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[2006] VSC 163
Supreme Court of Victoria
2006-04-28
KAYE J
Original judgment source is linked above.
CRIMINAL LAW - Sentence - Conspiracy to traffick heroin in a quantity not less than the commercial quantity - Money laundering - Accused police officer - Member of Drug
1 Ian Norman Ferguson, you have been found guilty by the jury empanelled on your trial of one count of conspiring to traffic heroin in a quantity not less than the commercial quantity applicable to that drug of dependence and one count of money laundering contrary to s.122 of the .
2 The first count on which you were convicted charged that you conspired between 1 April 1999 and 6 December 2002 with Stephen Cox and Glenn Sadler to traffic heroin in a quantity not less than the commercial quantity applicable to that drug of dependence. Mr Cox and Mr Sadler have also been charged with the same offence. Their trial is currently proceeding. Although it is necessary for me to refer to their roles in the course of these reasons for sentence, the remarks which I make in relation to them are based solely on the evidence led in the trial against you and in which Cox and Sadler did not participate.
3 My first task is to identify the facts which are relevant to the two charges upon which you have been convicted. Any finding of fact which I make in that process must be consistent with the verdict of the jury and consistent with the manner in which the Crown put its case against you to the jury. In respect of the count of conspiracy, which is the primary count on which you have been convicted, much of the evidence against you consisted of evidence that you had trafficked significant quantities of heroin to Duy Le over a period of approximately two years. That evidence was admitted as part of the overt acts from which the jury were invited to infer that you had conspired with Cox and Sadler to traffic heroin. You were not charged with, nor convicted of, the offence of trafficking heroin. Thus you are not to be punished for that offence. However, as the High Court has made clear in Savvas v R,[1] the evidence of those acts of trafficking by you is relevant to your sentence on the conspiracy count as it relates to the content, duration and reality of the conspiracy, and is probative of your participation in it.
4 You joined the Victorian Police Force in 1989. In January 1997 you joined the Drug Squad. Subsequently, on 6 November 2000 you were seconded to the National Crime Authority where you remained until 13 February 2001. You then worked with the Crime Department of the Victorian Police Force until October 2001 after which you worked with the Organised Crime Squad.
5 When you commenced at the Drug Squad, the crew of which you were a member underwent a series of personnel changes. In March 1999 both Cox and Sadler joined your crew. The unit of which they had previously been members had specialised in Asian drug dealing. Cox became the sergeant-in-charge of your crew.
6 The Crown case at your trial was that the conspiracy commenced in early 1999, when Cox and Sadler are alleged to have made a corrupt approach to Kenneth Lai. Lai had been arrested on charges of trafficking drugs. After his arrest, he was recruited by Cox and Sadler as an informer to the Drug Squad. Subsequently, Cox and Sadler are alleged to have proposed to Lai that he sell heroin on their behalf in return of a share in the profits of such drug trafficking. In his evidence Lai stated that he did not accept that proposal. There is no evidence that you played any part in the corrupt approach to Lai or knew of it.
7 In his capacity as an informer to the Drug Squad, Lai provided information in relation to a drug trafficker, Duy Le. As a result, Duy Le was arrested on 21 April 1999. After his arrest, Duy Le was also recruited as an informer to the Drug Squad. In that role he set up a successful drug arrest at Burwood Kmart on 2 August 1999. Duy Le's evidence was that on the next day Cox handed him one ounce of the heroin which had been seized during the arrest conducted at Burwood on the previous evening, and that thereafter Cox commenced to sell him the heroin on a regular weekly basis. Duy Le further stated that after a time Sadler and you also commenced to sell him heroin.
8 Cox resigned from the police force in late 1999. Duy Le maintained that thereafter you and Sadler continued to supply him with heroin. On some occasions Sadler, or you, individually supplied him with the drug and on other occasions the two of you did so together.
9 On 25 May 2000, and subsequently on 5 June 2000, Duy Le failed to answer his bail on two sets of criminal charges which he was facing in the County Court of Victoria. Warrants were then issued for his arrest. Duy Le alleged that after he had absconded, you and Sadler continued to traffic heroin to him throughout 2000 and 2001. You also gave him advice and assistance to avoid detection by those who were seeking to apprehend him on the outstanding warrants for his arrest.
10 Duy Le's evidence was that his contacts with both Sadler and you were quite regular in 2000 and towards the end of 2000, there was more contact with you than with Sadler. He stated that sometimes you would work together in tandem, so that if he called one of you, the other might call him back. In 2001 there was definitely more contact with you than with Sadler. In 2002 Duy Le's corrupt relationship with the Drug Squad died down and there was less contact. During 2002 he moved to Sydney. There he was arrested in December 2002. Shortly after his arrest he was interviewed by the Ceja Task Force which had the responsibility of investigating alleged corrupt activities by members of the Victorian Drug Squad.
11 At your trial I cautioned the jury that it would be dangerous for them to act on the evidence of Duy Le without first being satisfied that his evidence in material respects was corroborated by independent evidence. I also cautioned the jury that if it found that his evidence was corroborated, nonetheless they should approach his evidence with particular care. In making findings of fact against you, I consider myself bound by the same caution. Nonetheless, there was substantial evidence which corroborated the major elements of the allegations made against you by Duy Le. That is not to say that I accept the whole of his evidence. However, the significant thrust of his evidence against you was strongly corroborated by independent evidence, including evidence relating to telephone records, financial betterment, the sale of alcohol by or through Duy Le to you after the issue of the warrants for his arrest, and the sale of a BMW motor vehicle by Duy Le to you in November 2000.
12 The method by which heroin was supplied to Duy Le was simple. By prearrangement, you or one of your co-conspirators would meet with Duy Le at a specified location. There Duy Le would be supplied with heroin. In exchange, Duy Le would pay cash to you or your fellow conspirator. You and Sadler met Duy Le at a number of different locations. The most usual location was in Bromby Street, South Yarra, in close proximity to the St Kilda Road Police Complex.
13 Initially Duy Le was supplied with a couple of ounces of heroin every second day or so. Generally he paid $4,200 to $4,700 for each ounce of heroin supplied to him. During the course of the conspiracy the amount of heroin supplied to Duy Le increased, particularly after Cox retired from the police force in late 1999. On one occasion you supplied him with a block of lemon-scented heroin consisting of 350 grams in Bromby Street, South Yarra. On another occasion, in November 2000, you met Duy Le in Bundoora. On that day you had been tasked with a fellow member of the National Crime Authority to convey exhibits seized in a drug raid to the Forensic Science Centre at Macleod. Some time after your arrival at the centre you met Duy Le nearby and supplied him with a block of heroin. In return, Duy Le paid you $55,000 cash.
14 Ordinarily, the heroin was delivered to Duy Le by either you or one of your co-conspirators personally. However, on one occasion in March 2001, you arranged for a quantity of heroin to be supplied to Duy Le by another police member when you were not available to do so yourself. On that occasion Duy Le met that member in Maribyrnong and was supplied with a number of ounces of heroin.
15 The evidence of Duy Le as to the duration of the conspiracy, and as to your participation in it, is substantially consistent with the evidence of telephone contacts between Duy Le and you, and between Duy Le and your fellow conspirators, as contained in the call-charge records. It is also substantially consistent with the accounting evidence which demonstrates an increase in your assets, and also demonstrates cash payments and cash deposits which you made and which could not have been accounted for from known sources of income or previous cash withdrawals from your accounts.
16 In those circumstances, and consistent with the jury's verdict, it is appropriate that I sentence you on the basis that the conspiracy which was alleged in count 1 of the presentment was already on foot when you joined it. Further, I accept that you did not instigate or participate in the initial corrupt approach to Duy Le. On all the evidence I am satisfied that your participation in the conspiracy commenced in late 1999, or, at the latest, early 2000. I find that in the ensuing period until early 2002 you were an active participant in the conspiracy, and that from late 2000 you played the leading role in its continuance and in carrying out its central purpose.
17 I further find that during the lifetime of the conspiracy significant quantities of heroin were trafficked to Duy Le. In the early stages of the conspiracy Cox supplied heroin in two-ounce lots. Subsequently, the amounts of heroin supplied to Duy Le increased significantly. By late 2000 you were supplying him with 12-and-a-half ounces (350 gram) blocks of heroin for which he paid approximately $50,000.
18 It is necessary for me to make an assessment of the approximate quantity of heroin which was trafficked in the course of, and pursuant to, the conspiracy in respect of which you have been convicted, in order that I may make appropriate findings about the content, substance and extent of the conspiracy. It is also necessary to make findings as to the amount by which you profited as a consequence of your participation in the conspiracy.
19 No direct evidence was led in the course of your trial as to the total quantity of heroin which was the subject of the trafficking to Duy Le pursuant to the conspiracy, apart from the evidence of Duy Le as to specific quantities supplied to him on particular occasions. It would be a matter of speculation to attempt to calculate from his evidence the quantum of heroin involved in the conspiracy. However, a substantial body of evidence was led to establish the amount by which you financially benefited as a result of your participation in the conspiracy. In particular, the evidence of the forensic accountant, Mr Curtin, was to the effect that the joint financial position of you and your wife increased by the amount of approximately $697,000 in the three years preceding 30 June 2002. That amount was not affected by inflation or market changes, but was calculated by reference to the cost of assets purchased by you and your wife and by the amount of funds in your bank accounts, less the amount of your joint liabilities over that period.
20 Mr Curtin also conducted an analysis of the evidence of cash deposits and cash purchases undertaken by you and your wife during the same period. Mr Curtin calculated that during that period there were such transactions totalling approximately $710,000 which could not be accounted for either from your known sources of income or from the antecedent cash withdrawals from your accounts.
21 Of necessity, the methodology of Mr Curtin was not precise. There were limitations in the data available to him and in making his calculations he was obliged to make a number of assumptions. Nonetheless, the fundamental methodology adopted by the accountant was, I consider, valid and sound, albeit that it involved some degree of imprecision.
22 A number of the transactions relied on by Mr Curtin were the subject of dispute at trial. You gave evidence in respect of them. In particular, you claimed that a substantial amount of the financial betterment of your wife and yourself resulted from cash given to you by your father, Norman. In addition, you denied that you paid cash for some of the items taken into account by Mr Curtin or, alternatively, you asserted that you were repaid by persons from whom you purchased those items. You also gave evidence that the swimming pool installed at your Lara house was not paid for in cash, except for the deposit, but was subject to a set-off arrangement between you and the supplier of the pool.
23 I found your evidence in relation to these matters to be entirely unsatisfactory, both in its content and in the way in which you gave it. Indeed, it would be no surprise to me if the jury had rejected a substantial part of the evidence which you gave on this topic.
24 In particular, I found the evidence which you gave about the provision to you of funds by your father, Norman, to be utterly incredible. You had never taken the trouble to ask your father for any proof or documents to substantiate your claim that your father had the financial wherewithal to provide such large sums of cash to you during that period. No acceptable explanation was given as to why your father gave you those amounts in cash. I reject your evidence that you received such funds from him during that period. I am satisfied beyond reasonable doubt that you did not.
25 I do accept that you are, and have been, a very industrious and enterprising person and that you are a capable mechanic and handyman. I, therefore, accept that you earned some money during the relevant period from part-time work undertaken by you as a builder, handyman and the like. However, such amounts would only have been relatively modest in the context of the amount of betterment alleged against you. I do not accept that you made any profit from your farming enterprises. The accounts tendered in evidence show that your farms ran at a loss. The scale of those enterprises would not have been sufficient to have realised any, or any significant, profit to you.
26 It is not necessary for me to make detailed findings about the various items of purchases and deposits which were relied on by Mr Curtin, and which were the subject of dispute at trial. However, it is appropriate that I make brief findings in relation to them in order that I be in a position to make some realistic assessment of the financial profit to you as a result of the conspiracy. Briefly, my findings are as follows.
1. I do not accept that the mortgage of Lara was repaid with funds supplied by your father, Norman Ferguson.
2. I do not accept your evidence that Norman Ferguson provided the $100,000 cash which you deposited with the solicitor Peter Cash on 4 August 2000.
3. I do not accept your evidence that Norman Ferguson paid for the boat which you purchased in his name in December 2000 for $26,600.
4. I very much doubt that you were repaid for the hay baler which you purchased in late 2000. The evidence of you and your witness, Ogden, was unsatisfactory. However, I accept that it is possible that you were repaid for that equipment and, giving you the benefit of a small doubt, I am prepared to act on the basis that he did repay you for it.
5. I reject your evidence that a substantial part of the cost of the swimming pool was accounted for by a contra or offset arrangement with the supplier. I am satisfied beyond reasonable doubt that it was not.
6. Apart from your assertion, there is no credible evidence that Sadler repaid you for the Landcruiser which you paid for and which was purchased in the name of Sadler's wife. Your assertion that you were repaid in the absence of any supporting evidence lacked any credibility, and I reject it.
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.
[1] [1995] HCA 29; (1995) 183 CLR 1 at 7-9.
R
Ferguson [2006] VSC 163
(1995) 183 CLR 1