Muhammad Zandi, you pleaded guilty to an indictment charging you with attempting to possess a marketable quantity of a border control drug namely Cocaine. The offence having occurred on or about 11 October of 2012. You have also admitted one prior court appearance back in November 1009 where for a charge of causing injury intentionally, you were convicted and fined $1500.
The offence to which you have pleaded guilty on this indictment carries a maximum term of imprisonment of 25 years. The prosecution has tendered and relied upon an agreed summary of facts which was read to the court on Friday, and I am not going to read it again. Suffice it to say that it sets out a course of events which commenced on or about 4 July of 2012 and involved you meeting with various undercover operatives. One from the Federal Bureau of Investigations of the United States, and another a Federal Police undercover officer, and engaging with them over a period of months, communication either face to face or by a text message or email during which arrangements were made between you and the undercover officers for you to purchase ultimately two kilograms of Cocaine for a total of $240,000. You understanding that it was to have been imported from the United States and that you would receive it soon after its arrival in Australia.
The original arrangement was for five kilograms at the same price, $120,000 per kilogram and ultimately you said that you no longer wished to go ahead with that arrangement, but that you would be interested in an arrangement for two kilograms at that price. You provided a deposit of $25,000 in cash. You were notified shortly after the consignment purportedly arrived in Australia, and you met with the undercover operative for the purpose of providing him with the balance of $215,000 that was the full price of the Cocaine.
DPP v Zandi [2014] VCC 656 | Case summary | Zoe
Of course, this was a controlled operation. There was in fact no Cocaine. There was no importation. On 11 October 2012 you met with the undercover officer with a further $40,000. You made the excuse that a friend had died unexpectedly that morning, and prevented you from providing the balance of the purchase price of $215,000, but you provided $40,000 in cash, and were permitted perhaps surprisingly, if this had been a genuine arrangement, with a substance which was represented to be the two kilograms of Cocaine that you had ordered.
You departed without the $40,000, but with the two kilograms of Cocaine. Surveillance was maintained and you were seen to enter premises in William Street in Melbourne, with another person. At that point, you apparently realised that police were also in attendance and you and this other person made good your escape. You escaped in a taxi with the substance which you apparently believed was Cocaine. You were arrested shortly afterwards. When interviewed, you exercised your right not to comment.
The matter was not resolved immediately, and there were proceedings whereby subpoenas were issued, seeking information. The matter was set down for trial and was finally resolved on 21 February of this year by a plea to the indictment, to which you have pleaded guilty in these proceedings. Turning to matters personal to you, Mr Van De Wiel on your behalf first described you as a "gunna", a person who was always going to do something, rather than actually doing it.
The detail as to precisely how you became involved in this was not revealed to me, or not revealed in any detail. I understand that it had something to do with your business dealings with a Chris Brown in the United States and I am invited to sentence you on the basis of the agreed summary of facts. I have to approach the matter on the basis that those are the facts relevant to sentence in this case, and from that I have to discern your role and your degree of criminality, culpability in the offending, and determine an appropriate sentence. That is what I propose to do.
It was submitted by Mr Van de Wiel that there was a strong element of fantasy in all of this. I am inclined to accept that you are not out of the mould, of the kind, of criminals that generally get involved in offences of this kind on the scale of this particular venture. But that said, the fact is that you did get involved in this venture. The degree to which there was fantasy attached to it is very difficult for me to ascertain. What I am faced with is a situation where you did order, ultimately two kilograms of Cocaine, and did actually come up with and invest $65,000.
It may well be that you got that money from friends. You may well have borrowed the money, and you may never have been able to come up with the balance other than perhaps by selling the drugs on, which seemed to be the proposal that you were putting to the undercover police officer. But I am faced with a situation where I have to find an appropriate punishment for you for offending on that scale which is quite substantial.
You have pleaded guilty and it is submitted that you are remorseful, you are contrite, you are sorry for what you did and I accept that. I am sure that you now realise how stupid this was and how much you have hurt those around you. I include your family, but your friends as well.
You have no prior convictions that are relevant to this. I do not count the conviction that you got in 1998. I accept that this has been a very significant fall from grace for you, and it would have been difficult for you to have had explained yourself to your family and friends. I understand that your father is not well, and that your mother is suffering from Parkinson's disease.
I was impressed I have to say, very impressed, by the witnesses that were called on your behalf and each of them, Michael Parfinitis, Saeed Marjid Armidi and Yurgo Skorankis all gave evidence and spoke of the person that they knew, and knew well. Each of them I thought spoke from the heart and spoke honestly. It increases the mystery as to how you could have got yourself involved in this. I was also provided with a letter from a Mr Randla dated 20 February this year and a witness statement from him dated 2 May of this year, along with a report from a psychologist by the name of Prayzah Gough which is dated - I am not sure it is dated actually, but it seems to be recent origin. It speaks in some detail about your background. Your parents came from Iran and you were born in Melbourne. Your family returned to Iran for a period not long after that. You then came back to your education in Victoria.
I understand from your character witnesses that you are a very bright student and probably significantly under achieved at school, not surprisingly perhaps given that you moved school about 11 times I think, or went to many different schools. But obviously you are a person of intelligence. Overshadowing what might otherwise have been a happy family life has been what I would call a difficult relationship with your father. It seems that despite those difficulties which are catalogued in the report, you still lived at home, until recently and you still have a good deal of respect and love for your father, a very close relationship with your mother. It seems that your father has always wanted the best for you. Perhaps you felt the pressure of that and that you have not been able to meet expectations.
It was revealing I thought, evidence from Mr Parfinitis that you started on recreational drugs a little later than others. But it seems you did not get out of it. This has probably been the blight of your life I suspect, coupled with perhaps a degree of low self-esteem as a result of the difficult relationships that you had with your father. So you got into drugs in your early twenties, and you have progressed through to Cocaine and ultimately Ice. I accept that that has underpinned the history immediately leading up to this offending conduct and I have no doubt that you probably did get to a point where you were unable to maintain your habit or habits without resorting to other forms of income beyond your savings and what you are able to earn.
On top of that, it seems that your intelligence and intent to better yourself and perhaps to live up to your parental expectations, led you into various business ventures. None of which ultimately were successful. That too I have no doubt would have effected your self-esteem, but knowing all of that, it is clear from the witnesses who came along, and I suspect from those that have attended court today that you are still a person who they think is very worthwhile, and worthwhile for their own emotional investment and investment in your future. I have no doubt that they will provide you with a significant degree of support.
Mr Gough speaks of your emotional or psychological state and it would seem that you do have symptoms of depression, paranoia, anxiety which he relates to trauma. He is not able I think to put a specific cause on all of that. No doubt it is partly due to having to face these proceedings, but it is also possibly due to the regular drug use that you engaged in since you were 21 years of age. That too would have taken its toll on you no doubt. But one way or another, you felt at a low level psychologically in the lead up to these proceedings, and took the step of going to see him on 2 October of last year, seeking his help. That was a step in the right direction, I have no doubt and it does I think speak well for your prospects of rehabilitation.
He told you then that he was not prepared to write a forensic report, a court report for you and he was only prepared to take you on a therapeutic basis. You were prepared to accept those terms and did. I have no doubt that you have benefited from his assistance, but what it tells me in addition to the psychological issues that he has identified is that you are a person who is prepared to help himself and to try and deal with some of the difficulties that form part of the context at least of this offending.
I, as you will well know, am required to sentence you on a basis which is described by the Commonwealth Crimes Act and s.16A(1) tells me that I must impose a sentence that is of a severity appropriate in all the circumstances of the offence.
That is the starting point. I am then bound to look at a number of other factors. Some of those I have already mentioned which of course include the nature and the circumstances of the offence, your personal circumstances and the degree to which you have shown contrition for the offence. I have already indicated that I accept you are contrite. Also your plea of guilty and I have also got to take into account your character and by and large that seems to be good, although obviously for the various reasons I have indicated, you have clearly been involved in illicit drug taking for a very significant period of time. Unfortunately that is not unusual in this day and age.
So you are still relatively young, you have got a fair bit of life ahead of you and I am required to take into account your prospects of rehabilitation. I assess those as being good. I think with the people you have got around you and your family and your past history, and your intelligence, provided you get on top of the drug issues, because if you slide back into Cocaine or Ice or anything of that nature, then it is going to be very difficult for you to pick up and to deal with the overlying psychological issues that have been identified. I think you have got it in you to do that, and you have obviously knuckled down since you have been in prison and you have made best use of the Kangan Institute. You want to obtain qualifications in the building trade and that is all very much to your credit.
The case has been hanging over your head for quite a while now, and you have known I guess in your heart of hearts that you face a term of imprisonment. You have had that prospect hanging over your head. No doubt that has contributed to the anxiety that you have suffered.
I am required also to look at current sentencing practise, and try if I can to impose a sentence that meets the expectations of the community and in particular, deters others from committing offences of this kind. I am not sure that you would need a great deal of deterrence. I suspect that this experience will have been a very significant deterrent effect already, but I do think that general deterrence is very important. I have to pass a sentence that tends to deter others from engaging in similar conduct.
The maximum term of imprisonment is 25 years. The offence involves a quantity of Cocaine which is at the upper end of the scale. Even though, I do not think you are deep down a crook, and I am quite sure that there was very little sophistication in this. you did take the bait. I certainly do not criticise the police in any way shape or form. These offences are difficult to detect, and it is necessary for police to masquerade as people involved in the drug trade in order to detect those that are also engaged in the trade. I note the prosecution pointed out, it was actually you that suggested the use of the blackberries, although that does not necessarily indicate any high degree of sophistication or deep knowledge of the workings of the drug trade. However, you would have picked up a lot, I have no doubt, about the drug trade in the years that you have been scoring your own illicit drugs.
As the prosecution pointed out, there is a table which is attached to the decision of the Court of Appeal in this state in the case of OPQ v R, 212 VSCA 115, and as Mr Van De Wiel pointed out in his opening remarks to me, none of that helps you very much because the kind of sentences that are imposed even for couriers are pretty substantial and the kind of sentencing range that might be appropriate for a person who is certainly above the level of a courier could be pretty substantial. I think you are aware of that.
I have thought long and hard about this and my sense here is based on an instinctive synthesis. That that is a word which is used in sentencing law, but it means a feeling based upon all of the facts as to how serious this offending is. I get the sense that it is not as high on the scale as the amounts and the objective nature of the facts suggest otherwise I would be putting you into a sentencing range considerably higher than what I have in mind.
The other thing is that I have not only to look at the head sentence, that is the sentence itself, but also at the period you would have to serve on parole. You probably know this already, but in the Commonwealth sentencing sphere, if I set a non-parole period then that is when you would get parole.
However, if you commit another offence, whilst you are on parole you lose your parole, it is as simple as that, you do the rest of your sentence. So you would have to bear in mind that essentially the period on parole would be like having a suspended sentence hanging over your head. So it would be hanging over your head for the remainder of the period of the sentence.
I have in mind to give you a substantial period on parole, to enable you to complete hopefully your rehabilitation. You may already know this also that there are facilities within the Corrections system in this state for people with drug problems, and there is a prison called Marngoneet which does specialist drug courses. They have a zero tolerance regime which means that if you are ever caught with drugs smuggled into the prison, then you are out of the course. But they are I think about as good as it gets in terms of providing the kind of help that you may need because even though you are not taking Cocaine or Ice now, you should regard yourself as an addict, and you will remain so for a very considerable period of time. So these courses are available for you. Now I am hoping that you will take advantage of all of that. With all of those things in mind, I am ready to pass sentence upon you, so would you just stand please.
Muhammad Zandi, for the offence of attempting to possess a marketable quantity of Cocaine, I convict you and sentence you to imprisonment for a period of seven years, and I order that you serve a period of four years before becoming eligible for parole. I declare 64 days pre-sentence detention as time served on that sentence, and it will be deducted administratively from the time that you actually have to serve. I order that that fact be noted in the records of the court, but for your plea of guilty, I would have sentenced you to nine years, six months imprisonment with a non-parole period of seven years.
I note from Mr Goudh''s report that he regards your psychological condition as requiring a degree of care to ensure that a suicidal risk is managed. I would therefore order that that fact be noted on the sentencing order that you should be the subject of monitoring for suicide risk. Are there any other orders Ms Brown?