R v Ryan [2009] VSC 631

Supreme Court of Victoria|2009-12-16|Before: KING J

Traffick large commercial quantity of methamphetamine. Traffic commercial quantity of MDMA. Dealing with proceeds of Crime. Imprisoned for a total of 10 years with a minimum of 7 years.

1 Andrew Ryan, on 18 August 2009 you were arraigned and pleaded guilty to Count 1, being that between 1st of October 2006 and 5th of June 2007 you trafficked in a large commercial quantity of methylamphetamine; Count 2, that between 1st October 2006 and 5th of June 2007 you trafficked in a commercial quantity of MDMA; and Count 3, on 5th of June you dealt with the proceeds of crime, namely, $12,650 knowing it was the proceeds of crime.

2 The maximum penalties applicable for the offences are: Count 1, trafficking in a large commercial quantity, life imprisonment; Count 2, trafficking in a commercial quantity, 25 years; Count 3, knowingly dealing with the proceeds of crime, 15 years.

3 At the request of your counsel this matter was adjourned for plea to 9 November 2009. The plea was part heard on that day and, once again at the request of counsel, the matter was adjourned until 16 November 2009 for final submissions, which were done. Subsequent to that, written submissions were provided to the court in relation to the matter of a pecuniary penalty.

4 You are now 26 years of age, having been born on 7 May 1983. You have two sets of prior convictions. The first was at the Magistrates' Court at Ringwood on 23 September 2003 for the following offences:

attempted trafficking of a drug of dependence, namely amphetamines;
trafficking in a drug of dependence, namely Cannabis-L;
cultivating a narcotic plant, namely Cannabis-L;
possessing a drug of dependence, namely, amphetamine;
possessing a drug of dependence, namely Cannabis-L;
using a drug of dependence, namely amphetamine;
using a drug of dependence, namely Cannabis-L; and
possessing property being the proceeds of crime, two charges.

You were sentenced to be released on a community-based order for a period of six months on all charges with a special condition that you perform 60 hours of unpaid community work and submit for testing for alcohol and drug use as directed, undergo assessment and treatment for alcohol and drug addiction and submit to medical, psychological or psychiatric assessment and treatment as directed and that you abstain from the use of non-prescription drugs and comply with all lawful directions of Community Corrections officers.

5 Your second appearance before the court was again at the Ringwood Magistrates' Court, this time on 15 August 2006, in which you were convicted of:

• trafficking in a drug of dependence, namely, cocaine;

• possessing a drug of dependence, namely, methylamphetamine;

• possessing property being the proceeds of crime, two charges;

• driving a motor vehicle while disqualified, two charges;

• failing to obey the lawful direction of a member of the Police Force;

• driving a motor vehicle in a careless manner and driving an unregistered motor vehicle.

You were sentenced to be imprisoned for nine months on the first six counts, which imprisonment was directed to be served by way of home detention and you were fined an aggregate sum of $1,000 on charges 7 through to 10. You were required to wear an ankle bracelet, and you were confined to your home, with some exceptions. You were permitted to leave your house, to attend your place of employment, being the Definition Gym in Doncaster, having been employed there from February 2007 and, also, to attend Monash University, to continue your engineering course.

6 What is of significance in relation to those prior convictions is that they are for offences of a similar nature, albeit more minor, and, secondly, that the current offences, to which you have pleaded guilty, were committed during the time when you were, in fact, serving a sentence of home detention.

7 You were initially living at Alma Road, Caulfield from October 2006 to the end of January 2007, and then in Madison Boulevard, Mitcham where you were living up to the time that you were arrested, on 5th of June 2007.

8 You purchased large amounts of methylamphetamine, or speed, from a network of individuals, known as "The Company". The Company was involved in the production and distribution of large amounts of methylamphetamine during 2006, and up to June 2007, when the various individuals were arrested. This network of individuals (or The Company) was organised by Mr "A" from January 2006, until his arrest in Greece on 5 June 2007. In the early months of 2006, Mr "A" was on trial in the Supreme Court for drug related offences. He absconded from this trial at the end of March 2006 and ultimately went to Greece. He continued to control the activities of The Company. Many persons were involved in the illicit drug trafficking activities of The Company. Those members of The Company who were involved in dealing with you, in particular, were Joseph Mansour, Batholomew Rizzo and Christopher Ferraro.

9 I have, on numerous occasions, gone through the arrangements and set-up for The Company, in respect of dealing with your fellow co-offenders. I will do so here, but on a shorter basis.

10 Mansour and Rizzo were the principal organizers of The Company within Australia. Most often Mansour and Rizzo received and acted upon the instructions of Mr "A". Those instructions were usually provided through telecommunications or through information supplied by other trusted confidantes. They would either attend to The Company's drug business themselves or would delegate to others. As indicated, Mr "A" also gave orders and directions to others, independently, as well as through Mansour and Rizzo. They monitored the quality of the product, they oversaw the storing of it, the cutting and re-packaging, the marketing and they regularly discussed their major drug customers, of which you were one. They facilitated the supply of drugs to the customers and collected payments from customers, including you. As indicated, you were a substantial customer of The Company.

11 In the latter part of the offending period, you, in the presence of Mansour, spoke with Mr "A" on four occasions. Mansour and Mr "A" made telephone contact and Mansour put you on the phone to speak with Mr "A". Whilst you knew that you were speaking with Mansour's boss, it is agreed by all parties that you did not know that you were talking to Mr "A" and I accept that, without hesitation. Rizzo kept a book of account on The Company's drugs and this was known as the "Raymond Weil". The "Raymond Weil" was produced by Rizzo in about early July of 2006 and kept regularly updated. It recorded all of the methylamphetamine coming into the company, from about 5th of July 2006 until 5th of June 2007, when the arrests were made. The bill shows that, during the period in which it was maintained, in excess of 100 pounds of speed was received into The Company, at least 90 of which was received between July 2006 and June 2007.

12 The Company worked in this way; when the manufacturing process was complete, the company would then purchase the speed from Mr "A". Mr "A" charged The Company $40,000 to $47,500 per pound. From that moment on the Company owed Mr "A" for the manufactured speed. Members of The Company, like Mansour and Rizzo, would then cut and on sell the speed to their customers, including you, for their own profit. Accordingly, The Company accumulated a bill to Mr "A", for all speed which came in. Deducted from that bill were outgoing disbursements, made at the direction of Mr "A" to his associates and his interests. The bill did not generally record the on-sale of drugs by members of The Company to its customers. It was a standing account of the financial position, as between, the company and Mr "A".

13 Dealing specifically with your involvement with The Company, you purchased approximately 21 pounds of methylamphetamine, in total, from The Company over the time of which you were charged. A large commercial quantity, at the time, was 2.5 kilos of mixed substance. Between October 2006 and April 2007, you purchased approximately 15 pounds of wholesale speed from The Company, which you received by way of several deliveries. You then purchased a further 6 pounds in May 2007, and you tested some samples in late May 2007. You paid $45,000 a pound for the drugs, in wholesale form. Your point of contact at The Company was Mansour, who mainly made the arrangements with you.

14 Mansour would generally arrange for Ferraro to drop off the drugs, either at your house, or at the gym and Mansour would collect the money from you, once again, either at your house or at the gym. You received the drugs on credit and paid for them after they were sold. Upon taking delivery, you would prepare the drugs for sale, which included cutting the drugs, so that you could in fact make your own profit; sealing them in a cryovac machine, or packing them in Glad resealable plastic bags. You would then, on sell the drugs, at a profit, through your network of customers.

15 In May of 2007, the police, as part of their investigation, obtained a number of telephone intercept warrants on the mobile phones used by members of The Company. Police intercepted a number of telecommunications between those members and you. You were referred to as "Ross" in those telephone conversations. That was how you were known to the members of The Company, with whom you dealt.

16 Mansour's large major delivery to you, in May 2007, was 5 pounds. This was made up of 3 pounds initially, followed by a further 2 pounds. There is an entry on the last part of the Raymond Wiel, made by Rizzo, referring to 9 pounds of speed coming into The Company. The entry reads, "Add stock Jack (5) and JNB(4)". The entry "Jack" is a reference to the 5 pounds of speed delivered to you, in May 2007.

17 Mansour had told Rizzo that he had given 5 pounds to Jack, a close friend of Mr "A". Mansour did that on the basis that he did not want the drugs to be diluted by Rizzo. Mansour believed, he told the police in a statement, that you owed $225,000 at the time of your arrest in June 2007, but there are other documents, found on Rizzo's computer and memory stick, which record some transactions with customers and some debts owing by those customers. There is an entry in the following terms, which says, "Jack, $225,000" being under the heading of "total", quantity is 5, the rate is 45,000, and there is an amount of 80,000 paid. There is a balance of $145,000. This is a reference to the 5 pounds supplied to you in May of 2007 at $45,000 a pound and to the fact that you had paid $80,000 and had a balance owing of $145,000.

18 Over the course of the weekend of 19 and 20 May, there were other telephone calls involving Mansour, Rizzo and Ferraro, where they discussed the delivery to you of a further pound and on 29 May, Ferraro tells Mansour that the speed had been delivered to you the previous Friday.

19 Difficulties had arisen with respect to the quality of The Company's methylamphetamine. This first occurred in 2006. Despite these problems The Company was still able to sell the product. One of the reasons that it could do so was because you were able to help fix the drugs. You told Mansour that you were able to remove the impurities in the speed that had been supplied to you, which enabled you to then continue to on-sell it to your own customers.

20 The quality of the speed deteriorated significantly in May of 2007 and The Company had received complaints from customers and, at least in one case, was forced to accept the return of some drugs from one of its customers, Mr Pantazis, in mid May. On Mansour's encouragement, Mr "A" and The Company turned to you for advice and assistance and he did this because you had fixed up the speed, which had previously been sold. The issue of the quality of the speed, how it could be fixed and the role that you played in this, emerges in a series of intercepted calls. These calls are all discussed in the opening and in your counsel's submissions on the point and I will not repeat them in this summary.

21 I accept that you were brought in to try and assist, but that you were unable to assist, that you were really unable to fix anything to do with this, and you ultimately informed The Company of that.

22 In the month leading up to your arrest, one of your customers, Mark Matthews, complained to you about the quality of the speed you were selling to him, the fact that it was making his customers physically ill. Mark Matthews, initially, would purchase amphetamine from you on a regular and continuous basis, in minimum one ounce lots. This occurred, virtually daily, during the time you were charged, but the quantities increased gradually to 4 or 5 ounces daily, once you had moved to Mitcham, so your drug dealing in fact escalated. You would charge between $2,800 and $3,200 an ounce. Matthews would also collect the drugs, including the Ecstasy which he purchased from you on occasion, from either your home or from your gym where you were working at Doncaster, or at Monash University.

23 In response to Matthews' complaints about the quality, you said that you would fix the problem. Matthews, in fact, returned some 6 ounces to you. He, like Mansour, observed you attempting to try and fix the speed, in your own kitchen. He was present on at least two occasions, when you did that. And it is clear from the materials found in your premises, that you were attempting, and continuing to attempt, to try and fix the problem.

24 When you had in fact completed that process, on the occasion he was there, you re-packaged the speed in cryovac and bagged it. It did not successfully fix the problem and the customers continued to complain.

25 At the time that you were arrested, Matthews owed you some $35,000. It also emerged in the telephone calls that, in the last days of May, you were working closely with Mansour and Mr "A" trying to fix up the speed, supplied to you by The Company. There are a series of telephone calls on 28 May about this, two of which involve Mansour, Mr "A" and yourself.

26 On 30 May, Mr "A" told you that he would get Mansour to give you some finished speed in the coming week, to check its purity. This of course related to a new batch. Mr "A" then told Mansour, that it would be the new one, meaning some of the newly manufactured speed, which they anticipated coming into The Company.

27 On 31 May, surveillance observed Mansour attending at your address and The Company did, in fact, take possession of some newly manufactured speed on 1 June. That was collected from George Elias. There is a series of telephone calls on 2 June, involving Mansour, Rizzo and yourself, in which the delivery of the new sample is organised and that sample was in fact delivered.

28 In the telephone calls of 28 and 30 May between Mr "A" and you, you also expressed your willingness to become involved in the manufacturing process of speed for The Company. In particular, you said that you could manufacture or supply methylamine, a precursor chemical used in the manufacture of speed, but you indicated you would only be in a position to do that once your home detention expired.

29 The arrest took place a week after these calls and, accordingly, your supplying of the chemicals was never actually realised.

30 In relation to Count 2, during that same period of time that you were involved in methylamphetamine, you sold several thousand Ecstasy pills to your network of customers. The police investigation identified, at least three persons as Ecstasy customers of yours during this time; Mark Matthews, William Byrne and Andrew Demetriou. All knew you by the name Roscoe. You sold Ecstasy tablets, on multiple occasions, to Matthews from October 2006 to June of 2007, usually in hundred tablet lots, and to Byrne from December 2006 to June 2007, usually in 50 or 100 tablet lots and on one occasion to Andrew Demetriou, 50 tablets in late 2006.

31 While you were living at Mitcham you were also able to satisfy a few of the larger orders, up to a thousand pills for Byrne in particular. The exact total of MDMA pills sold, during the offending period, cannot be ascertained with certainty. It is accepted, by both parties, that the total was in the vicinity of 3,000 to 4,000 MDMA tablets. And that figure makes allowance for the fact that, on analysis, of the pills which the police received from Byrne's residence, 36 of those pills contained MDMA while another 10 pills did not contain any MDMA. Rather, they contained small quantities of methylamphetamine.

32 You were charging Mark Matthews, between $6 and $8 a pill, Byrne between $10 and $14 a pill and Demetriou $1,100 for the 50 pills. That is $22 a pill.

33 On 5th of June 2007 you, along with many of your co-offenders, were arrested. They executed a search warrant at your house in Mitcham and a large number of drug related documents, substances and paraphernalia were seized. You had a computer and a flash drive containing a spreadsheet. This spreadsheet listed over 60 individual names, with residential addresses and car registration numbers. Included in this document, the points against, are recorded against the particular names. This document assisted police in identifying Mark Matthews and Andrew Demetriou as customers. It is also a document, which lists a large number of names, with corresponding mobile telephone numbers. The prosecution allege that, at least some of those, were your drug customers or contacts.

34 A number of glass jars were seized. Two of the glass jars were found to contain methylamphetamine residue or indications of methylamphetamine. A portable oven was found by police and a swab, taken from inside, revealed methylamphetamine. In addition to traces of speed being detected, caffeine was detected in one of these glass jars, as well as the portable oven. Caffeine is commonly used to cut methylamphetamine. Also, numerous chemicals were located, which could be employed to purify methylamphetamine.

35 The police found substantial quantities of powder commonly used to cut methylamphetamine, including cardboard boxes labelled "caffeine", containing white powder, and a 25 kilogram wooden tub labelled Mannitol, containing white powder. Mannitol is also used to cut amphetamine.

36 There was email correspondence on your computer from 2007 indicating that you had purchased on 18 May, 25 kilos of Mannitol from a company in the United States. It was purchased through your company, Cronus Solutions.

37 The police found other normal trafficking material, three sets of electronic scales, drug testing kits, vacuum food sealer, numerous boxes of small, medium and large plastic bags. They found 20 handwritten pages, containing instructions and formulas on how to manufacture methylamphetamine and Ecstasy. They found the $12,650 in cash. That cash is what constitutes Count 3.

38 They seized nine mobile telephones, several of which were registered in false names and addresses.

39 In relation to the speed and the quality, particularly of the last 6 pounds received, samples of that speed or the speed trafficked by members of The Company during the month of May were obtained by police, in that drugs were sold by Mansour and Rizzo to an undercover operative on three separate occasions in May 2007. It is accepted by the Crown that, the 6 pounds delivered to you in May of 2007, was of extremely low or poor quality and consequently of low commercial value.

41 You also had a storage facility. You told Mansour that you kept all of your stock at the storage facility. It appears that you had the use of a storage facility at Kennards, in Vermont. This was initially rented by your girlfriend until you separated in November of 2005. When you were arrested in June 2007 the contents were cleared out, by an unidentified person, within a week of the arrests. When the police searched the facility, several weeks after the arrest, it was empty.

42 You participated in a record of interview only to the degree of making "no comment".

43 Apart from the circumstances surrounding the offending, I also have to take into account your personal circumstances. As indicated, you are now 26 years of age, having been born on 7 May in 1983. These offences having been committed between the ages of 23 and 24.

44 You are the third of four siblings in your family. Your older sister is a speech pathologist and your older brother a financial analyst and your younger sister an architecture student. Your father who is aged 60 is an accountant and your mother, aged 57, is a qualified primary school teacher, although not currently working.

45 You were born and raised in Gisborne during your younger life and you attended a number of Christian school in that area.

46 In Year 9 you came with your parents to Melbourne, living in Box Hill and with you attending Donvale Christian College. That was in 1998. You were considered an exceptionally intelligent student. You excelled academically and also in the sporting field, particularly in football. You also had a stammer, you informed your counsel, and described yourself consistently as being "nerdy".

47 You stated that you desired to be accepted by the cool people and at that time in Year 9 you commenced drinking. You were hospitalised at one stage with an overdose of alcohol.

48 In 2001 you were accepted at Melbourne Boys High School. You turned 18 years of age during your VCE year and through your counsel you stated that you had a very tarnished self-image, seeing yourself as a stuttering shy "nerd" and you were keen to be popular at school. You had collected Statewide science prizes throughout your years of school and you completed Year 12 with an ENTER school score of 95, despite stating that you had done very little work that year.

49 During Year 12 at Melbourne High School you say you were introduced to amphetamine. You described to Dr Walton, as set out in his report which is Exhibit 2 on the plea, that the effect that this drug had upon you - you saw it as nothing short of miraculous, telling him that it made you feel good, confident and normal for the first time in your life. In your view it clearly enhanced your self-esteem. You said it also allowed you to be considered "cool" at your school. I note, however, that Melbourne High School is a selective entrance school, based on academic achievements. It seems surprising that at that school you still felt out of place and a "nerd" by your own comments.

50 Your results were, of course, not sufficient to enable you to get into medicine which was your desired course, so you took the path of enrolling at Monash University in a biomedical science course on the basis that you intended to complete that course and then reapply for medicine. You had left your parents' home in Box Hill and were living in shared accommodation. You had been working at a supermarket since the age of 15 and had accrued a significant amount of money and in 2001 you purchased a motorcycle for $4,000.

51 In 2002 you were hit by a motor vehicle which caused damage to your motorbike but no particular injury to you.

52 The supermarket in which you were working also closed that year and it was submitted that you had at that stage started to borrow money on the expectation of the payout in relation to the motorbike.

53 Your amphetamine usage was increasing and you ultimately introduced one of your amphetamine suppliers to another of your amphetamine suppliers. One of them ripped the other off for which you were held responsible. You were beaten, threatened, put in the boot of a car and was described by your counsel as having a virtual and physical nervous collapse.

54 You spent some two weeks in hospital with pneumonia and glandular fever. You lost 20 kilos in weight. Your parents were concerned and they took you to see a friend, a police officer by the name of Sergeant Milburn at Box Hill, this all occurring in 2002. You then moved home and stayed with your parents for a year. The officer gave you some advice and although I am unaware of the particular advice I initially presumed it would have recommended that you cease involvement with illegal substances. But it became apparent from subsequent material provided by your counsel that your parents were unaware of your drug offending so I am really in a state of not knowing whether they had any knowledge at all of your drug usage. Therefore, I am not so confident in my presumption about your discussions with the police officer.

55 Anyway, you stayed with your parents for approximately a year, working as a storeman at Doncaster Coles and doing a night fill job at K-Mart. Thus by 2003 you were aged 20, you have paid off all your debts and bought yourself another motorcycle. You had ceased the biomedical course that you were doing at Monash University and in 2003 you commenced engineering which was a course that had been pursued by your older brother but you deferred that course after two and a half months of attendance. You stated to your counsel that you became involved in drugs again in the middle of 2003 with the persons with whom you were working at Coles. You had already moved out of your parents' home again and were living in a share house. You were growing cannabis but you were also buying drugs at that stage for yourself and your friends according to the information you provided to counsel and the psychiatrist, including amphetamines.

56 You informed Dr Walton that during 2003 you had progressively become more involved in drinking alcohol and using amphetamines, once again describing your involvement in drug trafficking as enjoying the popularity of being "cool". After your apprehension you received specialist drug and alcohol addiction counselling with Mr Joe Lamberti. The community-based order that you received from Ringwood Magistrates' Court in December 2003 clearly was directed to your continuing to work with Mr Lamberti in respect of drug and alcohol counselling which you did for some time. In 2004, you again commenced your Bachelor of Engineering but also became involved again in the use of drugs. Your studies deteriorated, you lost your job and ultimately your accommodation. You explained to your counsel that in late 2004, early 2005, you became involved with a person by the name of Chris Stewart, a person who had attended Melbourne High School and with whom you had been involved with drug usage whilst at school. You resumed your friendship, started drinking alcohol, using drugs, this time consuming not just amphetamines but cocaine and Ecstasy, and in late 2005 you met Bartholomew Rizzo, a co-offender in this case.

57 As indicated, you lost your sources of income and you turned to drug dealing to pay for the drugs that you were using as well as provide you with another form of income. You were arrested in January 2006 and at that time you were found sleeping in your car at Box Hill Station having lost your premises. You had $4,000 in cash, drug paraphernalia drugs and a notebook indicating that you had been in fact dealing in drugs. You claim that you owed some $55,000 to Rizzo and Mansour at that stage. They offered to pay your solicitor's fees and assist you to ensure that you did not say anything about their involvement, which clearly you did not. After being arrested in January 2006 and prior to being sentenced in August 2006 you were once again receiving treatment from Mr Joe Lamberti. You were regularly tested by Mr Lamberti and provided to the court on your plea hearing a series of drug screens indicating that you had not been using any form of illicit drugs during that time.

58 You informed your counsel that in March of 2006 you were approached by Mansour and Rizzo and told that you had to pay the money that was owing which you claimed to be $55,000. You said through your counsel that you commenced trafficking again in March of 2006 when you were given an ounce of cocaine. At no point, you claimed, did you ever get to the stage of clearing the debt on the basis that you were the sort of person that people ignored to a degree and after August, because you were on home detention, you were not in a position to chase your debts up at that time.

59 I have some concerns about the instructions you have given in respect of that as the trafficking of drugs by Mansour and Rizzo commenced in January of 2006 and it would be very difficult for you to have run up a drug debt of $55,000 by that stage.

60 What is clear is that you presented before the Magistrates' Court in Ringwood in August of 2006 with a series of drug screens from January through till August, all of which were clear, with a report from Mr Lamberti, and presenting yourself as drug free, rehabilitated and reformed and, accordingly, the court gave you the opportunity, despite the seriousness of the offence, to have the benefit of home detention. The home detention allowed you to be away from your premises for two things. The first related to your work in that you were working at a gymnasium (what is clear is that they are also the premises at which you met with Mansour and Ferraro for the purposes of drug trafficking), and, secondly, to attend university. It is clear you deceived the court as well as, it would appear, your family.

61 You have the support of your entire family. Whilst they are no doubt exceedingly disappointed in you, they have not abandoned you in any way and remain loyal and supportive, including visiting you and constantly keeping in contact via telephone. Despite you being the least successfully academic of all of your siblings your parents are of the view that you are perhaps the most gifted of all of their children intellectually and they are hopeful that in the future you may do something positive with your life.

62 It was originally put to you that your family were fully aware of and had supported you at the prior criminal proceedings. In written submissions presented subsequent to the oral hearing, counsel submitted that what was put forward in respect of that was incorrect. It was contended that your family were entirely unaware of the first offence even occurring and that, in respect of the second offence, that they were only aware of the driving offences. I must say I am somewhat concerned at this change in instructions as I fail to understand how you were able, in respect of the dire financial position in which you say you found yourself, on those occasions to afford the ongoing services of Mr Lamberti over the many months of treatment on two separate occasions. I have no reason to reject any information provided by your parents to counsel and I will therefore act upon this basis.

63 Your counsel urged me to take the view that you were gullible and naive and that to a degree you were preyed upon by Mansour in particular, and Rizzo, and that they placed you in a position that was difficult for you to refuse to continue to deal with the drugs.

64 I accept part of what has been put forward on your behalf. I accept that you are to a degree obliging. I do not accept that you are so naive and gullible that you inadvertently became involved in this matter. You have had three opportunities in the past to walk away from your involvement in both using and trafficking of drugs. You took none of those opportunities. The first was when you were spoken to by the police officer, the second was your first court appearance and the third was your final court appearance when you were placed on home detention. At the time of those two court appearances you were drug free and accordingly able to think clearly and rationally. You are an extremely intelligent person. Whilst you were only 23 to 24 at the time of the commission of these offences that is clearly significantly old enough to understand and realise the consequences and ramifications of your behaviour. You purchased approximately 21 pounds of methylamphetamine in the period over which you have been charged and at least 15 pounds of that methylamphetamine that you received was of a merchantable quality.

65 I accept that in May 2007 the methylamphetamine you received was of significantly low quality. The amount you received that was of good quality, however, was many times a large commercial quantity for the purposes of sentencing. You cut that methylamphetamine and you distributed it into the community, to a significant number of persons who on sold the cut and re-packaged methylamphetamine. In relation to the MDMA or Ecstasy, which was of a commercial quantity, you trafficked at least three to four thousand Ecstasy tablets, during the relevant time. You purchased and sold these tablets, whilst you were in home detention, and you continued in your business of trafficking.

66 Whilst I accept that you may not be the world's best businessman, I do find that you were a willing and enthusiastic participant in the drug trafficking, during this time. I find that, in respect of the six pounds of poor amphetamine received in May of 2007, you were in fact hoping to receive good quality amphetamine, so that you could cut and on sell it. You were one of the three major purchasers of methylamphetamine from The Company, the other two being Hesch Chakic and Byron Pantazis, both of whom are much older and, it would appear, more experienced in the trafficking of drugs than you.

67 Equally, Pantazis is a very close friend of Mr "A". Each of them rejected the amphetamine that was sold to you in the six pound amount. It was, as I said, of significantly poor quality and you were the only one that ultimately accepted it. It was hoped that you could in fact fix the problem with the manufacturing process, in relation to those six pounds, but that was not possible. The Crown accept that, at the time you were arrested, you had at least $145,000 outstanding in payments to The Company. There is a dispute as to whether it was $145,000 or $225,000, that was outstanding. I am satisfied that the amount outstanding was in fact $145,000, although it makes little difference in terms of your sentencing. As I have indicated, I accept that you were not a particularly good businessman, but that is not a mitigating factor.

68 In terms of your trafficking in commercial and large commercial quantities of drugs, you were attempting to be a successful businessman. You were attempting to be a successful drug trafficker. What you were successful at was distributing large quantities of illicit drugs into this community and it is for that, that you will be punished.

69 I accept equally, that you did not know Mr "A" and that you did not know he had any involvement in this group. The persons you believed to be in charge for most of your time were in fact Mansour and Rizzo and, at a later stage, you realised that there was another person who was their boss. You did not know who that person was and had no reason to believe it was Mr "A". You were, however, prepared to help those three people improve the quality of the methylamphetamine to improve their profitability and your own.

70 You do now have a child, who is some two and a half years of age. That child is from a relationship that commenced in early 2006 and continued through until August of 2009, with you electing to end the relationship at that time, against the wishes of your then partner. Your parents continue to see your child and they bring the child to visit you on weekends.

71 General deterrence is a most important factor in this case and I find that specific deterrence is also most significant. You have undoubtedly claimed on past occasions to have learnt your lesson, demonstrated your drug free status and relied upon your naivety and gullibility, to minimise the consequences of your illegal drug trafficking activity. There are only a limited number of times that you can escape the consequences, using those excuses.

72 Your counsel submitted that in the criminal hierarchy of this group you were not at the same level as either Rizzo or Mansour and I agree with that assessment. Equally, I agree that you are not at the same level, in the criminal hierarchy of this group, as Pantazis, who is another person who purchased and on sold the drugs. That is because he was a close confidante of Mr "A" and had more detailed and intimate knowledge and involvement with this organisation. You, however, did receive 21 pounds of the 90 pounds produced by that group, and trafficked at least 15 pounds of that 21. That clearly demonstrates that you were a very significant customer of this organisation, taking at least 20 percent of the total production of this group.

73 I accept, that there should be some concurrency in respect of the counts as you were really in the business of trafficking and the proceeds of crime, particularly, is part of the business of trafficking.

74 Since you have been in remand, you have attempted to do a number of very positive things with your life. You have enrolled and you have plans for your future. You are going to complete a course, you have arranged to do a further course and, considering how intelligent you are, I have no doubt you will be successful. You will do all of the courses and you will perform well.

75 There were a number of references provided and I have read those. They talk about your character, but your character is not something upon which you can really seriously rely, at this stage. You have two sets of prior convictions for similar behaviour and that is something that stands very strongly against you being a person of good character.

76 The Crown has, in this case, sought a pecuniary penalty order pursuant to s 59(1) of the Confiscation Act 1997. I have a discretion as to the making of an order pursuant to this section, and I intend to exercise that discretion in your favour. The Crown accept that you were a poor businessman, who ultimately obtained no overall financial benefit from the trafficking and, in fact, owed approximately $145,000 to The Company at the time of your arrest. The Crown have been unable to put before me any material that demonstrates a particularly wealthy lifestyle or assets acquired during this time. There is no doubt that you will be serving a lengthy period of imprisonment, but you are still young enough to start your life again upon your release. If an order is made in those circumstances you will, when released from prison, have a very substantial debt that will remain yours and could be taken from whatever legitimate earnings you may make in the future. I do not consider that appropriate and I decline to make that order.

77 I declare that in respect of Count 2, you are for the purposes of sentencing, a serious drug offender. This brings into operation the provisions of ss 6D, 6E and 6F of the Sentencing Act 1991. There is, in my view, no necessity to utilise those provisions for sentencing, as there is more than enough scope, within the applicable maximum penalties. to impose a sentence that protects the community from you committing further crimes of this nature in the future.

78 Balancing all of those factors to which I have referred, in respect of Count 1, that of trafficking in a large commercial quantity of methylamphetamine, you are convicted and sentenced to be imprisoned for a period of 9 years; Count 2, trafficking in a commercial quantity of MDMA, you are convicted and sentenced to be imprisoned for a period of 2 years; and in respect of Count 3, you are convicted and sentenced to be imprisoned for a period of nine months.

79 I direct that one year of the sentence imposed upon Count 2 be served cumulatively upon the sentence imposed on Count 1 and that the whole of the sentence imposed on Count 3 be served concurrently with the sentences imposed on Counts 1 and 2. That makes a head sentence of 10 years' imprisonment and I further direct that you are to serve a minimum of 7 years' imprisonment before being eligible for parole.

80 I declare that pursuant to s 6AAA the sentences that would have been imposed, if not for your pleas of guilty, would have been, in respect of Count 1, 12 years; in respect of Count 2, 2 years and nine months; and, in respect of Count 3, 12 months.

81 I make the disposal orders, the forensic sample order and the forfeiture order as sought.

82 I declare that the amount of time spent in pre-sentence detention is 925 days and direct that that be noted in the records of the court.

At a glance

Court

Decision date

Before

Source

Judgment (92 paragraphs)

Parties