CRIMINAL LAW - Sentence - Conspiracy to traffick a drug of dependence in a quantity not less than the commercial quantity - Accused police officers - Members of Drug Squad - General deterrence.
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1 Stephen Alan Cox and Glenn John Sadler, you have both been found guilty by the jury empanelled on your trial of one count of conspiracy to traffick heroin in a quantity not less than the commercial quantity applicable to that drug of dependence.
2 The count on which you were convicted alleged that, between 1 April 1999 and 6 December 2002, you conspired together, and with Ian Norman Ferguson, to traffick heroin in a quantity not less than the commercial quantity applicable to that drug of dependence. Originally you had been jointly charged with Ferguson, but I ruled that your trials should be heard separately to that of Ferguson. On his trial, which preceded your trial, Ferguson was convicted of the same charge, and was sentenced to 12 years' imprisonment with a minimum non-parole period of eight years. At your trial, evidence was led as to the role and involvement of Ferguson in the conspiracy. That evidence was substantially the same as the evidence led in Ferguson's trial and on the basis of which Ferguson was convicted and sentenced.
3 It is first necessary for me to identify and make findings in respect of the facts relevant to your sentences. Any finding of fact by me must be consistent with the verdict of the jury, and consistent with the manner in which the Crown put its case to the jury.
4 At the time alleged in the presentment both of you and Ferguson were members of the Drug Squad of the Victoria Police. You, Cox, were the detective sergeant in charge of the crew of which you, Sadler, and Ferguson were both members. That crew's area of responsibility focussed on the detection and arrest of traffickers of heroin, particularly among Asian members of the community. An important part of the work of the Drug Squad involved recruiting persons, who had been arrested on drug trafficking charges, to act as informers, with a view to effecting the arrest of other persons who were responsible for drug trafficking. The use of informers was, and still is, critical to the successful work of the Victoria Police in the detection, apprehension and prosecution of drug traffickers.
5 The essence of the conspiracy as put to the jury by the Crown consisted of an agreement between both of you and Ferguson to traffick heroin through Duy Le, who had been arrested on drug trafficking charges, and who had been recruited to act as an informer to the Drug Squad. The Crown case against you, Cox, was that you were the person who first cultivated Duy Le in the second half of 1999, and that you instigated the trafficking arrangement with the assistance of Sadler. The Crown case against you focussed on your activities in the second half of 1999, although the Crown alleged that thereafter you continued to have a degree of involvement. In particular you were consulted from time to time by Ferguson and Sadler in respect of issues which might have led to the apprehension of Duy Le and exposure of the conspiracy. Finally when Duy Le ascertained that the police had learnt of the purchase by Ferguson of a BMW motor vehicle from him, you were involved with Sadler and Ferguson in a series of phone calls to deal with the crisis which then confronted you.
6 In your case, Sadler, the Crown case was that you were involved from the outset with Cox in developing Duy Le as a person through whom you were to traffick drugs. The Crown case was that in the second half of 1999 Cox was the person who had the primary role, but you, Sadler, were directly and indirectly involved as also was Ferguson. However the core of the allegations by the Crown against you, Sadler, related to a series of activities from the first quarter of 2000 until early 2001 when substantial amounts of heroin were supplied to Duy Le. The Crown case was that Ferguson was the person who dealt most directly with Duy Le, that by this time Cox had a minimal role, and that you, Sadler, had a significant role but not as substantial as that of Ferguson.
7 At the trial I directed the jury that it should take particular care before accepting Duy Le's evidence, particularly if it found that that evidence was not corroborated in a material particular. It is appropriate that I exercise a similar degree of caution in making findings concerning the allegations made by Duy Le. However, the evidence which was led before the jury, and which, by their verdict, it would seem that the jury accepted, basically substantiated the Crown case which was opened to the jury, and on which the Crown based its final address to the jury. In order to identify the facts which I find are relevant to your sentence, it is necessary for me to recapitulate some of that evidence in brief detail.
8 In early 1999 a drug trafficker, Ken Lai, was arrested by the Drug Squad for trafficking heroin. He was then recruited by the Drug Squad to act as an informer. Lai's evidence was that you both proposed to him that he sell heroin on your behalf in return for a share in the profits of drug trafficking. Lai stated that he refused to accept that proposal. In his capacity as an informer to the Drug Squad Lai provided information concerning Duy Le, which resulted in the arrest of Duy Le in April 1999 for drug trafficking.
9 The evidence of Lai was lead as the background or prelude to the conspiracy. The Crown accepted that the jury could not convict you based on that evidence alone. The evidence of Ken Lai was not corroborated, and I gave the jury a special direction about it. It is not possible to discern from its verdict whether the jury accepted Lai's evidence. Without expressing any view either way as to Lai's credibility it is, I consider, fairer that I do not take his evidence into account when sentencing you.
10 Upon his arrest, Duy Le agreed to act as an informer to the Drug Squad. The benefit to Duy Le was that, when he came up for sentence on his drug trafficking charges, the Court would be informed of the assistance which Duy Le had given to the Drug Squad. In his capacity as an informer Duy Le set up the successful arrest of two drug traffickers at Burwood K-Mart car park on 2 August 1999. Subsequently, he also provided information concerning another drug trafficker, as a result of which an arrest occurred of that person in late August 1999.
11 Duy Le gave evidence that, on the day after the Burwood K-mart bust, he met with you, Cox, at the St Kilda Road Police Complex, by prior arrangement. Duy Le stated that you met him in the foyer of that complex, that you commended him on his role in the successful arrests of the previous evening, and that you then handed him one ounce of the heroin which had been seized during those arrests.
12 Pausing there, the evidence of Duy Le relating to that event was the subject of considerable cross-examination, and was also the subject of substantial debate in final address. In a number of respects Duy Le's evidence was different to the account that he gave of the transaction when he was first arrested in December 2002, when he commenced to speak to the CEJA Taskforce. The Crown submitted that if the jury were to accept Duy Le's evidence as to the events of 2 and 3 August, then they might readily accept the balance of Duy Le's evidence against you Cox. On the other hand your counsel, Mr Young, submitted that the jury should reject Duy Le's evidence about those events, and that their rejection of that evidence would be fatal to the credibility of Duy Le in relation to the rest of his evidence. It was for the jury to form its view as to the credibility of the version of events given by Le in relation to this event. Certainly it was open to the jury to accept Duy Le's evidence, for reasons which were set out in some detail in the prosecution's final address. It is, I consider, a necessary corollary of the verdict that the jury was satisfied beyond reasonable doubt of the version of events given by Duy Le concerning the Burwood K-Mart arrests on 2 August 1999, and of the transaction which Duy Le stated he participated in with you Cox at the St Kilda Road Police Complex on 3 August 1999.
13 The evidence of Duy Le was that over the next few weeks you, Cox, sold heroin to him on a regular basis. Duy Le stated that he would meet you every second day and you would supply him with two ounces of heroin. There was debate at your trial as to the evidence of Duy Le concerning the length of the period of time over which Duy Le said that you trafficked heroin to him. It is not necessary for me to resolve that debate. However, consistent with the jury's verdict I am satisfied beyond reasonable doubt that you continued to traffick heroin to Duy Le for a period of some weeks. Certainly you had ceased to traffick heroin to Duy Le some time before you went on leave, in late 1999, before your retirement from the police force in January 2000. You met Duy Le at a number of different locations in the vicinity of the St Kilda Road Police Complex. However, most of the trafficking of heroin to Duy Le by you, and later by Sadler and Ferguson, was at a location described as a "usual" place in Brumby Street and Arnold Street, South Yarra. On one occasion you supplied heroin to Duy Le near his place of residence in Kinnear Street, Footscray. Notwithstanding the debate about Duy Le's evidence concerning that transaction, and consistent with the jury's verdict, I accept Duy Le's evidence about that transaction.
14 A short time after you, Cox, commenced trafficking heroin to Duy Le, you, Sadler, and Ferguson, also commenced to traffick heroin to him. The first occasion on which Ferguson did so was when Duy Le had contacted Cox, who was not available to meet with him to supply heroin to him. Instead you, Cox, directed Le to contact Ferguson, which he did, and as a result Duy Le and Ferguson met at Spencer Street Railway Station. There Ferguson supplied Duy Le with heroin.
15 Duy Le's evidence was that from that time you, Sadler, and Ferguson, took a more active role in supplying heroin to him. Initially heroin was supplied in one ounce lots. However, the quantity supplied to him increased, and on some occasions up to six ounces of heroin were trafficked to him. Duy Le would meet with you by prior appointment. Usually Duy Le would first telephone. He would be told where and when to meet. Normally Duy Le paid cash for the heroin supplied to him but on occasions he was supplied with heroin on credit. Most of the meetings were at the usual location, but Duy Le also gave evidence, which I accept, about receiving heroin from you Sadler, and also from Ferguson, at other locations.
16 You, Cox, left the police force in January 2000. By then you had ceased to traffick heroin to Le, and you did not do so thereafter. From that time on, Ferguson and you, Sadler, trafficked heroin to Le. Le's evidence, which I accept, was that initially he dealt with Ferguson and Sadler at about the same level. However from about mid 2000 Le started dealing a lot more with Ferguson than with you, Sadler.
17 Although you, Cox, did not traffick heroin to Duy Le after you had retired from the police force, you nonetheless continued to have some limited involvement in, and thus remained a party to, the conspiracy. During the next two years there were a very substantial amount of telephone calls between you and Sadler and between you and Ferguson. I accept that the three of you were good friends and that a large majority of those telephone calls were for purposes unrelated to the conspiracy. However a number of telephone contacts which you had with Ferguson or Sadler occurred on days when one or other of them were in contact with Duy Le. I accept that some of those contacts which you had with Ferguson or Sadler - which were described in the trial as "linked calls" - may have occurred as a matter of coincidence. However the timing of the calls, the number of such linked calls, the sequence of them, and the context of them, satisfies me that on at least some occasions your contact with Sadler and Ferguson during that period related to matters concerning Duy Le and concerning the conspiracy. That conclusion is reinforced by the events of November 2002 which I shall relate shortly.
18 Duy Le was due to appear in the Melbourne County Court on 25 May 2000 to face the charges on which he had been arrested by the Drug Squad in April 1999. He was also due to appear in the County Court on 5 June 2000 to answer a charge of aggravated burglary which had been brought against him by Detective Senior Constable Blakeley of the Asian Squad. That charge was a serious charge. It arose out of a break-in to a house in Springvale in October 1999. In the course of the burglary the female occupant of the home, and her young daughter, were assaulted and subjected to frightening threats.
19 Duy Le did not appear on either charge. His evidence, which I accept, is that before he absconded he spoke to you, Sadler, and you advised him not to turn up to Court, and that he should go interstate.
20 After Le absconded you, Sadler, and Ferguson continued to traffick heroin to him. It is clear on Le's evidence, and also on the objective evidence, that the trafficking of heroin to him peaked in late 2000 and early 2001. By that time Le was being supplied with significant quantities of heroin including blocks of heroin (of 12.5 ounces or 350 grams). During this period Le dealt most of the time with Ferguson but he also dealt with you, Sadler, on a number of occasions. Le's evidence was that the trafficking of heroin wound down towards the end of 2001 or early 2002. Certainly it had ceased by the time he met with Ferguson and you, Sadler, in April 2002 in South Yarra in circumstances which I shall relate shortly.
21 In addition to trafficking heroin you, Sadler, and Ferguson gave Le advice and information about inquiries by other members of the police as to Duy Le's whereabouts. In particular you, Sadler, and Ferguson gave Le information as to the efforts made by Mr Blakeley of the Asian Squad to locate and rearrest Le on the outstanding warrant for the aggravated burglary charges on which he had absconded. On one occasion you, Sadler, told Le not to participate in a particular drug transaction because there was a risk that he might be arrested while doing so.
22 Senior Constable Blakeley gave evidence, which I accept, that in the months and years which followed Duy Le's failure to appear, he regularly spoke to both you, Sadler, and also Ferguson concerning his efforts to locate Le. Neither you, Sadler, nor Ferguson told Blakeley that you were in contact with Le. On one occasion Blakeley asked you about the whereabouts of Duy Le's girlfriend, Loan Tran, and you untruthfully told him that you did not know who she was.
23 In addition in late October 2001 Senior Constable Newman of the Asian Squad also became interested in locating Duy Le. He spoke to you, Sadler, but you did not tell him that you were in telephone contact with Le.
24 In April 2002 you, Sadler, and Ferguson met with Duy Le and Loan Tran in South Yarra. Ferguson and you told Le that there was increased police attention focused on finding him, and you and Ferguson advised him to get out of the State.
25 In November 2002, the CEJA Taskforce questioned Loan Tran about a BMW motor vehicle which, they then ascertained, had been sold by Duy Le to Ferguson. As a result Loan Tran contacted Duy Le, and he made telephone contact with you, Sadler. You consulted both Ferguson and Cox. It is clear that the three of you were then anxiously considering how to avoid the serious trouble which might occur if, as a result of the CEJA inquiries, they were to locate Duy Le and speak to him. As a consequence of those consultations you, Cox, telephoned Duy Le and spoke to him. You then rang Sadler, obviously to report the conversation you had with Le.
26 In December 2002 Duy Le was arrested in Sydney. Shortly after his arrest he disclosed to the Ceja detectives his criminal dealings with both of you and Ferguson. The Crown case at trial was based on the allegations by Duy Le, which were supported by other evidence led by the Crown.
27 It is necessary for me to form a conclusion as to the approximate amount of heroin which was trafficked in the course of the conspiracy of which you have both been convicted. No direct evidence was led to establish the quantity of heroin that was trafficked to Duy Le. However there was detailed evidence at your trial to establish the amount of financial gain derived by both of you and by Ferguson from the trafficking of heroin to Duy Le. The evidence of the forensic accountant Mr Curtin was to the effect that there were cash payments and cash deposits by Ferguson, which could not be accounted for by previous cash withdrawals from his accounts or from any other legitimate source, totalling $715,000 over the course of the conspiracy. That evidence was substantially to the same effect as the evidence of Mr Curtin in Ferguson's trial. For the purpose of Ferguson's plea, and allowing him the benefit of some doubt, I was satisfied that Ferguson profited by at least $630,000 as a consequence of his participation in the conspiracy. It is appropriate that the same calculation be adopted for the purposes of sentencing both of you.
28 The evidence at trial was that heroin was supplied to Duy Le at a cost of $3,600 to over $4,000 per ounce, and that blocks of heroin of 121/2 ounces (350 grams) were supplied at approximately $50,000. Using those prices, Ferguson's share of the profits of the conspiracy amounted to the equivalent of 4.5 kilograms of heroin.
29 The evidence of Mr Curtin at your trial was that Mr Curtin detected cash payments and cash deposits by you, Sadler, which could not be accounted for by previous cash withdrawals from your accounts, in the sum of $164,000, over the period of the conspiracy. If Mr Curtin's assumptions were removed, and a purely arithmetic approach were adopted, an analysis of your accounts would reveal that, during that period, there were $117,000 cash payments and cash deposits. Over the same period the joint assets of you and your wife increased by an amount of $190,000, which was substantially in excess of any increase which could have been attributed to the joint incomes of your wife and yourself in that period. No evidence was led at your trial, or on your plea, in response to that evidence. However a number of submissions were made on your behalf. For the purposes of the plea, I accept that there were some limitations in Mr Curtin's methodology, based on the lack of information available to him. Thus, for example, the amount of asset betterment might be reduced if one were to reduce Mr Irwin's estimate of the cost of renovations to your family home. Similarly, during that period, you received two cheques from Crown Casino, constituting gambling winnings, which might account for some of the reduction of your joint mortgage. Bearing those and other matters in mind, and taking a conservative view, nonetheless I am satisfied beyond reasonable doubt that as a consequence of the trafficking of heroin by you pursuant to the conspiracy you profited by at least $130,000. That is equivalent to almost one kilogram of heroin.
30 The evidence of financial betterment led against you, Cox, was substantially more limited than the evidence adduced against Ferguson at his trial, or against Sadler in your trial. Mr Curtin did not detect any increase in the joint asset position of yourself and your wife, which could not be attributed to legitimate sources of funds. Mr Curtin detected, over the period, $30,000 cash payments and cash deposits which could not be attributed to cash withdrawals. However the Crown only relied on the cash payments and cash withdrawals detected in 2000, which totalled a little over $20,000. Evidence was led from your wife at trial to explain some of those cash payments and cash deposits. However, consistent with the jury verdict, it is appropriate to proceed on the basis that the jury was satisfied beyond reasonable doubt that there were cash payments and cash withdrawals detected by Mr Curtin in 2000, totalling over $20,000, which could not be attributed to legitimate sources of funds. That is equal to the cost of about 5 ounces (or 140 grams) of heroin.
31 It follows that for the purposes of sentencing you both I find that at least 5.5 kilograms of heroin was trafficked to Duy Le during the conspiracy. That quantity is equivalent to more than ten times the commercial amount of heroin prescribed by the relevant legislation.
32 Thus you have both been found guilty of participating in a conspiracy to traffick a considerable quantity of heroin. The conspiracy itself lasted for a period of in excess of three years, and the trafficking of heroin pursuant to that conspiracy took place during a period of a little over two years. You, Cox, were only involved in trafficking heroin for a few weeks of that period at its beginning. The quantities trafficked by you were significantly less than those trafficked to Duy Le by your fellow conspirators, particularly Ferguson. After you left the police, and indeed from late 1999, your role in the conspiracy was quite limited. Essentially that role was confined to being consulted, from time to time, by your two co-conspirators, particularly when issues arose relating to Duy Le which might have led to his arrest. In the end it was you who, it was decided, would speak to Duy Le when he made contact with Sadler, after Duy Le had learnt that he was under investigation in relation to the vehicle which he had sold to Ferguson.
33 Accordingly, your active participation in the conspiracy and in the trafficking of heroin was significantly more limited than that of your two fellow conspirators. On the other hand it was you, Cox, who, in August 1999, instigated the trafficking of heroin to Duy Le which was the centrepiece of the conspiracy. Furthermore, you were the senior of the three conspirators. You were the superior of Ferguson and Sadler and were the leader of the team of which they were members. Your background, which I shall detail later, shows that you are a person possessed of natural leadership skills. In the early 1990s you had successfully completed an officer training course in the Army Reserve, and had held a commission in the Reserve for approximately seven years. Your role as the instigator of the conspiracy, and your role as the leader of the team involved in the trafficking, are two factors which aggravate the gravity of your offending.
34 Having instigated the trafficking, and effectively laid the foundation for Sadler and Ferguson to continue it, you, Cox, did not distance yourself from it. Rather as I have found, your role, while minor, nonetheless did involve you consulting with Ferguson and Sadler, particularly at that critical time in November 2002 when you intervened when it seemed that the three of you might be imperilled by the investigations then being undertaken by Ceja.
35 The role of you, Sadler, was far more significant than that of Cox in trafficking heroin to Duy Le. Although I accept that you did not instigate the trafficking of heroin to him, nonetheless you were involved in it from a relatively early stage. I accept that, when the volume of heroin supplied to Duy Le escalated from mid-2000 until early 2001, you played a significantly less active role in trafficking heroin than did Ferguson. The comparative financial betterment between Ferguson and yourself is, I consider, a reasonable guide to the relative degrees of participation by the two of you in the trafficking of heroin during that period, when the activities of the conspiracy were at their peak. At that time it is clear that Ferguson took the lead, and you played a lesser and subordinate role. As such your culpability is not as great as Ferguson's. Nonetheless you were still actively and directly involved in trafficking large quantities of heroin to Duy Le, and I have found that the quantity for which you were directly responsible is equivalent to almost twice the commercial amount prescribed by statute. You profited significantly from your involvement as an active participant in a conspiracy in which very considerable quantities of heroin were trafficked to Duy Le.
36 In addition, you, Sadler and Ferguson were actively involved in protecting Duy Le from apprehension after he absconded on bail in mid-2000. You, Sadler, advised him not to attend court in May and June of 2000. You gave him information about ongoing police investigations as to his whereabouts. You deliberately lied to and misled your fellow police officers as to your knowledge of Duy Le's whereabouts. The conduct of Ferguson and you in doing so was an integral part of the conspiracy. By keeping Duy Le safe from arrest, Ferguson and you were able to continue to traffick drugs to him. More importantly, you well knew that if Duy Le was arrested there was a substantial risk that your corrupt relationship with him would be exposed.
37 The object and purpose of the conspiracy for which you have both been convicted, the trafficking of heroin in more than a commercial quantity, is itself a most serious criminal offence, the maximum sentence for which is 25 years' imprisonment. As I stated when sentencing Ferguson earlier this year, illicit drugs of dependence such as heroin are an unmitigated social evil. They have a cruel and devastating impact on lives, on families and on society. Our courts are all too familiar with the tragic consequences of the abuse of drugs of dependence. The shattered lives, broken families, violence and associated criminality, all spawned by the abuse of drugs of dependence, are commonly part and parcel of offending which comes before our courts.
38 The trafficking of drugs of addiction is, as I have stated, a most serious criminal offence. It preys on the young, the weak and the vulnerable. It is a twisted and contemptible enterprise, conducted by greedy, callous and ruthless individuals. It offends the fundamental norms of a decent civilised society.
39 The crime of conspiracy to traffick a drug of dependence such as heroin is equally serious as the crime of trafficking itself. The legislation prescribes the same maximum penalty for a conspiracy as it does for the act of trafficking. At the heart of the conspiracy lies the secret combination between you and your fellow conspirators to achieve your criminal purposes.
40 The most serious feature of your criminality is that you both committed the offence for which you have been convicted while acting in your capacity as members of the Victorian Police Force. At the time you were both members of the squad of the Force, the specific function of which was the detection and prevention of the trafficking of illicit drugs such as heroin. You committed the very crime which it was your sworn responsibility to detect and eliminate. The evidence shows that at the time of your offending there was a flood of heroin onto the streets of Melbourne. Instead of performing your duty to stem that tide, you added to it. You each blatantly betrayed your oaths of office. Your offending was a fundamental breach of the trust which the community placed in you as members of the police force. You exploited and took advantage of your positions as policemen to initiate and further your criminal activity, all with an eye to financial gain.
41 The conduct for which you have been found guilty is conduct which inevitably weakens public confidence in the Victoria Police Force. That Force consists of thousands of dedicated men and women of integrity who unselfishly serve the community, often putting their health and lives at risk to do so. By your conduct you shamelessly betrayed your fellow members of the Force, and besmirched the proud reputation of the Victorian Police Force. Your conduct was calculated to undermine the administration and enforcement of justice in our society.
42 Your activities were of course covert. That is part of the vice of a conspiracy between serving or former police officers to commit criminal offences. It was only the hard work, dedication and professionalism of members of the Ceja Taskforce which led, not only to the exposure of the conspiracy, but also to the successful prosecution of its perpetrators.
43 Thus you have both been convicted of a most serious offence. It is my duty to impose a sentence which adequately reflects the gravity of your offending, and which also serves to deter other like-minded individuals from wrongdoing. The trafficking of illicit drugs is basically driven by human greed. It is the role of the courts to ensure that those who commit such offences well and truly understand that, when apprehended and convicted, they face substantial terms of imprisonment. Further, it is the role of the courts to uphold standards of professional integrity and probity in the Victorian Police Force, and to impose sentences of sufficient severity to deter any other like-minded member of the Force from indulging in conduct of the type which has been revealed in this case.
44 In the pleas made by your counsel, nothing was put in mitigation of the gravity of your offending, and correctly so. The mitigating circumstances which were relied on derived from matters pertaining to your personal circumstances and background to which I now shall turn.
45 You, Stephen Cox, have a particularly impressive background. You are almost 43 years of age. You joined the police force at the age of 19 in 1982. In due course you undertook Detective Training, Advanced Detective Training, and a Sub-Officer's course. You were promoted to sergeant in 1989. In addition you successfully undertook a number of specialist courses. You are evidently an intelligent and industrious person. You have successfully obtained tertiary qualifications including a Bachelor of Arts and a Graduate Diploma of Business Studies. After your retirement from the Police Force in early 2000, you, together with a partner, commenced a private investigation business called "Select Investigations". Your partner retired from the business later in 2000. I accept that you worked hard in the business. The evidence of Mr Singer at your trial showed that you approached your duties in a conscientious and professional way. Ultimately the business did not thrive and so it concluded in late 2001. You then took time off in 2002 to renovate your family home. You then successfully completed your qualifications to act as a real estate agent. You were employed in that capacity by a firm of real estate agents in Mornington until your arrest in May 2003. After your release on bail, and for the last three years, you have been employed as a labourer in a landscape business.
46 You are a married man with three young children whose ages range from fourteen to nine. Apart from a minor road traffic offence, which is irrelevant for the purposes of sentencing, you have no previous convictions.
47 In 1989 you joined the Army Reserve. Shortly thereafter you were selected for officer training. For the next two years you undertook an officer training course. You were one of the small minority of that course who successfully completed it. Mr Bussell, who also completed the course in the same class, gave character evidence before me. I was particularly impressed with Mr Bussell's evidence. He spoke highly of your personal qualities which were significantly tested in the rigorous officer training course which both of you undertook. You served in the Army Reserve for ten years.
48 A number of witnesses gave character evidence on your behalf. Without repeating their testimony, those witnesses, whose evidence I accept, stated that you are possessed of high personal qualities. All those witnesses testified to your loyalty, to your attachment to your wife and children, to your reliability, and to your work ethic. It is clear that you are a devoted and loving husband to your wife and caring father to your three children. Your friends spoke of your loyalty to them, particularly in times of need. In turn you have inspired in each of those friends a strong feeling of loyalty to you which has been demonstrated in the difficult times in which your family now finds itself.
49 The character evidence and the character references tendered on your behalf, are relevant for a number of reasons. First, apart from the offending, you otherwise have commendable personal traits. Your background, and your involvement in the community, entitles you to some credit in relation to your sentence. Secondly, that evidence gives me confidence that, upon your release from imprisonment, you will readily rehabilitate, and are unlikely to re-offend.
50 On your plea I was told by your counsel that you have a predisposition to depression, and that at present you are suffering a significant degree of clinical depression. I was also told that you are presently on a high dosage of antidepressant medication. No evidence was put before me in relation to that matter. I am however prepared to take into account the fact that you are currently suffering from a condition which requires a significant degree of medication. Clearly in those circumstances imprisonment will be more difficult for you than it might be for a person who is in good health. Over and above that, I accept, as I do also for Sadler, that imprisonment for you will be more onerous because of your status as a former member of the Victorian Police Force. Counsel on both sides sensibly suggested that I rely on the evidence, led on Ferguson's plea, as to the likely disposition of you both during your terms of imprisonment. I therefore accept that a term of imprisonment will be more burdensome, and possibly more hazardous, for both of you because you are both former members of the police force. Certainly, at least for the initial part of your sentences and indeed possibly longer, you will need to be kept apart from the general population of prisoners for your own protection. As a consequence you will be subject to a greater degree of restriction of movement, and will have less access to services, than might otherwise have been the case.
51 In addition, you, Cox, face an application by the Crown for a Pecuniary Penalty Order. I was told that negotiations are currently underway between the parties who are confident that it will be resolved by agreement. In broad terms, it appears that you will be subject to a Pecuniary Penalty Order under the Confiscation Act in the sum of approximately $20,000. I accept that that sum will need to be funded by an increase in the mortgage over your family home. While the penalty will be no more than the recoupment by the Crown of the ill-gotten gains from your criminality, nonetheless it will create a financial burden, particularly on your wife, and to that extent may make your rehabilitation more onerous than otherwise. To that extent I take the existence of the application for the Pecuniary Penalty Order into account as a mitigating circumstance. In addition, the Crown has made an application against you under s.83E of the Sentencing Act in respect of the superannuation entitlements which were paid to you when you retired from the police force.
52 Thus, the main mitigating circumstance in your case, Cox, comprises your background and antecedents, and the evidence, which I accept, as to your high personal qualities apart from the offending for which you must be sentenced. In addition, as I have stated, I take into account the matters which have been put to me relating to your health, to your disposition during imprisonment, and to the likely outcome of the Crown's application against you for a Pecuniary Penalty Order.
53 I now turn to consider matters which are personal to you, Glenn Sadler. You are 41 years of age. You joined the police force at the age of 20 in 1985. After you completed basic training, you then had a number of postings, some of which were at Fitzroy. In 1993 the Chief Commissioner awarded you a High Commendation for your courage and restraint in an incident at Collingwood involving the apprehension of a dangerous offender armed with a knife. I interpolate that your neighbour, Mr Twigg, gave character evidence on your behalf, in the course of which he related an incident in which you displayed similar courage. In 1997 you commenced with the Drug Squad where you remained until August 2002. In late 1997 you successfully completed the Detective Training Course. In August 2002 you transferred to Fitzroy Criminal Investigation Branch where you remained until you were suspended from duties in November. You were arrested in May 2003. after your release from bail you worked for Roxburgh Garden Supplies. A testimonial from the directors of that business speaks well of your reliability, diligence and honesty as an employee.
54 You married your wife in December 1995. You have two children aged eight and seven. Your wife works part-time as a teacher and an aerobics instructor. The character witnesses called on your behalf, and the testimonials which have been tendered by your counsel, all speak highly of your relationship with your family, and of your dedication to them.
55 The witnesses who were called to give evidence on your behalf, and the character testimonials, all satisfy me that, apart from the offending, you are a person of good character, with a number of positive character traits. You have no previous convictions. One testimonial, from a former superior at Fitzroy Police Station, tells of your energy, drive and commitment while you were a member of the Fitzroy CIB. You have been actively involved in your local community. The character references and the witnesses all speak in glowing terms of your role as a father and husband, and also of your care for your ageing parents. As with Cox, your character witnesses have found it hard to reconcile the conduct involved in your offending with the character they have known over the years. To their credit your family and friends remain loyal to you. You have clearly exhibited traits which have inspired that loyalty, which has survived your conviction on a serious criminal offence.
56 In determining your sentence you are entitled to a significant credit for your previous good character, your fine record of service before your offending, and for the lack of previous offending. As with Cox, I also consider that your prospects of rehabilitation are good, and I doubt that you would re-offend.
57 The Crown has served on you an application for a Pecuniary Penalty Order under the Confiscation Act. As with Cox, I was told that the application against you is at the moment the subject of negotiations, and that the parties are confident that the matter will be resolved. Without expressing any view as to the appropriate figure which should be the subject of such an order or resolution, it is likely that the sum involved will be in excess of $100,000. Indeed Mr Tovey QC told me that if the parties are unable to resolve the matter, the Crown would seek a pecuniary penalty order of about $200,000. Your counsel has told me that that payment will need to be financed either by a further loan secured on your family home, or from the sale of your family home. Again, the payment of any such Pecuniary Penalty Order will constitute the recoupment from you of your illegitimate gains from the conspiracy. Nonetheless that payment will involve financial hardship both on yourself and on your family, and may render more burdensome your lot when you are released from prison. Furthermore, the Crown has made an application against you under s.83E of the Sentencing Act in respect of your superannuation entitlements.
58 In the course of your plea Mr Georgiou told me, that in November 2001, you were diagnosed with depression and anxiety, as a result of which you were off work in April 2002. Since that time there have been remissions and relapses. No evidence was tendered on your behalf to indicate the nature of that condition, or its current status. Nonetheless, I accept what your counsel told me and I therefore accept that that condition may make a term of imprisonment more onerous on you. Finally, as with Cox, I take into account that, as a former policeman, your time in prison will be significantly more burdensome, and more restricted, than would otherwise be the case.
59 Thus, as with Cox, the principal mitigating circumstance operating in your case, Sadler, consists of your previous lack of offending and your good character apart from the offending. In addition, I accept that you will suffer financial difficulty as a result of the Pecuniary Penalty application by the Crown, and, as I say, your time in prison will be more difficult because of your status as a former policeman.
60 As I remarked in the course of sentencing submissions, it is disappointing that two men who, during their lives, have exhibited such good positive character traits, and have otherwise lived useful and beneficial lives, have stooped so low as to indulge in the type of corrupt activity for which they now stand convicted. On any view, the offence for which you have both been convicted is most serious. As I have stated, the principle of general deterrence is of particular significance in a case such as this. It is necessary and important for me to express the condemnation both by the Court and the community of your conduct, and to thereby uphold and defend the standards of integrity which the community rightfully expects should prevail, without exception, in the Victoria Police Force. While I am confident of the rehabilitation of both of you on your release from prison, nonetheless the concept of specific deterrence has some relevance. On the other hand I do take into account and give credit for the significant mitigating circumstances to which I have referred in the course of these reasons for sentence.
61 Taking all those matters into account I sentence you as follows.
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(1) Stephen Allan Cox. I sentence you to a term of seven years' imprisonment. I direct that you serve a minimum of four years' imprisonment before you become eligible for parole. Pursuant to s.18(4) of the Sentencing Act I declare that the period of 95 days be reckoned as already served under the sentence which I impose. I shall cause a notation to be made in the records of the Court that that declaration was made.
(2) Glenn John Sadler. I sentence you to a term of ten years' imprisonment. I direct that you serve a minimum of six years' imprisonment before you become eligible for parole. Pursuant to s.18(4) of the Sentencing Act I declare that the period of 111 days be reckoned as already served under the sentence which I impose. I shall cause a notation to be made in the records of the Court that that declaration was made.