Director of Public Prosecutions (Cth) v Alfartose

[2015] VCC 913

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

Case No. CR-14-01879

COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS

v

MASOUD ALFARTOSE

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JUDGE:	HIS HONOUR JUDGE McINERNEY
WHERE HELD:	Melbourne
DATE OF HEARING:	6 February, 1 April and 11 May 2015
DATE OF SENTENCE:	15 June 2015
CASE MAY BE CITED AS:	DPP (Cth) v Alfartose
MEDIUM NEUTRAL CITATION:	[2015] VCC 913

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW

Catchwords:  Sentence – plea of guilty to one charge of import marketable quantity of border controlled drug

Legislation Cited:     Criminal Code Act 1995 (Cth), Crimes Act 1914 (Cth), Sentencing Act 1991 (Vic)

Cases Cited:DPP v Duong [2006] VSCA 78; R v Pidoto & O’Dea [2006] VSCA 185; R v D'Aloia [2006] VSCA 237; Atanackovic v The Queen [2015] VSCA 136; Nguyen v The Queen [2011] VSCA 32; R v Nguyen; R v Pham [2010] NSWCCA 238; Boulton v R [2014] VSCA 342; R v Verdins [2007] VSCA 102, DPP v Davis (unreported, County Court of Victoria, 19 March 2015)

Sentence:Convicted and sentenced to 3 years imprisonment. To be released after serving 18 months by way of recognisance of $3000 to be of good behaviour for 18 months.

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APPEARANCES:	Counsel	Solicitors
For the Commonwealth Director of Public Prosecutions	Ms L. Skoblar (Plea) Mr D. Sewell (Sentence)	Solicitor for the Commonwealth Office of Public Prosecutions
For the Offender	Mr L. Richter	Stary Norton Halphen

HIS HONOUR:

1Mr Alfartose has pleaded guilty before this Court to one charge of import a marketable quantity of a border controlled drug from 13 April 2014 to 23 April 2014, the drug being opium. Such offence was in fact a breach of clause 307.2(1) of the Criminal Code Act (Cth). The seriousness of such offence is demonstrated by the fact that the Commonwealth Parliament has prescribed a maximum penalty for such offence of 25 years imprisonment. Ms Linda Skoblar appeared at the plea, and Mr Sewell appears today, on behalf of the Director. Mr Richter appeared on behalf of Mr Alfartose. At the time of the offending Mr Alfartose was 47; he is now 48 having been born on 12 February 1967.

2The threshold for a marketable quantity, which brings the offence within this particular clause, is one of 20 grams. Mr Alfartose had imported approximately 60 times that amount, being 1,112 grams, that is, slightly over 1 kilogram. The provisions of clause 3121(1) of the Criminal Code Act (Cth) do not apply in this matter, because opium is a pure quantity. There has been some discussion, and was some discussion, in regard to how one takes into account that the threshold for the next most serious offence, that is, a commercial quantity of this particular drug, is 20 kilograms. Therefore what we are concerned with within the full range of clause 307.2(1) is a level, which is 5% of the highpoint of the range, or 1/20th of the next category. In my view that is an incorrect way to assess, that is, one does not go to a comparison of a charge of which Mr Alfartose is not charged. One concentrates, and the appropriate law requires one to concentrate, on the weight relative to the crime. We may in fact well be saying the same thing, but of the totality of weight that applies to an offence under clause 307.2(1), 1/20th of the highpoint of the range was imported by Mr Alfartose. Or alternatively, as I have said, 60 times above the threshold, that is, 20 grams, was imported.

3The appropriate law, albeit specifically in regard to State matters, was detailed by Buchanan JA in DPP v Duong [2006] VSCA 78 (‘Duong’), where it was stated that where Parliament prescribes a maximum penalty of 25 years, such shows unambiguously how seriously the community, through its Parliament, views this particular crime.  Obviously it is not the same crime as we are concerned here.  I quote such by way of analogy. 

4The Court went on to say: "Indeed, it is irrelevant what particular drug is involved.  The system essentially is quantity based.  We have in regard to the criminal provisions in this State and the Commonwealth a quantity-based sentencing regime and it is important, however, to remember that the quantity as such has no arithmetical relation to a sentence but of course is a very significant matter in sentencing."  This particular regime of quantity based sentencing has been fully detailed by the Court of Appeal in R v Pidoto & O’Dea [2006] VSCA 185 [34], where four of the Appeal Justices noted that the structure of that Parliament has, "adopted a hierarchy of seriousness defined by, and only by, the quantity of the drug of dependence that has been trafficked."

5Also in that case at [62] the Court indicated that the ultimate question for a sentencing Court to be considered, given such structure (in this case they were considering a trafficking matter): “Is not whether trafficking in one drug is to be viewed more seriously than traffic of another, but what sentence should be imposed for the particular trafficking.”  Here in this case, substitute the word importing bearing in mind the maximum penalty that may be imposed in dealing with the material involved.

6As I have already said, Mr Alfartose, as repeated by the Court of Appeal in Duong, the maximum penalty in regard to your offence is one of significance. 

7Further, and again by way of analogy, Nettle JA, as he then was, in R v D'Aloia [2006] VSCA 237 [56], set out a general approach for sentencing Judges. In that case he was dealing with MDMA. He said as follows: "As far as the effects of MDMA are concerned, the matter may still be approached on the basis that all of the drugs, which are described have deleterious consequences of antisocial proportions and that trafficking in any of them is therefore appropriate to be regarded as serious criminal offending." Again, I say I quote those references by way of analogy to this crime, involving importing of opium.

8By consent, I do not know whether I quoted earlier as to the appropriateness of looking at the actual amount in regard to the actual offence and not being confused by looking at what might be the amount for the next offence, there was reference insofar as the case we have been discussing this morning Atanackovic v The Queen [2015] VSCA 136 (‘Atanackovic’), in particular [149] to [152].  As I said, by consent, Exhibit A was tendered as the relevant facts of the plea, which Mr Richter accepted. 

9The only additional material tendered from the first day of the hearing was the Community Correction Order assessment report dated 9 February 2015, Exhibit B. Then in addition, the supplementary psychiatric report of Mr Newton dated 11 May 2015, Exhibit 3B, the further defence submissions of Mr Richter dated 8 May 2015, Exhibit 6, and the further defence submissions tendered today and dated 14 June 2015, Exhibit 7.

10By consent, those facts show the drugs, which I have detailed and were sent by consignment by Mr Alfartose to himself from Tehran on 13 April 2014.  On 24 April 2014, Mr Alfartose attended the Toll facility, to collect what was by then a substituted consignment of an inert substance.  The accused moved this substance to Bundoora and then to Northcote, then to his home.  He was subsequently arrested outside McDonald's at 2.38pm on that day and was found to be in possession of $950 and the relevant consignment papers in regard to the opium.  He was also carrying a phone, which was registered in his wife's name. The inert substance, albeit substituted, was found in the car in a secluded position under the spare wheel, that is, the substituted consignment. 

11Mr Alfartose was arrested and subsequently underwent a record of interview on 24 April 2015 in which he made no admissions.  Mr Alfartose comes before the Court, as a man aged 48, with no prior offences whatsoever. 

12The learned prosecutor stressed the penalty involved for any quantity in regard to this particular crime.  The learned prosecutor stressed that on the information no one else was involved, the sole person responsible for this serious breach of the Criminal Code Act (Cth) was Mr Alfartose. The weight, as summarised by the learned prosecutor, was of the lower order of weight relevant to a very serious offence. It was also submitted that the obvious profit motive has to be taken into account. It was the submission of the learned prosecutor that there is no alternative but for a period of immediate imprisonment in this case and that submission has been maintained today.

13There was reference made to a determination of the Court of Appeal and the analysis of Maxwell P in Nguyen v The Queen [2011] VSCA 32 and in particular to his recitation of the principles set out in the New South Wales case of R v Nguyen; R v Pham [2010] NSWCCA 238 [33]. It is noted that the matters that the Court is required to look at firstly was the issue of role. As I have said here, the role is Mr Alfartose's alone. He has acted, as we understand the evidence, solely on his own to effect this importation and bears sole responsibility. The fourth item referred to was the issue as to the amount. Clearly, 1 kilogram of opium is a significant amount in these circumstances. Item 6, the profit motive I will come to in due course. However, whether one accepts it was for himself or not, and I am dubious about that proposition put to me from the Bar table, clearly, whatever the motive, profit motive is an appropriate summation.

14Paragraph 8 speaks of the neutralising effect of severe punishment where persons carry out such serious crimes to effect financial reward.  That is a hope of all Courts. 

15Paragraph 9 speaks in cases such as this the need for a sentence, which effects general deterrence and demonstrates to the community that involvement in such serious criminality, at any level, must attract a significant sentence. 

16At paragraph 10 there was reference to the issues of prior good character.  There is no doubt that Mr Alfartose comes before the Court as a person of prior good character with no prior offences.  However, as was pointed out, in cases such as this is generally given much less weight because of the serious nature of these offences.

17In coming back to the issue as to what was the actual motive, it was stated from the Bar table that really if you look at, and indeed in the original submission, and work out what a person consumes then this amount is approximately what a person could have consumed over one year.

18It seems to me that as far as sentencing is concerned, common sense tells one that no person takes such a large risk, imports opium into this country knowing that it is illegal, and clearly the steps he took demonstrate that, and his plea shows that. The only reason one does it is that one does it for profit.  Whether that profit is for himself, I say I have got great doubts about that, however, there is no other evidence about it.  All I need to be satisfied of is that it was done for profit and I am totally satisfied about that.

19Insofar as the matters of mitigation put by Mr Richter, as I have said, he stressed
Mr Alfartose's age of which he comes before the Court, that he has no prior offences to that date, and relied on the character references tendered at Exhibit 1, which speak highly as to Mr Alfartose's character.  Mr Richter took me back to his history, to his circumstances and the fact that he arrived as a refugee in Australia in 2000 and became finally a citizen of this country in 2006.  Mr Richter spoke of Mr Alfartose’s family, of which he has had a wife of some 22 years and they are present today and have been on a prior occasion, in Court, his two daughters, aged 21 and 12. 

20Mr Alfartose has been up until recent times a person who has worked hard in the community.  He has conducted his own painting business called Golden Touch and indeed had five casual employees when that business was continuing.  He has, like many people in the community, a mortgage on his property.  That mortgage, I understand, is in the vicinity of some $300,000. 

21Mr Richter stressed the early plea in this matter, the discount that is available in that instance, both by way of the fact that such an early plea saves the community a substantial amount of cost by way of not being involved in a trial but also demonstrates an acceptance by Mr Alfartose of his guilt in this matter and I take that fully into account.

22It was put that one of the reasons for this crime, not by way of any excuse but perhaps by way of explanation, is that Mr Alfartose was addicted to opium.  Again, I have some doubts about that.  Mr Richter suggests he was addicted at the time of the offence.  There is no confirmation of that.  The only time Mr Alfartose has had any treatment from a general practitioner in regard to any such problem as shown in Exhibit 2 was well after the arrest, and indeed did not occur until November 2014.  The question is, does it matter?  Perhaps it may well be if he was addicted, an explanation.  But the offences here relates to not the issue of trafficking; the offences were committed by way of importing of this product.  This legislation has passed this particular section to stop the importing of marketable quantities of border controlled drugs.  Whether it was going to be for himself or others is probably not to the point.

23I accept that in addition, predominantly as Mr Alfartose is facing the consequences and the reality of the potential consequences of his crime, that he has suffered from mental difficulties in regard to that issue.  In particular I go to Mr Newton's first report and that is the report of 29 January 2015, Exhibit 3A.  On that particular day, having attended upon Mr Alfartose in his rooms on the 21st and taken his presentation and personal history, he saw an expression of considerable anxiety, as I have said, related to the potential effects upon his workers, his livelihood and his family's financial stability in the event that he would be unable to continue to manage his company.  He spoke of his family and his deep concern as to his wife and children's welfare, which he nominated as his major worry.  He suggested that he had had a difficulty with opium, and I have already made some comments on that.  It was suggested that this went back to times when he was a resident in Iran, that he had returned to the use of opium in 2003, that this came about as a result of him working hard and over time.  He suggested to Mr Newton that he had used it daily up until the time of his arrest.  It was set out in page 2 that he sought treatment with his GP and commenced a methadone replacement program.  That is true, but as I have already said, he was arrested in April of 2014 and did not see a GP until November.

24Insofar as his depression, Mr Newton concluded at p.4 of the report that the depression has arisen primarily as a reaction to his ongoing legal predicament.  Indeed, self-punitive cognitions regarding his failures, stupidity and the shameful dishonour he has brought on his family are prominent parts of his current ruminations.  Mr Newton was of the opinion that his current criteria was an adjustment disorder with mixed anxiety and depressed mood and that there was a risk of more severe mood disturbance.  It was noted that since his arrest he suggests that he had been participating in a methadone replacement program; I do not think that is correct.  However, he has not participated in any counselling or similar intervention.  Based purely upon the instructions from Mr Alfartose, Mr Newton opined that he could be diagnosed as having an opium use disorder. The condition unfortunately, according to Mr Newton, was exacerbated in the intervening period and this may well have a lot to do with the fact that finally his family was fully apprised of the circumstances of this matter. 

25The prisoner was subsequently seen by way of review on 6 May 2015.  As I have said, Exhibit 3B is a supplementary report of Mr Newton dated 8 May 2015.  At that date he was suffering noteworthy emotional distress.  This was assessed as being primarily reactive in nature.  It comprised prominent depression as well as significant anxiety.  His anxiety was focused on the combination of concern for his family wellbeing and the potential consequences for them and indeed no doubt him were he to be incarcerated.  It was recommended at paragraph 6 the treatment that was necessary for him.  All of this clearly is possible to be undertaken in a gaol environment.  Mr Alfartose had apparently admitted himself for treatment by way of a voluntary admission, which on the day of the last hearing he left to attend this Court.  

26At paragraph 17 was the concerning report given his presentation of intense, intrusive and recurrent suicidal ideation.  He concluded that he presents as a man in severe emotional crisis.  As he had feared, and as I had referred to in the earlier report, he was concerned about the increase in stress associated with his plea hearing, which has resulted in severe deterioration of his mental state.  He spoke of the type of treatment that should have been prescribed but he was not aware precisely what it was but was of the view that an appropriate antidepressant mobilisation of social reports were needed as a minimum.

27As I say, the matter was listed again on 11 May 2015 and Exhibit 6 was tendered, which was the further submissions dated 8 May 2015 by Mr Richter. 
Mr Richter at paragraph 1 essentially provided an overview of the matters that he had spoken about at the earlier time.  At paragraph 2 he spoke of the new factors, that is, that at the time of the initial plea his wife had not been advised of the matters.  Apparently, this was disclosed in late March, albeit not the offending but that he was back on opium, which apparently he had promised his wife never to be.  Apparently because of that, she left him and left him in control of his children. 

28MR RICHTER:  Your Honour, that wasn’t the circumstance.  The circumstance was in fact that he had disclosed to her that he had been addicted to opium before at the time of the offending, not that he had been back on it subsequent.

29HIS HONOUR:  No, that is what I meant, that he was on it at the time of the offending and told her that.

30MR RICHTER:  Yes.  Sorry, my mistake, Your Honour.

31HIS HONOUR:  Subsequently, on 27 April 2015, having returned from Iran,
Mrs Alfartose in fact attended at a conference and at this conference it would appear whether in anticipation of what was going to happen that he had taken an overdose of something called Mirtazapine and had to be hospitalised as a result thereof.  The end result is that Mrs Alfartose is now fully informed of his offending and the addiction pre-offence and has been learning of the need for pharmacological therapy and has attended apparently since that time assisting him in the collection of the methadone and she is before the Court fully supportive of him. 

32As I have said, the supplementary report was tendered.  Clearly, according to
Mr Newton, the prisoner’s mental state had significantly declined and as a result of the overdose he was hospitalised.  The CAT team apparently kept check of his progress and on 7 May 2015 the CAT team was contacted because of his distress and he was taken to the Maroondah Psychiatric Centre where he was currently an in-patient.  As I have said, he had released himself for the plea. 

33There were further submissions in regard to the plea on that day and then subsequently today has been tendered a further defence submission insofar as the plea is concerned.  The plea today essentially recognises the decision of Atanackovic insofar as the applicability of the principles in Boulton v R [2014] VSCA 342 (‘Boulton’) to a Commonwealth sentence and I do not think there is any issue between the Court and counsel in regard to those matters. 

34The submission made today essentially goes a bit further than one that was made earlier.  The submission earlier was that applying Boulton principles that, taking into account all the circumstances, it was appropriate to apply in those circumstances a sentence, which imposed imprisonment and a CCO, by way of combination. Given the Court of Appeal's decision clearly that cannot apply. However, upon analysis made today of the totality of the circumstances, in particular the mental condition but more particularly a maintenance of the analysis of the type of crime as such that Mr Richter has submitted that an appropriate sentence would and could involve a CCO alone, that the support and structure offered is such that making the considerations that are required by a Court as set out in s.16A(3) of the Crimes Act (Cth) that such an imposition would be appropriate in all the circumstances of this case.

35Insofar as the family is concerned, it is clear that they are on all the material before the Court, in a somewhat parlous position.  The wife and elder daughter and indeed youngest daughter face particular difficulties with income earning, payment of debts and indeed payment of outstanding tax.  There was no submission in that regard that this reaches the heights that is required by way to reach a submission of exceptional circumstances.  However, a Court obviously takes into account from a humane point of view the impact upon a family in this type of case of any sentence but in particular a sentence of imprisonment.  

36At the time of the original plea I said to Mr Richter that I did not consider a Community Correction Order applicable in the circumstances.  However, I was prepared given his submission to get the report, which I have already referred to as being favourable for the grant of such an order.  As I have said, as of today's submission, post the determination of the Court of Appeal, it has been put that I should, in this instance, take the view that the totality of the circumstances involving Mr Alfartose are such that they are of a very exceptional nature such that would warrant a sentence for an offence of this seriousness, which did not involve immediate imprisonment. 

37I can say that I have given this matter much consideration, both from the first submission made and indeed the variation on submission made today.  In the particular circumstances of this case, as I have analysed them, in my view there is no alternative but for a period of immediate imprisonment.  This is not an appropriate case and was not in my view, even at the earlier hearing where it was presumed Boulton applied, for a combined imprisonment CCO imposition. Having realigned ourselves with the current law, I also find, though a CCO is permissible for a single Commonwealth offence where imprisonment is not part of the sentence, having analysed all the circumstances, the serious nature of this matter is such that there is no alternative but for a period of imprisonment.  

38I do, however, take into account the matters that were put to me, which bring in the Verdins principles that, given the acceptance of Mr Newton's assessment of Mr Alfartose's current mental state, certainly at least initially until he accepts his situation, his service of gaol in his current mental state of a period of imprisonment, whether he initially serves there or is needed to be treated elsewhere is obviously going to be a matter for the authorities.  But clearly the imposition of such will impact upon him to a greater degree than the normal member of the public.  

39I have also taken into account in the sentence I am intending to impose all the matters set out in s.16A(2)(a) through to (p) and also 16A(3).  In particular it seems to me that the factors that are very relevant in a disposition in this case are the fact that he comes before the Court for the first time, that he has no priors at all and there is no doubt that there will be quite substantially humane impacts upon his family, which I take into account on a humane basis.

40There have been various authorities put to me by Mr Richter.  These are always difficult determinations.  One must give of course give comity to all sentences of one's brothers and sisters.  The matter of DPP v Davis (unreported, County Court of Victoria, 19 March 2015) is somewhat limited now because Her Honour used the Boulton principles to effect the sentence in that matter.  He was a youthful offender, albeit a higher amount of drugs involved.  All I can say is I would not have been so generous as Her Honour was in Davis.

41Mr Alfartose, if you could stand, please.  For this offence being a breach of the Criminal Code Act (Cth) you will be sentenced to a period of imprisonment of three years. Pursuant to the provisions of s.19AC of the Crimes Act (Cth) I, for the reasons that I have indicated, take the view that it is appropriate to order that you be sentenced by way of a Recognisance Release Order after the service of 18 months' imprisonment. What that really means is you have to serve 18 months and then you will be subject to a Recognisance Release Order for the balance of such period.

42As to whether s.6AAA of the Sentencing Act applies in matters such as this, that matter is still to be determined.  However, on the basis that it does, all I can say is had you not pleaded guilty, Mr Alfartose, I would have sentenced you to a period of imprisonment of four years and all I can say by way of minimum is that I certainly would not have imposed a 19AC order. 

43Mr Alfartose, it is always difficult to do this after you have been sentenced but the conditions that apply to you are this, that you must comply with the conditions.  Essentially, the conditions are that you be of good behaviour once you have been released and not commit another offence during that time.  As I have said to you, you will be required to serve
18 months in gaol and then the Recognisance will apply.  But during that period you must not commit an offence punishable by imprisonment. 

44MR SEWELL:  Your Honour, what is the period of the Recognisance?

45HIS HONOUR:  It will be 18 months, will be the balance of the period.  I have got to put an amount, don't I?  What do we say, $3,000?

46MR SEWELL:  Just a nominal amount, Your Honour

47HIS HONOUR:  Very well. 

48MR RICHTER:  Your Honour, if I might be permitted to accompany Your Honour's Associate to the dock, Your Honour, to explain the ‑ ‑ ‑

49HIS HONOUR:  Yes, certainly. 

50MR SEWELL:  Your Honour can strike out the inapplicable provisions.

51HIS HONOUR:  Yes.  You have signed that?  You are aware of the obligations?  Yes, you can take the prisoner away, thank you. 

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