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[2006] VSC 359
Supreme Court of Victoria
2006-08-18
KING J
Original judgment source is linked above.
Burglary - Trafficking large commercial quantity of drugs - Serving police officer - Problems associated with incarceration for police officers.
1 David Miechel, on 26 May 2006, a jury convicted you of seven counts on the presentment being Count 1, burglary and Count 2, theft. Each of those offences carry a maximum penalty of ten years' imprisonment. Counts 3 and 4 being counts of trafficking a large commercial quantity of drugs. Each of those offences carry a maximum penalty of life imprisonment. Count 5, trafficking in a commercial quantity of drugs which carries a maximum penalty of 25 years' imprisonment and Counts 6 and 7 being counts of trafficking simpliciter, each of which carries a maximum penalty of 15 years' imprisonment.
2 As a result of your convictions on Counts 3, 4 and 5, you fall to be sentenced as a serious drug offender pursuant to ss. 6C and 6F of the Sentencing Act. Section 6E of the Act further states, "Every term of imprisonment imposed by a court on a serious offender for a relevant offence must, unless otherwise directed by the court, be served cumulatively on any uncompleted sentence or sentences of imprisonment imposed on that offender, whether before or at the same time as that term".
3 I do make a declaration that you are a serious drug offender in respect of those counts, but, in my view, if appropriate sentences are imposed for each of the offences and they were all made cumulative, it would clearly offend against the principle of totality and accordingly I intend to direct that there be partial cumulation only on the sentences for individual offences.
4 Consistent with the verdict of the jury, I find as a fact that on 27 September 2003 you together with Terry Hodson entered the premises at 23 Dublin Street, East Oakleigh. You went to those premises to steal a large variety of drugs that you knew or believed were secreted in the premises. You had that knowledge as a result of your occupation, that of being a member of the Major Drug Investigation Group. You were part of a team that were conducting an operation and surveillance on those premises and accordingly, you had access to telephone intercept material which gave you information as to the persons who may or may not have been present, the location of the drugs, information on the movement of drugs and money within those premises.
5 You had access to floorplans of the house, knowledge of the neighbours and their movements, knowledge of the fact that no member of the Drug Squad would be working the surveillance tapes all that weekend with the exception of two members who, on the Sunday, would be preparing warrants.
6 You volunteered to be the person responsible for changing the tapes on the day of the burglary. It gave you an excuse to check on the movements of the persons at the house and also at the "Friendlies" house. Together with Terry Hodson who was a registered informer, you entered the premises and stole the large variety of drugs of which you have been convicted. Those drugs were valued at many hundreds of thousands of dollars.
7 Terry Hodson had been involved in the drug world for a number of years and had many useful contacts and I am satisfied that you intended to use those contacts to sell those drugs for profit. Your relationship with Terry Hodson was one that again occurred because of your occupation as a police officer. You were his handler and it is clear that you formed a totally inappropriate relationship with both him and his family.
8 You and Mr Hodson entered the house, packed the drugs and deposited them over the back fence at No. 22 State Street. You were aware that the owner of those premises had planned to be at his brother's watching the Grand Final that day and you were aware of that because you had called into his house earlier that day to change the recording tapes for the surveillance camera and asked him questions about his plans for that day. This was a house referred to by members of the squad as "the Friendlies house" as the occupant was cooperating with police.
9 After you had done this, you and Mr Hodson left the premises by the front door obviously with the intention of collecting the drugs from the premises at which you had dropped them. As you both entered and left the premises, you were most fortunately observed by a neighbour who had come out onto his porch to have a cigarette. He immediately notified the police upon you breaking into the premises and the response on this occasion was very swift including the services of two units from the K-9 Police.
10 I will not go through the details of how you were arrested but you were arrested in that area and attempted to bluff your way out of it by pretending to be there on duty. Whilst still in the ambulance having been bitten quite severely by the police dog during your arrest, you insisted on speaking immediately to your sergeant. In relation to that arrest, I say that whilst I have no doubt that you attempted to escape from the dog handler the jury acquitted you in relation to the charge of assaulting the dog handler. That is, in my view, entirely consistent with the fact that they were not satisfied beyond reasonable doubt that you struck the officer intentionally rather than accidentally.
11 Your co-offender, Terry Hodson, ultimately, as I understand it, agreed to give evidence against you and another police officer but was murdered prior to giving that evidence, and you stood trial alone.
12 The drugs were seized and fortunately did not make their way into the community so I accept that you did not in fact profit from your scheme. The drugs involved were predominantly methylamphetamine, amphetamine and ecstasy, together with smaller quantities of other drugs.
13 You were a serving Victorian Police Officer at the time of these offences and you had no prior convictions. You have a subsequent conviction relating to a number of prohibited weapons that were found at your premises at the time of the raid after your arrest. I do not take that into account.
14 There are of course no Victim Impact Statements in relation to these matters.
15 I intend to make the two Disposal Orders in relation to the drugs and other materials that have been requested and I will also make an order directing the retention of a forensic sample.
16 You pleaded not guilty and contested the facts. Accordingly, while that does not aggravate your sentence in any way you do not receive the benefit of any plea or any expression of remorse for your actions.
17 Your counsel described these offences as very tragic. He is right. They are tragic both for you and for the community. For you because it is a complete and total fall from your previously respected position in the community. And for the community, as it weakens their faith in the members of the police force and undermines their confidence as to the moral fibre of those serving men and women.
18 These are undoubtedly serious crimes. The community through Parliament has indicated the seriousness by the level of punishment that offences of this nature attract. Particularly, the offences that attract the sentence of life imprisonment. That places two of these offences on the equivalent level of murder. In light of the damage that can be done by some of those drugs that is not totally surprising. Deaths do occur from the illegal usage, particularly by younger members of our society of such drugs.
19 Whilst the decision in R v Amad, unreported by his Honour Judge Chettle in the County Court on 26 October 2005, has not got a great deal of overall relevance to the sentence that I impose, his Honour referred to remarks of Sulley J in an unreported Court of Appeal of New South Wales decision of 22 March 1991, when he stated in respect of trafficking charges at this level:
"It is in a very real sense a declaration of war upon this community. It is a distinct challenge both to the concepts of human dignity and to the moral values otherwise which are fundamental to our way of life. It is not less a challenge to the rule of law which is in the end the ultimate guarantee of the personal freedoms and social stabilities which we, all of us as Australians, take for granted."
20 As a serving member of the police you were in a privileged position. You receive information about illegal activity that can be used to your own advantage if you so decide to do. And that means that you are in a particular position of trust. You have sworn an oath to uphold the law and the community has acted upon that oath you swore and placed its trust in you. You have abused that trust and that is clearly an aggravating feature of these crimes.
21 The issue of specific and general deterrence is also of significance. You have personally expressed no remorse, you contested the trial and through your counsel accused a number of people of not telling the truth in their evidence. I have to say that I considered that the case against you was strong and that the verdict of the jury was the correct one. Thus, in my view, the issue of personal deterrence is of some significance.
22 In terms of general deterrence that, in my view, is a matter of real importance. There are a number of members of the Drug Squad who are currently facing trial or who have faced trial in very recent times. One has been convicted and the trials of others are still proceeding. Two other officers from that squad are currently serving sentences. There is no doubt that the type of work involved in the Drug Squad leads people into positions in which they could be tempted. There are vast amounts of cash and drugs that are seized in various operations. You, as members of that squad in particular, see criminals such as Tony Mokbel living what could be described as the "high life", splashing out hundreds of thousands of dollars on gambling, restaurants, fast cars and a party lifestyle. Police are on modest salaries by comparison to this and there is no doubt that the comparison ultimately appears unfair to some members of the police force. It becomes easy to slip over to the wrong side of the line. Often with just a small matter to start which can then build to bigger and bigger crimes. As a result if some drugs or money go missing during raids who is going to complain? The criminal? And if they do who is going to believe the word of a criminal against the word of a police officer? The temptation is there from the lowest to the highest members of the police force. Thus, the police force, and the courts, when they have an opportunity to do so, must make it overwhelmingly clear to members of that force that to so give into temptation will attract condign punishment. The trust that the community by necessity has to place in the members of its police force is of a high level, and the courts must ensure that members of the police force are well aware that breaching that trust will have significant consequences.
23 Equally I also have to examine and take into account your personal circumstances. Your counsel submitted that you were a highly respected police officer for a very long time and that appears to be the case.
24 You were born on 4 June 1979 and accordingly are now 36. At the time of the offences you lived in Garrett Street, West Essendon, you are a single man with no prior convictions. Your father Phillip is aged 62, he is a scrap metal dealer, you have two sisters. It is a close relationship, your counsel submitted, and a very loving one. I have to say that was apparent to anyone who sat through the trial, as I saw people who I assumed to be your mother and sisters, consistently present and supporting you throughout that time.
25 You were born and brought up in Cobram, leaving school having completed Year 11, at Cobram Secondary College. You joined the police force at the age of 19. That was in 1989, you were then sent to general duties at Broadmeadows and then various stations until you became a leading Detective Senior Constable with the Major Drug Investigation Unit. Your counsel said you have always been a fitness fan, you were involved in boxing in the police force for some 10 years, you assisted in training youngsters and you became a champion boxer within the services games. It was submitted by your counsel that you have never smoked or used drugs and that the whole of your life has been devoted to the police force.
26 I have some difficulty with this concept, that the whole of your life has been devoted to the police force, as I find it difficult to reconcile a devoted highly motivated officer with the person who committed this crime. Despite my misgivings, the evidence that has been called and placed before me indicates that you have been involved in the police force since you commenced in 1989, and nothing indicates that you have been involved in any prior criminal activity.
27 Your counsel submitted that you have volunteered for long hours and difficult assignments. He said between 1988 and 2004, you averaged between 70 and 80 hours a week work. He said the drug squad work was demanding but you were keen and willing. He talked about your hobbies, which involved motor vehicles and riding your bike. You work on restoring Mini Minors and Valiant Chargers. It was submitted to me that you stayed single because of the long hours and the work in which you were involved. He further put it that up until the time you went into custody, you had maintained a close relationship with Faith Roper. Since your apprehension and subsequent release on bail you have been living in Cobram, working with your father in the scrap metal business.
28 A number of persons were called and gave character evidence on your behalf. The first was Detective Sergeant Kelvin Gale, from the Yarra Crime Investigation Unit. You both went into the police force together, in the same squad and became close friends. You were best man at his wedding and you shared a house together from 1991. He described you as fairly naïve to city life and the world in general. Very much a country boy. He said you were quiet, reserved, and took quite a while for people to get to know you. You were never outspoken or opinionated and you were very tolerant of others. He found you easy to get along with and he described you as being from the beginning, a dedicated police officer, always available to start early or finish late and throwing yourself into whatever you did. He said you always worked long hours, would leave early for work and come home quite late.
29 He said you did not have a lot of friends within the force but those you did were good friends. He explained that Faith Roper is in fact his wife's sister and up until the time when he gave evidence that the relationship had been still enduring. He described the closeness of your family and your interest in fitness. Your father also gave evidence before me. He said that you had no problems when you were growing up, you had a close and loving relationship with your family which still persists.
30 He described you as having a very moral view of life, being a stickler for the truth. You never smoked, you kept yourself very fit. He said after you left school you came to work with him because you could not enter the police academy straight away. As far as you were concerned that was the life that you wanted to lead. You intended to be and became a police officer. He described it as your whole life. He also indicated that you had, after being released on bail, gone into partnership with him in the scrap metal business in Cobram.
31 The third and final witness that was called was your uncle, Mr Christopher Cohen, who was a Uniting Church minister. He has known you all his life. He described the family culture as being very close, loving and loyal. He says that you in fact have inherited all of those qualities. He says you have a very clear understanding of right, wrong, and integrity. He said that you had a strong sense of passion to be in the police force, that was what you wanted to do. You were quiet, thoughtful and hard working.
32 As a result of all the material put to me, I accept that you were, prior to these offences, a man of good reputation, a dedicated police officer and hardworking. I further accept that as a result of the arrest by the K-9 Unit, you received quite bad injuries with scars to your legs, back and face. You had some ten days in hospital and eight weeks on crutches.
33 I accept that whilst on remand your situation in custody has been exceedingly difficult. You have been placed in the Melbourne Assessment Prison and you are only allowed out of your cell one hour per day. I accept equally that you have been threatened and spat upon there.
34 Further I accept that prison will be more harsh for you than the average prisoner but not that it will be served in conditions such as you have been undergoing. There are prisons where persons who may be at some peril from other prisoners are housed which is usually a place such as Ararat. As I say, I do accept that your time in prison may be more difficult than the average prisoner but it will not be so difficult such that you will be in maximum security or isolation but you will be with other protected prisoners and I will take that into account when imposing sentence.
35 As I said, I accept that you have had no actual financial gain from the commission of these offences. I accept that you have lost the friendship and support of most of your former colleagues and also your job, which has been your choice of career. I accept that you have lost all claims to any superannuation and that your job opportunities upon release from prison will be limited.
36 I have examined the cases referred to by counsel and consider that the circumstances of the offending of Ahmed, the owner of the drugs who was dealt with by Judge Chettle, does not provide a great deal of assistance in determining your sentence. Equally, the case of R v Morse[1], really cautions the court to keep sight of the principle of totality and to not let community outrage deter the proper sentencing of prisoners. That is the applying of all the proper principles as Parliament has enacted them.
37 The final plea made on your behalf was that the court should be merciful. I have already referred to the factual and the aggravating features of these offences before I dealt with the mitigating features. I further have to impose a sentence that is just and proportional to the crime committed and which reflects the denunciation of this type of conduct.
38 Balancing all of the matters to which I have referred and having regard to the considerations set out in s. 5 of the Sentencing Act of 1991, I convict you and sentence you in relation to Count 1, the count of burglary to a term of five years' imprisonment. In relation to Count 2, the count of theft, to a term of five years' imprisonment. In relation to Count 3, a count of trafficking in a large commercial quantity of drugs, a term of 13 years' imprisonment. In relation to Count 4, a count of trafficking in a large commercial quantity of drugs, to a term of 13 years' imprisonment. In relation to Count 5, a count of trafficking in a commercial quantity of drugs, to a term of eight years' imprisonment. In relation to Count 6, a count of trafficking in drugs, to a term of 18 months' imprisonment and in relation to Count 7, a count of trafficking in drugs, to a term of one month imprisonment.
39 I direct that two years of Count 1 be served cumulatively upon the sentence imposed on Count 3 and that all other sentences be served concurrently with the sentence imposed on Count 3.
40 That makes an overall effective sentence of 15 years' imprisonment and I declare that you are to serve 12 years' imprisonment before becoming eligible for parole. I direct that pursuant to s. 18(4) of the Sentencing Act, that you have already served - can you tell me how many days?
MR HORGAN: Your Honour, since you were last told, it is 84 extra days.
HER HONOUR: It cannot be 84 extra days since I was last told. It is not 84 days since I heard the plea.
MR HORGAN: I am sorry, Your Honour.
HER HONOUR: I think it is 84 days in total.
MR HORGAN: 84 days from 26 May.
HER HONOUR: Yes. I think there was 11 days - - -
MR LINCOLN: I don't remember now. I thought it was 18 actually.
HER HONOUR: Sorry, 18 days after arrest.
MR LINCOLN: I think it was.
HER HONOUR: So that is 18 and 84. I declare that you have served 102 days in custody and I direct that be entered on the records. In relation to the application of suppression of this sentence, there are two trials currently underway in this Court in which there are in total three members of the drug squad on trial for offences relating to stealing and selling of drugs which of course was an abuse of their roles as police officers. Whilst the situation is not identical to the circumstances of this case, the comments made in the sentencing remarks relating to members of the drug squad are in my view highly prejudicial to those persons being able to obtain a fair and impartial trial.
41 One of the trials is in its closing stages and the other, which is the retrial of a time consuming and expensive matter, is well over half way completed. The delay that will be occasioned by prohibiting publication of this matter is small. The solicitor appearing for the Herald Sun and others indicated that the public will not be interested if the reporting of the matter is delayed as something more current will occupy their attention.
42 I think he does a great disservice to the general public. I think that they would be very concerned and interested to know of the consequences of this type of behaviour of a member of the police force.
43 For that reason, equally, I believe it is not appropriate to permit just the sentence to be published without any explanation for the reasons for that sentence.
44 The prisoner has been in custody since his conviction which was on 26 May. The plea was not able to be heard for a number of reasons until recently. I do not accept that a delay of potentially a further two months will prevent this material ever being reported. The trial and its results were reported and if immediacy is the issue then that immediacy has already been lost. Accordingly, I direct there be no publication of the plea, the sentence or the sentencing remarks until the conclusion of the trials in the R v Cox & Sadler and R v Strawhorn.
R
Miechel [2006] VSC 359