DPP v Schanker [2016] VCC 1771

4.20 pm your Audi vehicle was intercepted by police on Ballarat Road, Deer Park.

36. During the search of that Audi, police seized a grey plastic shopping bag containing - I think it is 402.2 grams of pure methamphetamine in a plastic clipped seal bag located in the foot well behind the passenger seat.
37. In addition, they seized a mobile phone underneath the driver's seat with telephone number 0426 024 549, a set of keys with a tag labelled "8/3 Austin Place" and keys attached to a remote control for the Mazda 3 vehicle which included a key to the black and grey Sentry safe located, as it turns out, at that address of 8/3 Austin Place, Melton South.
38. The police then attended at that Austin Place address which was owned and accessed by you. During the course of the search conducted, the following items were seized: a plastic bag containing white crystalline residue, digital scales with white crystalline residue, a box of clear clip sealed bags with white crystalline residue, a box of disposal gloves with white crystalline residue, a box of Glean micro re-sealable bags and a Sentry safe which contained the following items: 5 clip sealed bags containing 1888.6 grams of pure methamphetamine - that being a gross quantity of 2.358. grams. One of the clip seal bags revealed fingerprints belonging to you and $20,000 consisting of two bundles of $50 notes. The trafficable quantity of methamphetamine is 2 grams pure, thus the quantity discovered in the safe was no less than 944 times a trafficable quantity.
39. On 2 December 2014 several items were located and seized during the search of the Mazda 3 vehicle, including a bag containing multiple wraps containing a total of 15.4 grams of pure methamphetamine located in the boot of the vehicle, a contract of sale, documents for 8/3 Austin Place, Melton South addressed to you, Rayan Jaden Schanker, dated 17 November 2014, $19,505.55 in bundles of $100 and $50 notes and coins, mobile phones and SIM cards and an envelope containing a Bendigo Bank statement with a handwritten message on the envelope located in the centre console of the vehicle that read: "Two guys from China who packed the stuff changed it but the other one didn't know about the guy is fear in complication (sic)."
40. In terms of the value of the drugs, methylamphetamine is commonly sold in powder and crystal form at $100 per 'point' or street deal (0.1 grams) and between $200,000 and $220,000 per kilogram at wholesale level. Accordingly the value of the methamphetamine in relation to Indictment 1, attempt to possess a commercial quantity of a border-controlled drug, where there was 7425.8 grams of mixed drug and has an estimated wholesale value of between $1.48 to $1.628 million wholesale and approximately $7.426 million at street level.
41. The value for methamphetamine in relation to Indictment 2 (2358 grams, mixed) was estimated to have a value between $460,000 to $506,000 wholesale and approximately $2.358 million at street level.
42. You have a criminal record which commences unusually with an appearance in the County Court, rather than in the Magistrates' Court which is the norm. On 10 December 2009, you were before the County Court at Melbourne and were sentenced to a total effective sentence of two years and three months with a non-parole period of 12 months in relation to charges for attempting to obtain property by deception, and obtaining property by deception and ordered to pay a sum of $130,500 as compensation. During the course of the plea your counsel Mr Lavery indicated that this involved fraudulent borrowings from an entity which you could not recall involving significant amounts of money.
43. The following year you appeared in the Magistrates' Court at Dandenong on 4 January 2010 in relation to a further charge of obtaining property by deception and on 19 July 2010, two charges of theft which were dealt with at the Melbourne Magistrates' Court. On each occasion, you were sentenced to an aggregate period of six months' imprisonment. It would appear that these charges were most likely related to the matters that came before the County Court in December 2009 rather than fresh offending.
44. On 30 May 2014 you were before the Sunshine Magistrates' Court on a charge for attempting to commit an offence and a further charge of providing false documentation in an application for an Australian travel document. You were convicted and placed on a community corrections order for a period of 12 months, to perform 100 hours of unpaid community work and undergo assessment and treatment. That order continued up until 30 May 2015. It was whilst subject to that community corrections order that you committed these offences in November 2014.
45. It is significant in my view that you have on three occasions been sentenced to be imprisoned. I am told and I accept that you were first imprisoned for a total of 12 months or thereabouts before you were released on home detention.
46. Whilst the offending before me is of a different order and kind, it demonstrates that you are prepared to continue offending at a higher level than that which you had previously. Despite having been sentenced to gaol on no less than three occasions, including your first court appearance before this court back in 2010, it appears that these sentences did not in any way deter you from further offending.
47. I now turn to the principles that must be the basis for sentencing you in relation to this offending. In the recent decision of the DPP (Cth) v Thomas and Wu [2016] VSCA 237, the court had need to consider a number of matters including comparable sentencing decisions that are available to me. These have been made available to me by the prosecution for guidance or as a yardstick against which to examine what ought be the appropriate sentence in this particular case. I do not intend to quote from the relevant passages but their Honours most helpfully set the principles out at paragraphs 178 to 191.
48. Their Honours then moved to affirming the sentencing propositions contained R v Nguyen [2010] NSWCCA 238; (2010) 205 A Crim R 106 at 126-128, where Johnson J, with whom the other justices agreed, distilled the authorities with the following propositions applicable to sentencing for drug importation offences:

"(a) the criminality of an offender must be assessed by consideration of the involvement of the offender in the steps taken to effect the importation;

"(b) problems may emerge when a sentencing court attempts to categorise the role of the offender in a drug enterprise, as in many cases the full nature of the enterprise is unlikely to be known to the court;

"(c) it is the criminality involved in the importation which must be identified - the fact that another person may be characterised as the 'mastermind' does not mean that a person who was responsible for managing the importation into Australia is properly described as having only a middle level of responsibility;

"(d) although the weight of the drug imported is not the principle factor to be considered when fixing sentence, the size of the importation is a relevant factor and has increased significance when the offender is aware of the amount of drugs imported;

"(e) the statements by the High Court in Wong v The Queen do not suggest that, in an appropriate case, the amount of the drug involved in an importation is not a highly relevant factor in determining the objective seriousness of the offence, even to the extent of assessing that a particular offence is in the worst category of its type; in many cases, the only factor that would lead to a determination that one importation is worse than another would be the amount of drug involved where otherwise the circumstances of the importation were the same or very similar;

"(f) as a matter of common sense, it should be inferred, unless there is evidence to the contrary, that a person who is importing drugs is doing so for profit;

"(g) the difficulty of detecting importation offences, and the great social consequences that follow, suggest that deterrence is to be given chief weight on sentence and that stern punishment will be warranted in almost every case;

"(h) the sentence to be imposed on a drug importation offence must signal to would-be drug traffickers that the potential financial rewards to be gained from such activities are neutralised by the risk of severe punishment;

"(i) involvement at any level in a drug importation offence must necessarily attract a significant sentence, otherwise the interests of general deterrence are not served;

"(j) the prior good character of a person involved in a drug importation offence is generally to be given less weight as a mitigating factor on sentence;

"(k) where offenders are not young ... the immaturity of youth cannot be claimed as a factor bearing upon their transgressions;

"(l) where an offender ... is to be sentenced for an attempted possession offence, it should be kept in mind that the act of attempted possession can be attended by a wide range of moral culpability, so that the circumstances in which a person so charged attempted to come into possession of the drug, and what it was that the person intended to do with that drug, is relevant to determining the degree of moral culpability attached to the act of attempted possession itself, so that a sentencing judge should have regard to the offender's involvement in the overall transaction for the purpose of determining the offender's degree of involvement in a drug-smuggling enterprise;

"(m) offences of attempting to possess imported drugs are not, for that reason, in in a less serious category than of importing the drugs."

1. The court in Thomas and Wu continue at paragraph 193 saying,

"In the case of drug importation offences, general deterrence is to be given chief weight in sentencing. Stern punishment will be warranted in almost every case in order to advance that purpose. Factors personal to the offender are thus ordinarily given less weight than might otherwise be the case."

1. That paragraph encapsulates the essence of the sentencing process in relation to the charge of attempted importation for the drug methamphetamine.
2. Further, the court at paragraph 238 continued,

"The maximum penalty, taken with other relevant factors, provides a yardstick against which a sentence is to be considered. The maximum penalty prescribed for the present offence is life imprisonment, reflecting the seriousness that Parliament attaches to this conduct."

1. And for my purposes, finally, at paragraph 245, their Honours observed,

"There is nothing about these matters personal to the respondent which warrants a sentence which falls so far below the range applicable for this category of seriousness of the offence. He has been convicted of importing over five times the commercial quantity of a border controlled drug. The need for general deterrence is very great. Would-be importers of drugs need to know that they will pay a very heavy price for their offending."

1. That has been the policy of all courts to date and are the principles that I apply in relation to that charge on Indictment 1.
2. The circumstances surrounding that attempted importation and the circumstances surrounding the trafficking are interrelated. They inform each other. It is plain that you were a principal in the attempted importation of the methamphetamine which was of high quality, in the vicinity of 80 per cent pure. You did so for the purpose of trafficking in that same drug at a wholesale level, as revealed by the charge of trafficking in Indictment 2.
3. This offending, both alone as well as in combination, is of the utmost gravity - a matter which I will return to in due course. I now turn to your personal background.
4. During the course of Mr Lavery's very helpful plea, the psychiatric report of

Dr Anthony Cidoni was tendered as Exhibit RS1. At page 3 of that report Dr Cidoni comprehensively deals with your background and I will therefore quote the relevant section in full.

"Mr Schanker is a 32-year-old married gentleman from Sierra Leone. He has been in custody since 4 August 2016. He has been married for ten years to a woman he met in a refugee camp in Guinea and he came to Australia in 2007 on a spousal visa. He has no children. He was not working prior to his incarceration.

"He described a significantly traumatic background. At age 8, the war started in his country with the rebels moving into the country, targeting rich families and removing his family from their home and forcing them to live in a forest with no beds, foods or shelter. He remembers climbing trees to pick mangoes to eat and did not receive any schooling. He said it was like the television show Survivor except it was real.

"Four years later, the family escaped the capital but were discovered in hiding three years after this when he was aged 15. He recalled his mother being repeatedly raped. He stated that there was an incident where the rebels entered the house they were staying, his father was shot in the chest and killed, his 13-year-old sister and his mother were raped in front of him and he was shot in the leg. His family were then taken away and his neighbours found him a few hours later having been left for dead and he was taken to a Medecins Sans Frontieres Station. He was in danger so he was helped by a friend to escape the hospital but he was abandoned by this friend in the hospital in the forest and was raped by a man at this time.

"He described witnessing a number of extremely traumatic events including a woman being sexually assaulted with a large pole used to pound rice and a pregnant woman being cut open so that the rebels could see the gender of the baby she was having."

1. A practice, which I understand, involved wagering on the sex of the child. Continuing,

"When he came into Australia, he completed studies in financial planning but could not find a job in this area so he was doing truck driving but had to finish that in 2012 because of leg swelling. He also did some factory work and cleaning trucks for the same company. In 2012, he found out that his mother was still alive and travelled back to see his mother in 2014. He has two sisters both of whom have died and two brothers, the younger brother of which the whereabouts were unknown and the older brother in a refugee camp.

"He said both his mother and brother have suffered from what sounded like psychosis in the refugee camp including being paranoid, talking to themselves and taking their clothes off."

1. This is a background that is so extreme that I must say I have not encountered the like.
2. In the opinion and recommendation section, Dr Cidoni continues, stating,

"Mr Schanker has suffered from a significant major depressive disorder and a post-traumatic stress disorder following a horrific background that one can only begin to imagine. He is a deeply troubled man who is currently untreated.

Unfortunately, Mr Schanker has fallen to methamphetamine dependence partly as self-medication."

"It would also be important for Mr Schanker to have psychological treatment in particular therapy such as exposure and response prevention which has shown to be efficacious in post-traumatic stress disorder. I note that it is highly unlikely for him to receive this treatment in custody.

"I believe that Mr Schanker is extremely vulnerable in custody and will undoubtedly experience imprisonment as being more difficult than a person in normal health. In my opinion, there is a very high risk that, I believe due to significant depressive and post-traumatic symptoms and his previous trauma including his previous sexual assault, that

Mr Schanker will continue to experience in prison as extremely distressing. In my opinion, there is a significant risk of substantial deterioration in his mental state."

1. In a letter from a counsellor advocate Chanelle Burns of the Victorian Foundation for Survivors of Torture, dated 10 October 2016 which became Exhibit RS3, she wrote, among other things:

"I am writing regarding Mr Rayan Schanker who has been receiving specialist therapeutic support from Foundation House since May 2014.

Mr Schanker was referred to Foundation House by his general practitioner Dr Pearly Cooray for assessment and counselling in relation to post traumatic stress disorder (PTSD), depression and anxiety. Upon referral, Foundation House undertakes a comprehensive psychosocial assessment to determine that a person has a history of torture or other traumatic events prior to arrival in Australia, and as a consequence is experiencing psychological difficulties. Mr Schanker was assessed to meet this criteria and thus began seeing myself for counselling.

"I met with Mr Schanker regularly in a counselling capacity between May and November 2014. Following his release from remand in August 2015

Mr Schanker recommenced counselling with me and attended monthly between August and December 2015. Throughout the early part of 2016 our contact was less frequent and primarily by phone. We met face to face in May and then again in June this year after Mr Schanker had major surgery on his knee. I was on leave in August 2016 and when I returned Mr Schanker had been remanded to custody, hence I have not seen him since this time."

"My work with Mr Schanker has been focused on reducing the symptoms outlined above. Throughout our work, Mr Schanker has made great effort to engage consistently and actively to address his mental health and wellbeing. Throughout 2014 Mr Schanker attended appointments regularly and demonstrated a willingness to engage meaningfully in the therapeutic work. Mr Schanker's PTSD symptoms persisted throughout his time in remand from late 2014 into 2015, and on release we recommend counselling, again with a focus on reducing these symptoms."

1. Reference has been made to the fact that Mr Schanker had been shot in the leg. He has undergone surgery in relation to the resulting injury. His orthopaedic surgeon, Mr Chris Harris, provided a report dated 12 August 2016, which became Exhibit RS2 on plea.
2. In it, among other things, he writes,

"I don't have any records from that time but presume that he had a fracture of the left proximal tibia (knee region) that went on to heal but with deformity and infection, osteomyelitis. He told me that for a number of years afterwards he had evidence of infection in the bone and then one day his body spat out a bit of bone from his leg and the infection side of things settled down after that.

"He came to us because he was having ongoing pain in the left knee in association with the deformity of the bone and some arthritis to the knee which was affecting his ability to do certain things. We decided that we should correct his deformity in the hope that it would improve his pain and function."

1. He then sets out what has happened in terms of the treatment of Mr Schanker and concludes:

"From what I have indicated above, you will hopefully appreciate that when patients have a frame on their leg, and are being seen regularly by their treating surgeon, because there a number of things that can go wrong, six to 12 months from now when he has recovered from all of this, none of these things will be an issue. And he should have a leg that is good for walking and doing most of the things that he wants to do."

1. The last sentence is as I indicated during the course of discussions on the plea an optimistic one but one I hope manifests itself. In the end, I intend to adopt a cautious approach as to the suggested prognosis articulated by Mr Harris, a matter which I will return to in due course.
2. During the course of the plea Mr Lavery sought to explain in some part your offending by reference to your addiction to methamphetamine. In my view, that addiction does not even come close to explaining even in part your high level of involvement in the criminal conduct that is before me.
3. It has been submitted by Mr Lavery that your period of imprisonment has been and will be more burdensome than for others within the prison population and that therefore the sentences and the total effective sentence that I impose ought be moderated. I accept that submission and intend to achieve that result by moderating the sentence on Charge 1 of Indictment 1 for reasons which I will come to.
4. There are a number of aspects to this submission - (1), the mental health adverted to by Dr Cidoni; (2), the physical health that I have just dealt with. In addition, your mental health including depression, your concern for your wife who is unwell and your own concerns about your future in Australia, with the prospect of you being deported at the conclusion of serving your sentence. In combination these matters point to imprisonment for you being more burdensome.
5. You have pleaded guilty to the charge of trafficking on Indictment 2. The utility of that plea of guilty albeit a plea late in time must be, and is, taken into account by me. I estimate that a trial on that charge would have occupied between one to perhaps two to three weeks.
6. I turn to the offending in question which is, by any yardstick, serious.
7. First, the maximum penalty is life, evidencing the gravity with which Parliament considers such offending in each indictment charge.
8. Second, on each charge, there are multiple times the commercial quantity, in particular, in relation to the attempted importation charge.
9. Third, the value of the product both at wholesale level and retail level was large.
10. Fourth, the purity of the narcotic seized upon arrival in Australia and the narcotic seized in other various places including in your car was high, in the vicinity of 80 per cent pure.
11. Fifth, you had a role as a principal in relation to both the attempted importation and the trafficking.
12. Sixth, you are motivated by greed to engage in this offending.
13. Seventh, you were involved not only in the process of importation of this narcotic, but also in trafficking in it in commercial quantities.
14. Eighth, you had plenty of time to reflect on what you were engaged in but decided to continue with your criminal conduct, knowing the consequences if caught.
15. Finally, this offending must be seen in the context of you having previously been incarcerated for not inconsiderable period of time for serious dishonesty offences. As I have said, imprisonment has not in any way deterred you from engaging in this offending which is by far more serious than any offences you have committed in the past.
16. This offending is heinous and requires stern punishment. The principal or chief factor in sentencing you is general deterrence - deterring others from engaging in this type of offending. Further, specific deterrence - deterring you, is a significant sentencing factor, particularly having regard to the matters I have set out. Further, the sentence I impose must be one which involves the imposition of just punishment and denunciation of your involvement in this evil trade.
17. I agree with Mr Lavery's submission that the sentences that I impose must in total must be what I consider to be appropriate. I have been thinking about the sentences that I should impose individually and in total over a lengthy period of time since the plea was conducted.
18. Taking into account all these matters, on the charge of attempt to import a border-controlled drug, I sentence you to be imprisoned for a period of 15 years. On the charge of trafficking in methamphetamine, I sentence you to be imprisoned for nine years.
19. I state that but for your plea of guilty on that charge of trafficking I would have imposed a period of imprisonment of 11 years. I intend to achieve a total sentence of 18 years' imprisonment. I do so by fixing the 15-year period as the base sentence on Indictment 1 Charge 1.
20. I intend to cumulate a further period of three years on that 15-year period on Indictment 2, Charge 2. In order to achieve that, I direct that the period of

15 years on Charge 1, Indictment 1 starts today. I direct that the sentence of nine years on Indictment 2, Charge 2, commences nine years from today, namely 21 November 2025.

21. As to the total effective sentence of 18 years, I direct that you not be eligible for release on parole until you have served 14 years, and I declare pre-sentence detention to be - Mr Kerlin?
22. MR KERLIN: Three hundred and seventy-four days, your Honour.
23. HIS HONOUR: Three hundred and seventy-four days which will be deducted administratively from the sentences that I have imposed. Gentlemen, if there are any minor corrections, they can be emailed to my associate, Mr Brown, and do email of course to the other party. But if there are any matters of moment in terms at this stage, in particular in relation to achieving the sent that I intend to impose, namely a total effective sentence of 18 years, please tell me now.
24. MR KERLIN: No, Your Honour. That is correct.
25. HIS HONOUR: Is there anything further, Mr Lavery?
26. MR LAVERY: No, Your Honour.
27. HIS HONOUR: Thank you, Mr Kerlin. Thank you, Mr Lavery. And if you would be good enough, Mr Kerlin, to express my thanks to - I have forgotten her name.
28. MR KERLIN: Ms Breckweg, Your Honour.
29. HIS HONOUR: Ms Breckweg. Thank you. And could we just thank (indistinct). Nothing else?
30. MR KERLIN: No other matters, Your Honour.
31. HIS HONOUR: Yes, remove, please, Mr Schanker, please. Is it 2 o'clock or 2.15, Mr Brown, for the trial? Two fifteen.