Zandi v The Queen [2015] VSCA 24

2 For the reasons that follow, we would dismiss the appeal.

3 In granting leave to appeal, the judge described the offending as follows:

... The [appellant] appears to have been suspected by the Australian Federal Police ('AFP') of an involvement in illegal drug activities. In early July 2012, the police obtained various Surveillance Device and Telecommunications Interception Warrants enabling them to conduct close surveillance of the [appellant]'s activities.

On the afternoon of 15 July 2012, the [appellant] met with a Federal Bureau of Investigation ('FBI') undercover operative at a restaurant on the Gold Coast. At that time, the FBI operative introduced the [appellant] to an AFP undercover operative who used the name 'Danny'. The purpose of that meeting was to enable the [appellant] to make what he thought were arrangements to purchase cocaine that was to be imported into Australia from the United States. The meeting was recorded. The transcript revealed that the [appellant] was looking to make regular purchases of cocaine, seemingly on an ongoing basis. He was told that the price would be $120,000 per kilogram. He said that he was happy with that figure, and indicated that he would be prepared to purchase five kilograms of the drug. It was agreed that he would pay a deposit of $25,000 per kilogram.

The [appellant] asked the FBI operative whether he owned a BlackBerry device. When told that he did not, the [appellant] offered to supply one for $2,200. He indicated that the device could be used to exchange encrypted messages.

Subsequently, between 24 and 27 July 2012, the [appellant] sent 'Danny' a series of messages. These culminated in a meeting at a café in St Kilda. Once again, the meeting was covertly recorded. The two men discussed arrangements for the supply of cocaine, and the payment of money. They also spoke about the BlackBerry. The [appellant] said that money was 'no problem', and that he could 'pay on arrival'. He said that he was still hoping to purchase five kilograms, and that he could do 'one a month'.

From 30 July 2012, the [appellant] maintained regular phone contact with a man named Wong using a particular mobile telephone service. On 2 August 2012, the [appellant] and Wong arranged to meet in the Doncaster area. The [appellant] utilised Wong's BlackBerry to send 'Danny' an email, arranging for a meeting the following day. However, he changed his order from five kilograms to two kilograms of cocaine. Further emails were sent over the following few days.

On 15 August 2012, the [appellant] again met with 'Danny' at the café in St Kilda. On this occasion the [appellant] was carrying a small white paper bag subsequently revealed to contain $25,000 in cash. A short time later, he walked to the front passenger door of 'Danny's' vehicle and placed the paper bag on the front passenger foot well. The two men then went back to the café. The transcript of their discussion revealed that the [appellant] had given 'Danny' $25,000 and that he now wanted to purchase only two kilograms of cocaine at $120,000 per kilogram. 'Danny' told the [appellant] that he would inform him of the arrival date in due course. He added that the cocaine would be available about three weeks after the vessel in which it was being shipped docked. The [appellant] said he wanted to purchase cocaine 'every month, every two or three months ... whatever you can'.

On 29 August 2012, the [appellant] travelled to Iran where he visited family. He returned to Australia on 28 September 2012. On 11 October 2012, the [appellant] and 'Danny' met once again at the café in St Kilda. The [appellant] reiterated his intention to proceed with the deal but asked for more time. He agreed to give 'Danny' the money that he had with him, some $40,000, in return for which he would take the two kilograms of cocaine to his associates. He would then return with the outstanding $175,000. The [appellant] explained that he needed to know about the quality of the cocaine and asked if it was 'Cartel stamped'. He and 'Danny' then discussed future business. At one point, the [appellant] asked 'Danny' if he could arrange for the importation of 10 kilograms of cocaine in the next shipment.

The two men then walked over to the [appellant]'s vehicle, a black BMW coupe. The [appellant] handed 'Danny' a paper bag containing two bundles of Australian currency. The [appellant] drove away and was followed by police. He was shortly thereafter arrested, having first made a somewhat desultory attempt to evade capture. He was found in possession of the two kilograms of substituted cocaine that he had received from 'Danny' earlier that day. The [appellant] then participated in a 'no comment' interview.

4 The appellant left the meeting on 11 October 2012 with two kilograms of what he thought was cocaine. In reality, it was a benign substance. Thus, it will be appreciated that there was no actual importation or sale of a border controlled drug. Police had conducted a controlled operation. There was no possibility of any illicit drugs reaching the community.

5 The appellant remained in custody from the day of his arrest until 12 December 2012, when he was released on bail. A contested committal was fixed for hearing on 18 April 2013, but the appellant issued subpoenas to the AFP and Victoria Police. Legal argument with respect to the subpoenas took place over the course of two days, leading to the committal being adjourned to 26 April 2013. After some further legal argument that day, the committal proceeded by way of hand-up brief. The appellant pleaded not guilty, and he was committed for trial in the County Court.

6 Ultimately, the appellant pleaded guilty on 21 February 2014, and a plea hearing took place on 9 May 2014.

7 The appellant was born on 30 June 1978. He was aged 34 years at the time of the offending, and is now 36. Although he was convicted and fined in 1998 for intentionally causing injury, he has no prior convictions for drug offences. He was born in Melbourne of Iranian parents, and, following his family's short return to Iran, the appellant came back to Victoria to be educated. Despite being a person of intelligence, however, the appellant under-achieved at school. He had a difficult relationship with his father, but was close to his mother. Various business ventures in which he has engaged have been unsuccessful.

8 In the course of the plea, several character witnesses gave evidence on the appellant's behalf. The judge was 'very impressed' by those witnesses.

9 One of the character witnesses gave evidence that the appellant 'started on recreational drugs a little later than others', when in his twenties. He did not stop using, and, as the judge observed, this 'has probably been the blight' of the appellant's life, 'coupled with perhaps a degree of low self-esteem' as a result of the appellant's difficult relationship with his father. The appellant's drug use had progressed through to cocaine and ultimately 'Ice' (methamphetamine). The judge thought that 'that has underpinned the history immediately leading up to this offending conduct', and the appellant got to a point where he was unable to maintain his habit (or habits) 'without resorting to other forms of income beyond [his] savings and what [he was] able to earn'.

10 A treating psychologist, Mr Fraser Gough, provided a report dated 24 February 2014, to which the judge had regard. The report set out the appellant's history, including his difficult relationship with his father and his drug use, and described the appellant's anxiety and depression. Mr Gough recommended that the appellant be 'carefully monitored regarding suicide risk', and that he receive drug counselling.

11 The sentencing judge took into account the appellant's plea of guilty. He accepted that the appellant was remorseful and 'contrite', and sorry for what he had done. The judge thought that the appellant's character 'by and large ... seems to be good'. He had 'knuckled down' after being in prison, and has undertaken tertiary courses, ultimately wishing to obtain qualifications in the building trade.

12 Further, the judge observed that the case had been 'hanging over [the appellant's] head for quite a while', and he had known in his 'heart of hearts' that he faced a term of imprisonment. That prospect contributed to the anxiety that the appellant had suffered.

13 On the plea, the appellant's counsel submitted that there was a strong element of fantasy on the part of the appellant. The appellant did not have the capacity to deal in cocaine successfully in the amounts discussed. He was only ever in discussion with undercover operatives. Counsel submitted that there was never going to be any drugs, and there was only ever discussion of drugs. He submitted that the appellant was very 'low level' for this kind of offending). There was, counsel submitted, a real aspect of unreality to the offending. The judge, however, remarked that 'the degree to which there was fantasy attached to it is very difficult ... to ascertain'; but that he was faced with a situation where the appellant did order two kilograms of cocaine, 'and did actually come up with and invest $65,000'. He was, however, 'inclined to accept that [the appellant was] 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'. The judge did not think that the appellant was 'deep down a crook', and was 'quite sure that there was very little sophistication in this', the appellant having taken 'the bait'.

14 For sentencing purposes, the judge acknowledged the need to look at current sentencing practises. He regarded general deterrence as important, although he did not think that the appellant needed a great deal of deterrence. Endeavouring to gauge the seriousness of the offending, the judge said that he had 'the sense that it is not as high on the scale as the amounts and the objective nature of the facts suggest'. He was minded to give the appellant 'a substantial period on parole', to enable him to complete his rehabilitation.

15 Counsel for the appellant submitted that - having regard to the various matters in mitigation - the sentence of seven years, with a non-parole period of four years, was manifestly excessive. The appellant had pleaded guilty; was genuinely remorseful; was generally of previous good character; had good prospects of rehabilitation; and the offending was unsophisticated. Specific deterrence was not a prominent sentencing consideration. Although general deterrence and just punishment were important, the circumstances called for a far more lenient sentence.

16 The respondent submitted that no error had been established, and the sentence was within range.

17 There were, as we have said, no real drugs. There was no prospect of any illicit drugs being disseminated. But the appellant did not know that. He intended to take possession of a large amount of cocaine - two kilograms - and handed over substantial cash to obtain it. Indeed, his resolve to obtain such a large amount of cocaine may be gleaned from the fact that he had sourced - and paid over - $65,000 for it. That, to us, is not consistent with mere 'fantasy'. Plainly, the appellant had a commercial motive. He intended to be part of a relatively large importation and, it might be inferred, he intended to make a substantial profit from the distribution of drugs to be obtained as part of that importation.

18 In light of these factors, the appellant's moral culpability was, in our opinion, high. That moral culpability was not at all diminished by the fact that there was no prospect of any harmful drug reaching the streets. He fully intended that the drugs would be obtained by him and disseminated into the community.[2] As Johnson J said in Achurch:[3]

[A]lthough the fact that drugs are not disseminated into the community may be a relevant factor on sentence, the weight to be given to that factor will vary from case to case. A primary consideration remains that an offender intended to supply the prohibited drug to members of the community, and that it was no act of an offender that resulted in this not happening.

19 We do not regard the fact that the appellant was dealing with undercover police as mitigating his offending. It was not suggested that he was the subject of any entrapment. Indeed, the judge did not criticise the police conduct, and, as he remarked, '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'. Further, we do not need to resolve finally whether the objective seriousness of the offending was diminished by the fact that there was no prospect of any actual drugs reaching the community, since, when his Honour's reasons are taken as a whole, it is plain that the sentencing judge gave that aspect adequate attention.

20 In our opinion, when due regard is paid to the seriousness of the appellant's offending - in particular his moral culpability - and the need for general deterrence and just punishment, it cannot be said that the sentence imposed is outside the range open in the sound exercise of the sentencing discretion. It is not manifestly excessive.

[1] Criminal Code (Cth), ss 307.6(1), 11.1(1). The maximum penalty is 25 years' imprisonment.

[2] Hristovski v R [2010] NSWCCA 129, [41]; Ly v R [2008] NSWCCA 262, [27]; R v Gao [2007] NSWCCA 343, [47]-[48].

[3] R v Achurch [2011] NSWCCA 186; (2011) 216 A Crim R 152, 168 [97]. Cf R v DW [2012] NSWCCA 66; (2012) 221 A Crim R 63, 88-9 [115]-[117]. See also Mokbel v The Queen [2011] VSCA 34; (2011) 211 A Crim R 37, 47 [43] (Neave JA).