The Queen v Ramazanoglu [2013] VSC 724

Supreme Court of Victoria|2013-12-20|Before: KAYE J

CRIMINAL LAW - Sentence - Two counts of attempt to possess a commercial quantity of an unlawfully imported border controlled drug - One count of trafficking a commercial quantity of a controlled drug

Solicitor to the Commonwealth Director of Public Prosecutions

2 The first indictment contains three charges. You have pleaded guilty to two charges, on that indictment, of attempt to possess a commercial quantity of an unlawfully imported border controlled drug, contrary to s 11.1(1) of the Commonwealth Criminal Code. The drug, which was the subject of the first count, was methamphetamine, and the drug, which was the subject of the second count, was cocaine. The two charges, to which you have pleaded guilty, allege that you committed those offences between 11 October 2011 and 26 October 2011. The third charge on the first indictment, to which you have pleaded guilty, is a charge of obstructing a Commonwealth public official, contrary to s 149.1(1) of the Commonwealth Criminal Code.

3 The second indictment contains three charges. The first charge, on that indictment, to which you have pleaded guilty, is that on 26 October 2011 you trafficked a commercial quantity of a controlled drug, namely methamphetamine, contrary to s 302.2(1) of the Commonwealth Criminal Code. The second charge, on the second indictment, to which you have pleaded guilty, is that on that date you were in possession of an unregistered category C or D longarm contrary to s 6A(2) of the Victorian Firearms Act 1996. The third charge, on that indictment, to which you have pleaded guilty, is that on that date, you did, contrary to s 129A of the Firearms Act 1996, being an unlicensed person, possess and store a firearm in an insecure manner.

4 The facts, in relation to the charges to which you have pleaded guilty, and on which I rely to sentence you, are contained in the prosecution summary, which constituted a statement of agreed facts for the purpose of your plea.

5 The drugs, which were the subject of the first two charges on the first indictment, were imported into Australia from Mexico on board the vessel "Manet". They arrived in the Port of Melbourne on 11 October 2011. The drugs were contained in a consignment of 672 cartons of Cucapa beer. The consignee was a company called AAMA Pacific Pty Ltd, the co-owners of which were Anthony Sitar and Adrian Franze. There is no suggestion that you were involved in the importation of that consignment, and, for the purposes of sentencing you, I act on the basis that you had no connection with it.

6 After the arrival of the consignment at the Port of Melbourne, it was searched by Customs officials and members of the Australian Federal Police. They found that most of the bottles in 34 of the cartons tested positive for the presence of methamphetamine, and that most of the bottles in 12 other cartons tested positive for the presence of cocaine. The Australian Federal Police removed the suspect bottles from the 46 cartons, and replaced them with identical bottles which contained inert substances. Those 46 boxes - which in the proceedings have been described as the "controlled delivery" - were then replaced in the consignment.

7 The consignment was then released to the Customs agent acting for AAMA Pacific. In due course, the consignment was delivered to the premises of that company at Westside Drive, Laverton North, in the late afternoon of 24 October. On its delivery, it was unloaded and stored at those premises by Sitar and Franze.

8 On the next day, Sitar and Franze removed from the consignment the 46 boxes of the controlled delivery, and loaded them onto a van. They transported the 46 boxes to premises at Fairbairn Road, Sunshine, which were leased by an employee of Sitar. At those premises, Sitar and Franze unloaded the 46 boxes and stored them there.

9 By 26 October, you had obtained possession of a mobile telephone number which was subscribed in the name of another person. That person has provided a statement to the police stating that he has had nothing to do with the subscription for that telephone, and he has never had access to it. Subsequent analysis of SMS messages transmitted to and from that telephone number reveals that in the early hours of 26 October 2011, you were in contact with a mobile telephone number used by Franze and a mobile telephone number used by one Eric Ferdusi. Those messages, and other evidence, reveal that, at about 2.20 am on 26 October, Ferdusi and you attended at the Fairbairn Road premises. There you took possession of the bottles comprising the controlled delivery, and conveyed them to your home address at Roberts Road, Yarraville.

10 Electronic surveillance conducted by the police at your home address demonstrated that, during the day of 26 October, you were engaged in opening the bottles which were contained in the consignment, and pouring out the contents of those bottles. You were also recorded having discussions concerning disposing of the bottles and boxes.

11 At 6.08 pm on 26 October, members of the Australian Federal Police entered your premises at Yarraville pursuant to a search warrant. You were there with Ferdusi. On seeing members of the police, you attempted to eat a piece of paper, and you also obstructed a police member by struggling against him and kicking at his legs. You were handcuffed by that police member with the assistance of another member. It is those actions by you which constitute the offending alleged in the third charge on the first indictment of obstructing a Commonwealth public official, to which you have pleaded guilty.

12 Police members were able to remove the piece of paper which you had put into your mouth. It contained a number of handwritten notes, including a notation to "get rid of bottles". Analysis of the handwriting on the piece of paper demonstrated that the notes were partially written by Adrian Franze.

13 During the execution of the search warrant at your home, 39 slabs of Cucapa beer were found stacked in your garage, together with one cut up slab of Cucapa beer, and 38 empty Cucapa beer bottles. All of those slabs, together with the 38 empty bottles, were proven, by forensic analysis, to be part of the controlled delivery.

14 A forensic examination was then undertaken of the bottles, that were seized from the consignment. The total net weight of the methamphetamine suspension contained in the bottles was 300.9 kilograms; the weight of the pure methamphetamine derived from that suspension was 133.3 kilograms. The total net weight of the cocaine suspension was 79.6 kilograms; and the weight of the pure cocaine derived from that suspension was 14.1 kilograms.

15 On the following day, Franze handed himself in to the Australian Federal Police and was arrested. At his trial earlier this year, Franze was convicted by the jury of two counts of attempting to possess a commercial quantity of an unlawfully imported border controlled drug. He was sentenced, in August, to a total term of 17 years' imprisonment, with a minimum non-parole period of 13 years' imprisonment. Anthony Sitar, in the meantime, had fled the jurisdiction, and as yet the police have not been able to locate him.

16 The charges, which are the subject of the second indictment, arise out of the execution by the Australian Federal Police of a search warrant on 29 October 2011 at the Fairbairn Road premises. On that day, the Australian Federal Police found a refrigerator on the upstairs mezzanine level of the premises, which was secured with three chains and three padlocks. On opening the refrigerator, it was found to contain a quantity of methamphetamine. It is those drugs which are the subject of the first charge on the second indictment, to which you have pleaded guilty. Police investigations revealed that you had purchased the padlocks and chains to secure the refrigerator, which contained the methamphetamine. You had possession of a key to one of the padlocks, which was found located in your home after your arrest. The first charge is that you trafficked the methamphetamine in the refrigerator in a commercial quantity. By purchasing the padlock and chains used to secure the refrigerator, you guarded or concealed the substance in it. That conduct by you is the basis of a statutory presumption that you thereby trafficked the substance.

17 Forensic analysis of the methamphetamine, seized from the fridge, revealed the total weight of the substance to be 46.3 kilograms; the calculated minimum net weight of pure methamphetamine was 3.4 kilograms, and the calculated maximum net weight of pure methamphetamine was 5.6 kilograms.

18 The second and third charges on the second indictment relate to the finding by the police of two large safes in the ground floor kitchen at the Fairbairn Road premises. Those safes contained, among other items, one Naughton 22 calibre semi-automatic rifle, and ammunition. That rifle constituted an unregistered category C or D longarm. Your possession of it at those premises is the basis of the second charge on the second indictment, to which you have pleaded guilty. The rifle was stored in an insecure manner, in that it was stored together with cartridge ammunition for that rifle. It is on that basis that the third charge on the second indictment, to which you have pleaded guilty, alleges that you stored the firearm in your possession in an insecure manner.

19 On the evidence which is available, it is difficult to assess precisely what role you played in the drug-related offending, which constitutes the principal charges on each of the two indictments. It is clear that Anthony Sitar was the moving force behind the joint criminal enterprise, which involved the attempt to possess the two substances which are the subject of the first two charges on the first indictment, namely, the commercial quantities of methamphetamine and cocaine, each of which constituted an unlawfully imported border controlled drug. Adrian Franze played an important and substantial role in that enterprise. By contrast, on the evidence which is available, I am satisfied that your role was substantially less significant than that of either Sitar or Franze.

20 As I have already indicated, Franze played a prominent role in receiving the consignment at the Westside Drive premises, and in assisting to move the part of the consignment, which was believed to contain the unlawfully imported drugs, to the Fairbairn Road premises. There is no evidence that you played any role in either of those activities. The actions, by which you became involved in the attempted possession of those two substances, were performed by you after, it seems, Sitar and Franze had become aware that the authorities had become suspicious of the consignment that was then stored at the Fairbairn Road premises. On the evidence relied on by the prosecution, your role involved, and was restricted to, you moving the consignment to your home, and disposing of its contents there.

21 The only evidence, in relation to the trafficking of a commercial quantity of methamphetamine, which is the subject of the first charge on the second indictment, consists of the fact that you had purchased the chains and padlock, which were used to secure the refrigerator in which the methamphetamine was found at the Fairbairn Road premises. As I have already stated, the amount of the methamphetamine stored at those premises gave rise to a presumption that you were in possession of the substance for the purpose of trafficking it. You are alleged to have trafficked in the substance on the basis that you guarded or concealed the substance with the intention of that substance being sold. There is no evidence that you yourself were involved, or were intended to be involved, in the process of selling the methamphetamine. Thus, I shall sentence you on the basis that your part in the enterprise, involving the trafficking of the substance contained in the refrigerator, consisted of, and was restricted to, the actions you performed to secure and thereby conceal the substance in the refrigerator at the Fairbairn Road premises.

22 The offences, which constitute the first and second charges on the first indictment (the attempt to possess a commercial quantity of an unlawfully imported border controlled drug), and the offending in the first charge on the second indictment (the trafficking of a commercial quantity of a controlled drug, namely methamphetamine) are particularly serious. The maximum sentence for each offence is life imprisonment, reflecting the seriousness with which the law regards the type of activity in which you engaged. The weight of the pure methamphetamine, involved in the first charge on the first indictment, was 177 times the amount prescribed as constituting a commercial quantity of that drug. The weight of the pure cocaine, which was the subject of the second charge on the first indictment, was seven times the amount prescribed for a commercial quantity of that drug. The weight of the methamphetamine, which was the subject of the first charge on the second indictment, was between four and seven times the amount prescribed for a commercial quantity of that drug. While there is little evidence as to the value of the two substances, nevertheless, as a matter of common knowledge, it is clear that you were engaged in an enterprise which, if it had been successful, would have resulted in extremely large profits for that enterprise.

23 In each case, the only reasonable inference is that you knew that the amount of drugs involved was large. However, there is no evidence, from which it might properly be concluded that you knew the precise or approximate amount of drugs which were involved. In particular, there is no evidence from which I could conclude that you knew that the consignment, imported by AAMI Pacific, and which is the subject of the first two charges on the first indictment, contained such a particularly large quantity of drugs. Nor is there any evidence as to what knowledge you had about the purity of the drugs.

24 As I have stated, the offences, for which you have been convicted, are particularly serious, and the amounts of drugs involved in each of them were most substantial. The devastating effects of illicit drugs on our society are well known. Those persons, such as yourself, who engage in this type of offending, are well aware of the highly damaging effects which drugs have on members of our community, and in particular on our young and most vulnerable citizens. Your offending involved you participating in a thoroughly evil and parasitic enterprise, with no regard for the fate of those whose lives and health might be ruined by it.

25 In general, it is recognised that the principle of general deterrence must play a prominent role in sentencing in cases such as this. The large profits, which are derived from trafficking illegal drugs, create a strong incentive to commit such offences, which can only be suitably offset if those, who contemplate offending, are made aware that, if they are detected, they will face long terms of imprisonment. In the absence of appropriate mitigating circumstances, I would, therefore, be obliged to sentence you to a particularly long term of imprisonment for the offences, to which you have pleaded guilty.

26 On the other hand, I do consider that, in your case, there are important mitigating circumstances. First, you have pleaded guilty to the charges contained on both indictments. In doing so, you have saved the community the cost of two criminal trials. Further, by your plea of guilty, you have publicly acknowledged your wrongdoing. In addition, I am satisfied, particularly by the reference which was prepared by your mother, that you have gained genuine insight into, and expressed sincere remorse for, your wrongdoing. You have expressed to your mother a proper understanding of the devastating effect which your offending could have had on society, and, in doing so, you referred to a recent incident, in which some innocent people were tragically killed by a drug affected person.

27 The other mitigating factors relate to your personal circumstances. In particular, you had a difficult childhood, in which your parents separated. You suffered abuse at school. You have a long standing drug problem. You also have serious psychological problems, from which you have suffered for some years, and which have deteriorated significantly in recent times while you have been in custody. On the other hand, and notwithstanding all those difficulties, before your arrest you had a good work record. You only have one previous conviction which, in the context of this case, is minor.

28 In order to fully understand those matters, it is necessary to set out matters relating to your background in a little detail.

29 You are 29 years of age, having been born in December 1984. You have an older sister and a younger sister. Your father left your family when you were 3 years of age. Your parents' separation had a profound effect on you, and, notwithstanding your early years, you were not able to accept the absence of your father. Your grandparents played a prominent role in your upbringing. Unfortunately, your grandfather was a heavy drinker, and you witnessed, and suffered, a number of bouts of violence performed by him.

30 You were educated at Hoppers Crossing in your primary and secondary school years. At the age of 13, you were subjected to a severe assault by a teacher, while you were attending a school camp. You first mentioned that incident when you attended the DAS Youth Outreach Team at the Western Hospital in November 2006. For some time, you had difficulty revealing the nature of that assault. However, ultimately, you told the counsellor there that you were sexually assaulted on that occasion. You have, subsequently, told two psychologists and two psychiatrists that the assault by the teacher was a sexual assault. In recent times you have expressed some doubt about that matter. However, the manner in which you revealed the nature of the assault to a number of different professional people is such that, for the purposes of sentencing you, I am satisfied, on the balance of probabilities, that you were the victim of a serious sexual assault in your early teenage years. It also appears that the assault was quite violent, and you sustained visible injuries to your back as a result of it.

31 During your years of secondary school, you exhibited a number of behavioural difficulties, and ultimately you were expelled from school before you had completed Year 10. The reports, which have been tendered on your plea, do not reveal whether the assault, which I have just mentioned, played a role in causing those behavioural difficulties.

32 After leaving school, you worked for some time in a bakery. You then undertook and completed an apprenticeship in carpentry with Mr Michael Suchanek. You worked for him for five and a half years. In a testimonial tendered on your plea, Mr Suchanek states that you were a diligent and efficient worker, and he rates you as one of his most highly skilled and capable apprentices.

33 After your employment with Mr Suchanek, you then established your own business in which you worked as a sub-contract carpenter. You were engaged in that capacity for five to six days per week, until the time of your arrest in October 2011.

34 You have a long standing problem with the abuse of illegal drugs. You commenced using cannabis when you were 15 years of age. Since then, you have used amphetamines, cocaine, heroin, LSD and ecstasy. You have also abused anabolic steroids. When you presented to the DAS Youth Outreach Team at the Western Hospital in November 2006, you reported that you then were using, on a daily basis, high levels of cannabis, and you were also using methamphetamine (Ice) each week. In June 2009, you were convicted and fined by the Magistrates' Court at Werribee on one charge of cultivation of cannabis, one charge of possession of cannabis, and theft of electricity. It seems, from the materials tendered on your plea, that those charges were connected with, and reflected, your ongoing abuse of illegal drugs.

35 In a testimonial tendered to the court, your mother states that during the latter years of your apprenticeship, when you were approximately 19 or 20 years of age, she first noted that you appeared to be psychologically unwell. She took you to be reviewed by a mental health practitioner at a public hospital, and it was suggested that you re-attend for review. However, you did not do so because you moved out of home.

36 As I stated, in November 2006, when you were almost 22 years of age, you attended, on two occasions, at the DAS Youth Outreach Team at the Western Hospital. At your first attendance, you stated that you were worried about your lack of motivation at work. You alluded to an incident in your past, which you then did not wish to describe or discuss. I assume that that incident was the assault on you by a teacher, to which I have referred. You reported that you intermittently heard voices.

37 On your second visit to the Outreach Team, you again described the same problems involving drug use, poor motivation, and hearing voices. The case notes record you as having symptoms of depression and anxiety and, in particular, that you were suffering panic attacks. On that occasion, you told the Outreach Team about the sexual assault on you. The case notes state that you previously had post traumatic stress disorder following that assault, and the notes describe a number of the symptoms which are typical of that disorder. You denied that you still had post traumatic stress disorder at that time, but you were angry and distressed when you talked about the assault. At that time, you were diagnosed as having long standing anxiety symptoms, and more recent depressive symptoms. You also presented with ongoing auditory hallucinations and persecutory ideas, in the context of the abuse by you of amphetamines.

38 You next attended a mental health practitioner in March 2009, when Mr Jeffrey Cummins, a clinical and forensic psychologist, examined you for the purposes of the case which was before the Werribee Court. At that time, you told Mr Cummins about the sexual assault on you, but you instructed him not to refer to that in his report to the court. Rather, you described the incident as a vicious physical assault on you by the school teacher. In his report, Mr Cummins described you as having a chronic adjustment disorder, with mixed disturbance of emotions and conduct triggered by that assault. He stated that you required ongoing psychological treatment.

39 Following that assessment, you consulted Mr Cummins on five occasions, between August 2009 and March 2010, for treatment. It was during that time that you made extensive disclosures to Mr Cummins about the abuse perpetrated on you by the teacher. You reported to him a history of post trauma dreams and nightmares. Mr Cummins was of the opinion that you had been significantly traumatised by that incident, and he diagnosed you to have a severe post traumatic stress disorder. He noted that you were still in a state of partial denial relating to the incident with your teacher. Mr Cummins was sufficiently concerned about you to refer you to a general practitioner in Richmond for treatment. You attended that practitioner on one occasion, and you also attended a second medical practitioner at about the same time. Each of those medical practitioners found that you suffered significant anxiety and depression, and they prescribed anti-depressant medication for those conditions.

40 In March 2010, you ceased to consult Mr Cummins. In May 2010, you then consulted another psychologist, Dr Matthew Barth. You attended ten counselling sessions with Dr Barth between May 2010 and March 2011. Following your arrest on the present matters, you requested Dr Barth to provide you further treatment at the Metropolitan Remand Centre. Between 21 June 2012 and the present date, Dr Barth has attended upon you and provided to you 21 treatment sessions. Dr Barth has provided four reports as to his attendances on you, and he also gave evidence on your plea.

41 When Dr Barth evaluated you on 21 June 2012, you were particularly distressed. You had difficulty following Dr Barth's conversation with you. You presented with intense depressive and anxiety related symptoms, which were characterised by an intense fear that something terrible would happen to you. You were still experiencing auditory hallucinations.

42 In subsequent assessments, you continued to exhibit the same symptoms. In particular, in the last four months, Dr Barth states that you have continued to present with severe depressive and anxiety related symptoms, and that you have become increasingly fatigued and distressed. You have had difficulty sleeping, and your thoughts have been dominated by memories of the abuse you suffered during your childhood. As a result, you have elevated levels of depression, anxiety, fear and hopelessness. It is of particular concern that, in recent consultations, there has been an escalation in thoughts by you of self-harm. In his evidence on your plea, Dr Barth expressed significant concern as to that aspect of your mental health.

43 Dr Barth has been actively treating you with emotional regulation training, and supportive counselling. In recent times, he has commenced the process of working with you through your traumatic memories. However, the treatment has only achieved very limited progress, and your emotional distress has continued to intensify as the date for your plea approached. In this respect, your plea was first listed for 12 December 2013. On that date, you were most distressed, and the hearing had only progressed for five minutes when you became so overwhelmed emotionally that it had to be adjourned.

44 In conclusion, Dr Barth expressed the view that you suffer significant emotional distress due to the severity of your symptoms associated with post traumatic stress disorder. Your emotional state has continued to deteriorate, and without long term psychiatric intervention and empirically validated psychological treatment for your post traumatic stress disorder, your prognosis is poor. This is particularly concerning in light of the increase in thoughts by you of self-harm during the last six months. Dr Barth considers that you require intensive psychological treatment. It is a matter of concern that it appears that the authorities, at the Metropolitan Remand Centre, have not been able to make available to you specific treatment for your post traumatic stress disorder. In addition, there appears to have been some difficulty in your relationship with the medical staff in prison, and you have not been on any anti-depressant medication for twelve months. Dr Barth considers that you require immediate psychopharmacological intervention, and that you should be trialled on alternative anti-depressant medication. You also need intensive psychological treatment to achieve some progress in alleviating your symptoms of post traumatic stress disorder.

45 You have also been examined by two psychiatrists in the last two years. In December 2011, and in December 2012, Dr Danny Sullivan, a consultant psychiatrist, examined you at the Melbourne Assessment Prison. He considered that you suffer post traumatic stress disorder related to the sexual abuse of you when you were at school. He also noted that you have a history of poly-substance abuse, and that you exhibited a range of features of anxiety and of moderate depression. Dr Sullivan expressed the view that, in light of those matters, a term of imprisonment would be more burdensome for you, and may be associated with difficulties in coping and increased distress.

46 Dr Anthony Cidoni, a forensic psychiatrist, assessed you at the Metropolitan Remand Centre on 1 November 2013. In his opinion, you suffer from a major depressive disorder and a post traumatic stress disorder. You have also suffered from poly-substance abuse. There is no evidence that you have a personality disorder. Dr Cidoni noted that your mental state appears to have deteriorated during the last twelve months. He expressed concern that you are not currently on anti-depressant treatment, and stated that you required an urgent review for the institution of that medication. You also require treatment with anti-depressant therapy. Dr Cidoni stated that methamphetamine use is recognised as having a significant impact on a person's capacity to form proper judgment. He considers that your underlying depression and anxiety disorders contributed to your self-medication with illegal drugs, which clouded your judgment. Dr Cidoni considers that there is a risk of self-harm which needs attention. He was also of the view that your mental health conditions make it much more difficult for you to cope in custody, and that imprisonment for you would be more onerous than for a person in normal health. He considered that there is a high risk of further significant deterioration in your mental state during your time in custody.

47 Pausing there, it is clear that you have long standing psychological, and drug abuse, problems, which predated your offending in this case. Your problems have been of sufficient severity to induce you, of your own volition, to seek treatment, first at the Western Hospital, then from Mr Cummins, and, subsequently, from Dr Barth. It is also clear that, notwithstanding the treatment which you have received, you have made little progress in remedying your underlying problem of post traumatic stress disorder, together with depression and anxiety. I have no doubt that your resort to illegal drugs has exacerbated your problems. While it would seem that you have now remained free of drug use during your time in custody, your psychological problems persist, and, during the last twelve months, there has been a serious deterioration in your mental health. I am well satisfied that a term of imprisonment will be substantially more onerous for you to bear than for a person in normal health, and there is a significant risk that it may cause your mental health to deteriorate further. I can only emphasise that it is essential that the authorities, who are responsible for your custody, ensure that you are provided with appropriate psychological treatment, particularly to address your ongoing problems with post traumatic stress disorder. It is clear, on the evidence, that unless your condition is properly treated, your mental health is at grave risk.

48 Notwithstanding the difficulties you suffered in your childhood, and your psychological problems, you nevertheless have displayed a number of commendable character traits. On your plea, I received four character references which were provided in relation to you. Mr Suchanek, to whom I have already referred, regards you as a particularly reliable and trustworthy person. In addition, you are a person who has demonstrated great compassion and kindness to others who are in need. When Mr Suchanek suffered a serious illness, you undertook, of your own accord, ongoing care for his children. In doing so, you demonstrated a high level of responsibility and maturity. At the same time, you undertook to ensure that Mr Suchanek's business continued to function. The testimonials of Ms Lopez and Mr Leggett each demonstrate that you are a selfless, giving person, who is hard working and compassionate. Your mother, in her testimonial, and your sister, who gave evidence on your plea, describe you in similar terms.

49 The evidence, to which I have just referred, satisfies me, first, that you are presently suffering a significant amount of psychological distress, and, secondly, that you will continue to do so throughout the term of your imprisonment. Indeed, unless you are afforded the type of treatment to which Dr Barth and Dr Cidoni have referred, it is probable that your psychological state will further deteriorate to a substantial extent during, and as a result of, your incarceration. I consider that those matters warrant that a substantial degree of leniency should be extended to you in determining your sentence. I acknowledge that it is well established that, in cases such as this, only particularly exceptional circumstances would properly justify leniency. However, in this case, I am satisfied that such circumstances have been established.

50 In this context, as I have already stated, the principle of general deterrence is a prominent consideration in cases of this type. However, common humanity, which properly informs our sentencing regime, demands that in your case the requirements of general deterrence be sensibly moderated.

51 The matters relating to your background, and in particular to your psychological condition, are also relevant to two other issues which I must consider. The first issue concerns whether I am satisfied beyond reasonable doubt that you participated in the drug related offending, which is the subject of the first two charges on the first indictment and the first charge on the second indictment, for the purposes of financial gain. In each case, the quantities of the drugs involved in your offending were particularly large. If they had been sold on the street, those persons involved in the relevant enterprise would have reaped substantial profits. In the absence of any other explanation, the only reasonable inference available to me is that, in each case, you became involved in the offending for the purpose of deriving some financial gain for yourself.

52 Ms McKinnon, who appeared on your behalf, submitted that I should not be satisfied beyond reasonable doubt that you became involved in the offending for the purpose of financial gain. She submitted that, rather, there is a reasonable possible inference, open on the evidence, that you became involved in the offending because of a combination of your compliant personality, your psychological condition, and your heavy drug taking at the time.

53 I accept that each of those matters contributed to your offending. However, it is clear that you were aware that, in each case, the amount of drugs was particularly large. In my view, the matters referred to by Ms McKinnon, collectively, are not sufficient to overcome the conclusion that the only reasonable inference is that you became involved in the offending, in each case, for the purpose of deriving some financial gain for yourself. On the other hand, as I have already stated, in each case you played only a limited role in respect of the drugs which are involved in the offences to which you have pleaded guilty. In those circumstances, I could not draw any conclusion as to the amount of potential financial gain which you expected to derive from the enterprises.

54 The second issue, which I need to determine, is whether your psychological condition at the time was such as to reduce your moral culpability for your offending. In this respect, the Court of Appeal has emphasised that, in order to draw such a conclusion, there must be appropriate evidence from which I could conclude, on the balance of probabilities, that your then psychological state caused, or contributed to, your participation in the offending in each case.

55 In this respect, I am well satisfied, on the evidence, that at the time at which you became involved in the offending, you were psychologically unwell. The first report provided by Dr Barth reveals that, when he treated you between May 2010 and March 2011, he achieved little progress in addressing your underlying post traumatic stress disorder, and the associated conditions of depression and anxiety. He described your condition then as being chronic in nature, and as requiring long term and ongoing psychotherapeutic and psychopharmacological intervention. I can appropriately infer that your psychological condition did not improve at all between March 2011 and October 2011, when you committed the offences for which you have pleaded guilty.

56 Dr Barth, who was an impressive witness, expressed the view that your mental illness, combined with your self-medication of drugs, was such as to diminish your powers of judgment. In each of the three drug offences, for which you have pleaded guilty, it is clear that you displayed remarkably poor judgment. The offending, which constitutes the first two charges on the first indictment, involved you taking possession of a large quantity of drugs at premises, which you then understood to be under police surveillance. Notwithstanding that at that time you knew that the authorities were suspicious of the consignment which had been imported into Australia, you nevertheless conveyed the cartons, which you believed contained the drugs in that consignment, to your own home. In a similar manner, you displayed poor judgment in committing the offence which is the subject of the first charge on the second indictment. Notwithstanding that you believed that the Fairbairn Road premises were under police surveillance, you left business cards of your construction business, the number plates of your father's and mother's motor vehicles, and some of your tools at the Fairbairn Road premises, and you attended there in the early hours of 26 October.

57 In those circumstances, I am satisfied, on the balance of probabilities, that your then psychological state played a relevant role in your offending in each case, by affecting your powers of proper judgment. In that way, I am satisfied that your psychological state is relevant as diminishing, to a moderate extent, your moral culpability in respect of your offending.

58 In determining your sentence in relation to the first two charges on the first indictment, it is, of course, necessary that I bear in mind the sentence which was imposed on your co-offender, Adrian Franze. This is because, as a matter of fairness, co-offenders should be dealt with in the same way, subject, of course, to any material differences between their respective cases. In your case, I consider that there are four important factors, which distinguish your case from that of Adrian Franze, and which, both individually, and taken together, support the imposition on you of a substantially lower sentence, in respect of the first two charges on the first indictment, than that imposed on Adrian Franze.

59 First, as I have already stated, I consider that the role which you performed in the enterprise, which involved the attempt to possess the commercial quantities of methamphetamine and cocaine which had been imported on the "Manet", was substantially less significant than the role of Franze, or, indeed, of Sitar. Secondly, for the reasons I have stated, your moral culpability for your offending is reduced by reason of your then psychological state. Thirdly, as I have also indicated, I consider that your plea of guilty to the charges on both indictments is an important mitigating factor in your case, particularly because it is accompanied by genuine insight and remorse. Fourthly, because of your deteriorating psychological state, I am well satisfied that a term of imprisonment will be considerably more difficult for you to endure than it would for Franze. Those four circumstances, taken together, justify the imposition of a sentence on you, in respect of the first two charges on the first indictment, which is substantially less than the sentence which I imposed on Adrian Franze.

60 Finally, I am satisfied that you do have good prospects for rehabilitation. As I have already stated, I am satisfied that you have expressed genuine remorse for your offending, and that you have demonstrated that you have appropriate insight into the devastating effects which your offending could have had on vulnerable members of our society, if the drugs involved in those offences had not been intercepted by the police. You have strong support from your family, and also from friends who care about you. You have consistently returned negative results to random drug testing while you have been in custody. In addition, you have been engaged as a carpenter in the prison system, and thus you have had the opportunity to retain your trade skills. On the basis of all those factors, there is reason to be optimistic as to your prospects of rehabilitation.

61 In conclusion, then, your offending in each case involved you participating in very serious criminal offences. Ordinarily, in such a case, it is necessary that the sentence imposed upon you be sufficient to reflect the court's and the community's, condemnation of your wrongdoing, and to constitute a deterrent to other like minded persons from indulging in the type of offending to which you have pleaded guilty. It is also necessary that the sentence imposed on you be sufficient to act as a specific deterrent to you against re-offending.

62 On the other hand, as I have stated, I am satisfied that there are a number of weighty mitigating circumstances which, taken together, justify a significant reduction in the sentence which should otherwise be imposed upon you for your offending. Those mitigating circumstances include your limited role in the offending, your reduced culpability for the offending because of your psychological state, your plea of guilty, your remorse, and your prospects for rehabilitation. In addition, as I stated, I am well satisfied that a sentence of imprisonment will be substantially more onerous for you to bear than for a person in good psychological health. I am also satisfied that, unless you are provided with the type of treatment which Dr Barth and Dr Cidoni have each described, your psychological state will further deteriorate during, and as a result of, your term of imprisonment. That circumstance is of sufficient moment to warrant a substantial reduction of the sentence, which would otherwise be imposed upon you, and to allow a greater degree of concurrency in respect of the sentences imposed for the offences on the two indictments. It is also on the basis of that circumstance that I shall fix a minimum term of imprisonment which will allow a longer potential parole period than would otherwise be the case.

63 Taking those matters into account, I sentence you as follows:

(a) On count 1 (attempt to possess a commercial quantity of methamphetamine) I sentence you to 8 years' imprisonment.

(b) On count 2 (attempt to possess a commercial quantity of cocaine) I sentence you to 4 years' imprisonment.

(a) On count 1 (traffick a commercial quantity of methamphetamine) I sentence you to 4 years' imprisonment.

(b) On count 2 (possess an unregistered longarm firearm) I sentence you to 2 months' imprisonment.

(c) On count 3 (being an unlicensed person possessing and storing a firearm in an insecure manner) I sentence you to 2 months' imprisonment.

64 I direct that each of the sentences on the second indictment are to commence immediately, and that each of the sentences on the first indictment are to commence six months after the commencement of the sentences on the first indictment, that is, on 20 June 2014. Thus, you are sentenced to a total term of 8 years and 6 months' imprisonment. I direct that you are to serve a minimum of 4 years' and 6 months' before becoming eligible for parole.

65 Pursuant to s 16E of the Crimes Act, I declare that you have served 783 days by way of pre-sentence detention, and I shall cause that declaration to be noted in the records of the court.

66 Section 6AAA of the Sentencing Act of Victoria provides that where, in sentencing an offender, a court imposes a less severe sentence than it otherwise would have imposed because the offender pleaded guilty to the offence, the court must state the sentence and the non-parole period it would have imposed but for the plea of guilty. There is some doubt whether that provision applies to a case such as this which involves offences committed by you under the Commonwealth legislation. However, in order to avoid any such doubt, I shall endeavour to comply with s 6AAA. In your case, as in many cases, it is difficult, and somewhat artificial, to endeavour to comply with that section. This is because your pleas of guilty are necessarily interconnected with the other mitigating factors to which I have referred. It is the combined weight of all those factors which have operated to significantly reduce the sentence which I would have otherwise imposed upon you. Nevertheless, in order to comply with s 6AAA, doing the best I can, if you had not pleaded guilty to the offence, I would have sentenced you to a total term of 11 years' imprisonment, with a minimum non-parole period of 7 years.

At a glance

Court

Decision date

Before

Source

Judgment (75 paragraphs)

Parties