_R v Filippa_

Judgment (187 paragraphs)

[1]

Director of Public Prosecutions (Queensland) for the Crown

[2]

[1] The defendant, Todd Sean Filippa is currently 44 years of age and on 31 January 2008 he pleaded guilty to one count of trafficking in the dangerous drug methylamphetamine between the first day of January 2003 and ninth day of December 2004. He was charged on this indictment (412/2006) with Scott Adams, Warren Bourke, Christopher Plaszewski, Antonio Lalli-Cafini and Billie Jo Scofield. Whilst the defendant has pleaded guilty and admits a limited involvement in production and trafficking in methylamphetamine at Ryalls Road on 27 August 2004, he disputes many of the other facts on which the charge is based.

[3]

[2] A hearing, occupying some three weeks of court time, was therefore conducted to determine the factual basis of the plea prior to sentencing the defendant. The Crown presented extensive evidence and the defendant gave evidence as did Warren Bourke and three former employees from the defendant's nightclub Scores

[4]

[3] These reasons therefore set out the version of the facts of which I am satisfied.

[5]

[4] A contested sentence such as this is governed by the provisions of s 132C of the Evidence Act 1977 which provides as follows:

[6]

(1) This section applies to any sentencing procedure in a criminal proceeding.

[7]

(2) The sentencing judge or magistrate may act on an allegation of fact that is admitted or not challenged.

[8]

(3) If an allegation of fact is not admitted or is challenged, the sentencing judge or magistrate may act on the allegation if the judge or magistrate is satisfied on the balance of probabilities that the allegation is true.

[9]

(4) For subsection (3), the degree of satisfaction required varies according to the consequences, adverse to the person being sentenced, of finding the allegation to be true.

[10]

(a) information under the Penalties and Sentences Act 1992, section 15 or evidence given at a hearing in relation to an order under part 3A of that Act;

[11]

(b) information under the Juvenile Justice Act 1992, section 150(3) or in a presentence report under section 151 of that Act;

[12]

[13]

Section 15 of the Penalties and Sentences Act 1992 is also relevant and it provides:

[14]

(1) In imposing a sentence on an offender, a court may receive any information, including a report mentioned in the Corrective Services Act 2006, section 344, that it considers appropriate to enable it to impose the proper sentence."

[15]

[5] In the present case it is uncontroversial that in a contested sentence where an allegation of fact is challenged or not admitted, the judge must be satisfied on the balance of probabilities that the allegation is true, but the degree of satisfaction required varies according to the consequences to the defendant of an adverse finding. In the present case, it is clear that the consequences of the adverse finding are serious and could result in a significantly longer term of imprisonment. Whilst the standard required is not accurately described as beyond a reasonable doubt, clearly I must be satisfied to a very high degree. Both counsel have submitted that the standard is at the very high end of the Briginshaw scale[1] and that it in fact approaches the standard of "beyond a reasonable doubt".[2]

[16]

[6] In 2003 and 2004 a major crime investigation was conducted involving the Crime and Misconduct Commission, the Queensland Police Service and the Australian Crime Commission called Operation Alpha Submission Barrier. This operation utilised covert surveillance including electronic surveillance devices, physical surveillance and the interception of telecommunication services and targeted criminal activity in relation to the trafficking in, supplying, producing and dealing in dangerous drugs as well as money laundering and weapons offences. The operation was closed on 8 December 2004.

[17]

[7] It is apparent that initially the defendant was not known to police and that the covert surveillance initially targeted some of his co-accused, particularly Plaszewski, Adams, Bourke and Lalli-Cafini. The defendant became known to police during the course of the investigation and whilst surveillance devices were placed in the lane outside his nightclubs in September 2003 they were only placed in his home on 8 July 2004, about seven weeks before his arrest on 27 August 2004. The devices at his home were not operational after 9 September 2004.

[18]

[8] The defendant was arrested along with Warren Bourke, Trent Evans, Steven Jenkins and Lee Kiely at the defendant's property at Ryalls Road, Miles when officers executed a search warrant on the property on 27 August 2004 and found two and a-half kilograms of methylamphetamine, and a further one and a-half kilograms in the process of production. The Crown contends that this had a potential street value of $400,000. Officers also found precursor chemicals and equipment, as well as evidence of a sophisticated illicit laboratory in a shed on the property. The production had occurred over a period of five days and had commenced on 22 August 2004. A listening device had been placed in the shed and conversations during the five days had been recorded and the movements of the group outside the shed had also been videotaped.

[19]

[9] The evidence of the defendant's involvement therefore is substantially based on conversations recorded in the shed at Ryalls Road during this time, as well as recordings of any conversations at his home after 8 July 2004, and conversations he had with any person who was the subject of previous surveillance. The evidence at the hearing therefore consisted largely of taped and recorded conversations, as well as evidence of physical surveillance. The defendant's plea of guilty to his involvement in the production at Ryall's Road indicates an involvement in a joint criminal enterprise and accordingly statements not made in his presence are admissible as evidence of the furtherance of the conspiracy and the defendants participation in it in accordance with the decision in Tripodi v R.[3]

[20]

[10] The defendant also gave evidence and he called four witnesses. During the sentencing hearing almost 10 days were spent listening to the tape-recorded conversations and viewing the video recordings. Whilst transcripts were supplied of the conversations, these were simply an aid to listening to the evidence. In some instances more conversation than was transcribed was apparent and on other occasions what was heard differed slightly. I do not consider however that the differences were so material that they need to be specifically mentioned.

[21]

[11] The Crown contends that the defendant was involved in the production of methylamphetamine between January 2003 and December 2004 on at least ten occasions and that he was the chief financier and principal of a syndicate. The Crown submits that others in the syndicate, namely Plaszewski and Adams, sourced the precursor chemicals, namely pseudoephedrine tablets and hypophosphorous acid (known as "W" or "water") and that Lalli-Cafini and others then organised for the distribution of the drugs through contacts with outlaw motor cycle gangs.

[22]

[12] The defendant does not dispute that he was clearly involved in the production of methylamphetamine at Ryalls Road, Miles on 27 August 2004. He was arrested during a "cook" at those premises and admits his involvement on that date.

[23]

[13] The defendant disputes however the period of trafficking, maintaining that he was involved on one occasion only, namely the cook which commenced on 22 August 2004, and that he was not involved before or after that date. The defendant also contends that he had a minimal role in the production. He has therefore pleaded guilty to trafficking in amphetamines on the basis that he assisted in the extraction of almost four kilos of amphetamines on one occasion only and that this was not for commercial reasons, but simply to obtain one ounce of pure amphetamine which he planned to give to his wife who was addicted to speed.

[24]

[14] The critical questions that need to be answered therefore are: (1) how long was the defendant involved in production and /or trafficking; and (2) what was the nature of his role.

[25]

[15] The most substantial evidence in this case comes from the evidence gathered by law enforcement officers during the Ryalls Road production which commenced on 22 August 2004. During this period, the defendant made numerous statements about his role in relation to the production of drugs and drug trafficking. An analysis of the evidence needs, therefore, to commence with an examination of those recorded conversations and the statements made during the course of the five days of production.

[26]

[16] In order to understand the Ryalls Road conversations and the production it is necessary to understand two factual matters which are established by the evidence. The first is that it is clearly established from the surveillance evidence that Plaszewski, Adams and another person called Jeff Seaniger had sourced approximately 3,500 boxes of pseudoephedrine-based tablets just prior to the August 2004 "cook" at Ryalls Road.

[27]

[17] Further evidence indicates that these boxes had been handed over to three men called Kiely, Jenkins and Evans who were to take them up to Ryalls Road to commence the cook. These men had been previously employed by Bourke to produce methylamphetamine and were known as his "boys". The evidence indicates however that "the boys" had not arrived to pick up the defendant when they were supposed to. The defendant therefore travelled out to the property at Miles to see what was going on but returned to Brisbane immediately when it was clear they were not there.

[28]

[18] In the early hours of 22 August 2004 Scott Adams is heard to say:[4]

[29]

"... they were supposed to come and get him today and he went up to fucken see what the fuck was going on because they never come and picked him up and no one's fucken' been there mate. So we don't know if they've been fucken' caught ...or fucken' they've done a runner or what mate."

[30]

[19] The telephone intercept evidence shows that there was a belief that they had taken off with the three and a-half thousand boxes which would be worth about $175,000 on the black market. Surveillance clearly shows the group, consisting of the defendant, Adams, Plaszewski, Lalli-Cafini and Seaniger, getting in touch with Bourke who knew where to find them. There is a clear inference from the surveillance evidence that this was a vigilante group who were angry and out to extract some revenge. The defendant says in a telephone conversation on the morning of 22 August 2004, "...[t]hey're dead, if they done that they're dead mate. They might as well just say they're fucken dead hey."[5]

[31]

The matter however gets resolved and when "the boys" and the boxes are found they are sent out to the property to commence the cook. Bourke joins in the cook and also adds some of his boxes.

[32]

The defendant's involvement at Ryalls Road from 23 August 2004

[33]

[21] Extensive evidence was given at the hearing by Dr Reid who set out the chemical processes involved in the extraction of methylamphetamine from pseudoephedrine-based cold and flu tablets. The production of methylamphetamine usually involves a four stage process of extraction, reaction, isolation and salting and involves chemicals such as hypophosphorous acid, iodine, acetone and toluene. There is no doubt that a four stage process had been employed at Ryalls Road and that the chemical toluene had been extensively used given that the photos indicate that there were four large drums of toluene found at the shed.

[34]

[22] I have listened to the recorded conversations and read the transcripts of the five days at Ryalls Road very carefully and the defendant clearly makes numerous statements about his prior involvement with the production of methylamphetamine as well as statements about quantities of drugs produced and profits made.

[35]

[23] The defendant contends that these statements were made while he was under the effects of the chemical toluene and that his statements were not truthful or accurate. The defendant submits that these statements were in fact grandiose which is consistent with toluene intoxication.

[36]

[24] An agreed statement of facts in relation to toluene[6] was tendered and it is clear that toluene has numerous chemical and industrial applications and is a solvent in paints and lacquers. Toluene is usually inhaled from an open container and can irritate the nose, eyes and throat. It can also cause nausea and vomiting and can result in:[7]

[37]

"...dizziness, euphoria, grandiosity, floating sensation, drowsiness, reduced ability to concentrate, slowed reaction time, distorted perception of time and distance, confusion, weakness, fatigue, memory loss, delusions and hallucinations."

[38]

[25] I accept that the taped conversations refer to the group being affected by toluene and that there is a reference to "toluene dreams". I also accept that the defendant was exposed to toluene over a period of five days and may indeed have had more exposure than the others given he had very little sleep and spent a lot of time in the room with the toluene.

[39]

[26] The shed however was not well constructed, there was a wind blowing on a number of days, the garage was seen to be open on a number of occasions and a large fan was being used in the extraction room. I am satisfied that the shed was adequately ventilated.

[40]

[27] I can find no evidence to indicate that the defendant was actually intoxicated by the fumes. There is no evidence that he experienced any physical symptoms set out above, such as nausea, vomiting or burning eyes. I do not consider that the taped conversations indicate hallucinations and there is certainly no evidence of paranoia. Throughout the five days the defendant is remarkably lucid and alert. Indeed, his cognition is intact to the extent that he can do complex mathematical calculations as well as remember events from the past.

[41]

[28] The defendant submits that he was more voluble than usual and that he was exaggerating his role in the whole enterprise. Many of the statements in question commence as soon as the defendant arrives at the shed before he is even exposed to toluene. The defendant's speech is not slurred at any stage and he does not stumble or search for words. Whilst the defendant appeared to be forceful and dominant during the recorded conversations I consider that his style and manner of speaking was remarkably similar to that which was exhibited whilst he was giving evidence at the hearing.

[42]

[29] I do not consider that there is any evidence to lead to a finding of toluene inhalation to the extent that it led to the defendant being affected to any significant degree, let alone intoxicated.

[43]

[30] I consider that the conversations attributed to the defendant at Ryalls Road were in fact made by him and were not made under the influence of any drug or chemical. The defendant's statements in many respects are corroborated by other evidence adduced during the hearing.

[44]

[31] From listening to the tapes it is clear that the three men, Kiely, Evans and Jenkins arrived at Ryalls Road on 22 August 2004 and they are clearly there under instructions. They are following orders to start the first stage of the process. They had been told to throw out a mix that had gone off previously.[8] They also talk about the fact that they came close to death that morning during the incident involving the missing boxes. Evans says, when referring to a conversation he had with the group that morning:[9]

[45]

"I said well, like if youse were here to do business and ask no questions, I said I woulda been dead this morning mate. That's how close I was mate, like fuck. I can't fuckin' get over it that's how close I was to death this mornin' mate."

[46]

[32] At 6.00 pm on the evening of 23 August 2004 the defendant arrives at Ryalls Road with Bourke and it is immediately clear that the defendant is in charge as he gives instructions about how to mix the tablets and how the cook is to proceed. The defendant is heard giving orders about 'putting in cold water', getting 'one more mix' and 'putting another hundred in the mix'. It is clear the defendant is in charge of a number of "workers" and in fact gives instructions to them to make sure they get some sleep.[10]

[47]

It is also clear that he had organised for some of the ingredients to be brought to the property and asks, "...[w]here's that water mate? ... [t]hat water you brought up", to which Jenkins replies, "The acid?" and the defendant replies, "[y]eah, the acid."[11] The defendant also refers to "boxes" and the fact that there were boxes there waiting. There was very clearly, a discussion of quantities and boxes, particularly with reference to quantities of 500, 820, a thousand and 1650.[12] The defendant also indicates that he brought to the property a fan to assist in the extraction process.

[48]

All of the recorded conversations at Ryalls Road clearly indicate that the defendant had an intimate knowledge of the process and of the fact that there were particular quantities involved. The evidence indicates a precise knowledge of particular measurements and of the quantities of the precursor materials required.

[49]

The defendant's intimate knowledge of the process is confirmed in many conversations where he said things like, "...I know this one here we'll be getting stuff out, first pull on this cunt here we could get 1500 grams or something."[13] When asked how many tablets were in the mix he also says "near 4,000 mate..."[14] He also says, "[w]e are only chasing 70 grams at the most all up."[15]

[50]

The defendant also refers to getting some of the precursor materials and equipment. He also refers to bringing up boxes of glucose, in fact, four or five bags. He also refers to buying "water", which is the slang term for hypophosphorous acid, and he indicates that he had paid $6,500 or $8,000 for the water that they had purchased. He also refers to the fact he had paid $5,000 for a stainless steel coffee grinder and states:[16]

[51]

"Proper coffee beans are as hard as Demazin [flu tablets]. That one is a $5,000 stainless steel coffee grinder. That is what it cost. You put pills in, it comes through the other side."

[52]

[37] The defendant also refers to a previous cook where he had been so tired he had made errors in the mix. When asked was he able to get it back he said:[17]

[53]

"No mate, you know why, I'd been away for days sitting out there." and then says, "I threw the cunt." He said, "...I was ready to go to anger management, mate. I did all the fucken' cooks except for the first one...the first thing, I was off my head, by the time I had to dig holes."

[54]

[38] He is also clearly critical of the fact that the "water" they are using is not good and that they have previously had "good gear every time". The defendant is angry at the quality of the "water" that they are using and wants someone to drive back and "ring Scotty" and send it back. It is also clear that the defendant knows from the look of the mix how it is going. This indicates his previous experience as does his comment that there has not been good water for four years, since a person called "Kim" had gone to gaol.[18] The defendant also refers to the fact that, "...in big cooks you can't get the same percentage back like you can in little cooks where you get 100 per cent back."[19] On 23 August 2004 he says, "...[t]here's too much salt in this..."[20] All of this is clear evidence of control of the process as well as previous experience.

[55]

"I can't perform miracles with shit, you know what I mean." He later says, "I paid 25 for this crap, I told 'em to check the stuff. People expect you to create miracles. You can't create miracles if the water's no good or io's [iodine] not good or whatever, ... I can't create miracles if the water's no good, the acid has to be good, at least 50 per cent."[21]

[56]

[40] Having listened to the tapes of the Ryalls Road production I consider that that evidence simply does not support the defendant's contention he was just a labourer on the cook and that he had a minimal involvement. Furthermore I do not accept Bourke's evidence that the defendant did "bugger all" and that all he was doing was standing around and scribbling on a pad and that "realistically there wasn't a place for him". Those statements are not supported by the recorded conversations and indeed are contrary to the defendant's own evidence. I also consider that the defendant's conversations indicate considerable experience in having done the extraction process a number of times prior to the production at Ryalls Road and that he brings this experience to bear during the Ryalls Road cook.

[57]

[41] I am satisfied on the balance of probabilities to a very high standard that the defendant is in charge of the Ryalls Road cook and has extensive knowledge of what is required to successfully extract methylamphetamine. I consider therefore that the defendant was in fact the person in charge of the production which commenced on 22 August 2004 and whilst he does at times check things with the others, particularly Bourke, I am satisfied that not only is he the one in charge of the cook but that he is the person who has put the whole operation together. I am satisfied that he has supplied the property, organised the workers, some of the chemicals, the equipment, the knowledge and some of the labour.

[58]

[42] The defendant admits the notebook or diary found in the lab at Ryalls Road is his and an examination of this book indicates the calculations that are being done by the defendant throughout the cook. The defendant is the one keeping records of the production. He is the one who is calculating the returns as well as determining how many "pulls" they are going to do. It is also clear that a record is kept of who has sourced the boxes. The diary indicates that Adams put in 1,000, Seaniger 1650, Plaszewski 820 and Bourke 210. Interestingly, when the defendant initially told Bourke he thought that the "boys" have stolen the boxes he says "...they just fuckin' knocked off 3,500 of my boxes."[22] This is a very powerful statement in terms of an indication of the major role he is playing in the enterprise.

[59]

In his evidence the defendant indicated that he put no boxes in and that he was involved solely to obtain some speed for his wife who had a speed habit. The evidence establishes that the defendant had bought the property in late June as well as the generator and a Pajero for Kiely to use. The conversations and the calculations in the diary establish that those who had put in boxes would get a return by way of a certain percentage of the finished product. The Crown asserts that the arrangement was that all the boxes were put in and in return for organising the cook the defendant would get one third of what was produced.

[60]

This arrangement is supported by a recorded conversation where Adams explains that "...you get fuckin' two thirds of your shit and you have to do nothing" which indicates he supplies quantities of pseudoephedrine-based tablets but the producer takes a third of the finished product (that is methylamphetamine) as payment for the conversion of the psuedoephedrine-based tablets into methylamphetamine. He says, referring to a conversation with a mate:[23]

[61]

"I said to him, 'You don't have to buy any acid, any iodine, nothing. You just drop it off and get two thirds back mate."

[62]

[45] In a Ryalls Road conversation the defendant states that if things go wrong he is the one who "pays."[24] He later says that if they damage any of the product which is evaporating on the table he is the one who will have to explain where it went.[25] I consider this is consistent with an arrangement whereby he receives a percentage of the finished product. This is supported by the conversation he has with Evans where he states "...I can give you an ounce of cut, I can't give you an ounce of pure, that's the fuckin' cook..."[26] About an hour later he talks to Evans again and says, "...sorry mate....until this one is done,...know exactly, we'll get a percentage...1.2....what we're talking about is percentage...percentage of the cook..."[27]

[63]

[46] I do not consider the defendant's evidence, that the extent of his financial contribution to the "cook" at Ryalls Road was the $1,000 that he put towards the generator, to be credible. The evidence establishes that the production occurred on the defendant's property, he had purchased a Pajero for use by Kiely, he had purchased a generator, he had supplied boxes of glucose as well as acid, he had brought to the property a fan to be used during the extraction stage of the process and he had spent five sleep deprived days in a cold shed. The evidence also reveals that the production would have yielded profits of at least $200,000 and probably in the vicinity of $400,000. I do not consider the defendant's evidence that he would get one ounce from the production in return for his contribution to be believable given the significant contribution he made financially, physically and intellectually. Furthermore, the defendant's evidence is not supported by the conversations or the diary.

[64]

[47] Having considered the evidence in relation to the expected return to the defendant from the production, I am satisfied to the requisite standard that the defendant was to get a substantial percentage of the finished product. I am not satisfied that the calculations in the diary establish with precision that he was to get a third of the product from the August 2004 Ryalls Road cook, but I do consider that he was to get a considerable percentage and that he had obtained a third of the methylamphetamine produced in previous cooks.

[65]

[48] In the recorded conversations at Ryalls Road the defendant made numerous statements which indicate he had been involved in drugs and drug production for a long time.[28] The defendant gave evidence at the hearing however that he had not been involved in such things prior to the Ryalls Road cook and this was supported by the evidence given by Bourke. I do not accept this evidence. As I have indicated I consider that the defendant was not affected by toluene and that his statements were accurate. I consider that these statements of previous drug production are in fact substantiated by other evidence. I consider that the other evidence set out below supports a finding that the defendant was involved in the production of drugs from at least January 2003. This finding is based on the evidence from the Albion storage shed, his close association with known suppliers of precursor tablets and his involvement in their activities including his financing of the purchase of pseudoephedrine-based tablets.

[66]

[49] On 30 January 2003 detectives from the State Drug Investigative Group executed a search warrant at a shed at Albion Self Storage. The defendant's defacto partner, Anouska Harris, came to the shed during the search. The rental documents were in her name and she was subsequently identified as the woman who had purchased the large quantity of chemicals located at the storage shed.

[67]

[50] At the shed a number of discarded blister packs of pseudoephedrine-based tablets were found and it was calculated that originally there would have been 17,310 tablets. This quantity of pseudoephedrine could have been converted into 1,442 grams of methylamphetamine which could have a street value of between $180,000 and $200,000. During the search of the shed police located numerous chemicals, together with five publications which were related to the construction and operation of drug laboratories, including a book entitled "The Secrets of Methylamphetamine Manufacture" by 'Uncle Fester' which had recipes for MDA, Ecstasy and other psychedelic amphetamines.

[68]

[51] Clearly precursor chemicals, the necessary equipment and instruction manuals in relation to the production of methylamphetamine were found in January 2003.

[69]

[52] Invoices were found at the site linking some of these purchases to the defendant. In particular, two invoices from amazon.com in the United States indicated the account had been paid by an American Express credit card and that the items had been sent to the defendant at an address at Montpelier Street, Clayfield. The invoices related to an order dated 2 March 2002. Subsequent evidence obtained from American Express indicated that the orders had been paid by an American Express credit card and the accounts were in the name of Todd Sean Filippa. Two of the payments made on the defendant's card are the same amount as the total amount shown on each invoice found at the shed. I also note that an invoice for the acetone found in the shed was in fact located in the couple's bedroom when it was searched in December 2004.

[70]

[53] In evidence the defendant indicated that he was separated from Harris at the time and she had given his American Express card to her brother to use. I do not find this evidence to be credible. In a recorded conversation between Harris and Adam, after the defendant is arrested, she indicates that everything is in the defendant's name and she has no ability to raise any funds. The financial records tendered at the hearing indeed indicate that it was the defendant who controlled the assets.[29] Given the extent of the defendant's control of the couple's financial resources I do not consider Harris could have accessed the defendant's American Express credit card without his knowledge let alone given it to her brother. It is even more unlikely that Harris had access to the defendant's card if they were in fact separated as the he claimed.

[71]

The defendant himself indicated that Harris was often out during the day and he was the one at home. I accept the evidence of the witness Peter Lee that the defendant went into the club "...every few days".[30] Other evidence indicates that the defendant attended at the clubs three or four times a week at most and this was during the evening. Given the evidence that the defendant was home most days I consider it unlikely that goods could be delivered to his home without his knowledge. I do not accept the defendant's evidence about his knowledge of the Albion storage shed.

[72]

I consider that the defendant ordered some of the contents of the shed and that he had knowledge of the contents of the Albion storage shed which included 17,310 discarded pseudoephedrine tablets. I consider the defendant had a clear involvement with precursor chemicals and equipment as well as instructions in relation to the manufacture of methylamphetamine in January 2003.

[73]

[56] Evidence from at least late September 2003 establishes that there is a group of key people, namely the defendant, Plaszewski, Adams, Lalli-Cafini and Bourke who have an association. This is clearly established by the number of telephone calls amongst the group. A breakdown of the telephone logs[31] establishes that in an eight month period between January 2004 and September 2004 there were 210 calls between the defendant and Plaszewski and 346 between the defendant and Lalli-Cafini. There were 580 calls between Plaszewski and Adams and 598 between Plaszewski and Lalli-Cafini.

[74]

Video evidence from Ranwell Lane at the rear of the nightclubs owned by the defendant confirms that the defendant has close links with this group in the years of 2003 and 2004 as he is filmed talking to the group during this time and they are seen entering the Scores Nightclub via the back entrance.

[75]

Whilst there was extensive video surveillance of Ranwell Lane I do not consider that any of this evidence is of any real significance in relation to the production and trafficking in drugs. The video surveillance does however establish that the defendant had contact with the key people and it does establish a link between some of the items found at the labs and the clubs. Video surveillance in January 2004 indicates that the defendant came out of Scores Nightclub with Bourke and Plaszewski carrying four plastic containers, as well as an empty keg and that these items were placed in the boot of Bourke's car. On 8 January 2004, the defendant is seen to smell the contents of a bottle, which clearly contained some sort of noxious liquid. These items are consistent with items found at both the Ryalls Road illicit lab and the illicit lab at Perseverance Road, Kin Kin. Consequently there is some evidence from the Ranwell Lane videos in relation to the production of methylamphetamine but it is not extensive.

[76]

I do not consider that the meeting on 21 January 2004 between Lalli-Cafini, Plaszewski, Bivolaru, Adams and the defendant is necessarily indicative of drug dealing. During this meeting a clip-seal plastic bag is handed around amongst the group. Whilst it could be a white powder, it is hard to finally be satisfied that it is a white powder as it could be consistent with an item of jewellery in a plastic bag, given that people were inspecting the plastic bag closely. I do not consider that this incident is consistent with drug trafficking but could be consistent with an item of stolen property particularly as the handling of the packet indicates a weight which is more consistent with an item of jewellery than illicit drugs in either a powder or crystal form. The evidence does however show the close association between the group.

[77]

This close association is further evidenced on the 22 February 2004 video surveillance. Lalli-Cafini, Bivolaru, Plaszewski and the defendant are all together in the car park behind the defendant's clubs and Bivolaru opens the door of a car and removes an axe and shows it to the defendant. Two baseball bats are removed and Bivolaru hands out the baseball bats and the defendant holds one of these bats and is seen to swing it jokingly to "beat" one of the others.

[78]

Further association evidence is shown by the defendant's involvement with Bourke. There is the evidence of a conversation between the defendant and Bourke at Ryalls Road where the defendant states he lent him $40,000. He says:[32]

[79]

"I'd given you the money to buy the extra boxes, from that fucken day I gave you that money, there was a problem, from the day I gave you that forty fucken thousand dollars."

[80]

[62] The defendant stated in evidence that he gave it to Bourke for his excavation business. I do not consider that the conversation supports such a version. The conversation is consistent with an advance for the purchase of boxes of pseudoephedrine.

[81]

[63] An analysis of the videotaped evidence of Plaszewski's conversations during the period February 2004 to April 2004 clearly shows the extent of Plaszewski's involvement in the manufacture of methylamphetamine. On 22 March 2004 Plaszewski is heard speaking about the need to launder money. These conversations establish Plaszewski's knowledge of drug production, his sourcing of basic ingredients and his hiding of tablets. He also gives clear indications of the extent of money being made, at one stage indicating that he was making between $30,000 and $40,000 every two months.

[82]

[64] There is a close association between Plaszewski and the defendant. On 10 April 2004, there is a clear reference to the defendant in conversations between Plaszewski and his defacto. The essence of this conversation is that Plaszewski says that "...Todd wants me to do this - Todd wants me to do that". His defacto then endorses this deference by Plaszewski to the defendant by indicating that he does run around after the defendant.

[83]

[65] Videotaped conversations of Plaszewski on 10 April 2004 also indicate the number of boxes of pseudoephedrine tablets that he is involved in. In particular he talks in terms of 60 boxes and 130 boxes and ultimately says, "...[t]hat's $84,000 made up gear, say 80,000. $80,000 just sitting there."[33]

[84]

On 18 April 2004 there is specific evidence linking the defendant to Plaszewski and precursor tablets. The telephone logs indicate a telephone call from the defendant to Plaszewski at 9.57 am on 18 April 2004 and there is also a contemporaneous recording of a conversation between Plaszewski and his de-facto where he says "Todd called."

[85]

At approximately 1.00 pm the same day a conversation is recorded where Plaszewski makes specific mention of the defendant saying that, "...Todd said there's .14 and...quarter ounces there, - over 14 there. Fourteen and a quarter."[34] It is also clear that Plaszewski goes to the defendant's home and when he returns he tells his de facto he had "400grms".[35]

[86]

Clearly then Plaszewski is involved with sourcing pseudoephedrine and I am satisfied given the nature of that specific conversation that the defendant is also involved in the sourcing of these base drugs.

[87]

There are many references to the defendant in a conversation Plaszewski has on 9 May 2004. The recorded conversation again mentions the defendant specifically and that there is general unhappiness with Bourke as well as a discussion of money being owed. In fact, there was reference to the defendant going and bashing Ray Bourke, Warren's brother. I am satisfied that there were telephone calls involving the defendant and Plaszewski on 11 May 2004 which is supported by the telephone logs.[36] In this conversation there was an arrangement for both Plaszewski and the defendant to go and visit Bourke so they can 'fix' him up.

[88]

[70] The evidence indicates that there had been a history of dealings between the defendant and Bourke and then a significant falling out in early 2004. Bourke is in hospital for a long period from 24 March 2004 after a car accident and is released on 11 May 2004.

[89]

[71] On 12 May 2004 there is a further conversation in which Plaszewski indicates that he has to go and see the defendant who wants him and Scott Adams to go and see Bourke and tell him to stay away from them all. This is because Bourke was arrested on 6 May 2004 in relation to possession of methylamphetamine. During this conversation Plaszewski indicates that he had told the defendant 10 years ago that he did not trust Bourke. On 12 May physical surveillance confirms that Plaszewski did visit the defendant's house at Warner and later that evening Plaszewski and Adams go to Bourke's residence at Caboolture.

[90]

[72] I consider that this evidence indicates a history of the defendant's involvement with Bourke in relation to the production of methylamphetamine.

[91]

[73] Further evidence of the defendant's involvement with precursor tablets is shown by his close involvement with Plaszewski in May 2004. On 15 May 2004 the recorded conversations indicate Plaszewski mentioning 300 boxes and a new vacuum seal bag machine that he has purchased to seal up the pills. He also refers to the fact that he cannot stash the tablets in his house; that he needs to go and bury them. On 16 May 2004 Plaszewski is observed hiding the packets of tablets in the bush at North Ridge. This package was subsequently found by police and it contained a large quantity of green, blue and white pseudoephedrine based tablets. It would appear that there were approximately 1,750 tablets weighing in the vicinity of 1.45 kilograms.

[92]

[74] The police organised for a press release indicating that these drugs had been found. On 18 May 2004 telephone intercepts indicate that Plaszewski hears of the police finding the tablets in the bush. On 19 May 2004 there is further discussion about the drugs having been found and Plaszewski's implication in it. He discusses how to hide tablets and he is concerned about the fact that he could be traced. There is also a clear indication by Plaszewski that he was going to go and see the defendant and the clear inference is that it is about all these events.

[93]

[75] On 27 May the defendant visits Plaszewski at his home. Plaszewski is someone clearly who obtains the packets of pseudoephedrine. He is also someone who defers to the defendant and does what he is told by him. This does indicate the nature of the relationship between the defendant and Plaszewski.

[94]

[76] On 28 May 2004 there are conversations by Plaszewski referring to cooking and other manufacturing processes, as well as a reference to the defendant. This conversation also shows Plaszewski's involvement in production as there is reference to Plaszewski needing to buy iodine and acid. In the same conversation someone indicates he wants to meet the defendant but Plaszewski says the defendant has enough friends. I consider this conversation shows the defendant's involvement with Plaszewski and with production of methylamphetamine at this point in time.

[95]

[77] On 7 June 2004 a fully functioning illicit laboratory together with a large quantity of methylamphetamine, chemicals, glassware and by product is located in an old banana packing shed at Perseverance Road, Kin Kin. This shed was located near a property owned by Bourke's brother Ray Bourke. When pursued by police during a raid on the property, Ray Bourke shot himself and later died.

[96]

[78] On 16 June 2004 Harris's brother is found in possession of a large quantity of pseudoephedrine tablets after a search at Alma Road, Clayfield.

[97]

[79] On 25 June 2004 a search warrant was executed at Haig Street, Stafford where Harris's sister was found with 686 cold and flu tablets.

[98]

[80] The defendant's partner Harris is also recorded in July 2004 trying to source pseudoephedrine tablets from her brother in New Zealand and discussing the wiring of money to him for this purpose.

[99]

[81] A conversation on 5 July 2004 clearly indicates the defendant is involved in sourcing precursors as this conversation clearly suggests that the defendant has been ripped off and there are references to going and bashing people as a result of this "rip-off." These actions in relation to the suspected "rip off" are significant in terms of the defendant's role. It shows the boxes were intended for him and that he had paid for them.

[100]

[82] It is clear that Plaszewski is a major source of pseudoephedrine and there are numerous telephone intercepts or videos which record that pseudoephedrine based tablets come into Plaszewski's possession during this period. On 21 July 2004 Dave Thompson is recorded delivering a large quantity of pseudoephedrine to Plaszewski at his address. Plaszewski in a conversation indicates that there is about $10,000 sitting there in pills. In another conversation he refers to "between $200,000 to $250,000 worth of pills."

[101]

[83] In early August 2004 it is clear that there is sufficient pseudoephedrine in the possession of Plaszewski, but that other chemicals are still being sourced. It is clear that hypophosphorous acid, known as "water" is being sought and that it is in scarce supply.

[102]

[84] During the period prior to the cook at Ryalls Road in August 2004, it is clear from an analysis of the recorded conversations that the defendant is the one who is pursuing and organising the chemicals required. In particular, on 10 August 2004 there is a phone call between Plaszewski and the defendant whereby Plaszewski tells him that he can get the stuff but it is very expensive, and the defendant replies, "...[i]t doesn't matter, mate, I'll pay for it."[37]

[103]

Having listened to the conversations around this time it is clear that there is concern about finding the chemicals they need to get the process underway. The evidence shows that the defendant is stressed in relation to the delay. I am satisfied that this is very strongly indicative that he is the major organiser. Furthermore, on 17 August 2004, when there is some concern about getting the "water" or the hypophosphorous acid, it is clear that the defendant will also "front" the cost of it. Once all of the precursor chemicals are obtained, it is clear that by 17 August 2004 the defendant is keen to get moving and he tells Kiely that they are on the move soon.

[104]

I consider that the defendant had a history of involvement with the production of methylamphetamine evidenced by his associations with Bourke, Plaszewski and Adams and that he was an organiser and financier for the sourcing of precursor tablets and other chemicals prior to the cook at Ryalls Road on 22 August 2004.

[105]

[87] I consider that in the Ryalls Road conversations the defendant specifically confirms that he had been involved in other cooks elsewhere and that he has been out to Ryalls Road previously to actually produce methylamphetamine. In particular, he refers to the fact that last time it was cold and that, "...[w]e got 3,000 last time, mate, but we got it all out." He then says, "...We get all the ephedrine out. You know what I mean." In reference to a previous cook he says, "...We only used a thousand litres last time." I do not accept the defendant's evidence that he had not been involved in a previous cook as this is not supported by the other evidence.

[106]

[88] The evidence indicates that the defendant signed a contract for the purchase of a property at Ryalls Road, Miles on the 28 May 2004 for $47,000 and that the contract was settled on 18 June 2004. The defendant's evidence is that he purchased the property mainly for his children to ride horses and bikes. There is no evidence that there was ever a visit for this purpose. Furthermore the photos and the video evidence clearly indicate that the shed is really not fit for habitation and all talk of renovations during the "cook" relates to improving the shed to assist with future cooks. There are no conversations about buying horses or bikes or trying to make the shed comfortable for a family. I do not accept the defendant's contention that the property was purchased for family use.

[107]

[89] In the week prior to the settlement there are a whole series of conversations recorded evidencing Plaszewski trying to source a generator. It is clear this is being obtained for the defendant as he organises the ultimate purchase and its collection. Conversations are also recorded whereby Plaszewski is trying to source acid. The defendant also purchases a Pajero four-wheel-drive and gives this to a person called Kiely who is one of the workers at the Ryalls Road production. A conversation on 23 June 2004 clearly indicates the defendant's role in the transactions in that he refers to 800 boxes being his.

[108]

[90] There is clear evidence of the defendant's presence at the Ryalls Road property on 30 June 2004 when a neighbour spoke to him and subsequently identified him. He also indicated that he could smell a strong chemical odour and that there had been a generator going all night. I do not accept the defendant's evidence that there was no cook on this occasion and that all they did was to complete the first part of the methylamphetamine extraction process. Furthermore the defendant during the Ryalls Road conversations refers to having been out there previously for three or four days on this occasion which is consistent with a cook rather than a simple extraction process as he alleges.

[109]

[91] There is also direct evidence from the Ryalls Road conversations which confirms that there had been a cook on Evans' birthday (30 June). In addition there was some evidence consistent with previous production discovered during a covert search by officers on 21 July 2004.

[110]

[92] I consider that there was at least one previous cook on the property involving the defendant and that this occurred around 30 June 2004 when a generator had operated all night, fumes were smelt and the defendant was identified.

[111]

[93] In the Ryalls Road conversations the defendant also refers to a specific involvement in a previous cook at a different place. The defendant says:[38]

[112]

"...1.5. At the other place we were last time we were 1.7 remember. It fucked up because of the dam water."

[113]

[94] I consider this indicates that the defendant was personally involved as a cook at an illicit laboratory at a place other than Ryalls Road and that this was before June 2004.

[114]

[95] There are also several conversations at Ryalls Road where the defendant refers to his involvement in previous cooks but not necessarily as a cook but rather as a financier or contributor of drugs. In particular there is particular reference to previous cooks where he had used Bourke. There is a reference to having given $40,000 for the purchase of tablets by a bloke called "Shopfront" sometime in 2003.

[115]

[96] On 25 August 2004 the defendant is also recorded as saying:[39]

[116]

"How many times did you tell me that you had a place, I said to you this, I didn't want to release them boxes to you because I was sick of fuckin' telling Scotty....and waitin to get this shit back. And you kept on saying we got the place, give me the boxes. I shouldn't have."

[117]

[97] I consider that this conversation indicates that the defendant was not actually present at that cook but had contributed boxes of tablets to the cook done by Bourke. Given his dissatisfaction with Bourke about this event I consider this occurred around the time the defendant discontinued his association with Bourke in early 2004.

[118]

[98] There is also another reference to a further cook with Bourke when a shed burnt down. The Ryalls Road conversations indicate the defendant saying:[40]

[119]

"...you burnt that fuckin' house down with that fuckin' fifty thousand dollar drum, I got Chris to finance the fuckin' sixty thousand dollars Charlie, remember that."

[120]

[99] The evidence indicates that Bourke lost a shed to fire in January 2004. The defendant stated:[41]

[121]

"All the stuff and equipment and everything burnt down, our profits been burnt down,...we ended up with nothing, going backwards."

[122]

"What I am saying is the whole fucking thing collapsed, you's went out there and burnt the house down."

[123]

[100] I am satisfied this indicates a further involvement in a cook in January 2004.

[124]

[101] I am therefore satisfied that the defendant has a consistent history of involvement in the production of methylamphetamine from January 2003 and whilst it is not possible to indicate with precision the number of times he was directly involved in producing methylamphetamine I am satisfied that there is direct evidence of one cook at Ryalls Road in June 2004, and the further cook at Ryalls Road in August 2004 I am also satisfied that the defendant was personally involved as a cook at "another place" prior to Ryalls Road. I am further satisfied that there is evidence of an involvement with at least two other cooks when he contributed finances or tablets. One of these occasions was in January 2004, when the defendant provided the finances and the other occasion was around the same time when he provided tablets to Bourke for the cook but did not actually do the cook.

[125]

[102] I am satisfied therefore that there is direct evidence of the defendant's involvement in at least five cooks in the period January 2003 to August 2004 and that these cooks involved substantial quantities.

[126]

[103] It is also clear that this was the minimum number of cooks in this period. At Ryalls Road the defendant refers to his long experience with production. In a recorded conversation on 25 August 2004 the defendant makes it clear that previously in Queensland you could not get pure methylamphetamine and that "...one ounce of pure made eight ounces of cut but you never got pure ever".[43] This indicates his history in relation to production which is confirmed when he then goes on to indicate he involvement in methylamphetamine production. He says:[44]

[127]

"Ten years ago me and Chris were the first people ever to get pure, that was the original persons who started doing the hypo cook in Queensland, six grand an ounce, six grand."

[128]

[104] There is also a reference to starting off at a little farm, "a horse trainer paddock", as well as a reference to a "South African". At Ryalls Road he also refers to an occasion "...when we were at Scotty's place, at the other fuckin' place we were rushin' mate." The date of these events are unclear and it cannot therefore be established that they occurred in 2003 and 2004.

[129]

[105] There is also reference to a laboratory referred to as "the horse trough" which the Crown submits is a reference to the Kin Kin shed which was raided on 7 June 2004 as a stainless steel horse trough is found at the shed. I am not satisfied however that there is sufficient evidence to directly link the defendant to the production which occurred in the shed on the 7 June 2004.

[130]

[106] Given the conversations at Ryalls Road I am satisfied that five cooks is the minimum number of cooks the defendant was involved in during this period and that this is indeed a "sample" of the business likely to have been conducted during this period.

[131]

[107] The next question which needs to be determined is whether the defendant continued his involvement in the production of methylamphetamine after his release on 15 September 2004.

[132]

[108] The first issue is whether he was involved in the purchase of a pill press on 17 September 2004. The recorded conversations indicate Plaszewski's involvement in the purchase and initially it seemed that he and Adams were going to go halves in its purchase. From an analysis of the conversations during this period however it would seem that they cannot put the money together. The Crown submits that after the defendant's release on 15 September it was the defendant who provided the funds and the go ahead to purchase the press.

[133]

[109] It is clear that the purchase was not finalised until the defendant's release and that Plaszewski is the person who went to Toowoomba to collect him. There is then a meeting of the group at the defendant's home late on the evening of his release where the inference is that they discussed the purchase. These factors by themselves would not lead to an inference of the defendant's involvement. Whilst it is significant that the inspection of the pill press occurs at Scores Nightclub and that the purchase is from an employee of the defendant's, I am still not satisfied to the requisite standard that there is sufficient evidence to lead to an inference that the defendant was involved in the purchase of the press. I am not satisfied that the reference in Lalli-Cafini's phone call to going to Warner is a reference to the defendant's home.

[134]

[110] I am, however, satisfied that the defendant was involved in the production of drugs after his release because of his involvement at Rocksberg on 13 October 2004 and his efforts to set up another lab after his release.

[135]

[111] It is clear from Bourke's evidence that the Rocksberg area, near Caboolture, was used by him as a site for the production of methylamphetamine as well as a dumping ground for the by-products of the extraction process. The tendered photographs also indicate the use of the area as a dump for this purpose as it shows toluene drums and discarded plastic containers.

[136]

[112] The recorded conversations in October 2004 clearly indicate that the group are looking for somewhere to set up a production. On 2 October 2004 Plaszewski is heard saying to Bourke that "...Mr T says, until we get a house he's not going to give no money over to fuckin....but it won't take me long to set up."[45]

[137]

In October 2004 both Plaszewski and Adams are obviously obtaining large quantities of pseudoephedrine tablets and the evidence shows Adams passing them on to Bourke. On 13 October 2004 the group meets at McDonald's and then travel together to Rocksberg. The purpose of this trip is not clear but the group is observed to go quite near the site of the dump, and on the basis of Bourke's own evidence he and Plaszewski walk off in to the bush because Bourke wants to show him something.

[138]

A short time later on the same day after the groups return from Rocksberg Plaszewski rings Bourke and asks him if he had "touched the last one" and when Bourke responds that he has Plaszewski asks 'from 11 up to 2", to which Bourke responds "yes 1180". The Crown submits that this is clearly a reference to drugs.

[139]

I consider that this trip is related to drug production and was either to obtain some equipment or some precursor chemicals. It is also possible that a "cook" had occurred or was underway somewhere in the bush. In previous conversations Bourke, had referred to the fact that he used this area for "cooks" and as a dump. There is also evidence of Bourke's habit of burying things. The inference that can be drawn is that there was something in that location that the group needed. The defendant was clearly part of a meeting prior to the trip and then actually attended at the site.

[140]

There is also direct evidence of a conversation between Plaszewski and Adams on 23 November 2004 about setting up Scott Douglas to work for them. Plaszewski says:[46]

[141]

"I went and seen Todd at Tony's and we have to chip in fucken' 1000 bucks each to get fucken' old mate a ute so we can go and take all this stuff out cause he will do everything for us toluene, get all new fucken' drums and pumps and fucken' everything. I just went and looked at a storage shed because we have to drive around all this week... and pick everything up and put it all in the storage shed and one day next week take the whole lot out there."

[142]

[117] Later in the conversation Adams says, "...I gotta get him a fucking car so he can start getting that shit"[47] and afterwards Adams says, "...Todd wants him to fucken' start."

[143]

Furthermore on 4 December 2004 there is discussion between Adams and Seaniger about the purchase of twin neck reaction vessels and a request from Seaniger to get the defendant to ring him from a phone box because he couldn't see "...how they can fucken' work".[48] Seaniger is clearly following instructions from the defendant about the equipment he needs to put together.

[144]

I consider that the defendant continued his involvement in the production of drugs after his release on bail.

[145]

[120] The evidence indicates an involvement in drug production by the defendant over a significant period of time. It is clear that he avoided detection for a long period and this was due to his astute skills.

[146]

[121] In the conversations at Ryalls Road during the "cook" the defendant refers to the extent to which he goes to ensure that no one knows his business and how he limits his contacts and social involvement.

[147]

[122] The defendant stresses the importance of sticking with the same people and playing it safe. He says that he knows his friends and they will not talk about him. He says he does not venture outside because it is a dangerous business and there is danger outside. He also says that he has never given anybody free drugs in his life, not even a gram and never a girl.[49]

[148]

He speaks of the fact that you need to be "smarter than the coppers" and that you have to be smart, "...[k]now that you're getting away with things from the coppers, it's them against us. The dumb cunts are the ones in prison."[50] The defendant also refers to the fact that the less that people know about your business the better. He also says that you do not have people turn up your place and you do not do business there:[51]

[149]

"Things have to be kept nice and quiet. That's the only way you survive." He also says, "When you are in this sort of business that we do, you have to limit your friends and associates. If you go outside that boundary you get burnt." He also says, "...[i]t has to be a secret that only you know about."

[150]

[124] The evidence indicates that very few people had the defendant's telephone number and that they often had to go through Plaszewski to contact him. In addition there is evidence that when a friend of Plaszewski's wanted to meet the defendant he was told "...[h]e has enough friends."

[151]

[125] A considerable number of sim cards and mobile phones were found in the defendant's possession or at his home at the time of his arrest, which is indicative of the use of multiple phone numbers.

[152]

[126] During the cook at Ryalls Road, the defendant indicates that he has a trust account and that nobody knows the trust account's name and he transfers everything into the trust account. He states he can put five or $10,000 a week into the trust account and they can never question where the money comes from.[52]

[153]

The conversation between Plaszewski and Adams of 23 June 2004 indicates that Adams thinks he has been followed from the defendant's house and how it is important that the individual friends are not seen at the defendant's house and that they should get an old car and travel to the house in that car so that they could not be identified.

[154]

During the conversations at Ryalls Road, the defendant makes it clear that life is about making money and keeping out of gaol.

[155]

I consider that the defendant's involvement in the production of methylamphetamine during the period 2003 to 2004 shows a high level of sophistication and business acumen.

[156]

[130] As previously indicated I consider that there is evidence to establish that the defendant was the financier of the activities of a group consisting at least of Plaszewski, Adams, Lalli-Cafini and Bourke on a number of occasions. There is clear evidence of the defendant advancing money to finance the purchase of precursor chemicals and tablets as well as equipment. In fact at Ryalls Road indicates that it really cost about seventy or eighty thousand dollars to put a cook together.[53]

[157]

The evidence also establishes that the defendant was pivotal to the organisation of the group and of the cooks. The purple diary found at Ryalls Road,[54] which the defendant has admitted is his own, sets out the contributions by various people. In particular there are notations which indicate Scott Adams has put in a thousand boxes, Seaniger has got 1650, Bourke has got 210 and Plaszewski has got 820. This indicates the people who have contributed base products to the cook, but significantly it is the defendant who is keeping the records.

[158]

Furthermore when there is a concern that the people who have been brought in to help with the cook, have ripped off the defendant and stolen some boxes, it is clear that the organisation of the "tracking down" of these three is organised by the defendant. In particular, the evidence is that it is the defendant who travels out to Miles to see if Kiely, Evans and Jenkins are there and when they are not it is he who organises for them to be found. He is clearly a leader of the group.

[159]

The record of the conversations between Evans and Jenkins at Ryalls Road on 22 August 2004 also indicates the extent to which they were in trouble from the group. In particular, they indicate they cannot believe how close they were to "death" on the morning of 22 August 2004. This recorded conversation confirms that they had been seriously "pulled into line" by the defendant.

[160]

When one analyses the business skills and acumen of the group it is clear that the defendant is the one with the greater business skills and experience. He also appears to be the most intelligent.

[161]

Whilst Plaszewski and Adams were closely involved with the defendant for a significant period I do not consider that the evidence supports a finding that they were exclusively employed by him. I consider that there is an inference which is open on the evidence that they had their own ventures as well as sourcing precursor tablets for the defendant. I also consider that Bourke also substantially ran his own enterprise as well as being involved with cooks and the obtaining of tablets for the defendant.

[162]

I am however satisfied that Plaszewski, Adams and Bourke all worked for and with the defendant at various times.

[163]

Whilst I do not think there is clear evidence as to how the produced methylamphetamine were distributed I am satisfied that the drugs were passed onto others for distribution. The defendant's involvement in the sales is supported by the Ryalls Road conversation where he says:[55]

[164]

"...get some money after we sell it, because you know....time you do a cook you gotta throw in, you know what I mean, seventy grands worth, eighty grands worth..."

[165]

[138] It is clear that some of the defendant's associates had contacts with motor cycle gangs, particularly Lalli-Cafini. On the evidence before me however the ultimate destination of the drugs is not clear. It is clear however, given the cash flow generated and the monies that were consistently outlaid that the drugs were sent off to others for distribution. The defendant is clearly involved with distribution networks as the Ryalls Road conversations indicate that the defendant can source ecstacy tablets. The defendant says:[56]

[166]

"...Ekkies, 18 dollars the best ones ever made. 18 dollars per thousand" and later he says "a thousand mate, tell me...I'll make sure they're there and I'll order the cunts mate."

[167]

[139] There is no evidence that they were sold or distributed through the defendant's nightclubs.

[168]

[140] I consider that the defendant was a major organiser and financier of a group which produced methylamphetamine for distribution and that he could therefore be accurately described as the principal of the group.

[169]

[141] The conversations at Ryalls Road indicate clearly that the defendant is purely involved for financial reasons. He has never touched any drugs and makes it quite clear that he never would. The defendant refers to the fact that the group need him because he does not get caught up in the lifestyle or using "gear".

[170]

[142] The question arises as to what profit the defendant actually made and this is not able to be determined with any precision. The defendant at the time of the hearing had assets in the vicinity of a million dollars. There was evidence however of the profitability of the clubs and the defendant indicated that the clubs took $35,000 to $40,000 per week and cleared $12,000 to $15,000. It is difficult therefore to determine the extent of profits solely attributable to the drug enterprise. The statement of the accountant John Richardson indicated:[57]

[171]

" a detailed financial investigation into Mr Filippa's affairs was not conducted due to the presence of a cash flow business which were likely to obscure the accurate identification of criminally derived proceeds."

[172]

[143] I do not think that a comparison of the assets of the defendant and those of Bourke, Adams and Plaszeweski is helpful as the defendant did not gamble or take drugs as some of the others did. Indeed casino records at Jupiters and the Treasury indicate Bourke lost in the vicinity of $250,000 to gambling. The defendant also ran a business which was apparently successful and which was not the case with the others.

[173]

[144] The evidence does establish that the defendant had considerable outlays in relation to the production of drugs. As I have indicated I accept that he had paid $40,000 to Bourke to finance the purchase of boxes of tablets at one stage. In relation to the Ryalls Road production he had purchased the property for $47,000, as well as a Pajero, a generator for $4,000, a grinder for $5,000 as well as the acid which cost $25,000. The defendant's own evidence was that you had to expend at least seventy thousand to put together a cook.

[174]

[145] Given the substantial outlays involved in the production of methylamphetamine the inference which is clearly able to be drawn is that there had to be substantial profits to justify such an outlay. The cook at Ryalls Road would seem to be valued between $200,000 and $400,000.

[175]

[146] It is clear that there were significant returns to the defendant given his statement during the Ryalls Road cook that it was "...a great job, great business, the most profitable business in crime you can have..."[58]

[176]

[147] I am satisfied that the defendant's involvement in the production of methylamphetamine in the period 2003 to 2004 returned substantial profits to him.

[177]

[148] I am ultimately satisfied on the balance of probabilities to a high degree of satisfaction that from January 2003 until December 2004 the defendant was involved in the production and distribution of methylamphetamine and that he was involved as the principal of an organised group.

[178]

[149] In January 2003 he had access to and knowledge of a large quantity of precursor chemicals, glassware and instruction manuals which were found by police in a storage shed at Albion.

[179]

[150] Throughout the period January 2003 to December 2004 he was closely associated and actively involved with a group who obtained large quantities of pseudoephedrine-based tablets. Thousands of boxes were regularly obtained and the defendant at times financed the purchase of tablets and other precursor chemicals and equipment. Although many in the group ran their own operations at times, it is clear that the defendant was a major organiser of the production of methylamphetamines on a regular basis.

[180]

[151] The defendant was also regularly and actively involved in the actual process or "cook" whereby methylamphetamine was produced in large quantities for distribution throughout the period from January 2003 to December 2004. For his role in the production he received a large percentage of the extracted product.

[181]

[152] The cooks occurred regularly in the two year period whenever a sufficient quantity of precursor chemicals were available. I am satisfied that there is evidence of his involvement in at least five cooks during the period but that the actual number would be higher than this.

[182]

[153] The cooks were large-scale productions involving thousands of tablets and produced large quantities of pure methylamphetamine. These cooks were highly organised and sophisticated and required intensive labour over a number of days. The defendant was not only closely involved in the organisation but he also supplied physical labour and significantly, he was closely involved in the methodology of the cook as well as the supervision of the quality and quantity of the final product

[183]

[154] The profits over the two years were substantial with the final cook having an estimated value in excess of a quarter of a million dollars and likely to be in the vicinity of $400,000. The defendant had also made large financial contributions to the set-up including financing the purchase of chemicals and the purchase of a property, a car and a generator where the final production occurred.

[184]

[155] The entire operation was highly organised and was done on a commercial basis with the defendant's view being that all he did was "supply a product" for which there was a great demand.

[185]

[156] The defendant was motivated entirely by profit and indeed had considerable disdain for those who took drugs. Given the fact he was running nightclubs at the time, it is difficult to isolate his profits from drugs but they were substantial.

[186]

[1] Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336.
[2] Transcript of proceedings, p 8 ll 15-20 and 26-41.
[3] Tripodi v R (1961) 104 CLR 1; [1961] HCA 22.
[4] Exhibit 2 - "Pre-Ryalls Road transcript", 0:13:35 22, August 2004, p 1.
[5] Exhibit 2 - "Pre-Ryalls Road transcript", 05:16 22, August 2004, p 1.
[6] Exhibit 35.
[7] Exhibit 35.
[8] Exhibit 2 - "Ryalls Road Transcript", p 5.
[9] Exhibit 2 - "Ryalls Road Transcript", p 2.
[10] Exhibit 2 - "Ryalls Road Transcript", p 6.
[11] Exhibit 2 - "Ryalls Road Transcript", p 6.
[12] Exhibit 2 - "Ryalls Road Transcript", p 7.
[13] Exhibit 2 - "Ryalls Road Transcript", p 7.
[14] Exhibit 2 - "Ryalls Road Transcript", p 7.
[15] Exhibit 2 - "Ryalls Road Transcript", p 8.
[16] Exhibit 2 - "Ryalls Road Transcript", p 16.
[17] Exhibit 2 - "Ryalls Road transcript", p 10.
[18] Exhibit 2 - "Ryalls Road Transcript", p 12.
[19] Exhibit 2 - "Ryalls Road Transcript", pp 11-12.

[187]

[28] Exhibit 2 - "Ryalls Road transcript", p 32.
[29] Exhibit 36.
[30] Transcript of Proceedings, p 784, l 3.
[31] Exhibit 3.
[32] Exhibit 2 - "Ryalls Road transcript", p 22.
[33] Exhibit 2 - "Pre Ryalls Road transcript", 15:08:00, 10 April 2004, videotape 30.
[34] Exhibit 2 - "Pre Ryalls Road transcript", 12:54:00, 18 April 2004, videotape 54, p 11.
[35] Exhibit 2 - "Pre Ryalls Road transcript", 12:54:00, 18 April 2004, videotape 55, p 16.
[36] Exhibit 3.
[37] Exhibit 2 - "Pre Ryalls Road transcript", 19:04:59, 10 August 2004, p 2.
[38] Exhibit 2 - "Ryalls Road transcript", p 7.
[39] Exhibit 2 - "Ryalls Road transcript", p 25.
[40] Exhibit 2 - "Ryalls Road transcript", p 19.
[41] Exhibit 2 - "Ryalls Road transcript", p 22.
[42] Exhibit 2 - "Ryalls Road transcript", p 23.
[43] Exhibit 2 - "Ryalls Road transcript", p 31.
[44] Exhibit 2 - "Ryalls Road transcript", pp 31-32.
[45] Exhibit 2 - "Post Ryalls Road transcript", 12:03, 2 October 2004, videotape 550, p 9.
[46] Exhibit 2 - "Post Ryalls Road transcript", 23 November 2004, DVD 706, p 7.
[47] Exhibit 2 - "Post Ryalls Road transcript", 23 November 2004, DVD 706, p 11.
[48] Exhibit 2 - "Post Ryalls Road transcript", 4 December 2004, p 1.
Exhibit 2 - "Post Ryalls Road transcript", 15:40:00, 25 August 2004, videotape 99, p 37.

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (187 paragraphs)

Parties

Legislation Cited (4)

Cases Cited (2)