CDirector of Public Prosecutions v Mali
[2023] VCC 2256
•30 November 2023
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 21-02594
| DIRECTOR OF PUBLIC PROSECUTIONS (CTH) |
| v |
| MARK MALI |
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JUDGE: | HER HONOUR JUDGE GAYNOR |
WHERE HELD: | Melbourne |
DATE OF HEARING: | |
DATE OF SENTENCE: | 30 November 2023 |
CASE MAY BE CITED AS: | CDPP v Mali |
MEDIUM NEUTRAL CITATION: | [2023] VCC 2256 |
REASONS FOR SENTENCE
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Subject: | CRIMINAL LAW |
Catchwords: | Attempt to possess a commercial quantity of an unlawfully imported border controlled drug – Pre-sentence detention – No criminal priors |
Legislation Cited: | Crimes Act 1914 |
Cases Cited: | |
Sentence: | 7 years’ imprisonment with a non-parole period of 5 years’ imprisonment |
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APPEARANCES: | Counsel | Solicitors |
For the Commonwealth | Mr P. Botros | DPP (Cth) |
For the Accused | Mr S. Tovey | Stephen Andrianakis & Associates |
HER HONOUR:
1Mark Mali, a jury has found you guilty of one charge of attempting to possess a commercial quantity of an unlawfully imported border-controlled drug, contrary to s11(1) and 307.5(1) of the Commonwealth Criminal Code.
2The facts underlying your offending are as follows. On 19 January 2021 two consignments arrived in Australia addressed to Angel Rogosic and
Jessica Rogosic respectively, both at the same address, 13 Elysium Grove, Oakleigh East, and bearing the same telephone number. The consignments were from London.3On 20 January 2021 examination by Australian Border Force officials of Consignment 1, revealed a large cardboard box containing personal belongings including a coat. In that coat pocket and sleeves were discovered nine duct tape packages containing vacuum filled bags in which were bags of white powder.
4On 29 January 2021 Australian Border Force officials deconstructed the container and found 18 duct tape packages. In the containers were also Tesco brand health grills, pairs of men's black boots, women's boots, rolls of wallpaper, bath towels, a women's coat with fur hoodies and bags of Tetley Original. Analysis of the contents of the packages determined that they contained between 2.9 and 4.1 kilograms of cocaine. The contents of the duct tape packages were replaced with plaster.
5The house at 13 Elysium Crescent had been abandoned since 21 December 2020. Jessica Rogosic had lived there with her family but they left that address in May 2020. She did not order the consignments, nor did she know Angel Rogosic. The telephone was registered to one, Lua Lee at an address in Springvale, but no one of that name lived there.
6
On 1 February 2021 at 9.13 am an undercover police officer, CO 331., sent text messages to that telephone number, advising the consignments would be delivered between 10 am and 1 pm that day. You were seen by police at
9.16 am sitting at the wheel of a Lexus motor vehicle parked near 13 Elysium Crescent. You got out of the car at 10.02 am and walked up and down the street, then returned to the car. Between 10.37 am and 10.55 am you moved the car in the same street, exited a couple of times and walked around before driving back to your apartment residence at 436 to 442 Huntingdale Road, Mount Waverley.
7CO 332 arrived at no.13 Elysium Crescent with the assignment at 12.32 pm and rang the doorbell but no one answered. On 2 February 2021 police saw you walking on Elysium Crescent near no.13. At 10.03am CO 331 arrived there to try to deliver the consignment. As he arrived in a delivery van you approached on foot and gestured with your hands then went into the front driveway of no.13. CO 331 got out and greeted you, saying that he had packages to deliver and you replying, 'Yes'. He asked if you wanted help carrying the packages. You said, 'Yep', and thanked him for carrying the boxes to the front door. You then signed the delivery paper he presented with your name.
8You then put the boxes in the Lexus and drove to your home but parked in a nearby street and walked into your apartment. Police saw the boxes were still in the Lexus but covered with water bottles. You were seen a few minutes later on another nearby street talking to an unknown man. Then you returned to your home, leaving again in an Audi motor vehicle. You were gone for a few hours and police continued surveilling the Lexus. After a couple of hours you returned to the Lexus, and checked the door handle. You had parked the Audi on a different street. Then returned to it and then drove to your home. This was at about 1 pm.
9At 8.31 pm you returned to the Lexus then drove in a loop through residential streets. Police surveillance lost you for about 10 minutes from 8.37 pm. It was the prosecution case that you had driven in this manner in order to avoid detection. At 8.47 pm the Lexus was seen parked on Beverley Grove, then you took a similarly circuitous route back to Hillview Avenue, which was near where you had parked previously. At 8.57 pm police saw the Lexus parked on Waverley Road with you standing beside it. At 8.58 pm you drove back along Hillview Road and Waverley Road before turning into Huntingdale Road and parking in the underground car park of your apartment building.
10
Between 9.12 and 9.34 pm you attended the communal bin room of the apartment complex three times. The first time you carried a plastic shopping bag. On the second and third occasions you carried a cardboard box, which were found to be the boxes from the substituted consignment. At 10.54 pm police saw clothing and towels throughout the rear of the Lexus. On
3 February 2021 Australian Federal Police executed a search warrant of your apartment. They located items from the consignments, including men and women's boots, two bags of Tetley Original, bath towels and a Tesco health grill. From communal bins police located the two cardboard boxes but with the consignment labels cut out. Those labels had been cut into pieces. They found towels, a health grill, rolls of wallpaper and coats including a woman's coat with the fur hood in which packages of cocaine had originally been found and into which the substituted packages were placed. They also located a clothing tag which had been in the same jacket pocket as the substituted packages. You were arrested but not interviewed due to the unavailability of an Albanian interpreter.
11I now turn to your personal circumstances. You are 58 years old and have no prior criminal history. You were born in Albania and were one of five children. You completed high school and then worked for a government run construction company in 1980. In time you became a company supervisor, in the meantime completing two years of compulsory national service. In 1992 you transferred to the Albanian Capital, Tirana, working in a government owned hotel as a supervisor until 1997. In that year Albania began to transition from a communist to a democratic state. In 1998 you met your partner, Ms Nasso, who has a degree in chemistry.
12After Albania transitioned to democracy you and she opened a restaurant. Your daughter was born in 2007. Eventually you were menaced by Albanian gangs demanding a tax to enable you to keep your business open. They damaged the restaurant, attacked your wife and threatened your family. In 2015 you closed the business and came to Australia on 22 August 2015 on your partner's student visa. In Australia you worked generally in cleaning as well as construction and your wife began a cleaning business. In 2022 you applied for a protection visa for fear of your safety should you be deported. Your counsel told me you had returned to Albania on occasion to determine if you and your family could safely return there but discovered each time that you remained under threat from Albanian gangs.
13You have been held in custody since your arrest. Your partner and daughter now reside at a friend's house in South Yarra. Your daughter is in her mid-teens and has also had to change her schools.
14There was some argument on the plea based on a jury question as to whether with regard to the meaning of obtained this was related to the initial reception of the boxes by you or simply to them having been in your possession. That is “possession implying obtained.” I directed the jury they needed to be sure of your state of mind whilst in possession of the substituted consignment. A verdict of guilty was then returned.
15The prosecution has conceded that the jury question suggested at least one juror was not satisfied beyond reasonable doubt you had the requisite state of mind at the time you collected the boxes, but was satisfied you had come to have this while the boxes were in your possession. In my view the jury question did reveal a doubt as to you holding the requisite intention at the time you collected the boxes and I have sentenced in relation to this.
16
The defence, however, did argue that I should find that you became reckless as to the nature of the substance, 'very late in the piece', possibly whilst delivering the consignment. The prosecutor, Mr Botros, argued against this, pointing out that to be found guilty you must have had possession and the requisite state of mind which could not have been the case simply at the time of disposal. I accept that submission. I am satisfied a correct interpretation of the jury verdict is that at least by the time you returned to the Lexus to drive it to its ultimate destination in Beverley Grove you had the requisite reckless intent. You drove thereafter, I am satisfied, in a manner designed to throw off any surveillance and returned to your premises with the contents of the consignment in your car minus the substituted packages, all of which you attempted to dispose of. It was entirely open for the jury, in my view, to find that at some point after parking the Lexus in Hillside Avenue then driving it at
8.31 pm to hand over the substituted packages you had obtained the requisite intent, should you not have had it at the time you collected the cardboard boxes. All your actions after first parking the Lexus in Hillside Avenue could only be seen as you distancing yourself from the car and its contents and then seeking to avoid surveillance.
17There was no submission that I should deal with you in any way other than by imposing a term of imprisonment. The prosecution case was that your role involved you in the course of one day collecting the consignment, keeping the items in your custody and transporting them in a manner designed to avoid surveillance to the destination where you disposed of them. The prosecution accepts that your role was one of courier, a role they submit is essential to the successful importation of drugs. Mr Botros submitted you should be sentenced on the basis you were at least reckless to the contents being a border controlled drug.
18Mr Tovey for the defence submitted additionally that your role was a limited one, that you were not aware of the amount of the drugs in the consignment, had no part in their sale or a financial stake where you personally profited from that sale, nor were you involved in the trafficking of the drugs. He submitted that overall the objective seriousness of your offending fell at the lower end of the applicable range and that you should be sentenced as such. The role of a courier in drug importation can take many forms and it is true yours was limited to activity on one day. Never-the-less I am satisfied you were a vital cog in the machinery of delivery. I can also safely assume you were to be financially rewarded for the sale for the small but essential part you played in ensuring as best you could the successful importation of this significant amount of drugs. In my view, you took careful and considerable steps to avoid detection while the substituted items were in your possession, and then successfully delivered them. I am satisfied you played your part to the full. You fall to be sentenced as a minor player in the attempted importation.
19However, you were an important player. It is clear you were knowingly involved in what must have been clear to you was an unlawful enterprise from the start, albeit on the jury's verdict, without the requisite intent from the beginning of your possession of the containers. As I have said, the jury's verdict at least implies satisfaction to the requisite standard at some stage after returning to your apartment once you had collected the consignments. Regardless of this you continued in that role as best you could. Your moral culpability is not therefore at the lowest end despite the limited role you played. In sentencing you I do take into account your previous good history. I take into account the fact that your possible deportation as a result of your conviction and sentence will weigh heavily upon you whilst in custody, together with the further anxiety you will experience over the plight and wellbeing of your partner and teenage daughter. I have had regard, as I must, to sentencing across various State courts for offending of this kind and acknowledge the need for the principles of both specific and general deterrence to play a significant role in the sentencing exercise before me.
20In relation to specific deterrence, whilst you are of previous good character it is most concerning that you would involve yourself in offending of such a serious nature. In the absence of all other explanations I could not possibly exclude the conclusion that you did what you did for financial gain. That you would be so inclined to offend as you did is indeed concerning. However, you have also otherwise reached a mature age without criminal conviction and so I can have some confidence as to your future prospects of rehabilitation.
21You are not entitled to any benefits accompanying a plea of guilty. It was my view that there was a strong circumstantial case against you. Over it all it is my view that the appropriate sentence having regard to the various competing factors is a term of imprisonment of seven years and six months with a minimum non-parole period of five years. I will need to declare the PSD.
22MR BOTROS: Yes, Your Honour. It is 381 not including today.
23HER HONOUR: I declare that 381 days of your sentence have been served by way of pre-sentence detention.
24I am so sorry for that. It was in my handwriting, which is never an easy exercise. Thank you very much. We will stand down to 10.30.
25MR TOVEY: Your Honour, sorry, before Your Honour does that, there was an email sent by my learned friend's instructor yesterday as to the orders. There was a discussion on the last occasion when - - -
26HER HONOUR: What was this email?
27MR TOVEY: When, Your Honour, I think the first date Your Honour attempted to pass sentence in this matter was 25 September.
28HER HONOUR: Yes.
29MR TOVEY: On that day Your Honour gave a - indicated at the end of the hearing because of the interpreter issues Your Honour simply announce the sentence.
30HER HONOUR: Yes, that is right because I did not want him - your client waiting in suspense.
31MR TOVEY: Yes. Can I just raise one matter?
32HER HONOUR: Yes.
33MR TOVEY: On that date Your Honour announced and ultimately made orders of a sentence for seven years' imprisonment be five years.
34HER HONOUR: Yes.
35MR TOVEY: Which is different to what Your Honour has just announced.
36HER HONOUR: Actually you are right and I - yes, and I think, yes, that is right.
37MR TOVEY: Yes.
38HER HONOUR: It should be seven years and five - with five on the bottom, thank you.
39MR TOVEY: Thank you, Your Honour.
40HER HONOUR: No, fair enough, thank you.
41MR TOVEY: At the second matter the next time in between where we sought to do this I raised with Your Honour the issue that because an order that Your Honour made that day purported to list the sentence and therefore may have caused it to enter into, or be acted upon by Corrections - - -
42HER HONOUR: Yes.
43
MR TOVEY: And amongst other things commence Mr Mali's appeal
period - - -
44HER HONOUR: Yes.
45MR TOVEY: We have talked about Your Honour modifying that order or simply making a fresh order here and now today.
46HER HONOUR: What I will make it clear is that in terms of any action Mr Mali may wish to take as to an appeal, I regard the sentence as having begun today. Simply in terms of its delivery and I make it clear that I informed your client of the sentence on a previous occasion because I wished to spare him the anxiety of not knowing what was going to happen, but I regard today as a day in which I have formally handed down the sentence and that therefore the time period in which Mr Mali may consider and take action in relation to the appeal begins from today.
47MR TOVEY: Thank you, Your Honour.
48HER HONOUR: I will order a transcript.
49MR TOVEY: And should it be considered, Your Honour, that there is any ambiguity or error in the order of 25 September my learned friend and I have identified, because this is a Commonwealth sentence s19AH(a) of the Crimes Act 1914 pf the Commonwealth allows Your Honour a discretion to make any amendment or change to any previous order that may be ambiguous.
50HER HONOUR: Yes.
51
MR TOVEY: And Your Honour has just clarified it and, in my submission, what Your Honour has just said does clarify to the extent of if there was any
ambiguity - - -
52HER HONOUR: Good, all right.
53MR TOVEY: - - - that section gives Your Honour the power, and accordingly, it can be - the matter can be dealt with on the basis of sentences past and commences today.
54HER HONOUR: All right, that is fine. Thank you very much. Thank you for your assistance.
55MR TOVEY: May it please the court.
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