DPP v Niyazi [2026] VCC 198

Serkan Niyazi, you pleaded guilty to an indictment containing two charges: one charge of trafficking in a drug of dependence[1] and one charge of possessing a drug of dependence.[2] The maximum penalty for trafficking is 15 years' imprisonment. The maximum penalty for possession is five years' imprisonment, or one year if a trafficking purpose is excluded.
A summary of prosecution opening dated 16 February 2026 was filed. Mr O'Toole appeared on behalf of the prosecution throughout the lengthy history that this matter has now had before the Court. I adopt the written summary of prosecution opening as the factual basis upon which you will be sentenced. I do not intend to repeat it extensively here. Suffice to say that your offending can be summarised in short form as follows:
In May 2021, a police investigation into drug trafficking identified that you were using a particular mobile phone number connected to the Telstra network. On 18 May 2021, at 7:23 pm, call charge records indicate that you participated in a six-minute telephone conversation with a co-offender, Rodney Dunbar. You were 41 years of age at this time, and you resided in Caroline Springs in Victoria, and Dunbar was 39 years of age and resided in Mermaid Beach in Queensland.
As a result of various forms of investigation, it was ascertained that the next day, on 19 May 2021, by approximately 5:25 am, you were at Melbourne Airport, where you boarded a 6:15 am Jetstar flight to the Gold Coast Airport in Queensland. At that time, you are said to have been travelling with one small black backpack. It is said that Rodney Dunbar collected you from the Gold Coast Airport, and I was informed at the plea hearing that there is no evidence indicating whether you then attended at any other locations, or at least there is no certainty about that matter. However, you then promptly travelled with Rodney Dunbar, in his black Nissan Navarra utility vehicle, back down to Melbourne, towards your address at the Esplanade in Caroline Springs, where you arrived on 20 May 2021 at approximately 5:40 pm. As it turned out, police were waiting for you near your residence, the vehicle was intercepted, and the two of you were arrested. Dunbar was in the driver's seat, and you were in the front passenger seat.
A search of the vehicle revealed four large travel bags, one located on the back seat of the Nissan Navara and three in the covered tray of the utility. Each bag contained 20 vacuum-sealed packages of green vegetable matter. Analysis confirmed the substance was cannabis. In total, there were 80 packages, each weighing approximately 450 grams, or about one pound, giving a combined weight of approximately 35.81 kilograms of cannabis. That conduct forms Charge 1 on the indictment, trafficking in a drug of dependence, namely cannabis.
Police searched the vehicle and located your wallet on the front passenger seat, containing $860 in Australian currency, along with two mobile phones. A further search of your premises located a glass jar containing 4.1 grams of green vegetable matter, which analysis confirmed was cannabis. That conduct constitutes Charge 2 on the indictment, possession of a drug of dependence, namely cannabis.
The summary of prosecution opening also contains a chronology of the many court hearings in this matter, which date back to 21 May 2021, being the filing hearing after the arrest on 20 May 2021. That chronology indicates that the matter proceeded in what I would describe as a relatively straightforward manner through the committal system in the Magistrates' Court. There were some adjournments of the committal hearing, and you were committed for trial on 26 April 2022. That is some 11 months after the charged date, which does not strike me as an unusual or inordinate length of time. I also note that you were remanded in custody at the time of your arrest on 20 May 2021. A bail application was refused on 17 June 2021, and a further bail application was made in the Supreme Court on 3 September 2021, which was granted.
The matter first came before me for pre-trial argument on 7 July 2023. What followed was a lengthy and, at times, fragmented process arising from a significant pre-trial issue that required the incorporation of a number of arguments and matters. I delivered my ruling on 1 July 2024, approximately 12 months after the matter first came before me, excluding certain evidence. An interlocutory appeal was subsequently brought, and my ruling was overturned. An application for special leave to appeal to the High Court was then refused. The matter returned before me for mention on 27 March 2025, at which time a trial date of 16 February 2026 was fixed.
The original indictment included a charge of trafficking in a commercial quantity of a drug of dependence. In the week before the listed trial date, the matter was resolved by way of a plea of guilty to trafficking in a drug of dependence simpliciter and possession of a drug of dependence. The prosecution case was that the trafficking was constituted by your involvement in transporting a quantity of cannabis interstate from Queensland to Melbourne, and that the quantity was in fact a commercial quantity. The prosecution contended that you must have been aware of a substantial quantity of cannabis in the travel bags. However, it accepted that it could not prove beyond reasonable doubt that you intended to traffic in a commercial quantity of cannabis.
As a result of that lengthy history, it is now approaching five years since the offending and approximately four and a half years since you were granted bail, having spent 106 days in custody. I was also informed that your co-offender, Rodney Dunbar, resolved his matter by pleading guilty to trafficking simpliciter on the morning of the committal hearing on 14 February 2022. His plea was later heard in the County Court. He had spent 62 days in custody before being granted bail and, following his plea in October 2022, he was sentenced to a combined sentence of 62 days' imprisonment and a two-year Community Correction Order. It is therefore almost four years since Mr Dunbar's matter resolved on the same trafficking simpliciter basis upon which you now stand to be sentenced.
Several matters flow from that. First, his plea would have been treated as an early plea, attracting greater utilitarian value and weight. On the other hand, you have now spent a further four years in the community, and there are matters arising from that period which operate in your favour. I will return to those matters shortly.
Mr Tovey appeared on your behalf throughout these proceedings and relied on a number of matters in mitigation. You are 45 years old. You were born to parents of Turkish-Cypriot background who arrived in Australia in 1984 and are described as hard-working and law-abiding. You completed Year 12 and, in about 2000, obtained a two-year Advanced Diploma in International Trade from Victoria University. You have demonstrated a strong work ethic over many years, including employment as a truck driver and later establishing a rendering business with your brother. You have had two significant relationships. The first was with Jae, whom you met in the late 2000s. You have a son together, Sammy, who is now 16 years old. Mr Tovey submitted that after the breakdown of that relationship, you turned to substance use and gambling as a maladaptive means of coping with stress. This resulted in significant gambling debts and escalating substance abuse. In turn, that led to your prior cannabis-related offending, for which you received a suspended sentence in May 2012 and later a sentence of three and a half years' imprisonment from this court in October 2012.
Regarding the trajectory of your life since that point, Mr Tovey submitted that you were granted parole at the earliest opportunity after serving two years and two months of your sentence, which you completed without issue. You returned to work initially as a truck driver and then resumed the rendering business with your brother. I was informed that the business operated successfully until the COVID-19 pandemic in early 2020, which severely impacted the construction industry. Mr Tovey noted that your work was largely in commercial operations, which were heavily affected by pandemic-related lockdowns. You experienced financial stress during this period, and your use of alcohol and other drugs increased. Mr Tovey submitted that you were isolated, lonely, and depressed, which formed the background to the present offending.
You were remanded in custody upon arrest for these charges and spent 106 days in custody before being granted bail by the Supreme Court. At that bail application, you were placed in an exceptional circumstances category. You were granted bail on 3 September 2021, during a period of community lockdowns that also significantly affected conditions in custody. Upon reception into prison, you would have been required to undergo a 14-day quarantine, and any transfer between facilities triggered another 14-day quarantine.
Courts at the time recognised that custody under COVID-related restrictions was more burdensome than ordinary imprisonment, which also affected considerations for bail. Mr Tovey confirmed, and I note from the Supreme Court's reasons for granting bail, that the COVID-related conditions of custody, together with expected delays in court processes caused by the pandemic, contributed to the finding of exceptional circumstances justifying your release on bail.
I note that this is a significant matter in the trajectory of your life since May 2021. The impact of the COVID-19 pandemic, both in terms of custody conditions and delays in the Court system, contributed to the reasons you were granted bail. Those delays ultimately extended far beyond what may have been anticipated in September 2021. Your trial date was not set until February 2026, approximately four and a half years after bail was granted. This is a substantial period of time, and particular regard must be given to what has occurred during that period.
When assessed for the Court Integrated Services Program (CISP) prior to your bail application, you reported regular alcohol use, daily cannabis use, and Xanax three to four times per week. You also reported financial stress due to the COVID lockdowns. After being granted bail, you participated in the CISP program through various treatment sessions. You attended 13 case management appointments and engaged exceptionally well, including attending drug and alcohol counselling sessions. The final CISP report stated: 'Mr Niyazi is commended for the exceptional manner in which he has completed ICS CISP episode.'
You were initially released on bail with strict conditions, which included daily reporting, curfew, engaging with the treatment as directed by the CISP program, and heavily restricted use of a mobile phone. In short, it appears that you complied with these conditions and successfully completed treatment. Your bail conditions were somewhat relaxed, as I understand it, on a couple of occasions over the next few years.
Mr Tovey further submitted that you have turned your life around in several ways. You now live with your new partner and her eight-year-old son, Taylor, while your 16-year-old son, Sammy, lives with you full time. You are employed full-time, six days per week, as a truck driver at RTD Environmental, where you have worked for 18 months. Your employer, Mr Mark Baker, provided a personal reference and gave evidence in court. He described you as a reliable worker, a leader at work, always positive, and well respected by colleagues and customers. Mr Baker, a former Corrections officer for 11 years in the Northern Territory, also noted that you have discussed with him the impact of this offending on you and your family over the period the case has been pending. He highlighted that you are family-oriented, sometimes needing to leave work early so your partner, Lec, can attend her job, and emphasised that it is rare to find someone as reliable and committed to working six days per week as you are.
I also received a number of medical reports from Modern Medical about your stepson, Taylor, who is eight years old. He was diagnosed in June 2024 with autism and ADHD, with behavioural issues at home and at school, learning difficulties, and emotional dysregulation. Mr Tovey relied upon these matters as part of your family commitments, responsibilities that indicate the extent to which you have turned your life around, and as part of an added burden to you if you were imprisoned at this time.
I received numerous written personal references. They attest that you have reflected on your offence and shown remorse for your conduct. The references note that you have rebuilt your life, are moving forward lawfully and responsibly, and work hard as a truck driver. They describe you as a reliable and respected worker, a dedicated family man, and particularly patient and supportive toward your stepson in managing his conditions.
In relation to the objective seriousness of the offending, Mr Tovey accepted that it is serious. The quantity of cannabis involved was significant, and you were responsible for transporting it interstate in the vehicle. However, as Mr Tovey submitted, you were not aware that the vehicle contained a commercial quantity and did not intend to traffic a commercial quantity.
Mr Tovey submitted that there has been a significant delay in the progress of your matter through the Court system. These matters have hung over you for now approaching five years, which has been a cause of stress and anxiety. During this time, you have worked productively to rehabilitate yourself through treatment and employment, and you have immersed yourself in family commitments.
You pleaded guilty, and although not to be treated as an early plea, your plea of guilty has a utilitarian benefit. In combination with other matters before the Court, Mr Tovey's submission demonstrates insight and remorse and relates to your prospects of rehabilitation.
Mr Tovey, as I have already indicated, relied on a form of hardship, being by reference to the fact that you are now a father to two children, one of whom has substantial needs, and your imprisonment would lead to a hardship that would be keenly felt by you. Mr Tovey relied upon what he referred to as the fourth limb in Markovic.[3]
Regarding parity, Mr Tovey submitted that the objective seriousness of the offending between you and your co-offender, Dunbar, is largely comparable. Mr Dunbar pleaded guilty much earlier and had fewer prior convictions, or at least prior convictions that were less serious and less relevant. However, since Dunbar's plea, you have experienced significant delay through the Court system and have demonstrated rehabilitation during that period.
Mr Tovey submitted that the comparison of criminal histories is not a simple matter of counting convictions. The Court must consider how prior convictions affect sentencing principles, including the weight given to specific deterrence, assessment of rehabilitation prospects, and protection of the community. In this case, each of these sentencing objectives must take into account your demonstrated rehabilitation over the past four and a half years.
Mr Tovey submitted that the interests of the community are not served by your return to prison at this time. He submitted that the Court should impose a combination sentence, with the 106 days that you have already served being the imprisonment portion of that sentence. Mr O'Toole, who appeared on behalf of the prosecution, submitted that a term of imprisonment, comprised of a head sentence and a non-parole period, is required in this case, for the following reasons:
There was a significant quantity of cannabis involved, which was, in fact, a commercial quantity. Whilst the prosecution accepted that it cannot be proven beyond reasonable doubt that you intended to traffick a commercial quantity, you must have been aware from the circumstances that there was at least a significant quantity of cannabis contained in the vehicle. That quantity was transported interstate. Further, there was a level of sophistication in the packaging, in a form ready to be sold, and there was an obvious commercial nature to the manner in which the cannabis was packaged and being transported. Accordingly, the inference is that your involvement must have been for some form of financial benefit. He submitted that this should be viewed as a serious example of the offence of trafficking cannabis simpliciter.
Mr O'Toole submitted that specific deterrence remains an important consideration despite the passage of time. You have two prior convictions for cannabis-related offending. The first involved a serious cultivation operation, in which you acted as a crop sitter for a short period, but the operation involved a commercial quantity. The second prior conviction was more significant, involving a sophisticated setup, for which you received a substantial term of imprisonment. Mr O'Toole submitted that this period of imprisonment did not deter you from engaging in further criminal conduct, particularly drug-related and cannabis-related offending.
In relation to the question of parity with the co-offender Dunbar, Mr O'Toole submitted that two differences exist. The first being the significant difference in prior criminal history and the impact that that has on the need for specific deterrence, and the second being the fact that Dunbar pleaded guilty at a very early stage, and the utilitarian value of his plea would have been greater. Mr O'Toole submitted that it is open to impose a different sentence upon you for the same offending.
He submitted that even 106 days in combination with an onerous Community Corrections Order ('CCO') would not give sufficient weight to the maximum penalty for this charge and for the need for general and specific deterrence. It would also give too much weight to rehabilitation. Again, the prosecution position is that a head sentence with a non-parole period is appropriate in this matter.
In assessing the facts of this case and the submissions made, I must evaluate both the objective seriousness of the offending and your moral culpability. It is clear that this is serious offending. The conduct involved a significant quantity of cannabis, a commercial quantity, packaged with sophistication into 80 individual packages of approximately one pound each, clearly intended for sale or further distribution. You were involved in transporting these packages interstate from Queensland to Melbourne, with the vehicle ultimately heading toward your residence.
There was no forensic evidence linking you to the packaging or placement of the bags, nor is it clear what was to happen to the cannabis after arrival in Melbourne. However, the facts show your involvement in transportation, including a six-minute phone call with Dunbar on 18 May 2021, followed by your flight to Gold Coast Airport the next morning and a direct return drive to Melbourne with the cannabis in the vehicle. You were integrally connected to the interstate movement of a significant quantity of cannabis from the source to the consumer.
I agree with Mr Tovey's submission that there is little to safely infer a difference in moral culpability between you and Dunbar or in the objective seriousness of the offending. Both of you are to be sentenced for the same objective conduct, and any attempt to differentiate would likely involve speculation.
However, for the reasons referred to above, this must be regarded as at least a reasonably serious example of the offence of trafficking cannabis simpliciter. Any sentence imposed for this charge must be capable of expressing denunciation of this conduct and giving effect to the need for general deterrence. That is, the sentence that I impose upon you today must send a message to others in the community that if they offend in this or any similar way, they must expect to receive stern punishment for it.
There is also a need to give appropriate weight to specific deterrence in your case. Both counsel made submissions regarding the role of specific deterrence and the weight it should carry in the sentence I impose. In my view, there is significant merit in the arguments advanced by both Mr O'Toole and Mr Tovey on this matter.
Your prior criminal history is one of the matters that informs the assessment of the weight to be given to specific deterrence, and how that may be expressed in the sentence that I impose.
You have two very significant prior court appearances for serious involvement in commercial cannabis offending. You received a suspended sentence for what appears to have been a short period of involvement in a serious cannabis cultivation operation. Your second matter resulted in a significant term of imprisonment for clearly serious cannabis related offending. The fact that, after these previous offences and sentences, including a lengthy term of imprisonment, you have again involved yourself in cannabis trafficking is very concerning. This means careful consideration must be given to the weight to be attached to specific deterrence in your case.
On the other hand, Mr Tovey argued that there has been a significant period of time since the offending in this case, and since you were granted bail. You have not reoffended during that period; you have addressed factors relating to your rehabilitation; you are now working full-time; and you are immersed in family life. These matters affect the assessment of your prospects of rehabilitation, and Mr Tovey submitted that they moderate to some extent the need for specific deterrence.
As was accepted by both counsel, and as is a well-understood proposition of law, the fact of your prior criminal history does not aggravate the objective seriousness of this offending, and you are not to be punished again for the previous offending. The question is how the fact of the previous offending and your prior criminal history affect the application of sentencing principles in this case. One way this occurs is that it informs the weight to be given to specific deterrence. It may also inform the assessment of your prospects of rehabilitation, and therefore the weight to be given to rehabilitation as a sentencing objective.
I will pause to say that, in my view, the question of rehabilitation, particularly in your case, cannot be said to be finally determined or at an endpoint. You have demonstrated that you offended in the past, received terms of imprisonment, and returned to the community without reoffending for a significant period. Unfortunately, you have now reoffended in this way.
These matters raise the need for specific deterrence. The sentence I impose today must be capable of sending the message to you that if you reoffend in this or a similar way, you must expect stern punishment. While you have taken significant steps towards rehabilitation over the last four and a half years, in my view, there remains a risk of further offending. That risk is also a matter that must be considered in the overall synthesis of this sentencing exercise.
In my view, these matters and the circumstances of this case highlight the complexity of this sentencing exercise, the need to balance a number of competing sentencing objectives, and the need for individualised sentencing. Ultimately, I must sentence you for your offending in relation to these charges, having regard to the objective seriousness of the offending and your moral culpability. I must also take into account all matters personal to you in this case.
I must endeavour to structure a sentence that reflects the seriousness of the offending, denounces the conduct, and expresses the appropriate level of general deterrence. As I have said, general deterrence is a message to the community and to others more broadly. The sentence must also deter you from further criminal offending in the future and, to the appropriate extent, allow for and support your continued rehabilitation. By extension, and as a result of these purposes, it must also endeavour to protect the community.
To that end, I regard the passage of time as a significant factor in this case. It is now approaching five years since the offending. You spent 106 days, or approximately three and a half months, in custody. That time was served during the COVID lockdowns, when conditions of custody were at least somewhat more burdensome and delays in the system were expected. Those two factors contributed to the finding of exceptional circumstances that justified your release on bail.
You were released on bail and remained in the community for a further four and a half years. Your matter then proceeded through the Courts with significant delays that were not through any fault of yours. As I have noted, there was a period of about 12 months between the matter first coming before me and the ruling on a significant pre-trial issue, between July 2023 and July 2024. The prosecution then appealed that interlocutory decision and it was reversed on appeal. You then sought special leave to appeal that decision to the High Court, which was refused, and the matter returned to this court for mention in March 2025. As I understand it, that was some nine months after the initial interlocutory ruling.
It was then a further 11 months before a trial date could be listed in February 2026. In my view, these matters and this passage of time represent a very significant delay in the progress of this matter through the Court system. I accept that this would have caused you stress and anxiety because of the uncertainty of the outcome.
In that regard, I also note that until virtually the eve of your trial in February 2026, you faced a charge of trafficking a commercial quantity of a drug of dependence. Had you been found guilty of that charge, you would no doubt have faced a substantial term of imprisonment. I was informed that a formal offer to plead guilty to the current charges, namely trafficking simpliciter, was made close to one year before the listed trial date, in March 2025. That offer ultimately formed the basis on which the matter resolved to a plea of guilty. Your intention to plead guilty can therefore be dated to March 2025, and the following period of 11 months of delay occurred after that plea offer was made.
In short, I accept that these matters hanging over your head for a lengthy period would have caused you significant stress and anxiety. Your freedom in the community during that time was not absolute. It was conditional, first on the conditions of bail, which were initially very strict and later somewhat relaxed, and second on the ongoing stress and anxiety about the possible outcome of this matter.
A further aspect of that delay is what you have done during that time, which I have referred to above. This includes not reoffending, engaging in treatment through the Court Integrated Support Services ('CISP') program while on bail, obtaining full-time employment, and immersing yourself in family life and responsibilities to your two children.
I have not delved into the details of those family responsibilities here, but I do see them as a significant matter in this case. Being the parent, in this case stepfather, to an eight-year-old son with autism, ADHD and other challenging behaviours must be a difficult and demanding situation, and it carries significant responsibility. It is a responsibility that, if not met, is likely to have consequences for others.
Mr Tovey, in this regard, relied upon the fourth limb in Markovic,[4] but there is also an extent to which I am prepared to take the view that your demonstrated commitment to family reflects your desire to live a law-abiding life. It is a protective factor and speaks to your prospects of rehabilitation.
Your prospects of rehabilitation, while at one level I am prepared to regard positively, are still something about which I remain somewhat cautious. Ultimately, rehabilitation will largely be in your hands. I consider that there remains a risk of reoffending, particularly given that you have previously been to prison and have reoffended.
The fact that you have two significant prior convictions for trafficking cannabis means that specific deterrence must loom large as a consideration. I accept the submissions of Mr Tovey, that specific deterrence in this case can also be moderated because of the passage of time and your demonstrated rehabilitation in this time, and this is probably part and parcel of rehabilitation, but as I have indicated I do see your full-time employment and family commitments as a significant part of this. Specific deterrence is far from extinguished because of these matters. It remains an important sentencing consideration. The challenge is to balance this sentencing objective with all of the other factors in this case.
On the matter of parity with the sentence imposed on the co-offender Dunbar, meaningful submissions have been made by both counsel. Dunbar has comparatively minor and largely unrelated prior convictions and, together with his early guilty plea, this placed him in a position to receive the sentence that he did. The sentence to be imposed in your case can be distinguished from his due to your significantly different prior convictions and the need to give weight to specific deterrence. Further, although you pleaded guilty, it was not an early plea and you cannot expect to receive the same reduction in sentence. However, I also accept Mr Tovey's submission that the issue is not simply a comparison of criminal records, but rather how each offender's criminal history affects the application of the sentencing principles.
In considering these matters and seeking to resolve what I regard as a number of sentencing principles, some of which are difficult to balance, I have gone back and re-read the decision of the Court of Appeal in Boulton.[5] I am reminded of the clear and firm terms in which the Court described the scope and purposes for which a community correction order may be imposed, either alone or in combination with a term of imprisonment, and the way in which a properly structured CCO may contain elements of punishment, denunciation and deterrence, both general and specific.
The Court also considered the disadvantages and detrimental effects of imprisonment and the advantages, in appropriate cases, of allowing an offender to remain in the community and continue to fulfil family and employment responsibilities. As the Court put it, this allows the offender to take personal responsibility for self-management and self-control and, depending on the conditions imposed, to pursue treatment and rehabilitation, refrain from undesirable activities and associations, and avoid undesirable persons or places.
A CCO also enables an offender to maintain continuity of personal and family relationships and to benefit from the support they provide. It offers the sentencing court the best opportunity to promote simultaneously the interests of the community and the interests of the offender and those dependent upon him.
Mr Niyazi, having regard to the passage of time and what has occurred during said period, it seems to me that those words have application in this case. There would be a harshness in sending you back to prison at this time, after nearly five years since the offending: after spending 106 days in custody during the time of the COVID-19 pandemic, being released on bail, complying with strict conditions, pursuing treatment, gaining employment and now having significant family responsibilities.
Balancing these matters as best I can, I have come to the view that I can express the necessary level of both general and specific deterrence, punishment and denunciation through a sentence that does not involve your return to prison at this time. In saying this, a CCO should not be regarded as a soft or easy option. The CCO that I am about to impose upon you will be lengthy, and it will have conditions attached to it that I think will be onerous for you.
I am also of the view that, in your case, with your history and with the way rehabilitation has been relied upon, the advantage of a CCO is that it allows for a longer period in the community, where this charge will continue to hang over your head. I am fortified in this approach by the fact that today is very much not the end of the matter. This charge will remain over you for the duration of the order, and it will be in your hands to show and to make good the submissions that Mr Tovey has made on your behalf. Demonstrating and proving that rehabilitation will be in your hands, and if you fail to do that, if you breach any of the conditions of the order, or if you re-offend during the period of the order, then you may be charged with contravening the order, and you will be brought back before me, where you may fall to be re-sentenced for this original charge.
Hopefully, that will continue to deter you from engaging in any criminal activities, in particular for the duration of the order, and I hope that it will deter you from any criminal offending in the future. If you were to return to court again at any time in the future, for any kind of further reoffending, then you may not be so fortunate as to escape further time in prison.
I ordered that you be assessed for your suitability for a CCO, and I received a report of that assessment, and I note the recommendations that are contained within it. You have been assessed as suitable for community work, drug and alcohol treatment, and supervision. I also note that a judicial monitoring condition has not been recommended in this case; however, I intend to impose such a condition, which I will explain shortly.
So, Mr Niyazi, the sentence will be this:
On Charge 1, that being the charge of trafficking in a drug of dependence, you will be sentenced to a term of 106 days in prison. That will be in combination with a CCO for a period of two years and nine months. In relation to the CCO:

DPP v Niyazi [2026] VCC 198 | Case summary | Zoe

Serkan Niyazi, you pleaded guilty to an indictment containing two charges: one charge of trafficking in a drug of dependence[1] and one charge of possessing a drug of dependence.[2] The maximum penalty for trafficking is 15 years' imprisonment. The maximum penalty for possession is five years' imprisonment, or one year if a trafficking purpose is excluded.
A summary of prosecution opening dated 16 February 2026 was filed. Mr O'Toole appeared on behalf of the prosecution throughout the lengthy history that this matter has now had before the Court. I adopt the written summary of prosecution opening as the factual basis upon which you will be sentenced. I do not intend to repeat it extensively here. Suffice to say that your offending can be summarised in short form as follows:
In May 2021, a police investigation into drug trafficking identified that you were using a particular mobile phone number connected to the Telstra network. On 18 May 2021, at 7:23 pm, call charge records indicate that you participated in a six-minute telephone conversation with a co-offender, Rodney Dunbar. You were 41 years of age at this time, and you resided in Caroline Springs in Victoria, and Dunbar was 39 years of age and resided in Mermaid Beach in Queensland.
As a result of various forms of investigation, it was ascertained that the next day, on 19 May 2021, by approximately 5:25 am, you were at Melbourne Airport, where you boarded a 6:15 am Jetstar flight to the Gold Coast Airport in Queensland. At that time, you are said to have been travelling with one small black backpack. It is said that Rodney Dunbar collected you from the Gold Coast Airport, and I was informed at the plea hearing that there is no evidence indicating whether you then attended at any other locations, or at least there is no certainty about that matter. However, you then promptly travelled with Rodney Dunbar, in his black Nissan Navarra utility vehicle, back down to Melbourne, towards your address at the Esplanade in Caroline Springs, where you arrived on 20 May 2021 at approximately 5:40 pm. As it turned out, police were waiting for you near your residence, the vehicle was intercepted, and the two of you were arrested. Dunbar was in the driver's seat, and you were in the front passenger seat.
A search of the vehicle revealed four large travel bags, one located on the back seat of the Nissan Navara and three in the covered tray of the utility. Each bag contained 20 vacuum-sealed packages of green vegetable matter. Analysis confirmed the substance was cannabis. In total, there were 80 packages, each weighing approximately 450 grams, or about one pound, giving a combined weight of approximately 35.81 kilograms of cannabis. That conduct forms Charge 1 on the indictment, trafficking in a drug of dependence, namely cannabis.
Police searched the vehicle and located your wallet on the front passenger seat, containing $860 in Australian currency, along with two mobile phones. A further search of your premises located a glass jar containing 4.1 grams of green vegetable matter, which analysis confirmed was cannabis. That conduct constitutes Charge 2 on the indictment, possession of a drug of dependence, namely cannabis.
The summary of prosecution opening also contains a chronology of the many court hearings in this matter, which date back to 21 May 2021, being the filing hearing after the arrest on 20 May 2021. That chronology indicates that the matter proceeded in what I would describe as a relatively straightforward manner through the committal system in the Magistrates' Court. There were some adjournments of the committal hearing, and you were committed for trial on 26 April 2022. That is some 11 months after the charged date, which does not strike me as an unusual or inordinate length of time. I also note that you were remanded in custody at the time of your arrest on 20 May 2021. A bail application was refused on 17 June 2021, and a further bail application was made in the Supreme Court on 3 September 2021, which was granted.
The matter first came before me for pre-trial argument on 7 July 2023. What followed was a lengthy and, at times, fragmented process arising from a significant pre-trial issue that required the incorporation of a number of arguments and matters. I delivered my ruling on 1 July 2024, approximately 12 months after the matter first came before me, excluding certain evidence. An interlocutory appeal was subsequently brought, and my ruling was overturned. An application for special leave to appeal to the High Court was then refused. The matter returned before me for mention on 27 March 2025, at which time a trial date of 16 February 2026 was fixed.
The original indictment included a charge of trafficking in a commercial quantity of a drug of dependence. In the week before the listed trial date, the matter was resolved by way of a plea of guilty to trafficking in a drug of dependence simpliciter and possession of a drug of dependence. The prosecution case was that the trafficking was constituted by your involvement in transporting a quantity of cannabis interstate from Queensland to Melbourne, and that the quantity was in fact a commercial quantity. The prosecution contended that you must have been aware of a substantial quantity of cannabis in the travel bags. However, it accepted that it could not prove beyond reasonable doubt that you intended to traffic in a commercial quantity of cannabis.
As a result of that lengthy history, it is now approaching five years since the offending and approximately four and a half years since you were granted bail, having spent 106 days in custody. I was also informed that your co-offender, Rodney Dunbar, resolved his matter by pleading guilty to trafficking simpliciter on the morning of the committal hearing on 14 February 2022. His plea was later heard in the County Court. He had spent 62 days in custody before being granted bail and, following his plea in October 2022, he was sentenced to a combined sentence of 62 days' imprisonment and a two-year Community Correction Order. It is therefore almost four years since Mr Dunbar's matter resolved on the same trafficking simpliciter basis upon which you now stand to be sentenced.
Several matters flow from that. First, his plea would have been treated as an early plea, attracting greater utilitarian value and weight. On the other hand, you have now spent a further four years in the community, and there are matters arising from that period which operate in your favour. I will return to those matters shortly.
Mr Tovey appeared on your behalf throughout these proceedings and relied on a number of matters in mitigation. You are 45 years old. You were born to parents of Turkish-Cypriot background who arrived in Australia in 1984 and are described as hard-working and law-abiding. You completed Year 12 and, in about 2000, obtained a two-year Advanced Diploma in International Trade from Victoria University. You have demonstrated a strong work ethic over many years, including employment as a truck driver and later establishing a rendering business with your brother. You have had two significant relationships. The first was with Jae, whom you met in the late 2000s. You have a son together, Sammy, who is now 16 years old. Mr Tovey submitted that after the breakdown of that relationship, you turned to substance use and gambling as a maladaptive means of coping with stress. This resulted in significant gambling debts and escalating substance abuse. In turn, that led to your prior cannabis-related offending, for which you received a suspended sentence in May 2012 and later a sentence of three and a half years' imprisonment from this court in October 2012.
Regarding the trajectory of your life since that point, Mr Tovey submitted that you were granted parole at the earliest opportunity after serving two years and two months of your sentence, which you completed without issue. You returned to work initially as a truck driver and then resumed the rendering business with your brother. I was informed that the business operated successfully until the COVID-19 pandemic in early 2020, which severely impacted the construction industry. Mr Tovey noted that your work was largely in commercial operations, which were heavily affected by pandemic-related lockdowns. You experienced financial stress during this period, and your use of alcohol and other drugs increased. Mr Tovey submitted that you were isolated, lonely, and depressed, which formed the background to the present offending.
You were remanded in custody upon arrest for these charges and spent 106 days in custody before being granted bail by the Supreme Court. At that bail application, you were placed in an exceptional circumstances category. You were granted bail on 3 September 2021, during a period of community lockdowns that also significantly affected conditions in custody. Upon reception into prison, you would have been required to undergo a 14-day quarantine, and any transfer between facilities triggered another 14-day quarantine.
Courts at the time recognised that custody under COVID-related restrictions was more burdensome than ordinary imprisonment, which also affected considerations for bail. Mr Tovey confirmed, and I note from the Supreme Court's reasons for granting bail, that the COVID-related conditions of custody, together with expected delays in court processes caused by the pandemic, contributed to the finding of exceptional circumstances justifying your release on bail.
I note that this is a significant matter in the trajectory of your life since May 2021. The impact of the COVID-19 pandemic, both in terms of custody conditions and delays in the Court system, contributed to the reasons you were granted bail. Those delays ultimately extended far beyond what may have been anticipated in September 2021. Your trial date was not set until February 2026, approximately four and a half years after bail was granted. This is a substantial period of time, and particular regard must be given to what has occurred during that period.
When assessed for the Court Integrated Services Program (CISP) prior to your bail application, you reported regular alcohol use, daily cannabis use, and Xanax three to four times per week. You also reported financial stress due to the COVID lockdowns. After being granted bail, you participated in the CISP program through various treatment sessions. You attended 13 case management appointments and engaged exceptionally well, including attending drug and alcohol counselling sessions. The final CISP report stated: 'Mr Niyazi is commended for the exceptional manner in which he has completed ICS CISP episode.'
You were initially released on bail with strict conditions, which included daily reporting, curfew, engaging with the treatment as directed by the CISP program, and heavily restricted use of a mobile phone. In short, it appears that you complied with these conditions and successfully completed treatment. Your bail conditions were somewhat relaxed, as I understand it, on a couple of occasions over the next few years.
Mr Tovey further submitted that you have turned your life around in several ways. You now live with your new partner and her eight-year-old son, Taylor, while your 16-year-old son, Sammy, lives with you full time. You are employed full-time, six days per week, as a truck driver at RTD Environmental, where you have worked for 18 months. Your employer, Mr Mark Baker, provided a personal reference and gave evidence in court. He described you as a reliable worker, a leader at work, always positive, and well respected by colleagues and customers. Mr Baker, a former Corrections officer for 11 years in the Northern Territory, also noted that you have discussed with him the impact of this offending on you and your family over the period the case has been pending. He highlighted that you are family-oriented, sometimes needing to leave work early so your partner, Lec, can attend her job, and emphasised that it is rare to find someone as reliable and committed to working six days per week as you are.
I also received a number of medical reports from Modern Medical about your stepson, Taylor, who is eight years old. He was diagnosed in June 2024 with autism and ADHD, with behavioural issues at home and at school, learning difficulties, and emotional dysregulation. Mr Tovey relied upon these matters as part of your family commitments, responsibilities that indicate the extent to which you have turned your life around, and as part of an added burden to you if you were imprisoned at this time.
I received numerous written personal references. They attest that you have reflected on your offence and shown remorse for your conduct. The references note that you have rebuilt your life, are moving forward lawfully and responsibly, and work hard as a truck driver. They describe you as a reliable and respected worker, a dedicated family man, and particularly patient and supportive toward your stepson in managing his conditions.
In relation to the objective seriousness of the offending, Mr Tovey accepted that it is serious. The quantity of cannabis involved was significant, and you were responsible for transporting it interstate in the vehicle. However, as Mr Tovey submitted, you were not aware that the vehicle contained a commercial quantity and did not intend to traffic a commercial quantity.
Mr Tovey submitted that there has been a significant delay in the progress of your matter through the Court system. These matters have hung over you for now approaching five years, which has been a cause of stress and anxiety. During this time, you have worked productively to rehabilitate yourself through treatment and employment, and you have immersed yourself in family commitments.
You pleaded guilty, and although not to be treated as an early plea, your plea of guilty has a utilitarian benefit. In combination with other matters before the Court, Mr Tovey's submission demonstrates insight and remorse and relates to your prospects of rehabilitation.
Mr Tovey, as I have already indicated, relied on a form of hardship, being by reference to the fact that you are now a father to two children, one of whom has substantial needs, and your imprisonment would lead to a hardship that would be keenly felt by you. Mr Tovey relied upon what he referred to as the fourth limb in Markovic.[3]
Regarding parity, Mr Tovey submitted that the objective seriousness of the offending between you and your co-offender, Dunbar, is largely comparable. Mr Dunbar pleaded guilty much earlier and had fewer prior convictions, or at least prior convictions that were less serious and less relevant. However, since Dunbar's plea, you have experienced significant delay through the Court system and have demonstrated rehabilitation during that period.
Mr Tovey submitted that the comparison of criminal histories is not a simple matter of counting convictions. The Court must consider how prior convictions affect sentencing principles, including the weight given to specific deterrence, assessment of rehabilitation prospects, and protection of the community. In this case, each of these sentencing objectives must take into account your demonstrated rehabilitation over the past four and a half years.
Mr Tovey submitted that the interests of the community are not served by your return to prison at this time. He submitted that the Court should impose a combination sentence, with the 106 days that you have already served being the imprisonment portion of that sentence. Mr O'Toole, who appeared on behalf of the prosecution, submitted that a term of imprisonment, comprised of a head sentence and a non-parole period, is required in this case, for the following reasons:
There was a significant quantity of cannabis involved, which was, in fact, a commercial quantity. Whilst the prosecution accepted that it cannot be proven beyond reasonable doubt that you intended to traffick a commercial quantity, you must have been aware from the circumstances that there was at least a significant quantity of cannabis contained in the vehicle. That quantity was transported interstate. Further, there was a level of sophistication in the packaging, in a form ready to be sold, and there was an obvious commercial nature to the manner in which the cannabis was packaged and being transported. Accordingly, the inference is that your involvement must have been for some form of financial benefit. He submitted that this should be viewed as a serious example of the offence of trafficking cannabis simpliciter.
Mr O'Toole submitted that specific deterrence remains an important consideration despite the passage of time. You have two prior convictions for cannabis-related offending. The first involved a serious cultivation operation, in which you acted as a crop sitter for a short period, but the operation involved a commercial quantity. The second prior conviction was more significant, involving a sophisticated setup, for which you received a substantial term of imprisonment. Mr O'Toole submitted that this period of imprisonment did not deter you from engaging in further criminal conduct, particularly drug-related and cannabis-related offending.
In relation to the question of parity with the co-offender Dunbar, Mr O'Toole submitted that two differences exist. The first being the significant difference in prior criminal history and the impact that that has on the need for specific deterrence, and the second being the fact that Dunbar pleaded guilty at a very early stage, and the utilitarian value of his plea would have been greater. Mr O'Toole submitted that it is open to impose a different sentence upon you for the same offending.
He submitted that even 106 days in combination with an onerous Community Corrections Order ('CCO') would not give sufficient weight to the maximum penalty for this charge and for the need for general and specific deterrence. It would also give too much weight to rehabilitation. Again, the prosecution position is that a head sentence with a non-parole period is appropriate in this matter.
In assessing the facts of this case and the submissions made, I must evaluate both the objective seriousness of the offending and your moral culpability. It is clear that this is serious offending. The conduct involved a significant quantity of cannabis, a commercial quantity, packaged with sophistication into 80 individual packages of approximately one pound each, clearly intended for sale or further distribution. You were involved in transporting these packages interstate from Queensland to Melbourne, with the vehicle ultimately heading toward your residence.
There was no forensic evidence linking you to the packaging or placement of the bags, nor is it clear what was to happen to the cannabis after arrival in Melbourne. However, the facts show your involvement in transportation, including a six-minute phone call with Dunbar on 18 May 2021, followed by your flight to Gold Coast Airport the next morning and a direct return drive to Melbourne with the cannabis in the vehicle. You were integrally connected to the interstate movement of a significant quantity of cannabis from the source to the consumer.
I agree with Mr Tovey's submission that there is little to safely infer a difference in moral culpability between you and Dunbar or in the objective seriousness of the offending. Both of you are to be sentenced for the same objective conduct, and any attempt to differentiate would likely involve speculation.
However, for the reasons referred to above, this must be regarded as at least a reasonably serious example of the offence of trafficking cannabis simpliciter. Any sentence imposed for this charge must be capable of expressing denunciation of this conduct and giving effect to the need for general deterrence. That is, the sentence that I impose upon you today must send a message to others in the community that if they offend in this or any similar way, they must expect to receive stern punishment for it.
There is also a need to give appropriate weight to specific deterrence in your case. Both counsel made submissions regarding the role of specific deterrence and the weight it should carry in the sentence I impose. In my view, there is significant merit in the arguments advanced by both Mr O'Toole and Mr Tovey on this matter.
Your prior criminal history is one of the matters that informs the assessment of the weight to be given to specific deterrence, and how that may be expressed in the sentence that I impose.
You have two very significant prior court appearances for serious involvement in commercial cannabis offending. You received a suspended sentence for what appears to have been a short period of involvement in a serious cannabis cultivation operation. Your second matter resulted in a significant term of imprisonment for clearly serious cannabis related offending. The fact that, after these previous offences and sentences, including a lengthy term of imprisonment, you have again involved yourself in cannabis trafficking is very concerning. This means careful consideration must be given to the weight to be attached to specific deterrence in your case.
On the other hand, Mr Tovey argued that there has been a significant period of time since the offending in this case, and since you were granted bail. You have not reoffended during that period; you have addressed factors relating to your rehabilitation; you are now working full-time; and you are immersed in family life. These matters affect the assessment of your prospects of rehabilitation, and Mr Tovey submitted that they moderate to some extent the need for specific deterrence.
As was accepted by both counsel, and as is a well-understood proposition of law, the fact of your prior criminal history does not aggravate the objective seriousness of this offending, and you are not to be punished again for the previous offending. The question is how the fact of the previous offending and your prior criminal history affect the application of sentencing principles in this case. One way this occurs is that it informs the weight to be given to specific deterrence. It may also inform the assessment of your prospects of rehabilitation, and therefore the weight to be given to rehabilitation as a sentencing objective.
I will pause to say that, in my view, the question of rehabilitation, particularly in your case, cannot be said to be finally determined or at an endpoint. You have demonstrated that you offended in the past, received terms of imprisonment, and returned to the community without reoffending for a significant period. Unfortunately, you have now reoffended in this way.
These matters raise the need for specific deterrence. The sentence I impose today must be capable of sending the message to you that if you reoffend in this or a similar way, you must expect stern punishment. While you have taken significant steps towards rehabilitation over the last four and a half years, in my view, there remains a risk of further offending. That risk is also a matter that must be considered in the overall synthesis of this sentencing exercise.
In my view, these matters and the circumstances of this case highlight the complexity of this sentencing exercise, the need to balance a number of competing sentencing objectives, and the need for individualised sentencing. Ultimately, I must sentence you for your offending in relation to these charges, having regard to the objective seriousness of the offending and your moral culpability. I must also take into account all matters personal to you in this case.
I must endeavour to structure a sentence that reflects the seriousness of the offending, denounces the conduct, and expresses the appropriate level of general deterrence. As I have said, general deterrence is a message to the community and to others more broadly. The sentence must also deter you from further criminal offending in the future and, to the appropriate extent, allow for and support your continued rehabilitation. By extension, and as a result of these purposes, it must also endeavour to protect the community.
To that end, I regard the passage of time as a significant factor in this case. It is now approaching five years since the offending. You spent 106 days, or approximately three and a half months, in custody. That time was served during the COVID lockdowns, when conditions of custody were at least somewhat more burdensome and delays in the system were expected. Those two factors contributed to the finding of exceptional circumstances that justified your release on bail.
You were released on bail and remained in the community for a further four and a half years. Your matter then proceeded through the Courts with significant delays that were not through any fault of yours. As I have noted, there was a period of about 12 months between the matter first coming before me and the ruling on a significant pre-trial issue, between July 2023 and July 2024. The prosecution then appealed that interlocutory decision and it was reversed on appeal. You then sought special leave to appeal that decision to the High Court, which was refused, and the matter returned to this court for mention in March 2025. As I understand it, that was some nine months after the initial interlocutory ruling.
It was then a further 11 months before a trial date could be listed in February 2026. In my view, these matters and this passage of time represent a very significant delay in the progress of this matter through the Court system. I accept that this would have caused you stress and anxiety because of the uncertainty of the outcome.
In that regard, I also note that until virtually the eve of your trial in February 2026, you faced a charge of trafficking a commercial quantity of a drug of dependence. Had you been found guilty of that charge, you would no doubt have faced a substantial term of imprisonment. I was informed that a formal offer to plead guilty to the current charges, namely trafficking simpliciter, was made close to one year before the listed trial date, in March 2025. That offer ultimately formed the basis on which the matter resolved to a plea of guilty. Your intention to plead guilty can therefore be dated to March 2025, and the following period of 11 months of delay occurred after that plea offer was made.
In short, I accept that these matters hanging over your head for a lengthy period would have caused you significant stress and anxiety. Your freedom in the community during that time was not absolute. It was conditional, first on the conditions of bail, which were initially very strict and later somewhat relaxed, and second on the ongoing stress and anxiety about the possible outcome of this matter.
A further aspect of that delay is what you have done during that time, which I have referred to above. This includes not reoffending, engaging in treatment through the Court Integrated Support Services ('CISP') program while on bail, obtaining full-time employment, and immersing yourself in family life and responsibilities to your two children.
I have not delved into the details of those family responsibilities here, but I do see them as a significant matter in this case. Being the parent, in this case stepfather, to an eight-year-old son with autism, ADHD and other challenging behaviours must be a difficult and demanding situation, and it carries significant responsibility. It is a responsibility that, if not met, is likely to have consequences for others.
Mr Tovey, in this regard, relied upon the fourth limb in Markovic,[4] but there is also an extent to which I am prepared to take the view that your demonstrated commitment to family reflects your desire to live a law-abiding life. It is a protective factor and speaks to your prospects of rehabilitation.
Your prospects of rehabilitation, while at one level I am prepared to regard positively, are still something about which I remain somewhat cautious. Ultimately, rehabilitation will largely be in your hands. I consider that there remains a risk of reoffending, particularly given that you have previously been to prison and have reoffended.
The fact that you have two significant prior convictions for trafficking cannabis means that specific deterrence must loom large as a consideration. I accept the submissions of Mr Tovey, that specific deterrence in this case can also be moderated because of the passage of time and your demonstrated rehabilitation in this time, and this is probably part and parcel of rehabilitation, but as I have indicated I do see your full-time employment and family commitments as a significant part of this. Specific deterrence is far from extinguished because of these matters. It remains an important sentencing consideration. The challenge is to balance this sentencing objective with all of the other factors in this case.
On the matter of parity with the sentence imposed on the co-offender Dunbar, meaningful submissions have been made by both counsel. Dunbar has comparatively minor and largely unrelated prior convictions and, together with his early guilty plea, this placed him in a position to receive the sentence that he did. The sentence to be imposed in your case can be distinguished from his due to your significantly different prior convictions and the need to give weight to specific deterrence. Further, although you pleaded guilty, it was not an early plea and you cannot expect to receive the same reduction in sentence. However, I also accept Mr Tovey's submission that the issue is not simply a comparison of criminal records, but rather how each offender's criminal history affects the application of the sentencing principles.
In considering these matters and seeking to resolve what I regard as a number of sentencing principles, some of which are difficult to balance, I have gone back and re-read the decision of the Court of Appeal in Boulton.[5] I am reminded of the clear and firm terms in which the Court described the scope and purposes for which a community correction order may be imposed, either alone or in combination with a term of imprisonment, and the way in which a properly structured CCO may contain elements of punishment, denunciation and deterrence, both general and specific.
The Court also considered the disadvantages and detrimental effects of imprisonment and the advantages, in appropriate cases, of allowing an offender to remain in the community and continue to fulfil family and employment responsibilities. As the Court put it, this allows the offender to take personal responsibility for self-management and self-control and, depending on the conditions imposed, to pursue treatment and rehabilitation, refrain from undesirable activities and associations, and avoid undesirable persons or places.
A CCO also enables an offender to maintain continuity of personal and family relationships and to benefit from the support they provide. It offers the sentencing court the best opportunity to promote simultaneously the interests of the community and the interests of the offender and those dependent upon him.
Mr Niyazi, having regard to the passage of time and what has occurred during said period, it seems to me that those words have application in this case. There would be a harshness in sending you back to prison at this time, after nearly five years since the offending: after spending 106 days in custody during the time of the COVID-19 pandemic, being released on bail, complying with strict conditions, pursuing treatment, gaining employment and now having significant family responsibilities.
Balancing these matters as best I can, I have come to the view that I can express the necessary level of both general and specific deterrence, punishment and denunciation through a sentence that does not involve your return to prison at this time. In saying this, a CCO should not be regarded as a soft or easy option. The CCO that I am about to impose upon you will be lengthy, and it will have conditions attached to it that I think will be onerous for you.
I am also of the view that, in your case, with your history and with the way rehabilitation has been relied upon, the advantage of a CCO is that it allows for a longer period in the community, where this charge will continue to hang over your head. I am fortified in this approach by the fact that today is very much not the end of the matter. This charge will remain over you for the duration of the order, and it will be in your hands to show and to make good the submissions that Mr Tovey has made on your behalf. Demonstrating and proving that rehabilitation will be in your hands, and if you fail to do that, if you breach any of the conditions of the order, or if you re-offend during the period of the order, then you may be charged with contravening the order, and you will be brought back before me, where you may fall to be re-sentenced for this original charge.
Hopefully, that will continue to deter you from engaging in any criminal activities, in particular for the duration of the order, and I hope that it will deter you from any criminal offending in the future. If you were to return to court again at any time in the future, for any kind of further reoffending, then you may not be so fortunate as to escape further time in prison.
I ordered that you be assessed for your suitability for a CCO, and I received a report of that assessment, and I note the recommendations that are contained within it. You have been assessed as suitable for community work, drug and alcohol treatment, and supervision. I also note that a judicial monitoring condition has not been recommended in this case; however, I intend to impose such a condition, which I will explain shortly.
So, Mr Niyazi, the sentence will be this:
On Charge 1, that being the charge of trafficking in a drug of dependence, you will be sentenced to a term of 106 days in prison. That will be in combination with a CCO for a period of two years and nine months. In relation to the CCO:

[7]

The purpose of that order is really two-fold. One is to act as an incentive to you for compliance with the order, knowing that it will come back before the Court. And the second reason is to communicate and express to you that I maintain an interest in you complying with the order, staying out of trouble, and continuing to live a productive life in the community.
Do you follow all of those matters?
OFFENDER: Yes, Your Honour.
HIS HONOUR: All right. Now, I can only put you on an order if you consent to being placed on an order in those terms. Do you consent to being placed on an order in those terms?
OFFENDER: Yes, Your Honour.
HIS HONOUR: All right, thank you.
In relation to Charge 2 on the indictment, being the possess cannabis charge, it seems to me from the quantity and the circumstances in which that cannabis was located by police, that a trafficking purpose can be excluded. Therefore, it is appropriate that the lower maximum penalty applies. In all the circumstances of this case and given the nature of the order that I have imposed for Charge 1, I propose to deal with Charge 2 by convicting and discharging pursuant to s73 of the Sentencing Act 1991.[7]
Pursuant to s6AAA of the Sentencing Act 1991,[8] I will declare that had you not pleaded guilty but been found guilty of these charges, I would have imposed a sentence of nine months' imprisonment plus a CCO for two years' duration but otherwise in the same terms.
I understand there is also an unopposed forfeiture order for a forfeiture of the cash of $860 in Australian currency.
MR TOVEY: Not opposed, Your Honour.
HIS HONOUR: Yes, that order will be made.
The only remaining matter is the date for the judicial monitoring condition. I will fix the first judicial monitoring hearing for 1 September at 10.00 am, which is approximately six or seven months from today. At that hearing, Mr Niyazi, I will expect to see that you have continued on the same path and have engaged with the order. In particular, I will expect to see compliance with the conditions of the order and, hopefully, that you will have made progress with the unpaid community work condition.
COUNSEL: As the Court pleases.
HIS HONOUR: So, 1 September 2026 at 10 am for judicial monitoring.
Now, what I propose to do at this time is a written document with the conditions, so you will have the opportunity, Mr Tovey, to go through that with Mr Niyazi.
MR TOVEY: Yes.
HIS HONOUR: I propose to take the view that Mr Niyazi's verbal consent given in court is his consent to the order. I will leave the Bench, and that document can be signed after I have left. Is everyone content with that course?
MR TOVEY: Yes, Your Honour.
HIS HONOUR: Yes, all right. Yes, thanks again to both counsel for the submissions made throughout this matter.
MR O'TOOLE: The Court pleases.

At a glance

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Judgment (12 paragraphs)

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Legislation Cited (1)