsley. Covert audio surveillance captured you discussing, with one or other of your co-conspirators on many occasions, subjects such as the methylamphetamine manufacturing activities at Knowsley, selling that drug, buying chemical precursors and transporting them to Knowsley. A list of chemical precursors that Mr Johnson gave the chemical supplier, PTO, came from you. You spoke and behaved like Mr Bugeja's and Mr Johnson's boss. When it became necessary to meet PTO, you were brought in as the boss of the operation by Mr Johnson. At that meeting, you discussed with authority subjects such as the payments that would be made to PTO, the future supply by him of chemical precursors to your group and, at your request, PTO not supplying precursors to another syndicate with whom your group was in competition, all of which demonstrates the centrality of your organising and directing role.

17 Mr Bugeja, you were what is called in the parlance a "cook". This means you were responsible for making the methylamphetamine at Knowsley, using the equipment manufactured or supplied by Mr Zerna and Mr Lipp, and the chemicals obtained by Mr Johnson at Mr Zerna's direction. You stayed at Knowsley at various times, and intended to do so in the future, so you could carry out your role more conveniently. You were sufficiently trusted by Mr Lipp and Mr Zerna to go to and be at Knowsley alone, although, so as to ensure your role was being performed properly, they preferred you to be supervised. Acting on Mr Lipp's direction, and sometimes giving him help, you prepared the chemical precursors and methylamphetamine manufacturing equipment for use, and actually carried the operations out. You were responsible for the extensive cleaning required after a drug-making operation had occurred. When necessary, you would transport chemical precursors to Knowsley. I am satisfied beyond reasonable doubt that you did so on one occasion using a hired utility, and I reject your counsel's submission you did not do so knowingly. I do not base this finding on the prosecution evidence at the trial that you engaged in anti-surveillance measures when followed by the police, as to which I make no finding.

18 However, your role as against Mr Zerna and Mr Lipp was subservient. The evidence shows these men, at times, exhibited little respect for you, made criticisms of you, considered you to be dispensable and, as I have said, thought you needed supervision at Knowsley.

19 Mr Johnson, your main role was to act at Mr Zerna's direction in buying necessary precursor chemicals and laboratory equipment for making methylamphetamine at Knowsley. That was a significant function which placed you among those who were responsible for carrying out activities associated with the actual manufacture of the drug, as compared with people whom the courts often find lower down the hierarchy, such as those who might be involved in street-selling or distribution. Mr Zerna and Mr Lipp placed considerable trust in you over a long period of time. You appreciated how important your purchasing role was to the methylamphetamine manufacturing being carried out, although you did not know the actual function, and did not yourself calculate the quantities, of the chemicals which you bought on their behalf. Unlike Mr Zerna, you were not a principal in the drug-making operation. Unlike Mr Bugeja, you did not actually make the drugs at Knowsley, or perform other important tasks there, such as cleaning up after a drug making episode. But you were the main person responsible for buying the precursor chemicals which, in my estimation, places you on about the same level as him in the conspiracy.

20 I accept your counsel's submission that you were disorganised and intoxicated on occasion, which reflected your overall drug-affected lifestyle, but you still took your role seriously and carried it out with considerable energy over a long period of time. Significantly, it was you who dealt with your group's main supplier of chemical precursors, PTO, and it was you who arranged, and witnessed, an important meeting that took place between him and Mr Zerna. PTO did describe you as a "runner, a person who just went out and purchased items, picked them up and paid for them". I think this only partly conveys the significance of your role in the criminal enterprise to which you were a party.

21 You were acquitted of the charge of trafficking in a drug of dependence, namely methylamphetamine, by selling that drug. In fairness, I will not sentence you for the crime of conspiracy of which the jury found you guilty on the aggravated basis that your role included selling that drug, for this would probably be inconsistent with the jury's verdict on the trafficking count; but, when sentencing you for the crime of conspiracy, I will take into account in your favour (to the limited extent permissible) your drug-affected lifestyle, which was established by other evidence.

22 As to each of your personal circumstances, I begin with you, Mr Zerna. You were born on 15 October 1963 and are 44 years of age. Your occupation is a bricklayer and, until delivering yourself into custody when the jury pronounced their verdict, you lived with your wife and three daughters. You are devoted to your family and they are devoted to you. It is a great credit to you that your daughters are progressing well in life, all of them going through secondary or tertiary education. It will weigh heavily on you that you will not be present for a significant part of their future growth, and that the life of your family has been and will be adversely affected by your trial and imprisonment.

23 You grew up in the north-eastern suburbs of Melbourne and attended technical and high school until Form 5. You have always worked hard, and I note you are doing useful work in prison. You commenced work as a trainee at a metal plant. When it closed, you underwent a bricklaying apprenticeship. You have done landscaping and other bricklaying work, including building retaining walls for major road works. Your more recent work has been in the demolition industry.

24 You have one prior conviction, but it is a significant one. On 19 October 1998 you were convicted of the charge of burglary of the Sigma factory, for which the sentence imposed was imprisonment of a period of four years with a non-parole period of two years and six months. This is significant because the purpose of the burglary was drug-related. Therefore your present conviction is the second occasion on which you have been found guilty for a serious drug-related offence. Clearly that conviction and sentence, which was not long ago, did not act as a sufficient deterrent against further offending on your part. However, you were not sentenced as the principal in that earlier crime. Mr Lipp, who was your co-accused on that occasion, was sentenced on that basis and received a significantly higher sentence than you.

25 As a result of your arrest for the crime for which you have been convicted, the property at Hurstbridge that you owned with your wife was restrained, and has now been sold. Only about $189,000 of its value remains, and half of that at least will presumably go to your wife. There will be other claims on your share, so it appears likely you will lose your main asset as a result of your offending, which is a hardship I should take into account, to the limited extent permissible, in the calculation of your sentence.

26 You will be supported in prison by your exceptionally loving and supportive family, with the result that you are likely to stay in contact with the community and be capable of leading a productive life on your release. You do not drink or use drugs and have trade qualifications that you could fall back on when you are released. As I have already said, you are a hard-working person, who possesses considerable energy and endeavour. I therefore accept you have some prospects of rehabilitation on release, depending on how you approach your life at that time. Rehabilitation is not, however, a significant sentencing consideration for a crime such as this, especially in relation to a principal organiser.

27 I can discern no mitigating factors in the circumstances of the crime or in your own personal history. Your motive for engaging in the conspiracy and the methylamphetamine manufacturing it involved was monetary gain. Your moral culpability for committing the crime is unqualified. You maintain your innocence of the charge of which the jury found you guilty.

28 Mr Bugeja, you were born on 18 August 1968 and are 40 years of age. You had a very unfortunate childhood and teenage upbringing, which has been well documented in the two reports tendered on your behalf.

29 The reports are from Carla Lechner, a Consultant Clinical and Forensic Psychologist, dated 8 September 2005, and Jeffrey Cummins, also a Consultant Clinical and Forensic Psychologist, dated 23 January 2008. They tell a sad story of a young boy who grew up in appalling and damaging circumstances in his formative years. This impaired you in the development of virtually all areas of your life, including your education, which ended before you had properly completed year 10. Your employment has only ever been unskilled, and has been intermittent over your working life.

30 You are single, but have two children by your former de facto partner, both daughters, and aged 10 and seven years. Your mental health is fragile, and deteriorated when that relationship ended about seven years ago. You were also emotionally affected by the relatively recent deaths of your mother and half-brother.

31 You have a history of using drugs of various kinds from an early age. Drug use by you was a significant feature of the evidence in the present case, although you deny being drug dependant.

32 I won't go into the details, but your forensic psychologists did not find you to be an intelligent person - around the top of the below average range. They found you to be clinically depressed or to have a chronic adjustment disorder. You did not display to them a good insight into your condition or your offending, and they regarded you as someone who could be easily influenced.

33 Despite your extremely disadvantaged background, you have demonstrated a genuine desire to help others, particularly young people. In that regard, I have read the references tendered on your behalf from the operations manager of the First Step Program and the first aid trainer and president of the Hadfield Football Club, which show you in a very positive light, especially in the way you have brought out the best in young boys, both on and off the field. Consistently with this positive side to you, you have been frequently visited in prison.

34 Mr Bugeja, you have admitted a number of prior convictions in the period from 1986 (when you were aged 27 years) to 2001 (when you were aged 33 years). These convictions were for relatively minor matters when compared with the present matter. There is one serious conviction for which you were sentenced to a period of imprisonment, being causing serious injury intentionally for which, on 15 July 1991, you were sentenced to be imprisoned for a period of 18 months with a non-parole period of eight months. You have convictions for drug-related offences in 1987, for possession and use of Cannabis, and in 1991, for possession of Cannabis. You have a 1999 conviction for possessing heroin. But you have no convictions for crimes such as trafficking in drugs.

35 I can discern no mitigating factors in your participation in the conspiracy of which the jury has found you guilty. Your motivation was apparently also monetary gain, but there is no evidence you obtained any significant financial betterment. You were living in close to poverty stricken conditions during the relevant period. The police found you in possession of no significant cash, either on your person, at your premises or in your bank accounts. Your moral culpability for the crime has to be seen in the context of your drug-affected lifestyle and disadvantaged background, which I have already described.

36 Mr Johnson, you were born on 16 August 1969 and are 39 years of age. Your occupation is unemployed chicken-boner. You were living at home with your elderly parents at the time the offence was committed, and you have a good relationship with them.

37 You are poorly educated, having left school after completing year 8. That was confirmed by some of the evidence at the trial. Your main work has been in your father's chicken shop. While on bail, and until you delivered yourself with Mr Zerna and Mr Bugeja into custody on the pronouncement of the jury's verdict, you did maintain employment, paid tax, and stayed off drugs, which enabled you to maintain your bail conditions, of which you are justifiably proud.

38 In a report dated 26 March 2008, your Forensic Psychologist, Elizabeth Warren, said you have had chronic amphetamine dependence, with its associated lifestyle, since you were aged 17 years. You experience various kinds of thought-disorder, which decrease during periods of abstinence from taking drugs. You also have significant problems with gambling addiction. Ms Warren found you to be in the upper range of average in intelligence, but I do not think you acted with that degree of intelligence when committing the crime of which you have been convicted by the jury.

39 You have a large number of prior convictions for property offences, including theft, burglary, going equipped to steal and similar offences, from May 1993 (when you were aged 23 years) until April 2004 (when you were aged 34 years). You have served several periods of suspended and actual imprisonment for these crimes. You have only one conviction for a drug offence, that of possessing amphetamine in 1993. Clearly enough, however, your history of offending has been related to your drug and gambling addictions.

40 You are thinking of a life beyond prison, and have generated plans for your post-release. You intend to relocate to Queensland to live with a paternal uncle and hope to start life anew.

41 I am satisfied your motivation for being part of the enterprise was to obtain some money, which you could not otherwise earn due to your drug-affected lifestyle, and also to gain access to the drugs on which you were dependent. There is no evidence you obtained any significant financial betterment. You too lived in very modest circumstances. You were not found to have any significant amounts of money, either in cash or in your back accounts. Your moral culpability also has to be understood in the light of your drug-affected lifestyle and disadvantaged background, which I have already described.

42 That completes what I want to say about all of your personal circumstances. I turn now to the issue of remorse.

43 Each of you pleaded not guilty to the crime of conspiracy to traffick in a drug of dependence in a large commercial quantity with which you were charged. Therefore, no sentence discount for pleading guilty is available. Of course you will receive no penalty whatsoever for exercising your rights to plead not guilty and put the prosecution to its proof at the trial. (In that regard, I note the defence of each of you was conducted with commendable efficiency, your counsel being instructed to make a large number of sensible concessions which significantly reduced the length of the trial.)

44 However, reference has been made by your counsel, Mr Johnson, to you being prepared to plead guilty to the lesser offence of conspiracy to traffick in a drug of dependence in a commercial quantity. Apparently that plea was not accepted by the prosecution because it was not offered by all of you. That was the prosecution's prerogative. The fact that an accused person offered to plead guilty to an offence lesser than the one of which they were convicted has no bearing on the sentencing process one way or the other. The discount for pleading guilty is available because it saves the community and the witnesses the trouble, expense and trauma of a trial. It might also be relevant as signifying that the accused feels sincere remorse. None of those considerations applies where the offer is to plead guilty is made with respect to a lesser offence.

45 In the result, there is no evidence of remorse on the part of any of you.

46 The offence of trafficking in a drug of dependence in a large commercial quantity was introduced by legislation in 2001 with effect from 2002. The same legislation introduced the new maximum penalty of life imprisonment for that crime. The creation of that new crime and the specification of that new maximum penalty expressed the Parliament's abhorrence of large scale drug trafficking. It also indicated the Parliament's view of the seriousness with which the courts should regard that crime in the criminal calendar.

47 The sentencing principles for crimes such as this require me to give predominant weight to objective considerations such as the gravity of the offence, denunciation, retribution and deterrence and comparatively less weight to subjective considerations such as rehabilitation and the circumstances of the offender.

48 The crime of which each of you has been convicted is objectively very grave. It was a conspiracy involving a very substantial methylamphetamine making operation. The evidence compels me to find that multiple kilograms of that drug were actually manufactured in furtherance of that conspiracy. But the actual amount is not known. If it had been established that the quantity of methylamphetamine actually manufactured was much greater than multiple kilograms, you would each have received higher sentences.

49 Mr Zerna, you have a directly relevant and recent conviction for a drug-related burglary. This means, for the crime of which the jury has now found you guilty, I should give more weight to the considerations of specific and general deterrence as they apply to the sentence I must pronounce for that crime. As a principal organiser of this very substantial conspiracy and its execution, your sentence must be the highest I today impose.

50 Your counsel submitted I should take into account as a sentencing consideration in your favour the delay between your arrest and ultimate trial before a jury and also the delay between your plea on sentence and your sentence today. There has been some delay in these respects, which I regret, but not such as would be proper, under the sentencing principles, to take into account in calculating the sentence I must impose on you. The same is the case with you Mr Johnson and you Mr Bugeja.

51 Mr Bugeja, this is your first conviction for a serious drug offence, and your role in the criminal enterprise was less than Mr Zerna's. That consideration, and the others I have mentioned, will be reflected in your sentence, which must still be substantial, having regard to the very grave character of the crime and the other considerations I have mentioned. It must, however, be lower than Mr Zerna's.

52 Mr Johnson, this too is your first conviction for a serious drug offence, and your role in the criminal enterprise was below that of Mr Zerna but about the same as that of Mr Bugeja. These matters too, and the others I have mentioned, will be reflected in your sentence, to the extent appropriate.

53 Mr Johnson, in all of the circumstances, for the crime of conspiracy to traffick in a drug of dependence, namely methylamphetamine, in a quantity that was not less than a large commercial quantity applicable to that drug of dependence, you will be sentenced to a term of imprisonment of ten years. I fix a minimum term of eight years before you become eligible for parole. Pursuant to s 18 of the Sentencing Act I declare the time you have spent in custody in relation to these proceedings is 379 days (exclusive of today) and I direct it be reckoned as a period of imprisonment already served under the sentence imposed.

54 Mr Bugeja, in all of the circumstances, for the crime of conspiracy to traffick in a drug of dependence, namely methylamphetamine, in a quantity that was not less than a large commercial quantity applicable to that drug of dependence, you will be sentenced to a term of imprisonment of ten years. I fix a minimum term of eight years before you become eligible for parole. Pursuant to s 18 of the Sentencing Act I declare the time you have spent in custody in relation to these proceedings is 374 days (exclusive of today) and I direct it be reckoned as a period of imprisonment already served under the sentence imposed.

55 Mr Zerna, in all of the circumstances, for the crime of conspiracy to traffick in a drug of dependence, namely methylamphetamine, in a quantity that was not less than a large commercial quantity applicable to that drug of dependence, you will be sentenced to a term of imprisonment of 15 years. I fix a minimum term of 12 years before you become eligible for parole. Pursuant to s 18 of the Sentencing Act I declare the time you have spent in custody in relation to these proceedings is 291 days (exclusive of today) and I direct it be reckoned as a period of imprisonment already served under the sentence imposed.

Poisons and Controlled Substances Act 1981

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