DPP v Sazimanoska [2019] VCC 617

4 Ha Huu Nguyen, Oanh Nguyen and Tuan Anh Le supplied cannabis to Sazimanoski in return for payment. You and your husband then distributed the cannabis to Stuart Wicks, Frank Margariti and John Taouk for on-sale.

5 Police telephone intercepts and surveillance disclosed the extent of your involvement in trafficking cannabis, which occurred between 21 June and 1 August 2017, a period of six weeks. Your involvement in drug trafficking throughout this period is detailed in paragraph 13 of the prosecution opening and occurred in conjunction with your husband.

6 On 21 June 2017, you asked Ha Nguyen if he was coming and he replied 'if you take I come (20 pounds)'.

7 On 2 July 2017, you told Le to bring a one pound sample of cannabis to your home in Lalor. Le arrived at your home and a transaction in an unknown quantity took place.

8 On 5 July 2017, you were observed by police carrying a white polystyrene box to a car. This was later found to contain seven pounds of cannabis.

9 On 11 July 2017, you were present at the Wollert property when Ha Nguyen delivered 40 pounds of cannabis. You were also involved in trafficking seven pounds of poor grade cannabis.

10 On 22 July 2017, you removed boxes and bags containing eight pounds of cannabis from the boot of your car and took them into a garage and placed them alongside Margariti's car. You were also present when Margariti was supplied with the eight pounds of cannabis. A telephone intercept detected you obtaining and bringing back vacuum sealed bags to the premises. These were used to package the cannabis supplied to Margariti. CCTV footage from the Wollert premises showed you being present and in possession of these bags.

11 On 1 August 2017, you asked Ha Nguyen where he was, before you told him that you were on your way with 30 pounds of cannabis.

12 The prosecution alleges you trafficked 73 pounds of cannabis during the charged period. This equates to just over 33 kilograms or 1⅓ times the commercial quantity threshold.

13 These facts give rise to charge 7 on the indictment (trafficking in a commercial quantity of cannabis).

14 You were arrested along with your husband at the Wollert property. Upon being searched by police a notebook was found in your handbag with notes regarding the sale and distribution of cannabis, which included a reference to a customer and an amount of $78,000. I note that this does not form part of the sentencing facts on charge 7, but was led by the Crown way of background and context.

15 Trafficking in a commercial quantity of a drug of dependence is a serious criminal offence as indicated by the maximum penalty of 25 years' imprisonment, which is the highest fixed maximum penalty in the criminal calendar. This shows, unambiguously, how seriously the community, through the Parliament, views the conduct you have committed.

16 Whilst the legislation is quantity-based and not harm-based, it is nonetheless relevant to observe that grave harm is inflicted on the community by offences involving the trafficking of cannabis by modern methods.[3] The harmful effects of cannabis and the seriousness of the offence have been emphasised numerous times in decisions in the Victorian Court of Appeal.[4]

17 You played a significant role in a highly sophisticated criminal enterprise. You assisted your husband in the conduct of his extensive and successful business of trafficking in cannabis. You assisted him to act as a conduit between the grower of the cannabis and the final buyer on the street. It would not be inappropriate to characterise your role as that of a willing lieutenant assisting a wholesaler supplying to other businesses, which then would ultimately supply to street level dealers.

18 The Crown's position is that you were involved in your husband's business assisting him between the relevant dates. The instances of trafficking detailed in paragraph 13 of the prosecution opening are actions committed by you that occurred during the six week period. It is not alleged that you were operating a business in the 'Giretti' sense, between the relevant dates.[5] It is also not alleged by the Crown that you and your husband were operating the business together and that his acts are attributable to you. Your culpability thus falls to be determined by what you yourself did in furtherance of your husband's business and not by way of you being complicit in his actions.

19 Nonetheless, you were aware of what your husband was doing and your lifestyle depended upon the success of his business. Armed with that knowledge, you willingly assisted him in the manner alleged by the Crown.

20 I accept that you were living in a subservient relationship with your husband and you were in the habit of following his directions. This lessens your moral culpability to some extent, but it remains relatively high.

21 Because yours was a more limited role than your husband's, I am not satisfied that your offending conduct falls in the mid-range of seriousness of offences of this kind. It follows that the warning given by the Victorian Court of Appeal in Nguyen v The Queen[6] that in future sentencing courts should, by increments, increase the sentences for offences against s.72A of the Drugs, Poisons and Controlled Substances Act in the mid-range of seriousness, does not apply in your case.

22 You are currently 45 years old and have no prior convictions or findings of guilt. You also have no subsequent or outstanding criminal matters.

23 You were born and raised in Ohrid, Macedonia and you are one of four children. Your father was a plumber an your mother was a dressmaker. You had a good childhood and you describe your parents as 'good people'. You completed your education up to the equivalent of year 8 level as part of your secondary schooling in Macedonia.

24 In 1995, when you were 20 years old, you married Nejat Sazimanoski in Macedonia. Later that year you both moved to Australia with Sazimanoski's parents. Your parents and siblings stayed in Macedonia and your family still reside there.

25 Your first child was born in 1995 and you had your second child in 1996. You and your extended family lived in public housing in Fitzroy for two years after your arrival in Australia. You had three further children born in 2000, 2002 and 2004. These three children are still at school and live with you at home whilst your two eldest children are employed full-time.

26 Your family purchased a home in Lalor in 1997. You and your extended family have lived there ever since. You have remained at home as the primary care giver for four of your five children and, more recently, you have taken on the care of Sazimanoski's 83 year-old mother, who is quite physically unwell. She cannot live without assistance and you currently receive a carer's allowance for looking after her.

27 Your counsel described the early years of your marriage as being happy. However, your two eldest children describe their father as being very controlling and as you being subservient to him. You have never been seen to argue back to your husband and you were fearful that your relationship may break down, with the resultant impact this would have on your children. You have taken on the role of a 'dutiful wife',[7] doing the daily chores that are required at home. You have never been in paid employment.

28 You can speak functional English and you speak Macedonian at home. Outside of your family you have very little social contact with anyone. You are socially isolated and your family is the centre of your life. You were supported at the plea hearing in court by your sister-in-law and your eldest daughter.

29 You have no reported medical illness nor have you had any involvement with alcohol or drugs of dependence. You are presently experiencing adjustment anxiety which is situational as a result of the current matters. Dr Cunningham opines that 'these symptoms will reduce significantly' once there is certainty regarding your future.[8] You counsel accepted that Verdins principles[9] are not engaged in your case.

30 Your counsel relied on a number of mitigating circumstances said to be present in your case.

31 It was submitted that the effect on your family of the imposition of a term of imprisonment upon you constituted exceptional circumstances such as to attract the application of the residual discretion of mercy. Applying the principles espoused by the Victorian Court of Appeal in Markovic v The Queen,[10] I am not satisfied your family circumstances are sufficiently 'exceptional' to engage the residual discretion of mercy. However, I am satisfied that the effect on you of the hardship caused to your family members by your imprisonment will make the burden of incarceration greater for you than it would be otherwise,[11] and I take this factor into account in mitigation of penalty.

32 You pleaded guilty to the present charge at the earliest reasonable opportunity. This is a significant mitigating factor in your case. Your plea of guilty has objective utilitarian benefit as well as a subjective quality, in the sense that it indicates your acceptance of responsibility for your offending conduct and a willingness on your part to facilitate the course of justice. Accordingly, you will receive a significant discount from the sentence I would otherwise have imposed in respect of this offence.

33 However, whilst you are undoubtedly regretful for the situation in which you find yourself and the effect your offending has had on your children and your mother-in-law, there is no evidence before me sufficient for me to make a finding in your favour that you demonstrate true contrition and remorse for your offending conduct.[12]

34 While no Verdins principles are engaged in your case, I do take into account that you are suffering from situational adjustment anxiety and this is likely to increase and add to the burden of imprisonment on you.[13]

35 I accept that you have good prospects of rehabilitation, that you have learnt a salutary lesson and you are unlikely to reoffend in the future. Accordingly, I will give very little weight to specific deterrence and protection of the community in sentencing you.

36 Moreover, there has been some delay in this case, which is not attributable to you. You have had this matter and the risk of going to prison hanging over you for some time. I take these effects of delay into account in your favour.

37 Parity is a significant consideration in this case in relation to others involved at your level in the syndicate, as well as a need for me to pass a sentence on you which is not unfairly disparate from the sentence I passed on your husband, Sazimanoski. I sentenced Sazimanoski on a commercial trafficking charge arising from this police operation to 4 years' imprisonment[14] and I sentenced Wicks on a commercial trafficking charge arising from this police operation to 42 months' imprisonment and on a negligently possess proceeds of crime charge, involving only $1460, to 14 days' imprisonment. His total effective sentence was 42 months' imprisonment with a non-parole period of 21 months.[15]

38 As I explained in my reasons for sentence in Wicks' case,[16] for reasons apparent from my sentencing remarks in Sazimanoski,[17] I imposed a very lenient sentence on him considering the objective seriousness of his offending conduct, because of circumstances personal to him. This distinguishes his case from yours.

39 Wicks is in a somewhat similar position to you. He faced the same charge of trafficking in a commercial quantity of cannabis. He trafficked 32 kgs of cannabis during a 3½ month period, over double the period of your involvement. Wicks, like you, was a first offender, which I held at his age (40 years) to be 'a significant factor'[18] in his favour. Consequently, as in your case, I gave 'very little, if any' weight to specific deterrence and protection of the community in sentencing him.[19] I also accepted that he had 'very good prospects of rehabilitation' if he remained drug free on his release from custody.[20] There were also a number of protective factors present in his case, which I accepted reduced the risk of him reoffending.[21]

40 Your role was somewhat less than Wicks' role, if I accept, as I do, you were in a somewhat subservient position vis-à-vis your husband. The period of your offending was less than half that of Wicks. Custodial hardship and the effects of delay are greater in your case. Wicks had been in custody since his arrest and had 552 days pre-sentence detention, whereas, you have only 1 day declarable as PSD.

41 I sentenced John Francis Taouk[22] and Tuan Anh Le,[23] who both pleaded guilty to trafficking in a drug of dependence simpliciter, to imprisonment for 4 years and 3 years respectively. Their cases are distinguishable from yours on a number of bases.

42 I have had regard to current sentencing practices in relation to the charge of trafficking in a commercial quantity of a drug of dependence in light of the decision of the High Court of Australia in DPP v Dalgliesh (a Pseudonym)[24] and the Victorian Court of Appeal decision in Nguyen v The Queen.[25] The Crown also referred me to the decision in R v Xeba.[26]

43 It is difficult to gauge more than a very general yardstick from so-called 'comparable cases', given the wide range of offending conduct which can constitute this offence and the myriad of personal circumstances pertaining to individual offenders. Nonetheless, to the extent that I have been able to gain any assistance from comparable cases, I have sought to do so in your case.

44 The basic purposes for which a court may impose a sentence are just punishment, deterrence, both specific and general, rehabilitation, denunciation and protection of the community. In sentencing you, I must have regard to a range of factors, such as the seriousness of the offences, your culpability for them and your personal circumstances.

45 I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that, so far as is possible, you are rehabilitated and reintegrated into society.

46 General deterrence is a very important sentencing consideration for this offence.[27] The offence is prevalent in the community and, as the Court of Appeal has observed, the link between prevalence and general deterrence is self-evident.[28]

47 Whilst just punishment, general deterrence and denunciation must be given primary consideration in the instinctive synthesis, I am of the view that, in your case, specific deterrence and protection of the community need be given very little weight. I accept you have good prospects of rehabilitation.

48 You fall to be sentenced for a category 2 offence pursuant to s 3 of the Sentencing Act 1991 ('the Act'). This means that in accordance with s 5(2H) of the Act, I must sentence you to a term of imprisonment (which is not a sentence of imprisonment combined with a community correction order) unless, as presently relevant, I find on the balance of probabilities there are 'substantial and compelling circumstances' that justify not sentencing you to that disposition.[29] In determining whether 'substantial and compelling circumstances' are present in your case, I must have regard to the matters listed in s 5(2I) of the Act.

49 In DPP v Hudgson,[30] in dealing with a similar provision in the Act, the Court of appeal said that:

It was plainly the intention of Parliament that the burden imposed upon an offender who sought to escape the operation of s 10 should be a heavy one, and not capable of being lightly discharged.[31]

More specifically, we accept the Director's submission that the word 'compelling' connotes powerful circumstances of a kind wholly outside what might be described as 'run of the mill' factors, typically present in offending of this kind.[32]

50 I have taken into account all of the matters pot on your behalf by your counsel, including the circumstances detailed by him in the 'Addendum to Outline of Submissions on Plea in Mitigation, dated 3 May 2019.[33] However, I am not satisfied that your circumstances taken together satisfy the requirement of being 'substantial and compelling' in the relevant sense.

51 In any event, as I observed earlier, trafficking in cannabis in the manner you did in this case is a serious crime and your moral culpability is relatively high. I am of the view that a sentence of imprisonment with a non-parole period is the only sentence which will give appropriate weight to the purposes for which this sentence is imposed.[34] I am, however, prepared to fix a non-parole period which will allow for your conditional release on parole earlier than I would have imposed in other circumstances.

On the charge of trafficking in a commercial quantity of a drug of dependence, namely cannabis, (charge 7) you are convicted and sentenced to be imprisoned for 30 months.

I order that you serve a minimum of 15 months' imprisonment before becoming eligible for parole.

I declare 1 day (not including this day) as the period of pre-sentence detention to be reckoned as already served under this sentence and I direct the fact that declaration was made and its details be noted in the records of the court.

Pursuant to s 6AAA of the Sentencing Act 1991 I state that the sentence I would have imposed on you but for your plea of guilty would have been a sentence of 42 months' imprisonment with a non-parole period of 28 months' imprisonment.

[1] Contrary to s 71AA Drugs, Poisons and Controlled Substances Act 1981.

[3] Nguyen v The Queen [2016] VSCA 198; (2016) 311 FLR 289, 331 [142] (Redlich JA, Tate and Whelan JJA agreeing) ('Nguyen').

[5] Giretti v The Queen (1986) 24 A Crim R 112.

[6] Nguyen 296 [4 iv], (Redlich JA), 358-9 [245], 365-6 [272] (Whelan JA).

[7] Psychological report of Dr Aaron Cunningham dated 11 July 2018 ('Cunningham report') (Ex S2 [2.0]).

[9] R v Verdins [2007] VSCA 102; (2007) 16 VR 269.

[10] [2010] VSCA 105; (2010) 30 VR 589.

[12] See Barbaro v The Queen [2012] VSCA 288; (2012) 226 A Crim R 354, 364-365 [32]-[38] ((Maxwell P, Harper JA and T Forrest AJA).

[13] Cunningham Report [5.0] and [7.0].

[14] DPP v Sazimanoski [2018] VCC 973.

[15] DPP v Wicks [2019] VCC 135 (1st revision).

[17] DPP v Sazimanoski [2018] VCC 973.

[22] [2019] VCC 582.

[23] [2019] VCC 583.

[24] [2017] HCA 41; (2017) 91 ALJR 1063.

[25] [2016] VSCA 198; (2016) 311 FLR 289 ('Nguyen').

[26] [2009] VSCA 205.

[29] Sentencing Act 1991 ('SA') s 5(2H)(e).

[30] [2016] VSCA 254 (Weinberg, Whelan and Priest JJA).

[32] Ibid [112]. See also ibid [115].

[34] Sentencing Act 1991 (Vic) s 5(4).