The Queen v Cini [2014] VSC 409

Supreme Court of Victoria|2014-08-29|Before: Croucher J

CRIMINAL LAW - Sentence - Attempting to possess a commercial quantity of an unlawfully imported border controlled drug - Substances containing 161.5 kilograms of methamphetamine concealed in tyres of tractor truck imported from China - Accused's father used his own importing business to facilitate offence - Accused assisted father in moving vehicle from docks and in unloading and redistributing drugs - Accused aged 30 with no prior convictions - Early plea of guilty - Remorse - Excellent prospects of rehabilitation - Parity - Sentence of ten years' gaol with non-parole period of six years - But for plea of guilty, sentence of 14 years' gaol with a non-parole period of ten years.

Solicitor for the Commonwealth Director of Public Prosecutions

2 The truck had been imported by Motek Engineering Pty Ltd ("Motek"), a company owned by Patrick Cini ("Mr Cini"). On 3 October, Mr Cini collected the truck from the docks and, with his son Rhys Cini ("Rhys") following in a car, drove it to Motek's factory in Brooklyn. The next day, Mr Cini and his son began removing the packages from the truck tyres. Some of the packages were damaged in the process of removal, and their contents were vacuumed up. Over the next few days, the remaining packages ended up in different locations - several in storage facilities in Hoppers Crossing, a few at each of Mr Cini and Rhys's respective premises and many more remained at the factory.

3 On 9 October 2013, police arrested Mr Cini and Rhys and charged them with offences connected with the importation. They have remained in custody ever since.

4 On 12 March 2014, Mr Cini pleaded guilty in this Court to a charge which alleged that, on 27 September 2013, he imported a commercial quantity of a border controlled drug, namely methamphetamine, contrary to s 307.1(1) of the Criminal Code (Cth) ("the Code").

5 The same day, Rhys Cini pleaded guilty to a charge which alleged that, on 4 October 2013, he attempted to possess a commercial quantity of an unlawfully imported border controlled drug, namely methamphetamine, contrary to ss 11.1 and 307.5(1) of the Code.

6 A third accused, Rami Tawachi, was arrested on 9 October and charged as well. He is to be tried in this Court next year.

7 Following their arraignment, both Rhys and Mr Cini's matters were adjourned for pleas in mitigation to be heard on 29 May. Mr Cini's plea was heard that day. However, in consequence of Rhys's decision to have his new lawyers investigate the possibility of an application to withdraw his plea of guilty, which application ultimately was not pursued, his plea was not heard until 1 August. That course had the effect of delaying the sentence in both matters until today, as I considered it desirable to sentence both men on the same day, albeit at separate times.

8 On Rhys's plea, Mr Gurvich, who appeared for the Director, tendered an agreed summary of facts. The same summary was tendered on Rhys's plea. The agreed facts are as follows:

9 As indicated earlier, Mr Cini is the director of Motek. On 16 January 2013, Motek imported a Sinotruk Hova terminal tractor truck from Xinsha, China, into Australia. Payments for the truck were made via telegraphic transfer from a Bendigo Bank account in the name of Motek to Sinotruk Import and Export Co Ltd ("Sinotruk").

10 Subsequently, a second truck of the same type was ordered by Motek. On 7 May and 11 July 2013, two payments totalling approximately $40,000 in respect of the truck were made from the Motek account to the Sinotruk account. On 20 August 2013, the truck was sent from China to Australia, via Japan. This was the truck in which the drugs would be found in Brisbane.

11 On 20 September 2013, Rami Tawachi went to Storage King in Hoppers Crossing. He entered into a one-month lease agreement for a unit in which to store a trailer. The same day, he attended at National Storage, also in Hoppers Crossing, and entered into a one-month lease agreement for a unit in which to store tools. Mr Tawachi provided a false address on both lease agreements. On or about the same day, he went to Hoppers Crossing Trailers and paid cash for two tradesman trailers. On 24 September, he moved the trailers to the storage units.

Arrangements and conversations concerning the second truck

12 Also on 24 September, telephone intercepts showed that Rhys attended at VicRoads to make arrangements to have the second truck registered. Later the same day, telephone intercepts also showed that Mr Cini attended at the Road Transport Authority and had a conversation with Rhys during which they discussed the truck.

The second truck (containing drugs in its tyres) arrives in Brisbane

13 On 27 September 2013, the ship carrying the second truck arrived in the Port of Brisbane. Officers of the Australian Federal Police ("AFP") and Customs x-rayed the tyres of the truck. As I said earlier, concealed in the tyres were 205 packages, each of which contained a substance that weighed about one kilogram and contained methamphetamine. The total weight of the packages was 203.2 kilograms. The purity of the methamphetamine ranged between 76 and 80 percent. The total net weight of the methamphetamine was 161.5 kilograms.

14 The contents of the packages were fully substituted with an inert crystalline substance. The truck was returned to the ship, which then resumed its voyage onto Melbourne.

15 Over the next two weeks, the AFP conducted physical and electronic surveillance of the truck and those who came into contact with it and its contents.

16 On 1 October, Mr Cini telephoned Patrick Stevedoring at Webb Dock in Melbourne and made inquiries in relation to the ship. The same day, Rhys telephoned VicRoads and made inquiries in relation to the registration plates for the truck.

17 On 2 October, the ship arrived at Melbourne. The truck was discharged and parked at Webb Dock.

18 On the morning of 3 October, Mr Cini telephoned Patrick Stevedoring at Webb Dock. He was told that the truck was ready for delivery. Later that morning, Mr Cini and Rhys drove to Webb Dock in Mr Cini's car. After taking delivery, Mr Cini drove the truck to Motek's factory in Brooklyn. Rhys followed in Mr Cini's car. They secured the truck inside the factory, and then left to have lunch. About an hour later, they returned, and were seen unloading items from the rear of Mr Cini's car into the factory. They then secured the premises and left.

19 On 4 October at about 2:30 p.m., Mr Cini and Rhys went to the factory, removed the wheels of the truck and started removing the packages. Mr Cini was seen using a large hand saw to cut into one of the tyres.

20 At about 3:40 p.m. the same day, Mr Cini and Rhys went to Total Tools in Brooklyn where they bought an angle grinder, hacksaw blades, a heavy duty tyre lever and a sledge hammer. They returned to the factory, cut into the tyres and removed the packages. Rhys was seen throwing the packages to his father, during which the following conversation was recorded:

21 At about 7:00 p.m. that evening, Mr Cini and Rhys drove to Officeworks in Yarraville, where they bought six large plastic storage containers with lids. Shortly afterwards, they went to Bunnings in Altona and bought an industrial vacuum cleaner. Upon returning to the factory, they were seen using the vacuum cleaner to clean up spillage from the packages.

22 Later that evening, at about 9:15 p.m., they placed the six large plastic containers and some plastic bags into the rear of Mr Cini's car. After securing the factory, they drove to Mr Cini's residence at 14 Ayr Street in Altona Meadows. After a short stay, Rhys drove to his home in Point Cook.

23 On Saturday 5 October, Mr Cini sent an SMS to Rhys which read: "Leave work till Monday".

24 On Monday 7 October, at 11:43 a.m., Mr Cini and Rhys went to the factory. After a short stay, both left. Later that day, at 1:47 p.m., Rhys went to Mr Tawachi's house in Point Cook.

25 On Tuesday 8 October, at about 11:15 a.m., Mr Cini went to Tyreright in Altona and ordered 12 truck tyres. At 11:22 a.m., Rhys went to his father's premises, opened the garage door and placed items in the boot of his car. Mr Cini returned home a short time later while Rhys was still there.

26 Later that day, at 12:46 p.m., Rhys was seen driving his car with Mr Tawachi. They went to National Storage, and then to Storage King, in Hoppers Crossing. At both places, they were seen apparently delivering packages to the storage units Mr Tawachi had leased.

27 On the morning of Wednesday 9 October, Mr Cini and Rhys went to the factory in Brooklyn, where they removed the six large plastic containers from the rear of Mr Cini's car and placed them in a shipping container. They then left.

28 At 12:35 p.m. and 12:49 p.m. the same day, Mr Tawachi went to National Storage and Storage King respectively and paid cash to extend the lease for each storage unit for a further three months.

29 Later that day, i.e. 9 October 2013, police arrested Mr Cini, Rhys and Mr Tawachi and conducted searches at various premises. Police found the following packages containing the substituted product at the following locations:

a) 126 packages in containers, and 34 packages in a removed tyre, at the factory in Brooklyn;

b) six packages in an "Esky" in the garage of Mr Cini's house in Altona Meadows;

c) three packages in the roof of Rhys's house in Point Cook;

d) 15 packages (five in each of three sports bags) in a locked trailer inside the storage unit at National Storage in Hoppers Crossing; and

e) 15 packages (again, five in each of three sports bags) in a locked trailer inside the storage unit at Storage King in Hoppers Crossing.

30 When spoken to by police, Mr Cini, Rhys and Mr Tawachi each made a "no comment" interview.

31 On 21 November 2013, Mr Cini participated in a further interview with police. During this interview, he said inter alia:

He received cash and instructions from an un-named Melbourne male who requested that the truck be imported and to ensure that the truck had tubeless tyres.
The cash and the instructions made him suspicious.
When the truck arrived at the Brooklyn factory, Rhys told him to remove the wheels.
Rhys told him the substance inside the tyres was "crystal meth".
He continued unpacking the contents because "panic set in".
Rhys told him "his share" would be $800,000.
Rhys told him that "a friend in Sydney" would travel to Melbourne to collect "the stuff".

Patrick Cini's admissions inadmissible against Rhys Cini

32 These passages in Mr Cini's interview formed part of the written summary but were not read out to the Court when Rhys's matter was opened. Mr Gurvich accepted that, while those admissions or assertions made to police are admissible in Mr Cini's own case, none of that evidence is admissible in the case against Rhys.

33 Equally, as I pointed out to Mr Tyrell, who appeared for Rhys on the plea, because there was no account from his client to police and because he did not give any evidence on the plea, I am left to attempt to determine important aspects of Rhys's involvement in the offending from the nature of the charge, the agreed facts, the depositions and any exhibits tendered on the plea - and all in light of the submissions of counsel.

34 Section 16A(2) of the Crimes Act 1914 (Cth) ("the Crimes Act") provides that, in addition to any other matters, the Court in sentencing must take into account various matters listed in the subsequent paragraphs, in so far as they are relevant and known. The first matter listed is the nature and circumstances of the offence. I turn to that issue now.

35 The maximum penalty for attempting to possess a commercial quantity of an unlawfully imported border controlled drug is life imprisonment or 7,500 penalty units or both. Thus, it is plain that the legislature regards this type of offending as potentially very serious.

36 The role an offender plays in an offence of this nature is an important factor in determining the gravity of the instant offence.

37 Mr Tyrell explained that Rhys had been employed by his father at Motek on a modest weekly wage from 2012. His instructions were that, after the truck reached the factory, Rhys was told by his father of the drugs and of the need to remove the tyres to extract them. He submitted that the SMS from Mr Cini - "Leave work till Monday" - was consistent with the view that it was not Rhys, but his father, who was directing things. He pointed to Mr Cini's higher level of education and his success in business, as compared with Rhys's modest education and more subordinate role both at Motek and in other jobs, as being consistent with that characterization. He also pointed to Mr Cini's involvement in the importation, and all of the logistical organization that that involved, as compared with Rhys's not being involved in the importation at all, as rendering it likely that Rhys had a more modest role in the attempt to possess. He submitted that the fact that six of the 205 packages were found at Mr Cini's house, whereas only three were found at Rhys's house, gives some clue as to the relativities of their respective roles or involvement. In summary, Mr Tyrell described his client as no more than a "deck hand" in the offence of attempting to possess the drugs.

38 As Mr Gurvich pointed out, it is not so much the label attached to an offender's role that matters; rather, it is more instructive to look at what he did. He submitted that Rhys's role was significant because he assisted his father in arranging for the truck's registration, in taking delivery of it, in transporting it to the factory, in buying tools and equipment to remove the packages, and in removing the packages. Further, Rhys stored three packages at his home and, with the assistance of Mr Tawachi, moved 30 packages to the storage facilities.

39 In my view, whatever label is attached to it, Rhys's role in the offending was significant. His involvement in getting the truck to the factory, removing the packages and then moving some of them to the storage facilities, but for the intervention of the police in Brisbane, had the potential to allow the principals to collect and then distribute the drugs into the community. Equally, however, Rhys is not charged with the importation. Further, on the evidence admissible against him, it is not open to say that he was the initiator of the attempt to possess the packages. Rather, I cannot exclude the reasonable possibility that he was no more than his father's assistant in the removal of the packages and that he was recruited at a late stage. Unlike his father, however, he was involved in moving 30 packages to the storage facilities. Overall, Rhys's role was an important one, but less significant than his father's role, and well below that of the initiators of the importation or those who stood to gain massively from it.

40 The quantity and value of the drugs the subject of an attempt to possess, the offender's belief as to the amount to be possessed and its value, and the value of any reward the offender may have expected, are among the matters that go to the seriousness of the particular offence.

41 By any measure, 161.5 kilograms is a very large and valuable amount of methamphetamine. That amount is about 215 times the statutory threshold for a commercial quantity. Police estimated the potential wholesale value of the drugs to be between $57 million and $67 million, and the potential "street" value to be between $100 million and $200 million.

42 While I accept that Rhys would not necessarily have been aware of the precise nature, quantity or value of the drugs before embarking on the removal of the packages from the tyres, his plea of guilty accepts that he was aware that he was attempting to possess a border controlled drug. Further, if he did not know earlier, he obviously became aware of the considerable number of packages during their removal, and would have believed those packages contained a very substantial amount of illicit drugs, and that they were of very substantial value, yet he continued his involvement until his arrest.

43 Mr Tyrell submitted, correctly, that there was no evidence of any reward, but I also took him to accept, sensibly, that common sense would dictate an expectation of some reward.

44 The very large quantity of methamphetamine, its massive potential value, Rhys's belief that the amount and value of the packages was very substantial, and his role in the extraction and movement of the drugs - all of these factors make this a reasonably serious example of a very serious offence. That said, I accept that I must sentence Rhys on the basis that he was not a principal in the offending; that his role was to assist his father in the extraction of the packages and then to move some of them to storage containers; and that, as important as his role was, he is to be ranked below his father (who also had a role in importing the drugs) and well below those behind the offence and who stood to profit massively from its successful completion.

45 I turn now to the factors in mitigation. Section 16A(2) of the Crimes Act sets out a non-exhaustive list of matters to be taken into account. Among them are the following:

46 First, there is Rhys's plea of guilty, which was entered at the first reasonable opportunity. On 26 February 2014, Rhys was committed for trial in this Court following his acceptance of a straight hand-up brief in the Magistrates' Court. He pleaded guilty at that time. He then pleaded guilty upon arraignment in this Court on 12 March 2014. As indicated earlier, after instructing new lawyers, Rhys sought to investigate the possibility of an application to change his plea. That application, however, was never made, and the plea of guilty was maintained. Thus, not only has the cost of a trial been avoided, but no witnesses have been put to proof in either the Magistrates' Court or this Court.

47 Further, in my view, the plea of guilty also indicates Rhys's acceptance of responsibility from an early stage and a willingness to facilitate the course of justice.

48 Secondly, I am satisfied that Rhys is genuinely contrite for his offending. There are several reasons. First, he pleaded guilty at the first reasonable opportunity. Secondly, Rhys's partner, his mother, his sister and his uncle, whose references were tendered without objection on the plea, all attest to his shame and remorse. Thirdly, Dr Aaron Cunningham, a forensic psychologist who examined Rhys and whose report was also tendered without objection on the plea, observed that he "takes responsibility for his [offending]". Fourthly, Rhys's partner and his mother attest in their references to Rhys's distress in gaol at seeing the effects of drugs on other prisoners and their families, and the anguish he feels at being involved in drug-related offending. Fifthly, to my observation, Rhys's manner in Court is consistent with a man who accepts that he has committed a very serious crime for which he is truly sorry.

49 An early plea of guilty that is accompanied by remorse is deserving of substantial weight in mitigation.

Prior good character and absence of prior convictions

50 The third matter in mitigation is this: Rhys Cini, at age 30, has no criminal history. He has worked hard in various jobs since leaving school, supported his mother through difficult times, supported his partner and her child and generally contributed to the community. While it is often said, correctly, that prior good character generally carries less weight in offences of this nature, in my view, it is nevertheless of some considerable significance that Rhys is to be sentenced as a person of previously unblemished character and who has made significant contributions to the lives of others.

51 Fourthly, in my view, Rhys has excellent prospects of rehabilitation. There are several reasons:

52 First, his early plea of guilty, acceptance of responsibility, remorse and lack of prior convictions all point in that direction and suggest he is very unlikely to reoffend.

53 Secondly, as indicated earlier, Rhys has a history of hard work and self-reliance. While he did not perform well at school academically, the reference material shows that he has worked hard in various occupations, including running a café with his mother, in hospitality, in supermarkets, on the docks and with his father at Motek. He has found gaol difficult, but he has tried to make the best of things by doing courses and turning his attention to helping other prisoners. He is keen, when released, to be employed in an area where he might help others. Accordingly, I am satisfied that Rhys Cini is the type who is likely to make the best of things and improve himself both inside prison and upon his release.

54 Thirdly, the character references show that he has the support of friends and family in such endeavours. For example, there is a reference from Vikki Cini, who is Rhys's mother. Mrs Cini describes her son as hard-working, caring, of great support to her in difficult times and as extremely trustworthy. The offending was a shock to her. References from Rhys's partner Hadeel Almatrah, his sister Leanne Cini, his uncle Henry Cini, his general practitioner Dr Kieran Keane, and his friend Ivan Bartolo are to a similar effect. It is likely that Mr Cini will have the support and comfort of these people during and beyond his sentence.

55 Fourthly, Rhys has no history of illicit drug use or alcohol abuse. On the contrary, it is apparent from the reference material that he has found prison to be educative in that regard. He has seen first-hand what drugs can do to prisoners and their families. This has made him all the more ashamed of his offending and determined to atone for his behaviour.

56 Fifthly, while Dr Cunningham is of the view that Rhys suffers symptoms of an adjustment disorder and clinical depression, and that he is "shattered" at his separation from his partner and her child, I do not consider these afflictions are likely to be an impediment to his rehabilitation. His depressed state, which is no doubt compounded by his concern for his partner and her child, is likely to make his time in custody more onerous, which itself is a mitigating factor to which I have had regard. But these difficulties do not reduce his prospects of rehabilitation.

57 Section 16A(1) of the Crimes Act provides inter alia that, in determining the sentence to be passed for a federal offence, a court must impose a sentence that is of a severity appropriate in all the circumstances of the offence. That provision might be thought to incorporate the common law notion of parsimony. Whether or not that is correct, I have applied that principle, and the terms of s 16A(1), when considering the appropriate sentence in this case.

58 I turn now to the purposes of sentencing. I have just mentioned s 16A(1) of the Crimes Act, which, by use of the term "appropriate severity", might be thought to embrace several of the common sentencing purposes. Section 16A(2) refers to familiar notions such as specific deterrence, punishment and rehabilitation. While not listed in s 16A(1) or (2), general deterrence is nevertheless considered to be a potentially relevant purpose in sentencing for federal offences.

General deterrence, denunciation and just punishment

59 Anyone who has observed the criminal law in operation in recent years knows that the consumption of methamphetamine (or "ice") tends to be related to human misery in many forms. To take just one example, in this Court, we see the misery on the faces of those whose loved ones have been injured or killed by persons affected by "ice", and the disbelief on the faces of the families of the offenders when their loved ones are sent to prison. It is just awful.

60 While such horrible outcomes are not to be factored into the sentences imposed upon those convicted of attempting to possess unlawfully imported border controlled drugs in commercial quantities, nevertheless, against the background of misery to which illicit drugs are, at least in some cases, related, this Court is entitled to say, and does say, that general deterrence, just punishment and denunciation are important considerations when sentencing for offences of this nature. Others in the community should understand that anyone who might be minded to engage in such offending will receive stern and just punishment. The community should also know that this Court will denounce such behaviour. And I do.

Specific deterrence and protection of the community

61 Given Rhys's early plea of guilty, acceptance of responsibility, remorse, previous good character and prospects of rehabilitation, and my conclusion that he is unlikely to reoffend, I consider that the sentencing purposes of specific deterrence and protection of the community are of only very modest significance in the present case.

62 In my view, rehabilitation remains an important consideration. This is particularly so because Rhys's prospects of rehabilitation are so strong. Shortly, I shall say more about rehabilitation when discussing the appropriate non-parole period.

63 Mr Gurvich provided the Court with a table of sentences imposed in several cases involving the importation of border controlled drugs, or the possession or attempted possession of such drugs, in relatively large commercial quantities. I have read the reasons for sentence in the cases listed in the table and have also considered the sentences imposed, and reasons for their being imposed, in other like cases as well.

64 Two of the many cases I considered, but which are not in the Director's table, are R v Franco & Ors [2006] VSCA 302 and DPP (Cth) v Aisbett & Giampaolo [2009] VSCA 172. Those cases initially struck me as useful comparators because both matters involved the possession, or attempted possession, of very large amounts of imported illicit drugs (one concerned three tonnes of cannabis resin; the other 500 kilograms of ecstasy) and it might be said that the role played by the offenders in each of those cases was somewhat similar to Rhys's role. Those offenders were hired to help, at a relatively late stage, in the unloading of the illicit drugs. The sentences imposed in those cases ranged from five to seven years' imprisonment. Each offender had been found guilty after a trial. On reflection, however, I consider Rhys's role to be substantially more serious than the roles played by those offenders. He was more involved from an earlier stage, had a more significant role in the removal of the packages, must have come to believe, while removing the packages, that there was a vast and very valuable amount of drugs in the tyres, was involved in removing all of those packages, was involved in moving 30 packages to the storage facilities, and even had three further packages in the ceiling of his own home.

65 On the other hand, closer to the mark, but, in my view, still less culpable than Rhys's behaviour, was the offending described by Kaye J in R v Ramazanoglu [2013] VSC 724. Again, one of the drugs the subject of the attempt to possess in that case involved a quantity of a similar, but lesser, order of magnitude (133 kilograms of methamphetamine) and the offender in question was more in the category of "hired help" when compared with others charged with offences arising out the importation. His Honour imposed a sentence of eight years' imprisonment on that particular charge. The offender had pleaded guilty, had no prior convictions and was aged 29. Thus, there are some similarities with the present case. Kaye J, however, made it clear that there were other powerful personal considerations that caused him to reduce the sentence substantially. Those considerations are inapplicable in Rhys's case.

66 At the other end of the spectrum, some offenders in positions not too dissimilar from Rhys's position have received sentences of 11 years' imprisonment (see, e.g., Mr Yung in R v Yim & Ors [2012] VSC 325) and even 15 years' imprisonment (see, e.g., Ma v The Queen [2010] NSWCCA 320). (I should add that Ms Ma's offending struck me as more serious than Rhys's.)

67 I could go on with comparisons. But, in the end, it is almost always difficult usefully to compare sentences imposed in other cases. No two cases are ever truly alike. And, in any event, sentences are not precedents to be compared and distinguished. Further, there does seem to be a large variation in the sentences imposed for like offending. Nevertheless, I have found these sentences, and the reasons given for imposing them, instructive in gauging the order of sentence imposed for offences of this nature, and the extent to which those sentences tend to be affected by various aggravating and mitigating factors.

68 In the end, however, because of the limits of that process, I have been driven to rely principally on the particular circumstances of this case and sentencing principles to arrive at the appropriate sentence.

69 In considering this matter, I have also had regard to the sentence to be imposed upon Rhys's father.

70 One complicating factor in assessing the respective roles of father and son, and in the application of the principles of parity between co-offenders, is that Mr Cini's admissions to police are admissible against him but not against his son. Thus, for example, while Mr Cini's account has Rhys being involved earlier and introducing him to a principal, and later telling him things about the nature of the drug and that the reward to be received was $800,000, none of that evidence is admissible against Rhys. Further, unlike his father, Rhys is not charged with importation, and is not in any way to be sentenced as if he were involved in that offence. On the evidence admissible in Rhys's case, and having regard to the more limited nature of the charge on which he has been indicted and to which he has pleaded guilty, I regard his criminality to be substantially more confined than his father's criminality is on the evidence admissible in his (Mr Cini's) case.

72 Balancing all matters as best I can, on the offence of attempting to possess a commercial quantity of an unlawfully imported border controlled drug, namely methamphetamine, Rhys Cini is convicted and sentenced to ten years' imprisonment.

73 Pursuant to a 19AB of the Crimes Act, I fix a non-parole period of six years.

74 The non-parole period is relatively short when compared with the head sentence. While all mitigating factors affect both the head sentence and the non-parole period, some can have especial weight in fixing the non-parole period. Rhys Cini's excellent prospects of rehabilitation, and his previous good character, plea of guilty and remorse, have moved me to fix this particular non-parole period.

75 Pursuant to s 16F of the Crimes Act, I direct that Rhys Cini's solicitor or counsel explain the purposes and consequences of the fixing of a non-parole period and the particular factors mentioned in s 16F(1)(a)-(f).

76 Pursuant to s 16E of the Crimes Act, read with s 18 of the Sentencing Act 1991 (Vic), I declare that 325 days of pre-sentence detention are to be reckoned as already served under the sentence.

77 There is some debate about whether s 6AAA of the Sentencing Act 1991 (Vic) applies to sentencing for federal offences.[1] Rather than enter into that debate, I think the preferable course is to assume the provision is applicable and make a declaration.

78 This is necessarily an imprecise exercise. That is because pleas of guilty tend to be interconnected with other mitigating factors. For example, in this case, the plea of guilty adds to Rhys's claims to remorse and his prospects of rehabilitation. Nevertheless, I can say that, had Rhys not pleaded guilty, I estimate I would have imposed a sentence in the order of 14 years' imprisonment with a non-parole period in the order of ten years.

79 For the avoidance of doubt, I repeat: the actual sentence imposed on Rhys Cini is ten years' imprisonment with a non-parole period of six years. And I have declared 325 days of pre-sentence detention.

[1] See, e.g., R v Yim & Ors [2012] VSC 325 at [47] per T Forrest J; R v Ramazanoglu [2013] VSC 724 at [66] per Kaye J.

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Judgment (94 paragraphs)

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