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[2008] VSC 59
General information, not legal advice.
Supreme Court of Victoria
2008-03-11
BONGIORNO J
Original judgment source is linked above.
CRIMINAL LAW - Sentencing - Plea of guilty - Murder - Kidnapping - False imprisonment - Trafficking in large commercial quantity of MDMA - Trafficking in commercial quantity of methylamphetamine and MDA - Serious drug offender - Assistance to authorities - Discount - Complex sentencing considerations - Cumulation and concurrency - Totality - Part 2A Sentencing Act 1991.
1 Andrew Steven Johnston, you have pleaded guilty to six very serious offences and it is now this Court's duty to sentence you according to law. The offences to which you have pleaded guilty are:
4. One count of trafficking in not less than a large commercial quantity of a drug of dependence, 3,4-methylenedioxy-N- methylamphetamine (MDMA).
5. One count of trafficking in not less than a commercial quantity of methylamphetamine.
6. One count of trafficking in not less than a commercial quantity of 3,4 - methylyenedioxyamphetamine (MDA).
2 The murder and the most serious of the trafficking offences each carry maximum terms of life imprisonment. The trafficking offence, in addition, permits the imposition of a fine of up to 5,000 penalty units. Kidnapping and the two lesser counts of trafficking each carry maximum terms of 25 years' imprisonment, and the false imprisonment carries a maximum term of 10 years. Further, as you will be sentenced on each of the second and third counts of trafficking as a serious drug offender, sentences imposed in respect of those offences must be ordered to be served cumulatively upon that imposed in respect of the other offences unless the Court otherwise directs.[1] As well, in determining the length of any sentence imposed upon you in respect of the two lesser counts of trafficking in a drug of dependence the Court must regard the protection of the community as the principal purpose for which those sentences are imposed.[2]
3 You are now 26 years of age having been born on 29 November 1981. Thus you are not a young offender although, as your counsel submitted, you are still a young man who, but for these offences, would have had virtually the whole of your adult life ahead of you to achieve such ambitions as you had. However, your actions in embracing the drug scene, for whatever motive, even to the extent of being party to the torture and death of another human being, will mean that your future, at least for many years, will be spent in the custody of the State - much of it perhaps in what is commonly referred to as "protection": a prison or part of a prison in which you will be segregated from most other prisoners for your own protection. Had you not got yourself into this position you may well have achieved at least modest success as an athlete, you may have had a career as an accountant or something similar, and you may have married and had a family of your own.
4 How then did this occur and why are you before this Court, not only on the most serious charge in the criminal calendar but on a number of other serious charges, one of which is viewed by the legislature, in terms of penalty at least, as being as serious as murder?
5 The answer to this question, as far as immediate cause is concerned, lies in a long statement which you have provided to investigators detailing the dreadful events which led to Michael Daou's death. This statement is accepted by the Crown as an accurate and truthful account of your involvement such that it may be accepted as an appropriate basis upon which you might be sentenced. It is also the substance of the evidence you are prepared to give upon the trial of six other men charged with Daou's murder and related offences, including, in the case of some of them at least, conspiracy to murder another Crown witness, Kylie McDonald.
6 Your account of these events commences in 2006 when you were going out with Kylie McDonald. You described yourself in your statement as a low level drug dealer who arranged to meet Adam Hargrave, one of your former co-accused, through McDonald, with a view to expanding your drug dealing business. You met Hargrave who, with his father Garry, another of those co-accused, ran a business called Logistics Plus as a front for a large drug dealing enterprise in Rocco Drive, Scoresby.
7 Your meeting with Hargrave was fruitful. Your drug business expanded, now receiving its supply of MDMA or ecstasy from him. In turn you supplied drug runners who, presumably, peddled the poison Hargrave supplied to their customers at street level. A month or two after meeting Hargrave you began dealing in "ice" for him in an effort to assist McDonald who had financial problems arising from her having been the victim of a burglary in which she lost $6,000 worth of drugs, for the supply of which she was in debt to Hargrave.
8 A short time later, again, your relationship with McDonald ceased and you moved into the Logistics Plus warehouse in Scoresby to live. This was in about July 2006. You told investigators in your statement that between then and Daou's murder in November you earned up to $10,000 per week selling drugs, some at least of which was laundered through the Hargrave business and paid to you in the form of wages as if you were a legitimate employee of that enterprise. Hargrave, you believed, was laundering $100,000 through the business at that time.
9 When you moved into the warehouse to live you met another of your former co-accused, Ngoc Bui, also known as Luke, Nookie or Wingnut, who was also a very significant drug dealer. His source of supply was someone in Sydney. You also met Ngoc Bui's brother at about the same time but did not know his real name.
10 In early November 2006 another associate of Hargrave's, Andrew Ferguson, was robbed at gunpoint of 2,000 ecstasy tablets by one Feretzanis. Shortly after that event these tablets were believed by Adam Hargrave to be being sold by the deceased who was also referred to as "Leb". Adam Hargrave owned or at least had an interest in these tablets - as is often the way of things in this filthy business.
11 Using Kylie McDonald as a decoy, late on the evening of 17 November 2006 Hargrave and some of his associates kidnapped the deceased, placed him in the boot of your then girlfriend Melissa Archer's car and took him to the Logistics Plus warehouse. You arranged the provision of the car for this exercise. There, over the next several hours Adam Hargrave and those now accused with him of Daou's murder repeatedly and viciously assaulted him. There was much blood. At one point he was tied to a chair. Later, his genitals were burnt with flyspray ignited with a cigarette lighter. At one point Adam told you to put something over the deceased's head, presumably so he could not see who was assaulting him.
12 At the end of this period of torture the deceased was told he was going to be released. He was wheeled on the chair, to which he was still tied, to his car where he was cut free. The deceased, who was apparently still conscious, said that he would drive himself home but before he could do so Aaron Hargrave, Adam's brother, passed a gun to Adam who shot the deceased two or three times in the head. He died immediately. You had been aware since earlier that evening that one, at least, of the persons involved in Daou's death had access to a gun which you saw in a small room of the Logistics Plus warehouse.
13 After he was killed the deceased's body was placed in the boot of his own car which was driven to Narre Warren East where it was set alight in a shallow ditch using petrol and aerosol cans as accelerants.
14 Although your statement and record of interview is sparse as to the detail of your involvement in the torture, detention and ultimate killing of Daou, your counsel submitted, without demur from the Crown, that you were a dominated individual who went along with what was occurring because to do otherwise, to the detriment of the Hargraves, would place you in a very invidious position. Your plea of guilty to murder, false imprisonment and kidnapping leads to the inescapable inference that at the very least you aided and abetted the actions of the Hargraves and their co-accused in their performance of the acts necessary to constitute these dreadful crimes. Such pleas also, of course, negative any suggestion that you acted under duress.
15 In his submissions the prosecutor described you as a "passive participant" but nevertheless a participant. You were part of the overall criminal enterprise which involved not only the kidnapping and torture of Daou, but also contemplated the possibility that one or more of the participants would kill him. However, the Crown was content that you be regarded by the Court as being ranked " ... well down the ladder". The prosecutor said that you should be regarded as the least culpable of the participants in these events.
16 With respect to the drug trafficking counts it seems that you, Adam and Garry Hargrave, Ngoc Bui and Kevin Ng were part of a drug syndicate which involved the wholesale distribution of various drugs of dependence on a large commercial scale. The Crown put it that you were a lieutenant to Garry and Adam Hargrave. Your job was to market the drugs actively, increasing the syndicate's customer base and recruiting, managing and controlling a circle of "runners".
17 Your activities in this regard were eventually well-known to investigators who, through the use of legally authorised telephone intercepts, were able to track your activities at the end of 2006 and early 2007, culminating in your arrest on 11 January 2007. These intercepts established that you, together with Garry and Adam Hargrave, Bui and Ng, were selling ecstasy tablets in the hundreds and, at times, in the thousands.
18 Three counts relating to your drug dealing were included in the presentment to which you have pleaded guilty. The first is the most serious and alleges your having trafficked in not less than a large commercial quantity of 3,4 methylenedioxy-N-methylamphetamine (MDMA), that is to say, ecstasy, between 1 June 2006 and 11 January 2007. A large commercial quantity of this drug is 750 gm.
19 The second drug count is framed as one of trafficking in not less than a commercial quantity of methylamphetamine between 1 July 2006 and 11 January 2007. A commercial quantity of that substance is 100 gm.
20 The third drug count involved trafficking in not less than a commercial quantity of 3,4-methylenedioxyamphetamine (MDA) on 11 January 2007, the day upon which you were arrested, a commercial quantity of which is also 100 gm.
21 Before moving to other relevant matters it should be noted that although your statement and these sentencing remarks refer to and implicate your former co-accused in the murder of Daou and extensive drug trafficking activities, these persons are still awaiting trial. Neither the matters to which I have referred nor the material in your statement diminishes their right to the presumption of innocence of the charges they face and upon which they will be tried. For this reason publication of your pleas of guilty, your plea hearing and of the sentences about to be imposed on you and the reasons for those sentences will be prohibited until those matters are concluded.
22 You have no prior convictions and, it would seem, until you became involved with the Hargraves you had not engaged in any antisocial behaviour - certainly none that had brought you to the notice of the police. You had been an athlete of sufficient talent to qualify you to run in the Stawell Gift and to try out for Olympic selection, although your athletic career came to an end when you suffered an injury.
23 You completed Year 12 successfully at a State high school in 1998 or 1999 and commenced an accounting course at Victoria University. It appears that you did not finish that course but were nevertheless subsequently gainfully employed until you got involved in the drug scene, which your father said, in evidence before this Court, was not until in 2006. If this is true your involvement with drugs was short, dramatic and ultimately disastrous.
24 Your counsel described you as being a user of drugs yourself, although your father did not refer to your having used drugs in his evidence, unless that fact can be inferred from his statement that you became involved in the drug scene. In the absence of other evidence of drug use, which is absent although you gave evidence yourself on your plea, you will be sentenced on the basis that your primary interest in drugs was a commercial one. If your father's evidence is accepted, any drug use by you must have been relatively minor and must have commenced only a year or so before you were arrested. There is no suggestion that you were addicted or in any way dependent on drugs so as to make you a vulnerable target for exploitation by the Hargraves or your other former co-accused. You were a willing participant at the upper middle level of a large to very large drug dealing enterprise controlled by the Hargraves. Your motive in engaging in such participation was financial reward.
25 The most significant sentencing factors in this case however are your pleas of guilty and your willingness to assist the authorities in prosecuting your former co-accused. You made your intention to plead guilty clear from the time of your apprehension and, as already noted, you subsequently made an extensive statement implicating those co-accused in the crimes for which you have accepted your full responsibility. On oath before this Court you gave an undertaking to continue to assist the investigators and prosecutors upon the trial of those persons. In taking the course you have, you have exposed yourself to considerable danger. Informers are not well received in the prison system, resulting in their usually being incarcerated in what is known as "protection". Your counsel has described the protection regime at the prison in which you are being held as involving long periods of being locked in your cell - at one stage up to 23 hours per day. This is not your present situation, and it is unlikely that such a dreadful regime will be imposed upon you again. However, for some years, at least, you will be treated differently to other prisoners, segregated at least to some extent and will possibly not have access to all of the educational or other programmes that are sometimes available to mainstream prisoners.
26 Although there is no evidence before the Court upon which any extensive examination of your particular protection situation can be considered in detail[3] (and in any event your circumstances will undoubtedly alter as time goes by), you are entitled to have this circumstance taken into account in your favour as well as that of the co-operation with authorities to which reference has been made. The Crown has conceded that in this regard you should receive the maximum possible discount on the sentences imposed upon you for that co-operation. This is because, without your evidence, two of the persons due to stand trial in respect of the death of Daou would probably have not been able to be prosecuted. Consideration must also be given, in your favour, for such remorse as is demonstrated by your pleas of guilty and willingness to co-operate.
27 There are before the Court a number of victim impact statements filed by various members of the deceased man's family including his parents. The effect on all of them of his death is vividly described in those statements. He too was a young man who had the possibility, at least, of fulfilling his potential. Although the Crown accepts that he, like you, was a dealer in prohibited drugs of addiction, this in no way excuses your conduct or even lessens it. Your motive and that of your co-accused in disposing of Daou in the way you did was wicked indeed. To the extent that the material in these victim impact statements is relevant and admissible it will be taken into account in fixing the sentences to be imposed upon you.
28 Notwithstanding the mitigating factors to which reference has been made, the Court must have regard, in fixing appropriate sentences for these offences, to the purposes for which sentences are imposed for serious crime, namely to punish an offender to an extent and in a manner which is just, to deter the offender and others from committing similar offences, to encourage rehabilitation of offenders if that is possible, to denounce such crime in the name of the community and to protect the community from persons who commit offences, particularly those of violence.
29 Your plea of guilty and your co-operation with the authorities augurs well for your ultimate rehabilitation. Whether you emerge from prison as a person able to take your place as a useful member of society will depend upon you, your attitude to prison, the effect of prison upon you and your determination to become a law abiding member of society. It should not be pretended that, in your case, such a course will be easy. It will not. Anyone who thought about it for more than a moment would be likely to conclude that a long period of incarceration was conducive not to rehabilitation but rather to social isolation and a diminution of all of those skills one needs to be part of a modern society. But, having regard to the factors I have mentioned, it is likely that in your case you will have as good a chance as anybody of being able to turn your life around when you are finally released.
30 Questions of denunciation and general and specific deterrence will be secondary, in your case, to the need to encourage others in a similar position to you to assist authorities in the investigation and prosecution of criminal behaviour. To this end your sentence will be considerably less than it would have been had you not agreed to assist authorities. Indeed, the discount applied to what might have been the total effective sentence in your case and to the minimum term which would otherwise have been fixed will be very great, as the law requires. So far as the protection of the community is concerned your contrition, your prospects of rehabilitation and the length of the sentence which you will have to serve will provide protection enough.
31 Taking all of these matters into account the sentences imposed by the Court upon you are as follows:-
32 It is further ordered that two years of the sentence imposed in respect of Count 2 be served cumulatively upon the sentence imposed in respect of Count 1, that the whole of the sentence imposed in respect of Count 3 be served concurrently with the sentence imposed in respect of Count 1, that five years of the sentence imposed in respect of Count 4 be served cumulatively upon the sentence imposed in respect of Count 1, and that the sentence imposed in respect of Counts 5 and 6 be served concurrently with that imposed in respect of Count 1, making a total effective sentence of 23 years. It is further ordered that you serve a minimum of 15 years before being eligible for parole.
33 In respect of Counts 5 and 6 you are sentenced as a serious drug offender pursuant to s 6D of the Sentencing Act 1991. That provision requires the Court, in determining the length of a sentence imposed upon a serious drug offender to regard the protection of the community from the offender as the principal purpose for which the sentence is imposed. Section 6E of the Act requires that a sentence of imprisonment imposed on a serious offender, including a serious drug offender who is convicted of a similar offence must be served cumulatively on any other sentence imposed. Notwithstanding these provisions the order for total concurrency which has been made in this case is justified because the offending charged in Counts 5 and 6 is all part of the ongoing drug marketing exercise primarily dealt with in Count 4, and because of the principle of totality and the circumstances of the case generally including the fact that you have received a long term of imprisonment for murder.
34 The orders for cumulation and concurrency in respect of the sentences imposed on counts 2 and 3 recognise that the kidnapping of Daou was to some degree a separate and preliminary offence to his murder. On the other hand his false imprisonment was, in essence, part of the process by which he was killed and thus should be treated as part of the murder itself.
35 The fact that you have been sentenced in respect of Counts 5 and 6 as a serious drug offender will be entered in the records of the Court pursuant to s 6F of the Sentencing Act 1991.
36 It is declared that a total of 426 days have already been served in respect of the sentences now imposed and it is directed that this declaration and its effect be entered in the records of the Court.
[3] R v Males [2007] VSCA 302
R
Johnston [2008] VSC 59