DPP v Wicks [2019] VCC 135

3 In March 2017, police commenced 'Operation Tropics' which targeted the cannabis trafficking activities of your co-accused, Nejat Sazimanoski. This operation was concerned with his trafficking operations, his customers, distributors and suppliers. Police used tracking devices and surveillance to track you and your co-offenders, as you were all involved in the distribution and sale of cannabis to or from Sazimanoski.

4 Your co-offenders Ha Huu Nguyen, Oanh Nguyen and Tuan Anh Le supplied cannabis to Sazimanoski in return for payment. Sazimanoski and his wife, Gezime Sazimanoska, would then distribute the cannabis to you and your co-offenders Frank Margariti and John Taouk for on-sale.

5 Police telephone intercepts and surveillance disclose that your involvement in the operation and your offending took place between 13 April and 1 August 2017, a period of some 3½ months.

6 You are referred to as 'the mule' in telephone intercepts because you made deliveries of cash to Sazimanoski and cannabis to Margariti and others. The prosecutor described your role as being akin to that of a 'conveyer belt'. Defence counsel accepted my description of your role as being akin to that of a courier.

7 Annexed to the amended summary of prosecution opening as 'Schedule C' is a detailed chronology of your drug-related activities, commencing on 16 May 2017 and concluding on the 25 July 2017. However, by your plea to charge 3 as particularised in the indictment, you admit offending both before and after these dates.

8 On 16 May 2017 you and Taouk dropped off $55,000 cash to Sazimanoski which came from Margariti. Using surveillance and telephone intercepts, police were able to determine that some days later you met with Sazimanoski's daughter to deliver $10,500 cash.

9 Over the next few days you left $51,000 at Sazimanoski's home and collected 9 pounds of cannabis. You stayed at your parents' home in Truganina before returning home to Bendigo.

10 On 16 June you went to Sazimanoski's home with your son and collected cannabis for Margariti. This was the result of an earlier discussion with Margariti regarding how he was 'low' with only '10 pounds' left. You collected more cannabis just over a week later.

11 In early July Sazimanoski tried to get in contact with you following the arrest of a co-offender. He arranged meetings with you and Taouk at his Wollert home. Sazimanoski expressed concern telling you and Margariti that 'we've gotta slow down'.

12 In mid-July your co-offender Le delivered 20 pounds of cannabis to Sazimanoski's property in Wollert. Your car was seen to go into the garage where an unknown quantity of cannabis was loaded into your vehicle.

13 On 19 July Sazimanoski asked you about everyone's stock and you told him that 'Andy' and 'Matt' were full from last week's stock. On 25 July you called Sazimanoski to say that you needed more 'paint', being a codename for cannabis. Sazimanoski replied he would arrange it.

14 It is clear that you were regularly engaged in cannabis trafficking activities throughout the charged period. It is also clear that there was a degree of organisation and sustained effort on your part. You used coded language when discussing your activities with Sazimanoski and others involved in the network of distribution of cannabis of which you were an active participant.

15 Police executed a search warrant at your home in August 2017 at a time when you were not present. They located 7.5 grams of cannabis in your kitchen pantry and 7.1 grams in your bedroom.

16 These facts give rise to charge 3 on the indictment - trafficking in a commercial quantity of cannabis.

17 At the time of the search of your property, police located $1460 in cash which was suspected of being the proceedings of crime. You have pleaded guilty on the basis that you dealt with this cash being negligent as to whether or not it is proceeds of crime. These facts give rise to charge 4 on the indictment.

18 You were arrested some days later at your new residence in Eaglehawk. You were subsequently interviewed by police where you admitted to being a friend of Taouk and Sazimanoski; otherwise, you made no comment to the allegations of trafficking cannabis.

19 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 in charge 3.

20 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.[4] The harmful effects of cannabis and the seriousness of the offence have been emphasised numerous times in recent decisions in the Victorian Court of Appeal.[5]

21 You played a significant enough role in a highly sophisticated criminal enterprise. You were an integral part in an extensive and successful business of trafficking in cannabis. Schedule C to the Crown Opening demonstrates the extent of your involvement in this nefarious trade.

22 The fact that your role was that of a 'mule', 'courier' or 'conveyer belt' for pounds of cannabis and cash to and from Sazimanoski does not of itself entitle you to any particular degree of leniency. 'Couriers and intermediaries must expect substantial sentences, because without them the trade in narcotics would collapse.'[6] Whatever descriptor is used to characterise your role must not obscure my assessment of what you actually did.[7]

23 The period charged covers approximately 3½ months. During this period you were actively involved in the 'business of trafficking' in cannabis in the Giretti[8] sense. It is agreed that I should sentence you on the basis that the total quantifiable amount of cannabis trafficked by you during this period is at least 32 kg, or about 1¼ times the commercial quantity threshold.

24 While the sentencing regime for trafficking offences is quantity-based,[9] the amount you trafficked is not determinative of my assessment of the objective gravity of this offence. Nonetheless, the weight of drug you actually trafficked, falling as it does towards the lower end of the scale, remains a relevant factor in assessing the objective gravity of your offending conduct.

25 During the period of your involvement in the business you transported significant quantities of cannabis and large amounts of cash between members of the criminal organisation of which you were part. You were knowingly part of the conduit between the grower of the cannabis and the final buyer on the street. Your role can be characterised as being that of a willing participant at the wholesale level, albeit you were not the prime instigator or organiser of the business. Nonetheless, the business required people to perform the role you willingly undertook. In this sense your played a critical part in the success of the operation overall.

26 I find that you fall at the lower end of the mid-range of seriousness of offences of this kind. Your counsel accepted this categorisation. It follows that the warning given by the Victorian Court of Appeal in Nguyen v The Queen[10] 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, applies to you, albeit yours is an offence against s71AA of the Act. For the purposes of the application of the principles espoused in Nguyen, I consider it is artificial to draw any distinction between a mid-range commercial cultivator and offending committed by a mid-range commercial trafficker, who provides at least part of the conduit between the cultivator and the ultimate end user.

27 Accordingly, I sentence you on the basis that this is lower mid-range offending and that the principles laid down by the Court of Appeal in Nguyen v The Queen[11] apply in sentencing you.

28 It appears that financial gain was your sole motivation. You instructed your counsel that you did not receive monetary payment for your services, but rather, on some, but not all, occasions you received cannabis which you on-sold at a profit. You told your counsel that on these occasions you would 'keep' four out of every ten pounds you handled for Sazimanoski and sell this to one or two street level dealers. You told your counsel that you made about $5000 in this way. I accept there is no evidence of enrichment or a grandiose lifestyle in your case.

29 I note you are not charged in relation to your own activity as a drug trafficker, but rather for your role in Sazimanoski's business. You are not to be punished for this separate offending on your own account. Nonetheless, evidence of financial reward or other gains received or anticipated by an offender is relevant to an assessment of the objective gravity of the offence before the court.[12]

30 Overall, I assess your moral culpability in relation to this offending as being relatively high.

31 You were born in Melton on 15 June 1978 and you were aged between 38 and 39 years at the time of the offending. You are now 40 years old.

32 Your father was the manager of operations at the Royal Exhibition Buildings and your mother was a pharmacy assistant. They are both now retired. You are the second youngest of seven children. You have been supported in court by your parents and one of your brothers.

33 You completed your primary education at Coburn Primary School before attending Wilson Park Secondary College in Melton. You repeated year 7 at Ballarat Grammar School and then eventually completed year 10 at Kurunjang Secondary College, also in Melton.

34 You have maintained steady employment since you were 17 years old. You began working in a fruit shop, then as a storeman and later as a warehouse controller. You were employed as a forklift driver before becoming self-employed for seven to eight years. Your company, Wicks Constructions, involved blind and curtain installations for both domestic and commercial premises in Melbourne's western suburbs.

35 You married your then partner in 2005 and you have one son from that relationship who was born in 2006.

36 Your counsel described you as a casual cannabis user. He said your involvement in this offending evolved from your cannabis use which continued until the time of your arrest. In about 2012, when you were 34 years old, you began casual experimentation with methamphetamines which resulted in 'ice' addiction. Despite this, your counsel submitted that 'ice' was not involved in this offending.

37 Your 'ice' use impacted negatively on your life and in the following year your marriage broke down and you were divorced. You have shared custody of your son and prior to your present incarceration you looked after him on weekends and during school holidays. He has been regularly visiting you in custody and you remain on good terms with your former wife.

38 Your business also suffered as a result of your substance abuse. Your counsel described how you were unable to keep up with the requirements of running a business, such as giving quotes, signing contracts and attending jobs. As a result, there was a loss of contracts and the business was eventually closed. In the space of one year you lost your marriage and your business. You ceased 'ice' use in 2013 with the help of your brother when you moved to Bendigo.

39 Later that year you moved to Bendigo in an effort to leave your drug using lifestyle behind you and start afresh in a new environment. In Bendigo you worked for one of your brothers in a property maintenance business, performing tasks in gardening maintenance, construction of pergolas, decks and painting.

40 Whilst in custody you have attained qualifications in first aid, welding, commercial cleaning, food handling and as a barista. You presently work as an essential service worker in horticulture and farm produce production whilst in custody at Marngoneet Prison.

41 Upon your release from custody you intend to resume working with your brother, who plans to make you a partner in his property maintenance business. It is expected that your son will move to Bendigo to live with you on a permanent basis.

42 You conducted a contested committal hearing in May 2018, as was your right. It appears the main issue at committal was whether the Crown could establish trafficking in a commercial quantity in your case. You always accepted that you were at least guilty of trafficking simpliciter. At a further initial directions hearing in this Court on 25 May it was indicated to the court that your matter was expected to resolve. You were arraigned on 6 June and pleaded guilty to the present charges. I am of the opinion that forensically this was the earliest reasonable opportunity for you to plead guilty to charge 3.[13] Accordingly, I accept that yours are early pleas of guilty.

43 Your pleas have utilitarian benefit in saving the time and cost of a relatively lengthy trial. They also indicate an acceptance by you of responsibility for your offending conduct and your willingness to facilitate the course of justice. However, whilst you are undoubtedly regretful for the situation in which you find yourself, there is no evidence before me of genuine remorse beyond what is reflected in your pleas. There is insufficient evidence before me to make a finding in your favour that you demonstrate true contrition and remorse.[14] Your counsel accepted this was so.

44 You are a person of otherwise good character, having no prior convictions or findings of guilty. You have no subsequent matters and no matters outstanding. At your age this is a significant factor in your favour. In these circumstances I need give very little, if any, weight to specific deterrence and protection of the community.

45 I accept that you have very good prospects of rehabilitation if you can remain drug free on your release from custody. In the past you have demonstrated a capacity to rid yourself of an addiction to methylamphetamines, and hopefully you should be able to remain abstinent from the abuse of cannabis on your release from custody.

46 You have an excellent work history and you have undergone further training and education courses whilst in custody. You have been gainfully employed in a responsible position in the prison environment and you have the promise of a job with your brother upon your release from custody. You have a home to go to in Bendigo and it is expected that your 12-year-old son will live there with you upon your release. These are protective factors which should act to reduce the risk of you reoffending in the future.

47 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)[15] and the Victorian Court of Appeal decision in Nguyen v The Queen.[16] Neither the Crown nor your counsel put material before me concerning current sentencing practices in relation to this offence.

48 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.

49 Parity is a significant consideration in this case, or rather the need for me to pass a sentence on you which is not unfairly disparate from the sentence I passed on Sazimanoski. I sentenced Sazimanoski on a similar commercial trafficking charge arising from this police operation to 4 years' imprisonment.[17]

50 He was sentenced as the principal offender in this syndicate. His charge period was the same as yours, but he was sentenced on the basis that he was involved in daily trafficking and that he trafficked 113 kilograms during this period. He also gained the largest financial benefit from the operation. He was personally involved in drug transactions up to a value of $60,000 at a time and he told police that he was deriving $25,000 per month from the business.

51 However, Sazimanoski had been extremely co-operative with police and I found that his early pleas of guilty were motivated by a sense of true contrition and remorse. In his record of interview he admitted much greater criminality than was evident from the evidence available to police.

52 The most significant sentencing consideration in Sazimanoski's case was his extremely serious and declining state of health. He suffers from advanced chronic renal failure, which requires dialysis three time per week, hepatitis B, hypertension, morbid obesity (weighing 139.7 kgs at one stage) and gout leading to peripheral neuropathy in both feet. These medical conditions significantly impact on his daily functioning and, consequently, I gave considerable weight to custodial hardship in his case. Moreover, Mr Sazimanoski's reduced life expectancy meant that I had to impose a sentence on him which would not be crushing in all the circumstances of his case.

53 In my reasons for sentence I made clear that for these reasons the sentences I imposed on Sazimanoski were 'less than they would otherwise have been were [he] not in [such a] parlous condition'.[18] I extended 'a considerable amount of leniency' to him by reason of his medical conditions and I sought to avoid imposing a crushing sentence on him.[19]

54 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.

55 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.

56 General deterrence is a very important sentencing consideration for the offence charged in charge 3.[20] 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.[21]

57 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.

58 In my opinion, you have received a salutary lesson from the detection of your crimes and the consequent criminal proceedings. I accept the likelihood is that you have learned your lesson and you are unlikely to reoffend in the future. As I said earlier, I accept that you have very good prospects of rehabilitation.

59 Nonetheless, trafficking in a commercial quantity of cannabis is a serious crime and your moral culpability is relatively high. Consequently, as the Court of Appeal has observed on numerous occasions, immediate imprisonment should ordinarily be regarded as virtually unavoidable in cases of this type.[22] I am, therefore, 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.[23]

60 The $1460 in cash, the subject of charge 4, were proceeds from the business the subject of charge 3. Accordingly, there will be complete concurrency between the sentences I impose on these offences.

61 I consider it is appropriate in your case to impose a sentence which will allow for your release on parole earlier than might otherwise have been the case.

On the charge of trafficking in a commercial quantity of a drug of dependence, namely cannabis, (charge 3) you will be convicted and sentenced to be imprisoned for 42 months.

On the charge of negligently dealing with proceeds of crime (charge 4) you will be convicted and sentenced to be imprisoned for 14 days.

I order that the sentence imposed on charge 4 be served concurrently with the sentence imposed on charge 3; making a total effective sentence of 42 months' imprisonment.

I order that you serve a minimum of 21 months' imprisonment before becoming eligible for parole.

I declare 552 days (not including this day) as the period of pre-sentence detention to be reckoned as already served under this sentence and I direct that 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 total effective sentence of 4½ years' imprisonment with a non-parole period of 3 years' imprisonment.

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

[2] Contrary to s 194(4) Crimes Act 1958.

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

[6] R v Muanchukingkan (1990) 52 A Crim R 354, 356 (Wood J). See also R v Le Cerf (1975) 13 SASR 237, 239 (Wells CJ); DPP (Cth) v De La Rosa [2010] NSWCCA 194; (2010) 79 NSW LR 1, 62 [256] (McClellan CJ at CL)

[7] See R v Olbrich (1999) 199 CLR 270, 279 [19] (Gleeson CJ, Gaudron, Hayne and Callinan JJ)

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

[9] Adams v The Queen [2008] HCA 15; (2008) 234 CLR 143.

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

[11] [2016] VSCA 198; (2016) 311 FLR 289

[13] Atholwood v The Queen (1999) 109 A Crim 465, 468 (Ipp J); Cameron v The Queen [2002] HCA 6; (2002) 209 CLR 339, 345-6 [20]-[22] (Gaudron, Gummow and Callinan JJ).

[14] 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).

[15] [2017] HCA 41; (2017) 91 ALJR 1063.

[16] [2016] VSCA 198; (2016) 311 FLR 289 ('Nguyen').

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

[23] Sentencing Act 1991 (Vic) s 2(4).