CDirector of Public Prosecutions v Alavinejad

[2023] VCC 2158

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

GENERAL LIST

CR-22-01903

COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS

v

YASER ALAVINEJAD

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JUDGE:	JUDGE DAWES
WHERE HELD:	Melbourne
DATE OF PLEA HEARING:	14 November 2023
DATE OF SENTENCE:	22 November 2023
CASE MAY BE CITED AS:	CDPP v Alavinejad
MEDIUM NEUTRAL CITATION:	[2023] VCC 2158

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW

Catchwords:                   Import marketable quantity of a border controlled drug (methamphetamine)

Legislation Cited:                  Crimes Act 2014 (Cth)

Cases Cited:Bugmy v R (2013) 249 CLR 571; R v Verdins & ORS (2007) 16 VR 269; Worboyes v The Queen [2020] VSCA 169; NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA Trans 153

Sentence:  4 years’ imprisonment

NPP 2 years 6 months

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APPEARANCES:	Counsel	Solicitors
For the CDPP	Ms J Mackay	Commonwealth Department of Public Prosecutions
For the Offender	Mr J Moore	Stary Norton Halphen

HER HONOUR:

1Yaser Alavinejad, you have pleaded guilty to one charge of importing a marketable quantity of a border-controlled drug, namely methamphetamine, from about 6 March to 3 June 2020.  The maximum penalty for this offence is 25 years’ imprisonment. 

2

You admit that you entered into an agreement with your brother, Vahid Alavi, who resided in Turkey, to import the border-controlled drug into Australia.  Pursuant to the agreement, a cardboard box that contained a number of items arrived on

30 March 2020. It was addressed to “Yas Alavi” at your home address.  Australian Border Force examined the parcel.  The box was emptied, tested and returned a presumptive positive result for methamphetamine.  The box was then x‑rayed and revealed abnormalities at the base.

3A white crystalline substance was located inside the corrugated walls of the box.  Subsequent analysis confirmed that the substance contained 151.14 grams of pure methamphetamine.  A marketable quantity is 2 grams.  A commercial quantity is 750 grams.  The total amount of methamphetamine here is approximately 75 times a marketable quantity and approximately one fifth of a commercial quantity.

4The circumstances of your offending have been provided in the Summary of Prosecution Opening.  It is agreed to be an accurate account of events.  A general summary of the facts is as follows:

5On 6 March 2020, you used your Apple iPhone and entered the words “best way to smuggling drugs sirplan” into a Google search.

6On 7 to 8 March 2020, you messaged your brother in Turkey, using a WhatsApp account registered in the name “Yass” from an Apple iPhone that belonged to you.  You suggested possible ways for your brother to package and send drugs to Australia and avoid detection.  You sent a video of someone handling packs of anti-bacterial wipes and a bottle of hand sanitiser in a cardboard box.  In subsequent text messages to your brother, you assured him, “it is a good method, it will work 100 percent.”  You told him to “say Ok quickly and we will be in business” and that “Now is the best time. Everyone is busy with the virus”.

7On 11 March 2020, you used your iPhone to record a 10 second video and take several photographs of a cardboard box with hollow corrugations in the walls of the box.  The video and photographs related to the agreement between you and your brother to import a border-controlled drug, using a particular method of packaging and sending, to avoid detection.

8On 16 March 2020, you saved photographs on your iPhone of the top of the parcel that was sealed with attached consignment documents, as well as a document that was printed with the tracking number.

9Between 17 March and 3 June 2020, you used your iPhones to track the progress of the parcel on the relevant website, 272 times.

10On 14 April 2020, you contacted Australia Post to inquire about the location of the parcel.  You were told that it had arrived but had not been cleared, so you needed to wait. 

11On 4 June 2020, police executed a search warrant at your home.  One of your iPhones was seized from the living room.  Later that day, police attended your workplace.  Your second iPhone was seized and you were arrested.

12A recorded interview was conducted.  Police explained that their investigation related to the arrival of a parcel that contained methamphetamine. You admitted that your brother was sending you a parcel containing personal items. However, you had “nothing to do with the drugs.” You said that your brother was sending you something, but “I swear to God, not drugs.” 

13You admitted to tracking the progress of the parcel maybe “10 times”.  The parcel was addressed to “Yas Alavi”. You said that was not your name and although your Facebook name used to be “Yas Alavi”, it was “not anymore”.  You went on to say, “I swear to God I have nothing … with ice or methamphetamine.”. When police asked if you ever had any discussion with your brother about drugs, you answered, “I know he do, like, shit things.  But I – not drugs.  He knows I have wife, he knows I have kids … He wouldn’t put me in trouble.”

14You did not make any admissions in your record of interview, nor did you provide an explanation for your offending. You did not accept responsibility for your involvement in the delivery of drugs. The content of the record of interview is not indicative of any remorse for your misconduct. 

15You were released by police after the interview, pending further investigation and inquiries. The charge was not filed until February 2022 and you were not charged until 24 March 2022. The prosecution concedes that there is a substantial delay between the time your interview was conducted and when you were eventually charged. The delay occurred because the original informant did not remain engaged in the investigation.  There were a number of difficulties associated with the restriction of resources during the Covid-19 pandemic and other unrelated investigations took priority.  However, the investigation did eventually continue, you were charged and then remanded into custody on 14 July 2022, where you have remained since that time.

16The initial period of delay was due to factors that were out of your control and was not attributable to your conduct.  The prosecution accepts that the delay of more than 21 months was significant and may have caused you stress and anxiety overall, although there is no specific evidence of the actual impact the delay had on your wellbeing, if any.

17Your matter proceeded as a contested committal, where the informant was cross‑examined.  On 18 October 2022, you were committed to stand trial and entered a plea of not guilty.  Your seven day trial was due to commence on 28 August 2023.  Your matter was listed on 10 August 2023 for a sentence indication hearing, which was ultimately withdrawn. You entered your plea of guilty on that day. 

18The evidence against you has been clear for a long time. Your plea of guilty was entered at a late stage.  While the timing of your plea is relevant, there is no dispute that it still has some utilitarian benefit.  Your plea of guilty facilitates the efficient administration of justice and you are entitled to a benefit for that, even though the benefit is less than if your guilty plea was entered at an early stage.  You have saved the Court and the community the time and expense of running a trial.  The utilitarian benefit of your plea is to be enhanced by the fact that Worboyes[1] considerations were engaged at the time. The Worboyes discount is underpinned by a desire to reduce the Covid related backlog of trials. Your belated plea did little to achieve that and any engagement of the Worboyes principals amount only to a very modest sentencing benefit. Your plea is indicative of some remorse and the acceptance of responsibility of your criminal conduct, although they are belated.

[1]        Worboyes v The Queen [2020] VSCA 169.

19You have pleaded guilty to the importation of a significant quantity of methamphetamine, which is a serious offence.  You performed a principal role in investigating, planning and facilitating the importation and any financial gain was for you. However, the concealment of the drugs was ineffective and unsophisticated. You also arranged for the package to be delivered to your address.

20The prosecution has outlined that, at the point you entered into the agreement to commit the offence, there was an element of commerciality for the importation of drugs.  I note that, in part of the messages, you said to your brother, “we will be in business”.[2]  Your counsel submitted that the primary purpose for the importation of methamphetamine was for your personal use, although your motivation was partially based on commerciality. You intended to sell some of the drugs to raise money to fund your drug addiction. Your addiction provides the explanation for your offending.

[2]7.27am on 8 March 2020.

21I accept that you intended to feed your addiction to methamphetamine and to finance your addiction to heroin. Further, that the opportunistic greed which would be an aggravating factor in cases such as these, is absent here. This absence acts in your favour. I accept that your enterprise was on a small scale, but that you were at the top of that enterprise. You played an important and integral role in the importation.  I consider that your moral culpability is mid-range. 

22You have admitted your prior criminal history which relates to appearances in 2014 at the Heidelberg Magistrates’ Court and in 2015 at the Albury Local Court in New South Wales, for driving offences.  These matters have little, if any, bearing on the current proceeding.

23After your interview was conducted and you were released, you continued to offend in various states in Australia. You were found guilty of offences including possession of drugs of dependence, assault, dealing with proceeds of crime, matters of dishonesty and driving offences. I note that although none of these offences are of the same level of severity as the current matter, your subsequent offending is reflective of your lifestyle over that period.

24

I turn now to your personal circumstances.  You were born in Tehran, Iran, in

February 1987, and are now 36 years of age.  You are one of six children and your parents separated when you were 12 years of age.  Growing up, your family was very poor.  Your father was a factory worker and did not earn a high income. There was often not enough money to feed everyone.  Upon your parents’ separation, your family’s financial situation became more difficult.  Your mother resorted to earn money as a sex worker, which was very distressing for you.  One of your older brothers acted violently towards you and your childhood was deprived, occasionally violent and at times highly distressing. 

25You left school at the age of 15, in order to earn money.  You left home at the age of 18 and, in 2005, engaged in an arranged marriage.  You have two children, who are now aged 14 and 16 years. Your wife and children reside in Iran.

26At the age of 21 you suffered significant trauma.  You and a friend were protesting against the government of Iran. You were arrested and taken into custody for a period of seven months.  During that time, you were physically tortured on a regular basis.  You were eventually released, although you continued to receive threats and believe that you were monitored by the government. 

27As a result of the further threats, you fled from Iran in 2011.  You flew to Indonesia and spent five months there, before you were transported on a boat to Christmas Island, Australia, in November 2011.  You were held in immigration detention for two months and then a further six months at a facility in Darwin.  A protection visa was granted in 2012, and you moved to Victoria. 

28Throughout that time, you maintained sporadic contact with your family, none of whom accompanied you to this country.

29You resided in Thomastown for around three years.  In 2015, you were granted a bridging visa and you moved to South Australia.  You returned to Victoria for two years and were then granted a Safe Haven visa. This allowed you to travel to Thailand in 2017, where you saw your family for the first time in six years. You returned and lived in Tasmania, where you worked for two years, before coming back to Melbourne.  Your offending occurred in 2020.

30You have held a variety of jobs in Australia.  You have been employed in meat factories, worked as a concreter, and in construction and house painting.  You established your own successful painting business, where you also worked as a subcontractor.  Your business suffered during the pandemic and you admit that your drug use increased dramatically at around this time.

31When you were arrested by police for this matter, you were at work.  Your employer did not allow you to remain in your job, as he was unimpressed by what had occurred. Although you managed to find further employment, this does amount to some extra curial punishment.

32Following your release from custody in Iran, you have a history of drug use.  You started to use heroin at the age of 21 and began to use methamphetamine while in immigration detention in Darwin.  Your drug use has escalated since that time and you have often used both of these drugs on a daily basis, while in Australia. You have undertaken some periods of abstinence, which have been followed by relapse.  Your drug use became particularly heavy in 2020, when you were unemployed.

33You have been prescribed methadone in the past. You are now prescribed suboxone and have participated in drug-related counselling while incarcerated.  You hope to remain abstinent from drug use upon your release. 

34You commenced another relationship in 2021 and you moved with your partner to Brisbane, before you both returned to Melbourne.  Your relationship is ongoing. I am aware that the police sought a full intervention order, where your partner was the affected family member, sometime after you were remanded into custody.  That order has now been varied to a safe contact order and will be in place until 27 July 2027.  While in custody, you have communicated with your wife and children, who remain in Iran. I am told your wife is aware you are now in another relationship.

35Your partner attended court to support you at your plea hearing.  She has also provided a letter to the Court, dated 10 November 2023.  She has remained in contact with you while you have been in custody.  She describes that, in the course of the pandemic, you struggled during isolation, which contributed to your drug addiction.  You have been drug free in custody, which has improved your circumstances.  Your partner describes that you are confident you will not return to drug use once you are released. You have maintained a positive attitude, despite your current situation. You are welcome to return to reside with her and your relationship will continue.

36

At the request of your solicitor, you were recently assessed by Dr Mathew Barth, psychologist.  He has provided a report for the Court, dated 8 November 2023.  Your personal history and circumstances have been summarised in the report. 

Dr Barth has made the following observations and findings.

·        Your intelligence is estimated to fall within the normal range.  You were lucid throughout the interview and there is no indication of any form of thought disorder or psychosis.

·        You reported a long history of mental-health issues.  You were depressed and anxious throughout your childhood, due to the poverty of your upbringing, your family relationships and the violence you suffered from your older brother.  Further, you reported an acute emotional response after being held captive in Iran.  Your emotional issues continued after you commenced living in Australia. 

·        Your main coping mechanism was to abuse drugs heavily in a dysfunctional attempt to alleviate your emotional problems and escape your memories of your abuse in Iran.

·        Between 2017 and 2019, your own business was going well and your mood stabilised.  However, your drug use increased and your mental health deteriorated in the course of the pandemic, in light of the lockdowns, the adverse impact on your business and the difficulties you underwent in your relationships.  The intensity of your substance abuse contributed to your financial difficulties and you were unable to afford to fund your addiction. 

·        you are now ashamed of your offending and deeply regret your involvement.

·        Your mental-health status indicated continual emotional distress.  It is underpinned by your longstanding mental-health issues due to the distressing incidents from your childhood, the extreme violence you endured in Iran and your chaotic lifestyle.

·        you experienced periods of mood disturbance for most of your life, primarily due to your childhood incidents, your abuse in Iran and significant issues related to your turbulent lifestyle.  You continue to experience transient suicidal ideation and a sense of futility about your life.

·        You had difficulty adjusting to the custodial environment and self-harmed. You have monthly contact with mental health staff, although you continue to feel depressed and anxious.

·        The frequency and intensity of your previous abusive experiences has decreased to an extent over the past six months.

·        You meet the diagnosis of a post-traumatic stress disorder (“PTSD”) in partial remission. 

·        Your history of substance abuse is sufficiently severe to warrant the diagnosis of a stimulant use disorder and an opiate use disorder.  Both are now in remission, in the controlled environment. 

·        You display a reasonable appreciation of the noxious impact of drug abuse on your behaviour and your life generally.  Substance-abuse treatment is warranted to prevent any relapse.

·        Dr Barth is guarded about your rehabilitative prospects.  Your current period of abstinence from illicit substances is positive and your desire to re-unite with your wife and children is an important motivator for constructive change.

·        When considering you are likely to face a further period in custody, there is an unprecedented opportunity for you to commit to your rehabilitation, which may ultimately provide you with the stability to sustain a prosocial lifestyle when back in the community.

·        Recommended treatment for your trauma and substance abuse are outlined at the end of the report.

37Your counsel has submitted that the principles of Bugmy v R[3] are applicable in your case.  While you were not specifically raised in a home surrounded by violence and drug use, there was a significant measure of dysfunction in your life.  In Dr Barth’s opinion, there is a connection between your troubling childhood and your ongoing trauma, albeit that it is not the sole or primary cause of your trauma.  The prosecution accepts Dr Barth’s diagnosis of PTSD and that your background of persecution in Iran, and consequential mental ill health, must be taken into account as part of your subjective case.  The prosecution concedes that Bugmy considerations are applicable in a general way, although they do not warrant a significant reduction in your moral culpability.

[3]        Bugmy v R (2013) 249 CLR 571.

38I accept that the principles of Bugmy are enlivened in your case and that this acts in mitigation on your plea. Your moral culpability is reduced accordingly, to some extent. I accept that it is also relevant as a mitigating factor when considering the principles of deterrence, denunciation and just punishment. This is counterbalanced, however, by the need for community protection, which remains a relevant sentencing consideration.

39Your counsel also submits that, in light of Dr Barth’s assessment, several principles of Verdins[4]  are enlivened.

[4]        R v Verdins & ORS (2007) 16 VR 269.

40The parties agree that your ongoing symptoms will make your time in custody more onerous than it would be for a person of normal mental health. In those circumstances, Verdins limb 5 is applicable. I accept that it is relevant, as are the sentencing principles of Bugmy. While I am required to take these mitigating factors into account, I am still required to impose a sentence that is proportionate to the gravity of your offending.

41Your counsel also submits that Verdins limbs 1 and 3 are applicable here.  On the basis of Dr Barth’s opinion:

“… Given the long-standing and chronic nature of his symptoms, it would seem reasonable to conclude that Mr Alavinejad was labouring under these effects at the time of the offending. Nevertheless, even when considering Mr Alavinejad’s PTSD symptoms, the impacts of this disorder are not sufficiently severe to have obscured his ability to form the requisite intent to commit the offending or prohibit him from fully understanding the likely consequences of his behaviour.”[5]

[5]        Paragraph 38.

42The prosecution does not agree that these limbs are applicable. In order for Verdins’ considerations 1 and 3 to be a mitigating factor on your plea, I am required to be satisfied, on the balance of probabilities, that your mental condition directly contributed to the commission of the offence. A causal connection is necessary in order to engage these considerations.  I am not satisfied that there is a sufficient connection or nexus between your PTSD and the offending. You engaged with your brother and took steps over a three month period to manage the importation of drugs. There is no suggestion that you did not fully understand the consequences of your criminal conduct. Further, I note there is no dispute that your longstanding history of drug use must have been connected with your agreement to engage in your offending.  I do not accept that these Verdins’ considerations are applicable in this case. 

43You are currently in Australia under a Safe Haven visa, which is provided for people who arrive illegally and want to apply for protection. You expect that your visa will be revoked as a result of the current offence. It is well accepted that the prospect of deportation is a relevant consideration in the sentencing process.  If you are not successful in contesting this decision, you expect that you are likely to be deported, although you are unlikely to be forcibly removed and returned to Iran.  In those circumstances, you would have indefinite immigration detention pending relocation to a third country, should voluntary removal to Iran not occur. Given the unresolved current legislative consequences of a recent case in the High Court,[6] it is unclear what the government position will be in your case, regarding potential immigration detention.  Despite this development, I accept that you can rely upon the likely deportation as a matter in mitigation in your sentence. I accept that the loss of opportunity to seek to remain here as a result of your offending will have an impact on your period of incarceration.  I take that into account, as it increases the burden of the sentence I impose. 

[6]        NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCATrans 153.

44

At the time of your offending, you did not have any drug-related criminal history.  Your subsequent offending involves possession of drugs and other offences. 

Dr Barth outlined that, without comprehensive and integrated treatment to deal with your substance abuse and trauma, he would be guarded about your rehabilitative prospects. When considering your prospects, your ongoing criminal conduct is relevant.  Despite this, you continued to be employed and maintained a relationship. You have spent 496 days on remand and are now held at Port Phillip Prison.  You have engaged in educational and vocational programs while in custody. If you are able to manage your issues in relation to trauma and drug abuse upon your release, I accept that your prospects are reasonable.

45There is no dispute that the time you have served since you were incarcerated is more onerous than for prisoners prior to the COVID-19 pandemic.  These conditions have added to your hardship in custody, particularly as this is the first time you have been incarcerated in Australia.  While the additional restrictions are now reduced, the hardship which occurred, including periods where you were placed in isolation, such as 14 days in quarantine upon your remand, justify a sentencing benefit.

46It is accepted that a term of imprisonment is the only appropriate disposition in your case. Your counsel has submitted that one involving a recognisance release order is appropriate. The prosecution position is that a term of imprisonment with a non-parole period is required.

47After careful consideration, I am unable to accept your counsel’s submission as to sentence. Given the objective gravity of your conduct, I consider that it is unrealistic. As I am satisfied a term of imprisonment of more than three years is appropriate, I will fix a sentence with a non-parole period.

48I have considered the sentencing principles outlined in s16A(2) of the Crimes Act 2014 (Cth), being a non-exhaustive list of matters the Court must take into account.  General deterrence must be given significant weight in the sentencing process, as must the factors of denunciation and punishment.  I consider that I must give specific deterrence and community protection some weight in this process.  I take into account the maximum penalty for this offence and current sentencing practices.  I have considered the cases to which I was referred by both the prosecution and defence.  They are a guideline of current sentencing patterns.

49Ultimately, I am obliged to impose a sentence that is proportionate to your criminal conduct. Balancing all the factors as best I can, you are convicted and sentenced to four years’ imprisonment.  I set a non-parole period of two years and six months’ imprisonment.

50The declaration I make under s6AAA is had the matter not proceeded as a plea of guilty I would have imposed a sentence of five years and six months' imprisonment, with a minimum term of three years and six months.

51I enter in the records of the court that you have served 496 days by way of pre‑sentence detention.  Could I confirm there are no ancillary orders the prosecution seek?

52MR DHANAPALA:  Yes, that is correct, Your Honour.

53HER HONOUR:  Mr Moore, when I leave the Bench I will ask everyone to leave and I will give you a chance to speak with your client before we cut the link.

54MR MOORE:  Thank you, Your Honour.

55HER HONOUR:  Are there any other matters that I have not managed?

56MR DHANAPALA:  No, Your Honour.

57HER HONOUR:  Thank you very much, I will leave the Bench.

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