R v Finn & Finn [2011] VSC 253

2 Matthew Finn, you pleaded guilty before trial to one count of possession of an unregistered general category handgun (Count 11)[2] and were acquitted of the other offences with which you were charged (Counts 3, 4, 5, 6, 7, 8 and 11).[3]

3 The offences alleged in Counts 1 and 2 were said to have been committed between 1 January 2004 and 20 June 2005 at Toolern Vale in Victoria. The Crown's case was that you, Wayne Finn, combined with Tony Mokbel, Mark Lanteri and the Crown's principal witness, Kevin Richardson, on two separate occasions, to manufacture on each occasion not less than two kilograms of methyl amphetamine.

4 Richardson is a former policeman who, after his retirement from the police force, spent time managing the Top of the Town brothel in Melbourne. In that connection, he was associated with Tony Mokbel. Some time ago, Richardson pleaded guilty in the County Court to a minority of the offences he was alleged to have committed and, in return for an undertaking to give evidence against you, he was given a wholly suspended sentence. He also received an assurance from the Crown that he would not be prosecuted for other offences which he was known to have committed. Apart from independent evidence that you were associated with Mokbel, and with Mokbel's associate Eddie Radi, Richardson's evidence against you was substantially unsupported and, in several critical respects, it differed from statements which he made to police and from evidence which he gave at your committal hearing. By acquitting you of Counts 1 and 2, the jury demonstrated that they did not consider that Richardson's testimony could be relied upon.

5 The offences alleged in the remaining counts were said to have been committed at factory premises in Westall Road, Springvale, between 1 January 2005 and 7 November 2007.

6 At relevant times, the factory was leased to Strata Plumbing Pty Ltd, of which you, Matthew Finn, were a director. Through that company, you carried on business from the premises as a licensed plumber. You, Wayne Finn, also used the premises to carry on business as a pin ball machine restorer and for the development of motor car engine performance improvements.

7 Late in 2004, you Wayne Finn obtained the landlord's approval to construct two internal rooms within and at the rear of the premises and those rooms were constructed. One of them was fitted with a flue which vented through the roof to the atmosphere.

8 In July 2007, police acting under warrant covertly took samples from the flue and they were found upon analysis to contain traces of methyl amphetamine and MDMA. For some months thereafter, the police maintained surveillance on the premises, both visually and by means of concealed microphones, but they were unable to detect any drug manufacturing activity of the kind they suspected had been carried on before the surveillance began.

9 Telephone call intercepts carried out under warrant revealed, however, that you Wayne Finn made a number of calls from various public telephones in the Huntingdale area to Eddie Radi in order to arrange meetings with him, and you referred during some of those discussions to Tony Mokbel in a manner which implied that Mokbel was connected with the matters you proposed to discuss with Radi.

10 On 7 November 2007, police executed a search warrant on the premises and found, among other things, five litres of P2P in a freezer in one of the two internal rooms (Counts 5 and 11); glassware and other apparatus suitable for the manufacture of methyl amphetamine and MDMA, which was secreted in a locked box trailer within the premises (Count 6); and, at various places within the premises, 20 kilograms of Ammonia (Count 7), 20 kilograms of Formaldehyde (Count 8) and a range of other chemicals suitable for the manufacture of methyl amphetamine and MDMA, including numerous containers of hydrochloric acid, sacks of sodium hydroxide and potassium hydroxide and substantial quantities of acetone. Police also located in a drawer in an upstairs office in the premises some $67,550, in $50 and $100 notes (Count 10), and an unlicensed Colt revolver (Count 11).[4]

11 I take the jury to have acquitted both of you of Counts 3 and 4 because they were not persuaded beyond reasonable doubt that any methyl amphetamine or MDMA was manufactured at the premises, or because, if they were satisfied that it was so manufactured, they considered it was reasonably possible that it was manufactured by the late Graeme Smith, who was a friend of yours, Wayne Finn, and had access to the premises, and who, it was suggested by defence counsel, may have been acting alone.

12 I think it likely that the jury acquitted you, Wayne Finn, of Count 5 on the basis that, although convinced you possessed the P2P (which is why you were convicted of Count 11), they were not satisfied beyond reasonable doubt that you intended to sell it.

13 I think it probable that the jury acquitted both of you of Count 6 because, although persuaded that you possessed the equipment in the trailer, they were not satisfied that you intended to use it to manufacture drugs of dependence. One of the telephone call intercepts on which the Crown relied, if taken at face value, implied that the equipment belonged to other persons and had been left at the premises after those persons had used it there. Each of you left fingerprints on some of the equipment. But another of the intercepted telephone conversations, if taken at face value, suggested that you may have done no more than pack up the equipment and put it into the trailer to make space for the commencement of a proposed new business called Medigene. The call implied that you were waiting for other persons to come and collect the equipment and take it away.

14 I think it probable that the jury acquitted you, Matthew Finn, of Counts 7 and 8 on the basis either that they were not satisfied that you had possession of the Formaldehyde and Ammonia - it being more likely that it was in the sole possession of Wayne Finn - or, alternatively, but less likely, that, if persuaded that you had possession of those chemicals, they were not satisfied that you did not have a lawful excuse - there being some suggestion in the course of cross-examination of some of the Crown's witnesses that Formaldehyde and Ammonia may have had legitimate trade uses in plumbing practice.

15 Finally, I take the jury to have acquitted you, Wayne Finn, of Count 10 on the basis either that they were not satisfied that the cash was in your possession, or because they were not satisfied that the cash was the proceeds of crime. The idea was floated in the course of the defence case, which the jury might conceivably have accepted, that the cash could have come from the proceeds of sale of the stock and fittings of a business called Finn's DVD House, which you liquidated in August 2007, or from an ATM machine which was said to have been installed in the business until it was closed down.

16 The maximum penalty for the offence of possessing a prescribed precursor chemical in not less than the prescribed amount is 600 penalty units or five years' imprisonment or both.[5] Formaldehyde and Ammonia are both prescribed precursor chemicals and the prescribed amount for each is 150 grams. As I have noted, you, Wayne Finn, were found to be in possession of 20 kilograms of each chemical, which is obviously very much more than the prescribed amount.

17 Your counsel submitted on your behalf that, although the offences consisted of possessing very much more than the prescribed amount of each chemical, they should not be viewed as particularly serious offences, given that the substances in question were not illegal per se and were freely available for purchase from legitimate trade suppliers.

18 I accept that quantity is not the only consideration relevant to the assessment of seriousness. I also acknowledge that the chemicals in question were not unlawful per se and that, in a sense, that does imply that your possession of them was not as culpable as would have been possession of something which could only be acquired from criminal sources. Nevertheless, taken in conjunction with what I am about to say about the other chemicals found in your possession, I consider that the large quantities involved in Counts 7 and 8 dictate that they were not insignificant offences.

19 The maximum penalty for the offence of possessing a drug of dependence (Count 11) is 400 penalty units or five years' imprisonment or both; or, if I am satisfied on the balance of probabilities that the offence was not committed for any purpose relating to trafficking in that drug of dependence, to a penalty of 30 penalty units or one year's imprisonment or both.[6]

20 The jury found you, Wayne Finn, not guilty of trafficking in the P2P (Count 5) and, as I have explained, I take that to mean that they were not persuaded beyond reasonable doubt that you intended to sell the P2P. On the balance of probabilities, however, I am not persuaded that you did not possess the P2P for a purpose relating to trafficking in that drug. In my view, it is more likely than not that you did. A large commercial quantity of P2P is 1.25 kilograms, and so the amount of five (5) kilograms which you had in your possession was, relatively speaking, a very large amount indeed. In the absence of a satisfactory explanation, which you chose not to give, and in light of your possession of the Formaldehyde and Ammonia which were the subject of Counts 7 and 8, and the presence of large quantities of Hydrochloric acid, Sodium hydroxide and Potassium hydroxide,[7] the weight of P2P found in your possession to me bespeaks a purpose relating to trafficking in that drug. Accordingly, I treat Count 11 as a serious example of the offence of possessing a drug of dependence.

21 Matthew Finn, the maximum penalty for the offence of possessing an unregistered general category handgun, for a first offence, is 600 penalty units or seven year's imprisonment.

22 It was, however, submitted on your behalf that the gravity of your offence was to some extent mitigated by the fact that the weapon was locked up in secure premises, was unloaded, and was without any ammunition either proximately or elsewhere in your possession. I accept those submissions.

23 As to moral culpability, I am satisfied beyond reasonable doubt that you, Wayne Finn, were associated with Tony Mokbel in connection with his drug trafficking activities, and that you possessed the P2P, Formaldehyde and Ammonia to facilitate those activities for financial gain. I am further persuaded that you did so knowingly, in the sense that you well understood the seriousness of that kind of offending. You have chosen not to offer any explanation as to how you came to be involved in the offences. In the absence of explanation, I conclude on the basis of your age, lack of any suggestion of drug addiction and apparent relative affluence that your motivation was greed.

24 It is repugnant to generally accepted standards of morality for a man of your age and circumstances to commit offences of that kind. It implies a contumacious disregard of the law and a selfish lack of concern for the dire social consequences of the illicit drug trade. In your case it does so all the more given the relatively tender age of your children who, throughout parts of your trial, sat in court in sight of the jury.

25 Matthew Finn, I am not clear why you had an unregistered revolver in your possession. According to evidence given at an earlier bail hearing, the weapon belonged to your father and you took possession of it some time ago, when he was suffering from emotional strain which you feared could cause him to do something irrational. But, even if that were so, you chose not to surrender the weapon to police during any weapons amnesties, or to destroy it; which, as a plumber, you could easily have done. Unregistered weapons of the kind you had in your possession are intrinsically dangerous and, because they are unregistered, are at risk of falling into the hands of persons who may use them in the commission of crimes. You cannot have failed to appreciate that it was a substantial offence to keep it.

26 Wayne Finn you were born on 11 March 1967 as one of a sibship of five, and are now aged 44 years. You were 40 years old at the time of the offences. Both of your parents are still alive. Until their retirement, you father was a plumber and your mother was a process worker. They now live together in retirement at Dromana. You were educated at the Caulfield Technical School up to the third form but left school during that year, at the age of 14 or 15, in order to commence a plumbing apprenticeship with your father. You gave that away after only a year and took up another apprenticeship as an electronics technician. But you gave that away after a further three years and therefore failed to qualify. Thereafter you worked as a technical services manager with various companies involved in art, graphic design and security. I gather that you thereby acquired significant skills and experience in computer technical services technology.

27 At one time or another, you were also employed as a technician with a firm called Tony & Co Amusements, which was involved in the supply of pinball machines and video games and the like, and later you later became a partner in that firm. During the last four and a half years, your main occupation has been pinball machine restoration and the purchase, renovation and sale of rare pin ball machines

28 You met your wife when you were 23 years of age. She had by that time already had a child by a previous relationship and you took on a full fathering role towards the child. Your wife has since born you two children of your own, now aged 14 and 16, who are at secondary school. For some seven and a half years beginning in or about 2000, you and your wife operated your own video shop, called Finn's DVD House, in Huntingdale, and during that period you won the Best Video Store in Victoria award in one year and you were runners up in the Best Video Store in Australia competition in another year.

29 You have a number of prior convictions for offences committed between 1984 and 1997, although none before now for drug related offences. Most were for burglary, theft, handling stolen goods and being in possession of property suspected of being stolen or unlawfully obtained. I was told that they related to thefts of computers and computer programmes from commercial premises at times when such items were very much more valuable than now.

30 Your longest custodial sentence to date has been one of four years and six months' imprisonment, with a non-parole period of three years, imposed on you on 16 October 1990 on nine counts of handling stolen goods and six counts of burglary. The most recent significant custodial sentence was of three years' imprisonment, with a non-parole period of 15 months, imposed on you on 24 May 1994 on two counts of handling stolen goods. Your most recent convictions were for burglary, theft and going equipped to steal for which you were sentenced to a 12 month community based order on 22 January 1997.

31 It is in your favour that you have avoided further convictions until this point. It is also significant, as your counsel submitted on your behalf, that your prior convictions relate to relatively old offences committed on dates likely to have been considerably before the dates on which you were dealt with for them. It remains, however, that you are no stranger to the criminal justice system and that your previous sentences have proved inadequate to deter you from this further offending.

32 Moreover, as far as I can see, you show no sign of remorse. Subject to what I am about to say, my impression is that you do not have any sense of remorse. I was told that your counsel made an oral offer to the Crown during a court hearing not long after your arrest to plead guilty to a range of offences broader than those of which you have now been convicted. But I have no way of knowing what the offer was, or the terms on which it was made and, in those circumstances, I am unable to place any weight on it.

33 I was informed by your counsel that, in addition to your work as a computer service technician and pinball machine restorer, from which you manage to generate a steady income, your work in motor car engine performance development has resulted in the invention of some 20 engine performance improvement devices for which you now hold patents. Your counsel made some reference, too, to evidence given during the trial concerning your proprietorship of Finn's DVD House and your work with your now deceased friend, Graeme Smith, in developing a DVD trailers computer programme. Counsel said that, at the time of your arrest, you had on foot a planning permit application to turn Finns DVD House into a pinball arcade but that it and further development of the trailers programme had to be suspended when your assets were seized in connection with the offences of which you have now been acquitted.

34 Apart from what your counsel asserted in the course of the plea, however, I was not favoured with any evidence as to your character or work habits, and, as I have said, I was not favoured with any explanation as to how it comes about that someone of your age and evident ability is led into the drug related offences of which you now stand convicted. In those circumstances, I am disinclined to exclude the possibility that you will offend again. I regard your prospects of rehabilitation as problematical.

35 Matthew Finn, you were born on 13 September 1976, and are now 35 years of age, and you are the youngest child of the sibship of five. At the time of your offending you were 31 years old. You completed your VCE at Oakleigh Secondary College and thereafter served an apprenticeship as a plumber with your father, obtaining your certificate in plumbing from Holmesglen College of TAFE in 2001. After qualifying, you worked as plumber in business with your father and sister until at about the time these matters first came to court.

36 You have a strong work record and I received a reference from South Eastern Water, for whom you have worked as an emergency plumber for the last seven and half years. The manager, Mr Dibben, speaks highly of you and your work.

37 I was also told that you own your own house in Huntingdale, subject to mortgage, where you allowed your parents to live rent free until they retired recently to Dromana.

38 You have no prior convictions, although you do have one finding of guilt of burglary, theft and going equipped to steal in January 1997, from which you were released without conviction on a community based order for a period of 12 months. I was told by your counsel that you served the community service obligation of the order at an old persons' home and provided such good service that the home has since retained you as its plumber on a continuing professional basis.

39 The material before me suggests that you are a person of good character who has worked hard to make a success of his life and business. It is also accepted that you offered to plead guilty to the offence of which you have been convicted at the first reasonable opportunity. That entitles you to a discount on sentence sufficient to reflect both the utilitarian value of the plea and the remorse which I take it to show. Given your lack of prior convictions and strong work ethic, I treat your offending as an aberration, which is unlikely to be repeated. I regard your prospects of rehabilitation as good.

40 In the course of each of your pleas, counsel referred to the significant delay of almost four years since you were first charged with the offences of which you have been convicted, and submitted that it was an inordinate delay which entitled you to a substantial discount or reduction in the sentence to be imposed.

41 The principles which apply when sentencing in cases involving delay were essayed by Maxwell P in R v Merret, Piggott and Ferrari.[8] As his Honour said there, delay as a sentencing consideration focuses attention on issues of rehabilitation and fairness and, depending on the circumstances of a given case, may be a powerful mitigatory factor. In particular, where there is evidence of significant rehabilitation achieved during the period of delay, and no need to protect society from the offender, it is appropriate to mitigate the punitive and deterrent aspects of the sentencing process in order to avoid the risk of risk of damage to such rehabilitation as has been achieved. As a matter of fairness, too, a long delay in bringing the matter to trial, which leaves the prospect of punishment hanging over the head of the offender for an undue period of time, and subjects him or her to being sentenced to what has become a stale crime, at times may warrant an otherwise undue degree of lenience being extended to the offender.

42 Much depends on the circumstances of the case. As Ormiston JA remarked in Nikodjevic:[9]

The truth of the matter ... is that every case is different and the factors seen properly to affect the exercise of the sentencing discretion will vary according to circumstance. One should therefore be cautious about asserting that there is a right to some automatic discount in every case of asserted delay. The most that can be said is that where the prosecuting authorities have in fact unduly delayed bringing the matter to court, there is much more likely to be such a discount, without the need to have regard to its particular consequences.

43 In this case, I accept that there has been an inordinate degree of delay and that, so far as appears, it was not due to either of you. It seems rather to have been a case of the Crown wishing to deal with other matters concerning Mr Mokbel before turning to deal with you. Of course, there may have been very good reasons for that and, in any event, the exercise is not one of attributing blame. But I am persuaded that each of you is entitled to have taken into account that you have had the risk of punishment hanging over your head for an inordinate period time. I treat it as a mitigating factor which entitles you to a discount on the sentence which would otherwise be imposed.

44 Wayne Finn, bearing in mind the considerations to which I have referred, I have concluded that the sentence to be imposed on you needs to be substantial in order adequately to express the court's denunciation of your conduct and, in view of your apparent lack of remorse, to provide the sort of specific deterrence which past sentencing dispositions have proved incapable of achieving. With drug related offences of this kind, there is also an important need for general deterrence of would-be offenders who might otherwise be tempted to follow your example.

• On Count 7, being in possession of a prescribed precursor chemical, namely, Formaldehyde, in greater than the prescribed quantity, without lawful justification or excuse: to one year's imprisonment.

• On Count 8, being in possession of a prescribed precursor chemical, namely, Ammonia, in greater that the prescribe quantity, without lawful justification or excuse: to one year's imprisonment.

• On Count 11, being in possession of a drug of dependence, namely, Phenyl-2-Propanone (P2P): to two years and six months' imprisonment.

46 I order that six months of the sentence imposed on Count 7 be served cumulatively on the sentence imposed on Count 11, making a total effective sentence of three years' imprisonment. I do so because, in my view, the facts comprising Counts 7 and 8 together add a significant degree of criminality to the total criminality of your offending.

47 I have considered, but rejected, the possibility of suspending part or all the sentence. Given the circumstances in which the offences were committed, and your apparent absence of remorse, I am not persuaded that a suspended sentence would sufficiently manifest the court's denunciation or amount to just punishment. Nor do I think that a suspended sentence would be adequate to deter other would-be offenders from committing offences of the same or similar character.

48 I have also considered, but rejected, the possibility of setting a shorter than usual non-parole period. Given your apparent absence of remorse, and questionable prospects of rehabilitation, I am not persuaded that an unusually short non-parole period is warranted. To allow a shorter than usual non-parole in those circumstances would tend to undermine public confidence in the ability of the court to play its part in deterring offending of the kind of which you have been convicted. I set a non-parole period of twenty one months.

49 I declare that the number of days already served under the sentence is nine (9) days. I direct that the fact of the declaration and its details be entered in the records of the court.

50 Matthew Finn, I earlier referred to the nature and gravity of your offending. Although there are much more serious offences in the criminal calendar, you should understand that your offence still warrants a significant penalty in order to express the court's denunciation and to provide general deterrence. In your case, however, I do not consider that it is necessary to impose a custodial sentence.

51 I sentence you, therefore, on the count of being in possession of an unregistered general category handgun of which you have been convicted,[10] to a fine of thirty (30) penalty units, which is to say, $3,583.50.

52 Pursuant to s 6AAA of the Sentencing Act 1991, I declare that, but for your plea of guilty, I would have sentenced you to a fine of 60 penalty units, which is to say of $7,167.00. I direct that the fact of the declaration and its details be entered in the records of the court.

53 Finally, I shall make confiscation orders in relation to the drug of dependence, prescribed precursor chemicals and weapon, in the terms which have been submitted by the Crown in draft.

[1] On the filed-over Presentment C 0706005.3.

[3] On the filed-over Presentment C 0706005.3.

[5] Drugs Poisons and Controlled Substances Act 1981, s 71D.

[6] Ibid ss 73(1)(b) and (c).

[7] Which, according to the evidence given at the trial, are associated with the manufacture of drugs of dependence.

[8] [2007] VSCA 1; (2007) 14 VR 392, 400 [35]-[36].

[9] R v Nikodjevic [2004] VSCA 222, [22]; and see Pettiford v R [2011] VSCA 96, [56].

[10] Count 11 on Presentment C0706005.2.