Director of Public Prosecutions (Cth) v Holmgrimsson
[2015] VCC 704
•29 May 2015
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-14-00079
| COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| Siguringi HOLMGRIMSSON |
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JUDGE: | HIS HONOUR JUDGE HOWARD | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 20 and 24 March 2015 | |
DATE OF SENTENCE: | 29 May 2015 | |
CASE MAY BE CITED AS: | DPP (Cth) v Holmgrimsson | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 704 | |
REASONS FOR SENTENCE
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Catchwords: CRIMINAL LAW – Plea of guilty to importing a commercial quantity of cocaine – 2.24 kg pure cocaine in two suitcases – offender an Icelandic national – very serious offence – sentence of 7 years’ imprisonment with a minimum of 5 years’ imprisonment.
NOTE:There is in place for 2 years a Suppression Order which prohibits the publication or dissemination of any information disclosing the brand name of the relevant luggage in this case.
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APPEARANCES: | Counsel | Solicitors |
| For the Commonwealth DPP | Ms N Sheridan-Smith | Commonwealth DPP |
| For the Offender | Mr A Pyne & Ms Chaya | Victoria Legal Aid |
HIS HONOUR:
1 Siguringi Holmgrimsson, you have pleaded guilty to importing a commercial quantity of cocaine into Australia, for which the maximum penalty is life imprisonment.[1]
[1]Contrary to s.307.1(1) of the Criminal Code (Cth).
2 I must now sentence you on behalf of the community.
Circumstances of offending
3 The circumstances of your offending are set out in an agreed comprehensive prosecution opening read in court. A summary will suffice. You are an Icelandic national. Before your arrest you were living in Akureyri, a 20,000 strong community in the far North of Iceland. On 20 August 2013, you arrived at Melbourne Airport in company with your friend Sathian Sophab, who is also from Iceland. You travelled together to Melbourne from Iceland via Denmark and Dubai. You each carried the same brand suitcases and toiletry bags. You told a Customs officer you planned to stay at a hotel (it was in Brunswick), that you wanted to visit the Melbourne Zoo and a waterpark with no plans to travel outside Victoria, you did not know anyone in Australia (other than a distant relative whom you did not intend to visit), and that you paid for the flights and Sophab paid for the accommodation.
4 An Ionscan test of the inside of your toiletry bag tested positive for cocaine. You were told this. As another scan was being made of the inside of your suitcase, you falsely stated that you only smoked marijuana and did not use cocaine. You said that a friend you had met in Denmark had used cocaine in your hotel room. The second test was also positive for cocaine. Then, in the presence of Sophab, you said that both suitcases were yours. In fact, each had a bag-tag in your name. You falsely stated that you had purchased the cases in Iceland before leaving on your trip, and said that you had opened the lining of the bags just to have a look. You were then cautioned, and again maintained that both suitcases were yours.
5 Later that morning you were arrested and cautioned again. You asked the officer how much was in the bags. He said he was not sure of the exact amount, but there was a commercial quantity, to which you replied “the guy in Iceland” had told you there were “3 kilos in the bag”. You asked what was going to happen to your friend. The officer said Sophab would be charged and you replied “He didn’t even know anything about this.” Later, you made a “no comment” record of interview. In the meantime, Sophab had claimed in an interview that the suitcase he was in possession of was not his.
6 In due course, a forensic analysis of the luggage was conducted. Each of the cases and toiletry bags had an internal structure composed of a hard plastic frame with numerous horizontal tunnels hidden inside, each filled with cocaine. This was correctly described by the prosecutor as a “quite sophisticated” effort at concealment. Regrettably, investigators failed to check whether your fingerprints or those of your companion were or were not to be found on the plastic structures before they were immersed in water and then damaged in the process of extracting the cocaine.
7 You were personally in possession of a total mix of 1.49 kg of cocaine at 83.5% to 85.2% purity, agreed at 1.26 kg pure. Sophab was in personal possession of a minimum of 979.5 grams of pure cocaine at a purity of between 60.5% and 83.1%.[2] A commercial quantity of cocaine is not less than 2 kg of the pure substance. You have pleaded guilty on the basis that you were in possession and had knowledge of a total of 2.24 kg of pure cocaine found in all the luggage. Hence, you were in possession of 1.1 times the commercial quantity of the drug in question. It was agreed that the value of this amount of pure cocaine was between $1.02m to $1.60m wholesale, with a street value of $2.23m to $2.98m.[3]
[2]Due to difficulties extracting the powder, the total weight of this mix was not able to be established.
[3]See the valuation statement of Federal Agent K J Randall (exhibit C).
8 In light of your admissions, you were charged with importing a commercial quantity of the drug. As Sophab made no admissions, he was charged with importing a marketable quantity of the drug (between 2 grams and 2 kg of pure cocaine) being the amount he actually possessed. He faced a maximum penalty of 25 years’ imprisonment.
Police and court process
9 Following the laying of charges, each of you were held in custody. You conducted a contested committal on 17 January 2014. On 10 December 2014 your counsel indicated to the court that you would plead guilty to the charge. At hearings in February last it was made clear that you did not intend to give evidence either for the prosecution or Sophab. You were arraigned and pleaded guilty on 16 February last. Sophab’s trial was due to commence that day, but contrary to your earlier indications, you then said you were willing to give evidence in his favour, to the effect that he knew nothing about the drugs. On 19 March last, you signed a lengthy statement taken by investigators which exonerated Sophab. The prosecution accepted that you had given a truthful account, including as to Sophab’s innocence. A notice of discontinuance against Sophab was filed and he has returned to Iceland.
The Offender’s statement of 19 March 2015
10 In your recent statement you said, in summary, that you had been experimenting with drugs from when you were sixteen. You were a daily user of marijuana. You accumulated drug debts and sold drugs in order to pay off this debt. About a year and a half before the importation, you owed about $20,000 to a person you described as “pretty big in the drug world”. This person threatened he would send people to harm you and your family if you did not pay up. Eventually, at his suggestion to discharge the debt, you agreed to commit the crime using the luggage which was provided to you by the dealer. You knew the concealment was well done. You were given $7000–8,000 for your travel expenses and told to take someone else with you. You were given the Skype number of a person in Melbourne to whom you were to give the luggage.
11 Sophab was your housemate, and you asked him to join you on the trip to Australia. He agreed, knowing nothing of the scheme. You offered to pay for flights and he agreed to pay for accommodation. You suggested he take one of the suitcases and toiletry bags you already had. He agreed to do so without asking anything about them. Obviously, he trusted you. Two weeks later you departed for Australia, stopping in Denmark for three nights. Whilst there you met a friend and the three of you consumed some cocaine.
12 Once you cleared Customs your plan was to link up with the Melbourne contact and hand over the bags. At this point you proposed telling Sophab the truth about the scheme. You claimed that you wanted to exonerate Sophab as early as possible and to do everything you could to help him, but didn’t know how things worked in Australia.
Role of the offender
13 The prosecution accepted you made a truthful statement last March, essentially because you readily admitted to the aggravating feature of having duped your friend and because you implicated yourself to a high degree as to the contextual matters in Iceland which I have mentioned. Additionally, you finally agreed to give evidence in support of Sophab at his trial.
14 During the plea hearing, I closely questioned your counsel and the prosecutor as to whether your March statement should be accepted as a truthful account, as submitted by both sides. Ultimately I am prepared to proceed on this basis, including that you should be treated as a courier who knowingly made arrangements with the unidentified person in Iceland to bring the drugs into Australia. Indeed, there is no evidence upon which I could be satisfied beyond reasonable doubt that your role was other than that of a courier.
Background and personal circumstances
15 I will turn now to your background and personal circumstances. These have been well set out in a psychiatric report provided by Dr N Zimmerman dated 16 March 2015. I also received a helpful letter from your mother, who lives in Iceland. She did attend your arraignment, but could not afford a second visit to support you.
16 You are now twenty-five. You had a younger sister who died in a car accident when you were one. Your stepfather was injured and confined to a wheelchair. You then lived with your mother and stepfather in Columbia until you were seven when the relationship broke up and you returned to Iceland. You maintained a relationship with your biological father, although he had some problems with alcohol. You have intermittent contact with six stepsiblings from your parents’ relationships. You lived with your father when fourteen to seventeen. You had some problems at school, although you were an average student. By the time you left school at eighteen you had developed a significant cannabis habit.
17 You first used cocaine when sixteen, often when drinking with friends. You also appear to have had a heavy alcohol habit. You became a fisherman, doing hard work. You had a relationship for twelve months, but that eventually broke up. You have no children. Before coming to Australia you were unemployed and receiving government benefits, but worked a little on an online business. You did voluntary work with the Icelandic Rescue Service helping people stranded in bad weather and finding those lost.
18 You have a minor criminal history which I will treat as irrelevant for present purposes. You drove under the influence in 2011 and possessed a small amount of cannabis in 2010. On both occasions you were fined.
19 Your mother describes you as an intelligent, kind-hearted, hardworking, well-mannered and patient young man. She was surprised and shocked by your offending. Perhaps she knew nothing of your drug involvement. She speaks of the community and family support you have in your homeland, and notes: “The worse [sic] thing now is the distance between us and him.”
20 You have struggled with depression in the past. Shortly after your incarceration, you suffered a First Episode Psychosis associated with florid paranoid delusions, aural hallucinations and a suicide attempt. You were transferred to the Thomas Embling Hospital for about six weeks, where your condition was successfully treated with anti-psychotic medication. This episode was the direct result of the difficult circumstances of your incarceration and social isolation in Australia. Fortunately, you have been in remission now for about twelve months since ceasing the medication. However, the psychiatrist’s opinion is that you are at moderate risk of further episodes in custody in the future, although it is not possible to quantify that risk any further. There is no indication that there was a link between your offending and the episode of psychosis; but the psychiatrist’s opinion is that incarceration would weigh more heavily on you than on someone without your history of such an illness, including the added isolation caused by being away from your family or other supports in a foreign country, which all add to the stressful situation that you face.
21 Nevertheless, over the past twelve months you have been coping well in prison. You have undertaken a business course, been involved in gym work, quit smoking and have the assistance of a support group. Your English was described by the psychiatrist as excellent although you had the assistance of an interpreter in court. You are hoping to be extradited to Iceland so that you can serve any sentence closer to your family.
22 The psychiatrist’s opinion is that your likelihood of reoffending will depend on whether you are able to remain drug-free in the future and obtain productive employment not associated with a culture of heavy drug-use. Intensive drug and alcohol counselling and monitoring will be vital, as is the importance of your practitioners remaining fully informed of the psychotic episode so that the return of any symptoms may be properly monitored and treated.
Mitigating circumstances
23 There are a number of mitigating circumstances in your favour. You come from a disjointed and dislocated family background and your teenage years were blighted by significant alcohol and drug abuse. You worked well and productively, including in vital community service, but your drug habit ultimately got on top of you.
24 You have good family and community support, although I accept that your potential psychiatric condition and the isolation you have already undergone and will experience in the future as a foreign national in a foreign prison will weigh more heavily upon you than others without these characteristics. Since your incarceration you have demonstrated positive rehabilitative activities. You are a still a young man and, as submitted, you have the capacity to contribute to society in the future.
25 You have pleaded guilty, thereby saving the court and community significant time, cost and other inconvenience. Your plea is therefore of utilitarian benefit and has served the ends of justice. For that alone there should be a significant discount in penalty. There has been some delay in the case which I take into account in your favour. You have no relevant prior convictions and have never been convicted of importing drugs or high-level distribution; hence, this type of offending is out of character for you, although, as acknowledged, good character has less significance for such importation offences.
26 However, your plea was made at a very late stage in the proceeding when you were caught red-handed. I am unable to discern any remorse for your offending, and none is suggested. No doubt you are regretful for having acted in the way that you did and I do accept that you have made a detailed statement outlining how you came to commit the offence, including voluntarily revealing undisclosed aggravating features of your criminal conduct.
27 I accept that the fifth and sixth principles of Verdins[4] are engaged, as submitted. You will be required to serve your sentence in an environment that made you, for a significant period, floridly psychotic and suicidal. I accept that your first experience in prison has been markedly onerous and that the principle of specific deterrence has already been achieved to an extent.
[4]R v Verdins (2007) 16 VR 269.
28 I accept your submission that your prospects of rehabilitation are fair to good, given you have pleaded guilty, you have no relevant criminal history, this is your first time in custody, which has proved remarkably traumatic, you have strong family supports, you have no mental illness which caused you to offend, you have every incentive to disengage from criminal conduct and have been demonstrating positive rehabilitative signs whilst in custody.
Other sentencing considerations
29 Of course, there are other important sentencing considerations. I must have regard to the maximum sentence of life imprisonment, which is a marker for the worst kind of offence. You are to be treated as a courier who was motivated to extinguish a personal drug debt. Yours is a very good example which should deter others who may be tempted to make money from the insidious world of drug importation. You knew the amount and nature of the drugs imported and the sophisticated, purpose-built method of concealment. You are an intelligent person and deliberately committed the offence with your eyes wide open. You organised your own trip to Australia. You selected your travel companion. You knew you were facilitating a commercial operation for massive profit to the organisers and you gained the forgiveness of your own significant debt and your flight expenses. Your conduct is not excused by the fact that you had foolishly sustained such a drug debt and/or that you had been threatened by your drug supplier. You have declined to identify your criminal associate out of fear, knowing that to do so would entitle you to a significant discount in sentence for cooperating with authorities.
30 Of particular significance is the aggravating feature that you duped your friend. The consequence of this deception was that Sophab was charged with a very serious offence, he faced a maximum penalty of 25 years’ imprisonment and was held in a foreign prison for 576 days before his release. One can imagine the anxiety and distress of such an innocent man, marooned as he was, so far away from his home and his loved ones. That was cruel and heartless conduct of yours and while it is to your credit that you co-operated with authorities and finally came forward, in my view this issue could have and should have been addressed by you much sooner than was the case. There is high moral culpability on your part, generally and particularly for this aspect.
31 The Court of Appeal has noted that the role of a drug courier is a very significant one, obviously indispensable to the success of an importation.[5] Significant terms of imprisonment are imposed upon couriers who import a commercial quantity of drugs of dependence into Australia, and rightly so. Apart from your rehabilitation, the principles of general deterrence, protection of the community, just punishment and denunciation are important features of your case. The quantity of drugs imported is a very significant indicator of offence seriousness.[6] Whilst I must take account of the fact that the quantity of the drug you imported was only just over the commercial quantity threshold, nevertheless, you put yourself into the most serious category of offending, with a maximum of life imprisonment.
[5]R v Pham [2014] VSCA 204, see particularly Maxwell P at [24]–[28].
[6]Ibid, per Maxwell P at [31].
32 It is clear that no penalty other than imprisonment is appropriate. So much is conceded. I have had regard to all relevant matters set out in section 16A of the Crimes Act 1914 (Cth).
33 I am obliged to consider current sentencing practice for offences of the same degree of seriousness. Sentences imposed in comparable cases will ordinarily be a reliable indicator of sentencing practice.[7] I have had the advantage of comprehensive submissions from the parties as to this matter.[8] No comparable cases in Victoria were produced, exhibit E containing only Victorian cases involving importation of very substantial amounts of cocaine, which are not comparable. The defence conceded that in the absence of comparable cases in Victoria, it was appropriate for the court to consider interstate sentences, notwithstanding the observations of the Court of Appeal in Pham as to the “stark difference between sentencing practice in Victoria and that in other states for importation offences involving comparable quantities”.[9] Exhibit F proved to be the most helpful chart in the present circumstances, involving 15 sentences of couriers for this offence with the drugs concealed in luggage, amounts of cocaine at the end of the range immediately above the commercial quantity threshold, between 2077g and 4258g of the pure drug, where most offenders had no or no relevant prior convictions and had pleaded guilty, and where the eradication of gambling or drug debts was a motivating factor. Sentences ranged from a head sentence of 7-11 years’ imprisonment with minimum ranges of 4-7 years. However, every case, including yours, must turn on its own facts and circumstances.
[7]Ibid per Maxwell P at [32], and see cases cited therein.
[8]See prosecution charts exhibits E, F and G.
[9]Maxwell P, [8]. It was indicated that Special Leave was being sought from the High Court in Pham.
Sentence
34 Mr Holmgrimsson, please stand up. You are convicted and sentenced to 7 years’ imprisonment. I order that you are to serve 5 years’ imprisonment before which you shall not be eligible for release on parole. That sentence is to commence today.
35 I declare that the period of 647 days’ pre-sentence detention, up to, but not including today, be reckoned as already served on that sentence, and that such declaration be entered in the records of the Court.
36 But for your plea of guilty, I would have sentenced you to 8½ years’ imprisonment with a minimum of 6½ years imprisonment.
37 You need to go with the prison officers now, thank you. Please remove the offender.
38 [Offender removed]
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