27 Taking into account the inherent limitations in Mr Curtin's methodology and taking into account the matters which I have just discussed, I am able to identify an approximate figure by which you benefited from the conspiracy. In doing so, I adopt a conservative approach and err in your favour. Adopting such an approach, I would readily accept that as a result of your participation in the conspiracy you profited by at least $630,000 as a result of your participation in the conspiracy. The principal increase in your financial position occurred in the financial year between 30 June 2000 and 30 June 2001. Indeed, the increase in the accumulation in your assets, and the amount of cash transactions which could not be accounted for by antecedent withdrawals from your accounts, were concentrated in the latter part of 2000 and the early part of 2001. That period coincided broadly with the evidence of Duy Le as to when the trafficking of drugs by you to him was at its most active.
28 The evidence at trial was that heroin was supplied to Duy Le at a cost of $4,200 to $4,700 per ounce and that blocks of 12-and-a-half ounces, or 350 grams, were supplied at approximately $50,000 each. Based on those prices, your share of the profits of the conspiracy amounted to the equivalent of the cost of approximately 4.5 kilograms of heroin.
29 There was no evidence at your trial as to the amount by which your alleged co-conspirators profited. I ruled that the evidence of their betterment was inadmissible at your trial. However, in your favour, I do note that the betterment alleged against them, which I ruled inadmissible in your trial, demonstrates that their betterment was significantly less than yours. Taking that into account, and again adopting a conservative approach, I act on the basis that pursuant to the conspiracy, at least 5 kilograms of heroin was trafficked to Duy Le during the lifetime of the conspiracy.
30 The object and purpose of the conspiracy of which you were convicted, the trafficking of heroin in more than a commercial quantity, is of itself a most serious crime carrying a maximum of 25 years' imprisonment. Illicit drugs such as heroin are an abominable social evil. They have a cruel and destructive impact on lives, on families and on society. The trafficking of drugs preys on the young, the weak and the vulnerable. It warps and degrades standards of decent civilised behaviour. It is a thoroughly twisted and despicable enterprise, conducted by greedy and callous individuals who have no regard for the trail of human misery which their trade creates.
31 Heroin is an addictive and potentially lethal substance. Its effects can be, and commonly are, devastating. It has been the melancholy experience of the courts to witness all too frequently the tragic and appalling consequences arising from its consumption and abuse. As a member of the Drug Squad, you must have been fully aware of the suffering and harm which would be caused by the drugs which you conspired to traffic.
32 The crime of conspiracy to traffic heroin is every bit as heinous as the crime of trafficking itself. Indeed, this is reflected by the fact that the legislation prescribes the same maximum penalty as it does for the act of trafficking. The vice and gravity of the conspiracy lies, at least in substantial measure, in the combination by you with your fellow conspirators to achieve your nefarious end.
33 The offence of conspiracy to traffic drugs is fundamentally born of ruthless and callous greed. Those who embark on such enterprises expect to make significant profits. The role of the courts is to ensure that those persons are left in no doubt that when they are brought before the court for their crimes, they can expect no mercy whatsoever. The duty of the court is to impose a sentence of sufficient severity that it sends a clear message to the community that activity such as yours will not be tolerated. The principle of general deterrence is especially prominent in offences involving drug trafficking and it requires the courts to impose sentences which are sufficiently severe to deter would-be drug traffickers from succumbing to the lure of the profits of that trade.
34 The conspiracy of which you have been convicted involved the trafficking of significant quantities of heroin which, on a conservative basis, I have calculated to be at least ten times the commercial quantity prescribed by the law. You participated in that conspiracy over a prolonged period of time. For a significant part of that time you played the lead role in effecting the purposes of the conspiracy. You derived substantial financial gain from your wrongdoing.
35 However, over and above all that, the single most aggravating feature of your offending is that you committed the offence in your capacity as a member of the Victorian Police Force, and while you were working in the squad of the force whose specific function was the prevention and detection of the trafficking of illicit drugs. You committed the very crime which it was your responsibility to detect and eliminate. In doing so, you blatantly and shamelessly betrayed your oath as a constable of police, and you flagrantly breached the trust which the community imposed in you. You unconscionably took advantage of your position as a constable of police to initiate and further your criminal activity.
36 Your conduct was calculated to undermine public confidence in the Victoria Police Force. As such, you betrayed those thousands of decent and dedicated men and women who selflessly serve the Force and the community, often putting their lives at risk to do so. Your conduct is a blight on the administration and enforcement of justice in this State.
37 The depths of your criminality involved in the conspiracy is reflected by the nature of the transactions which you had with Duy Le. Your relationship with Duy Le was thoroughly corrupt. Duy Le was an informer to the police whose role was to assist in the detection of crime. Rather than using him for that purpose, you took advantage of your relationship with him to further your own criminal objectives. In order to perpetuate and effect the conspiracy, you continued to deal with Duy Le after he had failed to appear and absconded on serious criminal charges. You assisted him to evade detection so you could continue your corrupt relationship with him. You even stooped to conducting personal transactions with him, purchasing a second-hand BMW motor vehicle from him and also purchasing quantities of alcohol from or through him.
38 It is thus evident that the charge of conspiracy for which you were convicted is a most serious one indeed. Little could be said in mitigation of the gravity of your offending. I accept that there was a significant lack of training and supervision of detectives such as yourself at the time you were a member of the Drug Squad. However, that circumstance does little to offset the seriousness of your criminal conduct. A member of the police force should not require supervision and instruction in order to behave honestly and with integrity. It is necessary for me to look to your personal circumstances in order to ascertain whether there are any mitigating circumstances which I should take into account in determining the sentence which is to be imposed on you.
39 Before doing so, I turn briefly to consider the circumstances involved in count 2, that of money laundering, on which you were convicted. That count charged that between 1 April 1999 and 6 December 2002 you engaged in transactions involving money and other property that was the proceeds of crime and you knew, or ought reasonably to have known, that the money and other property was derived or realised directly or indirectly from some form of illegal activity. The Crown case was that the money, which is the subject of count 2, was comprised of the proceeds of the conspiracy charged in count 1. Thus I find that the amount involved in count 2 was at least $630,000.
40 The crime of money laundering is a serious offence. In the circumstances of this case, engaging in transactions involving the proceeds of the illicit drug trafficking, the crime is particularly serious. However, the circumstances of count 2 are substantially, if not totally, encompassed by the circumstances of count 1. Accordingly, it is appropriate that any sentence I impose on count 2 be wholly concurrent with the sentence which I shall impose on count 1.
41 I turn, then, to consider matters relating to your background and personal circumstances. You are 37 years of age, having been born in June 1968. You were educated to Year 10 level and left school at the age of 15. After leaving school, you have maintained a steady and commendable record of employment. You undertook an apprenticeship as a diesel mechanic with the Port of Melbourne Authority. After successfully completing that, you then worked as a tradesman with the State Electricity Commission. In 1988 you joined the Victoria Police Force as a protective service officer. As I have already stated, you then joined the police force in 1989. After graduating from the Police Academy, you worked at the Coburg police station as a uniform constable for five years. You then were stationed at Geelong police station for 2-and-a-half years. In January 1997 you joined the Drug Squad and you attended detective training school in January 1998. Whilst serving at the Drug Squad, you were promoted to detective senior constable. You were seconded to the National Crime Authority on 6 November 2000 until 13 February 2001. You then served with the Organised Crime Squad until October 2001. In late September 2001 you were involved in a motor vehicle accident as a consequence of which you sustained a serious injury to your lower back. You were confined to desk duties for approximately four months and then returned to the Organised Crime Squad. In September 2002 you underwent an operation on your back and thereafter remained off work on WorkCover benefits until your discharge from the Victoria Police Force in August 2005.
42 Apart from your employment, you have been particularly hard-working, industrious, and indeed quite enterprising from a very early age. During your school holidays you worked on your uncles' farms and in their factories. During the last year of your apprenticeship you worked at nights and on weekends as a contracted RACV mechanic. Not long after the completion of your apprenticeship, you obtained a heavy vehicle licence which you used to drive trucks, transporting containers and engineering parts.
43 You met your wife, Joanne, in 1993 and commenced a relationship with her. The pair of you purchased vacant land at Lara in 1994. There you built your own home. While doing so, you lived first in a caravan and then in a garage which you yourself constructed. You personally built the home at Lara with some help from other family members. Apparently you carried out all the construction work except for the electrical works.
44 You have always had an interest in farming since your childhood. You have conducted a farm at Lara and also, subsequently, at the property which you acquired at Bambra. During your spare time, and while on leave from the police force, you have worked long hours on the farm, and also in carrying out other part-time transport and building work.
45 The witnesses who were called on your plea, and indeed at your trial all testified that you have been a workaholic. You have spent much of your spare time and holidays working on your properties and in your part-time jobs. It is also clear that you are a perfectionist, particularly in the work which you carry out around your own home.
46 The injury which you sustained to your lower back in 2001 was serious. The operation which you underwent in 2002 involved a discectomy and a fusion at the L5/S1 level. The operation successfully resolved your sciatica but you have continued to suffer from lower back pain. You are restricted from carrying out a range of physical activity which you previously enjoyed.
47 For some time you also have suffered, and continue to suffer, from depression. That problem is a long-standing one and appears to have manifested itself at quite an early age. The condition was exacerbated by your back injury and by the ongoing pain and restriction resulting from that injury. It has also been aggravated by your current situation. You take high dosages of antidepressant medication to control your condition. It is clear that you will need ongoing supervision and medication in respect of it.
48 Your medical problems are relevant to your sentence. As a result of those problems, a term of imprisonment will be more difficult and more harsh for you than a person who is in good health. Furthermore, it will be more difficult for you to rehabilitate yourself into the community and to gain employment after your eventual release from gaol.
49 You have three young daughters aged 10, 8 and 7. The evidence of the witnesses called on your behalf have shown you to be a particularly devoted and committed father to your children. I accept that you have been fully involved in their educational, sporting and recreational activities and you have a very close relationship with them. The evidence described how your children are suffering, and will continue to suffer, as a result of your incarceration. Mr O'Doherty correctly acknowledged that that circumstance does not directly operate to mitigate the penalty which I must impose upon you. However, I do accept that you are fully conscious of the suffering caused to your young children as a result of your imprisonment and that that is, and will remain, a cause of significant grief to you. I further take into account in mitigation that the term of imprisonment which I must impose will deprive you significantly of the joy and satisfaction of helping to raise your children during their development to adolescence.
50 You have had a difficult and troubled relationship with your wife. As I observed during your plea, the evidence indicates that your lifestyle as a workaholic has no doubt taken a toll on that relationship. However, I accept that apart from those difficulties you have remained a devoted and caring husband to your wife, as she is to you. It is a credit to both of you that you have worked on your relationship and have repeatedly tried to surmount your difficulties and remain united.
51 Accordingly, there are a number of factors arising out of your personal background which I take into account in relation to penalty. They include: your previous good character, you have no previous convictions; your dedication as a husband and father; your work ethic and record of steady employment; your good record with the Victoria Police Force for more than one decade until your current offending; the fact that gaol will bear harshly upon you because of your physical and psychological problems; the fact that gaol will also bear harshly upon you because it will separate you from your children and that you will be conscious of the grief which that will cause to your children; and the fact that on completion of your term of imprisonment it will be difficult for you to rehabilitate into society and obtain gainful employment because of your health problems. In addition, I take into account that your offending has brought shame and disgrace upon you and your family.
52 There are two other matters which I do take into account in mitigation of your sentence. First, I accept that as a former member of the Victorian Police Force, a sentence of imprisonment will be more burdensome and possibly more hazardous for you. Certainly, at least for the initial part of your sentence and possibly longer, you will need to be kept apart from the general population of prisoners for your own protection. During that period you will be subject, of necessity, to greater restriction of movement and freedom than might otherwise have been the case.
53 In addition, the Crown has commenced proceedings against you for a pecuniary penalty under part 8 of the Confiscation Act 1997. By that application, the Crown is seeking an order that you pay to the State of Victoria a pecuniary penalty which is equal to the value of the benefits derived by you in relation to the offence. The Crown does not seek to have those benefits assessed by reference to s.68 of the Act. Accordingly, the Crown is only seeking to recoup from you the profits derived by you as a participant in the conspiracy for which you have been convicted.
54 The application is resisted by you and it will not be possible for me to determine it before sentencing you. Although the Crown is only seeking to recover from you the profits of your wrongdoing, nonetheless I do consider that the application by the Crown does operate as a mitigating circumstance in your favour for two reasons. First, the Crown is seeking a declaration under s.70 which, if granted, may result in a charge in favour of the State of Victoria over your interests in specified properties, including your home at Lara. If the Crown were to succeed on that application, you would forfeit the whole of your interest in Lara notwithstanding that some of your equity in that property was acquired before the commencement of the conspiracy. In that respect I take into account that the application by the Crown may have a result which in that manner operates as a penalty to you. Secondly, if the Crown's application succeeds, you are likely to lose all of the property owned by you. Thus, when you complete your sentence, you will be significantly impoverished from a material point of view.
55 While I do take into account, and give credit, for the mitigating circumstances to which I have just referred, nonetheless it remains unarguable that you have been convicted of offending of a most serious kind. It is necessary for me to impose a sentence which is sufficiently severe to express the court's and the community's condemnation of your conduct, and to constitute a general potential deterrent to others who might otherwise be lured by greed to participate in the trafficking of illicit drugs. Your sentence must uphold and protect the standards of probity which the community expects to prevail in the Victoria Police Force by deterring any other members of that force from participating in the conduct for which you have been convicted. Finally, the sentence must also act as a specific deterrent to you from re-offending in any similar conduct upon your release from imprisonment.
56 Taking all those matters into account, I sentence you as follows. On count 1 of the presentment, I sentence you to a term of 12 years' imprisonment. On count 2 of the presentment, I sentence you to five years' imprisonment. I direct that the whole of the sentence on count 2 be served concurrently with your sentence on count 1, making a total effective sentence of twelve years. I direct that you serve a minimum of eight years' imprisonment before you become eligible for parole.
57 Pursuant to s.18(4) of the Sentencing Act, I declare that the period of 159 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. Please remove the prisoner.