CDirector of Public Prosecutions v Balagar
[2021] VCC 427
•29 April 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL JURISDICTION | Revised Not Restricted Suitable for Publication |
CR-18-01266
| COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| SAEID BALAGAR |
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JUDGE: | HER HONOUR JUDGE DALZIEL |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 24 March 2021 |
DATE OF SENTENCE: | 29 April 2021 |
CASE MAY BE CITED AS: | CDPP v Balagar |
MEDIUM NEUTRAL CITATION: | [2021] VCC 427 |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Attempt to possess a marketable quantity of an unlawfully imported border controlled drug – Plea of guilty
Legislation Cited: Crimes Act 1914 (Cth).
Cases Cited:The Queen v Nader Khanmohammadi Ahmad Abad [2019] VCC 870; Nguyen v The Queen; Phommalysack v The Queen (2011) 31 VR 673; Alavy v The Queen [2014] VSCA 25; Cappis v R [2015] NSWCCA 138; Kaveh v R [2017] NSWCCA 52; Yaqub v R [2018] NSWCCA 14.
Sentence: Total effective sentence of 7 years’ imprisonment with a non-parole period of 5 years.
Section 6AAA
Declaration: 7 years 6 months’ imprisonment with a non-parole period of 5 years
and 6 months.---
APPEARANCES: | Counsel | Solicitors |
For the CDPP | Ms K Breckweg (Plea) Ms C Caretti (Sentence) | Office of the Commonwealth Director of Public Prosecutions |
For the Accused | Ms J Swiney | Michael J. Gleeson & Associates |
HER HONOUR:
1Saeid Balagar, you are being sentence today for one count of attempting to possess a marketable quantity of an unlawfully imported border controlled drug, namely opium, between 16 January 2018 and 25 January 2018 contrary to s.11.1 sub-paragraph 1 and 307.1 sub-paragraph 1 of the Commonwealth Criminal Code.
2The maximum penalty for this offence is 25 years imprisonment or 5,000 penalty units, or both.
3The offending for which you are to be sentenced involves your acts in attempting to take possession of a consignment shipped from Istanbul to Melbourne. The consignment contained a vibrating plate compactor machine typically used in the building industry to flatten asphalt, soil, and other surfaces, and a box which contained a small engine with a fuel tank.
4The consignment had been examined by Australian Border Force personnel at the FedEx Australia Distribution Centre after it had arrived in Melbourne. They discovered that the steel base-plate of the machine contained four packages of a brown resin wrapped in foil. Testing established that the total weight of those packages was 12.395 kilograms, and that of that 12.395 kilograms 10.83 kilograms was pure opium.
5The opium packets in the consignment were replaced by an inert substance.
6The consignment was addressed to Nader Khanmohammadi at an address in St Albans with a contact number which was registered in your name.
7The day before the consignment was examined by the Australian Border Force, Nader Khanmohammadi, whom I shall call Nader, attended the FedEx Distribution Centre to ask about collecting the consignment.
8Your telephone number, which was the contact number on the consignment which I referred to earlier, was subject to a telecommunications intercept from 15 January 2018. A number of intercepted calls form part of the prosecution case against you, and are relevant to understanding your role in this offending.
9At around 5.30 pm on 15 January 2018, you were chatting to a friend.[1] You said you had not been contacted and that the people in Iran were having a heart attack about it. Paraphrasing the call does not give its true tone, and so I will quote from that transcript:[2]
[1]Session 14.
[2]Ibid, page 2-3. Page references are to the page numbers of the compilation of calls prepared for the jury.
Ali: Hey what happened with that story?
Saeid: nothing new.
Ali: Haven't they contacted you?
Saeid: from where? From there? No
Ali: really?
Saeid: Swear the God, it's gone Ali, it's gone. They're having heart attack in IRAN
Ali: Do they call?
Saeid: yeah they're fucking me.
Ali: What do they say?
Saeid: it's like this and it's like that and you need to go there. I said bro I won't go there, I'm not an idiot.
Ali: well?
Saeid: I said go and get it If you have people to go there.
Ali: Tell them to go and get it
Saeid: Didn't you say you have people here [i.e. people from Iran] call and ask and get some info and see how it is and go get it
Ali: You're right, it’s easy. Tell them if you had someone why did you got me involved in this at first place. You could have asked your guy to get it.
Saeid: They're afraid to get caught.
Ali: So they're still calling you?
Saeid: yep
All: I thought (indistinct)
Saeid: when was it? He called last night.
Ali: you don't remember?
Saeid: he calls but who would answer (hehe)
Ali: you better answer so he wouldn't think (Indistinct)
Saeid: what?
All: You better answer so he wouldn't think you're ripping him off
Saeid: I can't bro, cause they are checking it as well
Ali: (indistinct)
Saeid: not that you can rip off, if you go and get it it'll be ticked off there.
Ali: Makes sense
Saeid: We'll talk later?
Ali: Alright
Saeid: it's all organised
10The next day, 18 January 2018, you had a conversation with your contact in Iran who I'll call 'Sia'. The transcript indicates that Sia was worried about the consignment and the delay in it clearing customs. You reassured him, saying, 'Listen to me, Sia. They haven't called yet. If they called, they - they said they'll call. When it's out, we will call you and I will call you when they call me.'[3] Sia then asked, 'What did Nader say?', to which you replied, 'Nothing. I told him and he's okay. We will go and collect it...'[4] The tone of this call was that Sia was fretting about the delay regarding the consignment and you were telling him not to worry.
[3]Session 22, page 4.
[4]Ibid, page 5.
11That evening, at 9.19 pm, you had a conversation with Nader.[5] After discussing a mutual hobby, Nader discussed introducing you to a man named Harris. The following then appeared in the transcript:[6]
Saeid: really?
Nader: Swear the God. And after that it's up to you two, I'm not involved. Like I said he's a stranger bro, can't be trusted, in this matter.
Saeid: ok
Nader: He's a stranger, if something goes wrong then...Siavash is already fucking you up, then if something goes wrong it'll be a disaster.
Saeid: ok
Nader: Swear the God, they you won't be able to get away from Siavash. We'll talk when I'm home. Food is there, have some.
[5]Session 53.
[6]ibid, page 7.
12In a call on the evening of 17 January 2018[7] you told Sia that there was no news yet and that it had been 10 days 'so far'. Regarding the release of the consignment you said, 'It's all done. Look, I told you and I have talked to this guy as well and as soon as they call, we will be on our way'.[8] Sia advised you to 'Call and see what's the deal, otherwise the guy might get suspicious. You know what I'm talking about?' You asked Sia not to talk too much when calling your number.
[7]Session 83.
[8]Session 83, page 10.
13At around 9.16 am on 18 January, Sia called you again.[9] You asked him why he kept calling you and told him told him to let you sleep and reminded him that you would call if there was any news. Sia told you he had to explain things to his partner in Iran and that he and his partner had invested their money in this. Sia told you that if his shipment got there he would make it up to you, 'We'll look after you'.
[9]Session 135.
14You then called customer service at FedEx, twice. You identified yourself as Nader, provided the tracking number for the consignment and was told that further paperwork was required. You were given the number of the clearance agent. You then called the clearance agent and were referred back to the main customer service number. Over the next two hours you made many calls to FedEx customer service. Eventually you were told that you needed to provide proof of payment which you said you had done and were advised to resend the documents. You followed this up in another call at 4.13 pm that same day.[10]
[10]Prosecution Opening paragraphs [15]-[20].
15At 11.32 pm on 18 January, Sia called you again.[11] You told him you had called 'them' and there was no news. Sia told you he was going to get a lawyer to chase up the release of the goods. Another person, who was with Sia, explained to you that the goods were held up due to one document being missing. He explained what steps they were taking and that you would be contacted.
[11]Session 275.
16On 19 January 2018 at 10.09 am Sia called you[12] and told you about the pressure he was getting from his partner in Iran who was asking why Sia sent the consignment to you and that the partner was asking Sia for money in light of the arrival of a parcel in Australia. You were not doing enough to get the goods apparently, and his business partners thought you and Sia were ripping them off. You reassured Sia, telling him you spoke to them, meaning FedEx, and that you and someone else would go and get it, and that you were being told that it was just a matter of time for the consignment to be cleared. Sia told you someone was flying down from Sydney and for you to meet him and take him to speak to those holding the consignment. Sia said, 'Nader bailed on us from the very beginning'. You replied, 'I spoke to him and it's done. He accepted, told you to leave it with me and I'm going to talk to him'.[13]
[12]Session 299.
[13]Session 299, page 20.
17In that conversation and others, there was reference to you and Sia communicating online rather than over the telephone.[14]
[14]Session 137, Session 299 page 20, Session 516.
18After that call, you called FedEx customer service, identified yourself as Nader and you were told that the package was with Customs for inspection and that no further paperwork was required.[15]
[15]Prosecution Opening, [23].
19On 22 January 2018,[16] you again reassured Sia that you were doing what you could to get the consignment and that you had been so persistent with calling that the FedEx office would no longer answer your calls. Sia reminded you that he was under pressure. He asked you to go to Customs to chase it up, but you said you would not for a number of reasons.
[16]Session 516; Session 518.
20At 1.30 pm on 23 January 2018 an AFP officer, holding himself out to be an escalation agent, called you and told you that the consignment will be cleared by the end of the week.[17]
[17]Prosecution Opening, [26].
21As soon as you got off that call you called Sia. You told him that you had received a call that it had been cleared, and could be delivered by early next week. The following conversation is then recorded in the transcript:[18]
Sia: Awesome
[18]Session 569, page 25.
Saeid: Are you happy mother fucker? There is a wedding in my ass. [a phrase meaning “I’m extremely happy”]
Sia: Now that is organised, I'll send off the next one.
Saeid: But see how long we've been waiting?
Sia: Yeah
Saeid: By the way, make sure my "one" is not forgotten.
Sia: Take it easy. Right there.... hello?
Saeid: Hello
Sia: Right there, somebody will come there, right there, you open it up right there and get your "one" Saeid Ok?
Saeid: I swear I better not to open it.
Sia: See, the person who is going to come and pick it up is supposed to take half of it away. Half of it goes to Sydney and the other half goes there. Hello?
Saeid: I am listening to you.
Sia: Half of it goes to Sydney and the other half goes there.
Saeid: ok
Sia: The guy in Melbourne will give your "one” [share]
Saeid: What if the guy steals the other half? Do you know him?
Sia: Saeid
Saeid: yes
Sia: Saeid
Saeid: yes
Sia: I swear, I will never betray you.
Saeid: No, I did not mean that. I meant the guy wouldn't pinch the other half? Do you know him?
Sia: Yes I know him. He is all ok.
Saeid: oh awesome
Sia: Cheers
Saeid: But don't say I have been sitting on my ass doing nothing. Please don't say that.
Sia: Cheers, you're the man
22At 4.53 pm that day, 23 January 2018, an AFP member, posing as the delivery driver, rang you and arranged to deliver the consignment between 8 am and 12 noon on Thursday 25 January 2018.[19]
[19]Prosecution Opening, [28].
23At 5.11 pm on 23 January 2018, you called Nader and asked him to be at home the day after tomorrow before 12 noon.[20] Nader said he couldn't due to work requirements and you reminded him that it was 'about 8 money'.[21] You explained that you had been told it would be delivered between 8 am and 12 noon on Thursday. Nader said he would be there, but if it did not arrive you would owe him the pay he lost. You agreed and said you would pay him 100. Nader said he would speak to his employer to get the time off.
[20]Session 591.
[21]Session 591, page 28.
24In that and the next calls[22] between you and Nader, you kept pressure on him to be there to collect the consignment and discussed whether duty had already been paid on it. At 1.47 am on 25 January 2018 you send him a reminder text about the delivery.[23] You called him at 2.22 am, again reminding him.[24]
[22]Session 593; Session 595.
[23]SMS 2.
[24]Session 717.
25On 25 January 2018, you had several calls with Nader, over the morning.[25]
[25]Session 725; Session 730; Session 744.
26The consignment was delivered at 11.10 am to the St Albans address. Nader was waiting in the driveway and assisted the driver to unload the two boxes onto the nature strip. At the same time you were observed getting out of your car which had been parked down the street and you walked into the driveway of the delivery address.
27After the delivery truck had left, you and Nader loaded the boxes into a vehicle and drove to your shared home in Burnside Heights. There, you both removed the boxes from the vehicle and moved out of sight. At 11.41 am Nader left that address.
28At 11.55 am he called you and told you to take a photo of 'that thingy', and to send it to Sia because it did not look like the one Sia had. Nader said, 'If Sia said "yes, it is", then you are to delete the photo from your phone'.[26] At 12.43 pm, Nader called you again to ask you if you had done that and you told him to relax and that you and he were not going to open it.[27] After you were arrested, Sia sent you two text messages asking you to answer so that arrangements could be made for the goods to be collected from you.[28]
[26]Session 748.
[27]Session 750.
[28]SMS 4 and 5.
29A member of the AFP arrested you at your home at 1.30 pm that day. The AFP members found the two boxes in the garage. When interviewed at your home after your arrest, you said the boxes belonged to Nader and that you had been told that it would be collected that day or the next by people you did not know.
30A formal interview was carried out that afternoon. You told the police that you knew Sia from school in Iran. You had met Nader when you were coming to Australia on the boat that brought you from Indonesia. You said that Sia had asked you a few times to receive some opium but you had said no. In December 2017, Sia had contacted you and said he needed an address to send opium to and that Sia said he would pay $10,000 for this service. Nader, who was listening, agreed for his name to be used as a recipient and provided the St Albans address.
31You said Sia only called you, and he would speak to Nader only if Nader was present with you. Both you and Nader went to FedEx on 8 January to check if the consignment was there, but you accepted that it was you who made the calls to FedEx because your English was better than Nader's.
32You said that Nader was to be paid $10,000 of which you would receive $1,000 in return for providing your phone number as the contact. You said that Nader had offered to increase that to $2,000, but you refused.
33You said that Sia had sent you a photo of the machines two days before and told you the drugs were in the small box and that you were told to keep the small package and get rid of the big one. Sia had told you to open the box and remove the drugs and that someone would come to collect everything, and that Sia did not want you - sorry - and that you did not want them to know where the drugs were hidden. I'm not sure whether that was you or Sia.
34You explained that Sia was persistent in asking you what was going on and, quote, 'Also, he got me, ah, dad address, like it was a threat or something, you know. If you - he will get like, if I stole it, if I don't...'.[29] Later you said that during the time after the consignment was waiting for clearance, Sia was threatening your parents and you.[30]
[29]Record of Interview, Answer 151.
[30]Record of Interview, Answer 158-160, 166-168.
Issues in Dispute
35Whilst the facts I have set out above were largely accepted by you, there were several issues in dispute on the plea. These were:
(a) whether you were acting under pressure from Sia or anyone else in Iran; and
(b) the respective roles of you and Nader, including what reward you were to receive.
36As to the claim that you were under pressure by reason of threats being made about your parents, I am unable to find on the balance of probabilities that your continued efforts were motivated by such threats.
(a) First, there are no threats included in the intercepted calls. Accepting that you were also in communication with Sia via another method, this is not conclusive.
(b) Secondly, the transcripts show that you were comfortable in your interactions with Sia.
(i)You speak to him, or you spoke to him as an equal. You called each other 'bro'. You called him 'motherfucker' and scolded him for calling you too often.[31]
(ii)You advised him when he was worried about the delay and felt sufficiently confident to tell him when you thought steps were unnecessary.[32]
(iii)You apparently told him that, unlike you, Sia and his partners were sitting there doing nothing.[33]
(iv)When Sia was telling you about the pressure he was under, you responded, 'What else do you expect me to do?'.[34]
[31]For example, pages 9-10, 12, 13, 15, 18, 25.
[32]For example, pages 4, 22-24.
[33]Page 13.
[34]Page 19; see also Session 516.
(c) Thirdly, although this is of less importance on this issue, Sia told you that those pressuring him were 'decent' and not 'nasty people'.[35]
These interactions give no indication that you were acting under pressure of a threat or threats to anyone.
[35]Page 19.
37I do not consider that the references in the calls to people in Iran 'fucking [you]', are clear evidence of threats. Your counsel referred to a call on 16 January 2018 where Nader said, 'Siavash is already fucking you up, then if something goes wrong it'll be a disaster.' Your response to that was, 'Okay.' Nader said, 'Swear the God, they - you won't be able to get away from Siavash. …'[36] He then said you would talk at home and eat. Whilst this, taken in isolation, might be interpreted as Sia being threatening, when read in the context of the calls with Sia and the other calls, it does not persuade me on balance that Sia or any other person was threatening you.
[36]Session 53, page 7.
38I note that the day before that call, when you were - when you told your friend Ali that the people in Iran were fucking you, Ali asked you what they were saying and your response was, 'It's like this and it's like that, and you need to go there. I said, "Bro, I won't go there. I'm not an idiot." I said, "Go and get it, if you have people to go there."'[37] It seems to me that what you meant, that they were pestering, was that they were pestering you to take more action to get the consignment cleared, but not that they were threatening you.
[37]Session 14, page 2.
39Furthermore, what you described to the AFP was quite vague. You referred to threats being made but not what the threats were, nor who precisely was making them.
40As to the respective roles between you and Nader, I note that Sia described him as having baled on them from the beginning and that you told Sia to leave it with you and that you would talk to Nader.[38] You were the active player in contacting FedEx and dealing with Sia. You told the investigators that Nader only spoke to Sia if he was there when you were on the phone to Sia. Nader had to be persuaded by you to be at the address in St Albans to take possession of the consignment.
[38]Session 299, page 20.
41While Nader's name and former address were on the consignment, I do not consider that this is evidence that he had the more significant role in the offending. I accept the submission of the prosecutor that this suggests that it was Nader who was more at risk of being associated with the offending, and thus he was a less important person in the offending than you.
42Your counsel submitted that the evidence indicated that Nader was to be paid $8,000. She noted the conversation I referred to above and she pointed to Sia telling you that you would get 'One' in the conversation after the consignment cleared customs.[39] She submitted that this was evidence that you were to receive $1,000. She submitted also that as Nader's name was used as the recipient, it was reasonable that he would receive the greater payment, as his risk of detection was more than yours.
[39]Session 569.
43The prosecutor noted that the translation of Session 596, the call in which you and Sia referred to you getting your 'One' is not - sorry, it was not a reference to $1,000. First, the translator put the word 'One' in quotation marks and footnoted it to mean share. Secondly, read as a whole, the references to you receiving your 'One' are more consistent with you being given a share of the drugs rather than $1,000. I note that I do not find beyond reasonable doubt that you were to receive a share of the drugs rather than monetary compensation.
44The prosecutor noted that there were inconsistencies in the version you gave in your interview as to how much you were to receive for your part in the offending. She pointed to the following answers:
(a) First, you said: '[Nader] put his name on it and for the number - he asked for the number and he just said - I was going - I didn't want to deal with this, you know. I was going to put myself away, and the thing is, I was just going to get, like I told Nader, "If you get ten thousand, give me two thousand from that ten thousand." He gets nine thousand, just give me one thousand and that'll be enough for me.'[40]
(b) Later, you said that the payment was to be $10,000 to be given to Nader by the person collecting the drugs.[41]
(c) Somewhere else, you told the investigators that you and Nader put the package in you garage, that Nader left to work and you were planning to go to the beach. You were unable to explain how the package would be collected and said you did not really care about that, or what was going to happen. You said, 'The thing is, he was going to get his ten thousand Nader - and that's it. He yeah - he picked up the ten.' You then said that you were going to get $1,000 of that $10,000 and that while Nader had offered you $2,000, you only wanted $1,000 to pay your car registration. [42]
[40]Answer 149.
[41]Q&A 450-453.
[42]Q&A 561-575.
45Then, at Answers 262 to 266:
Q:Okay. So just to go over, … before you moved to Wilkins crescent which Is where you live at the moment.
A:Yep.
Q:A friend was offered ten thousand dollars for an address?
A:Mm-hmm. To me.
Q:Nader said to put his name on it.
A:Yeah.
Q:And he provided an address but you didn't what that address was?
A:Yeah, yeah.
Q:Okay. And he needed a number and you provided your phone number?
A:Yep.
46It was submitted by the prosecutor that in view of the inconsistencies in the interview I should be slow to accept your assertion that you were only going to receive $1,000. Furthermore, it was submitted that even if I accepted that, there is evidence in the telephone calls with Sia that he was offering you more to secure your assistance when the packages were slow to clear customs.[43]
[43]Session 135, page 13.
47I consider that the conversation between you and Nader on 23 January 2018, when you were persuading him to be there for the delivery, is the most reliable evidence about what Nader was to receive. You told him it was 'about 8 money'.[44]
[44]Session 591, page 28.
48This does not answer the question as to how much you were to receive for your actions. Your statements in the record of interview were generally consistent that there would be $10,000 provided by the person collecting the drugs, and that this was also consistent with Nader receiving $8,000. It seems a reasonable suggestion that as the person taking the greater risk by giving his name and old address, Nader was to receive more money than you, who provided only your phone number.
49In view of the unreliability of your answers in the record of interview and the other material, I am unable to find, on balance of probabilities, what you were to receive for your offending.
Offence gravity
50In a case of Nguyen v The Queen and Phommalysack v The Queen, the Court of Appeal confirmed the following statements regarding the gravity of this type of offending:[45]
[I]t should be kept in mind that the act of attempted possession can be attended by a wide range of moral culpability, so that the circumstances in which a person so charged attempted to come into possession of the drug, and what it was that the person intended to do with that drug, are relevant to determining the degree of moral culpability attached to the act of attempted possession itself. A sentencing judge should have regard to the offender's involvement in the overall transaction for the purpose of determining the offender's degree of involvement in a drug-smuggling enterprise.
Offences of attempting to possess imported drugs are not, for that reason, in a less serious category than that of importing the drugs.
[45]Nguyen v The Queen; Phommalysack v The Queen (2011) 31 VR 673 at [36].
51The facts which I take into account in assessing the gravity of your offending are:
(d) The quantity of border controlled drug was 10.83 kilograms of pure opium, a marketable quantity of opium is 20 grams and a commercial quantity is 20 kilograms. The amount of drug you attempted to possess was 541 times the marketable quantity threshold.
(e) The estimated wholesale value of the drugs was between AUD $184,000 and $246,000. The estimated street value was between $309,887.50 (if sold at $25 per gram at current purity), and $743,730 (if it was sold at $60 per gram at current purity).
(f) You were active and persistent in seeking to take possession of the consignment and hence the drug. You did everything you could to take possession of the drug. The charge is one of attempt, not because of anything that you left undone, but because the drug had been replaced by an inert substance.
(g) Whilst I have not been able to form a conclusion as to how much you would have received, it is clear that you were a willing participant in this offending and that your participation was motivated by financial gain rather than by any threats to you or your family.
(h) There is no evidence that you were planning to sell the drug yourself; rather you took possession of the consignment in the expectation that the drug would be collected by other people.
(i) You were a small player in a larger operation. The calls show that Sia was involved with other people in Iran who had a substantial financial investment. Other people were involved in Australia in addition to you and Nader. Sia referred to sending another consignment to Australia.
Personal circumstances
52You were born in Iran. You describe your father as having been violent towards you, your mother and towards you, particularly after you converted to Christianity as a teenager. You fled Iran whilst still a teenager and made your way to Australia via Indonesia. Your parents and a younger brother still live in Iran.
53You told Ms Lechner that you were assaulted by family members and others with whom your father was in conflict. You reported also that as a child you were abused. Your mother and an uncle helped you to leave Iran and the violence you were suffering there.[46]
[46]Psychological report of Carla Lechner dated 2 March 2021, page 2.
54You have described the ordeal of boarding a boat with around 80 other people in Jakarta to make the trip to Australia in 2013. At that time you were 17 years old. Nader was another person on that boat. The boat was at sea for some five days and began to sink. You and others were rescued by the Australian Navy. You report that you almost drowned before being rescued.
55On arrival in Australia, you were placed in immigration detention for several months, before being given a bridging visa. You moved to Melbourne, found work and enrolled with a language centre. I note that your English is now quite good. You moved jobs a number of times. You told Ms Lechner that you got bored in a job and that since arriving in Australia you had been employed around 10 per cent of the time.
56You fell into bad company and started using drugs and alcohol. You have used cannabis, methylamphetamine, cocaine, LSD and ecstasy. You have smoked opium occasionally. You were drinking heavily. You have no family support here.
57On remand you worked in the kitchen for a time, but are now focused on study, doing courses in English, maths and information technology. You have a partner and plans for the future. You were unable to receive visits from her during 2020, due to the COVID-19 restrictions. I note your partner's reference about you and the kind things that she has said.
58You were surprisingly unconcerned about your prospects of staying in Australia. I was told that you are currently an unlawful non-citizen and you have not had a visa since February 2018. After you are released from custody, you will be interviewed and a decision will be made about whether you will be placed into detention, pending a decision as to whether or not to deport you. While you do not presently seem to appreciate the risk you face of not being permitted to stay in Australia, I accept that once you do so understand, this will weigh on your mind.
59You told Ms Lechner that you became involved in this offending to 'help' a friend.
60As to your mental health, you reported being diagnosed with ADHD when you were a child in Iran and that you were medicated for that for around two years. You told Ms Lechner that it affected your concentration, but you did not have social or behavioural problems.
61Ms Lechner formed the following conclusions about you:
(j) First, that you appeared to be of average to low average intelligence;
(k) Second, you present with symptoms of post-traumatic stress disorder for which you have not had any significant treatment;
(l) Third, you were immature and traumatised when you arrived in Australia and attempted to make your way without support and skills to address your mental health. You used drugs and alcohol to some extent as a way to deal with your mental health issues;
(m) Fourth, you have matured whilst in custody and have better insight into your mental health/mental state;
(n) Fifth, you have reported symptoms of severe mental unwellness and mild depression but your anxiety has reduced. You have been assisted by antidepressant medication;
(o) And sixth, she considered your participation in the offending was due in part to your immaturity and lack of understanding about the very serious nature of your conduct. She considered your unresolved mental health concerns, and your self-medicating in that context, as well as your impaired judgment due to alcohol abuse, contributed to your offending.
62It was submitted that your depression and post-traumatic stress disorder symptoms made your time in custody more onerous than it would be for a person without those symptoms, and that custody had an adverse impact on your mental health.
63I accept that your mental state means that prison has and will weigh more heavily upon you than a person without those symptoms. I note that you told Ms Lechner that your depression varies in intensity, but that sometimes you feel very low.
64The evidence does not establish that there is a serious risk of imprisonment having a significant adverse effect on your mental health. On the contrary, you have been doing quite well in custody, have sought and received mental health treatment, and are engaged in study.
Plea of Guilty and Remorse
65Your plea of guilty was entered the day after the jury had been empanelled. You had been relying on duress as a defence to the charge. I was told that you took some time to come to terms with the advice that you would not succeed with that defence. Your plea of guilty has some utilitarian value, although much less than it would have been - would have been the case if you had pleaded guilty earlier, or before a jury was empanelled.
66In assessing your remorse, it is relevant that you have not disputed what you did, only whether you were acting freely or voluntarily, rather than under duress. You told Ms Lechner that you were sorry for what happened and that you have found being incarcerated on remand has helped you mature and improve yourself.[47] I accept that you have some remorse for your offending. In a letter addressed to me, you described yourself as ashamed of your offending and that you have learnt a valuable lesson.
[47]Lechner Report, page 4 .
Parity
67Your co-offender Nader was sentenced by another judge of this court in mid‑2019 to four years and six months imprisonment with a non-parole period of three years.[48] That judge sentenced Nader on the basis that:
(p) He was to receive $8,000 for his participation in the offending;[49]
(q) Nader was 40 at the time of sentence and had had to flee Iran after being interrogated and harassed by the security service due to having sung songs which had been deemed to be anti-government;[50]
(r) Nader was on the same boat from Indonesia as you, and when in Australia he found steady, full time work as a bricklayer. He was a steady and law‑abiding person, sending money to his family in Iran;
(s) He was drawn into the offending by you and his acts were limited to providing the address and being present for the delivery. The judge considered his role was minor compared to yours;[51]
(t) Nader pleaded guilty at an early stage with significant utilitarian benefit;[52]
(u) The evidence regarding Nader's mental state was similar to yours, and;
(v) Nader was at risk of deportation, which was taken into account.[53]
[48]The Queen v Nader Khanmohammadi Ahmad Abad [2019] VCC 870.
[49]Ibid [38].
[50]Ibid [40]-[44].
[51]Ibid [67].
[52]Ibid [55]-[56].
[53]Ibid [60]-[63].
68While you are younger than Nader, and immature, you played a much greater role in the offending. You were the one in contact with Sia and you were the one who made the calls to FedEx regarding the consignment. You had to persuade Nader to be there to take the delivery on 25 January 2018. Furthermore, you pleaded guilty at a late stage in contrast to Nader who pleaded at an early stage.
69Pursuant to s.16A of the Crimes Act1914 (Cth), I must impose a sentence that is of a severity appropriate in all the circumstances of the case. Sub-section 2 sets out the matter which I must take into account, if relevant and known to me. Particularly relevant in your case are: (a), the nature and circumstances of the offence; (f), the degree to which you have shown contrition for the offence; (g), your plea of guilty; (j), the deterrent effect of the sentence order upon you, or order upon you; (ja), general deterrence; (k), adequate punishment; (m), your personal circumstances; and (n), your prospects for rehabilitation.
70I have already addressed some of those considerations.
71I consider you have reasonable prospects of rehabilitation. You were young and unsupported by family or wiser friends at the time of the offending. You were struggling of the effects of various traumatic events upon your mental health and engaged in using drugs and alcohol as a coping mechanism. The time you have spent on remand, and will further spend in custody on this matter, will act as a deterrent upon you from committing further offences.
72Deterring others from committing offences of this nature is a significant sentencing consideration. The Court of Appeal has said:[54]
The difficulty of detecting importation offences and the great social consequences that follow suggest that deterrence is to be given chief weight on sentence, and that stern punishment will be warranted in almost every case. [...] Involvement at any level in a drug importation must necessarily attract a significant sentence. Otherwise, the interests of general deterrence are not served.
[54]Nguyen v The Queen; Phommalysack v The Queen (2011) 31 VR 673 at [36].
73I must not pass a sentence of imprisonment unless, having considered all the other options, I am satisfied that no other sentence is appropriate in all the circumstances of the case.[55] In your case, for the reasons I have set out above, I am satisfied no other sentence than imprisonment is appropriate in your case.
[55]Crimes Act 1914 (Cth), s17A.
74I have also taken into account the comparable cases noted by the prosecution.[56] Two of those cases, Alavy and Cappis, are more similar to your case than the others. The sentence imposed on your co-offender is also relevant, as I must consider and apply the principle of totality.
[56]Alavy v The Queen [2014] VSCA 25; Cappis v R [2015] NSWCCA 138; Kaveh v R [2017] NSWCCA 52; Yaqub v R [2018] NSWCCA 14.
75Mr Balagar, on the single charge on the indictment I impose a sentence of seven years imprisonment with a non-parole period of five years.
76I declare 1,190 days of pre-sentence detention, not including today, and direct that that figure be entered into the records of the court.
77Pursuant s.6AAA of the Victorian Sentencing Act, I declare that if you had not pleaded guilty, I would have sentenced you to seven years and six months imprisonment with a non-parole period of five years and six months.
78So, Mr Balagar, your sentence, just to repeat, is seven years imprisonment with a non-parole period of five years. If you can just take him off mute, please. I am required to explain to you about the non-parole period, so if you can just listen carefully what I'm about to tell you. The sentence I have imposed will mean that you serve of - a term of imprisonment of no less than five years, and if you are granted parole, then you will have a period of community - in the community of up to two years.
79Now, if you are granted parole at any time, that parole order will be subject to various conditions, and it can be varied or withdrawn. If you breach any of the conditions, then - without having a reasonable excuse, then your parole can be cancelled and you would be required to serve out some or all of the rest of the non-parole period.
80Ms Caretti, does that sufficiently explain?
81MS CARETTI: Yes, it does, Your Honour.
82HER HONOUR: All right. Is there anything else that needs to be addressed?
83MS CARETTI: Your Honour, there is one final matter, that being the forensic procedure order.
84HER HONOUR: Okay. Ms Swiney, is that opposed? I can't hear you. We'll just mute Mr Balagar again, please. Ms Swiney, what was the attitude towards the forensic procedure?
85MS SWINEY: No, it's not opposed, Your Honour.
86HER HONOUR: Okay. I will make an order for a buccal swab. Mr Balagar, that means that the authorities will come to you to take a swab of your DNA. They do that generally by rubbing a swab inside your mouth. I have to tell you that if you refuse to go along with it, they're allowed to use reasonable force to take the swab from you. But Ms Swiney will speak to you about that further, I'm sure. All right, is that everything?
87MS CARETTI: It is, Your Honour.
88MS SWINEY: Yes, Your Honour.
89HER HONOUR: Thank you. We'll adjourn.
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