Director of Public Prosecutions (Cth) v Kazemi and Shahbazi
[2016] VCC 431
•14 April 2016
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-15-00796 and CR-15-00797
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| HADI KAZEMI and |
| SHAHROUZ SHAHBAZI |
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JUDGE: | HER HONOUR JUDGE LAWSON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 15 October 2015 | |
DATE OF SENTENCE: | 14 April 2016 | |
CASE MAY BE CITED AS: | DPP (Cth) v Kazemi and Shahbazi | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 431 | |
REASONS FOR SENTENCE
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Catchwords: Criminal Law – Sentencing – Importation of marketable quantity of a border controlled drug contrary to section 307.2 of the Criminal Code (Cth) – Immediate term of imprisonment imposed
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APPEARANCES: | Counsel | Solicitors |
| For the CDPP | Ms R. Verdon Ms.M. Hood | Office of Public Prosecutions (Cth) |
| For the Accused Kazemi | Ms N. D. Kaddeche | Garde Wilson Lawyers |
| For the Accused Shahbazi | Ms A. Fox | Garde Wilson Lawyers |
HER HONOUR:
1
Hadi Kazemi, whom I will refer to as "Kazemi", and Shahrouz Shahbazi, whom
I will refer to as "Shahbazi", you have both pleaded guilty to two charges of import a commercial quantity of a border controlled drug, contrary to sub‑s.307.1(1) of the Criminal Code (Cth) by virtue of s.11.2A of the Criminal Code (Cth).
2
Charge 1 relates to the period between 10 October 2014 and 19 December 2014. Charge 2 relates to the period between 10 October 2014 and
20 December 2014.
3 The charge of importing a commercial quantity of border controlled drug is serious, and that is reflected in the maximum penalty Parliament has prescribed, namely life imprisonment or a fine of $825,000 or 7,500 penalty units, or both.
4 You have no prior criminal history.
5 Shahbazi, you admitted a subsequent court appearance at Melbourne Magistrates’ Court on 4 March 2015. You were fined $750 without conviction in respect to one charge of possess drug of dependence. I accept Ms Fox’s explanation that you were using the drug, identified by the Crown as a human growth hormone, for personal use only as part of your gym regime, and that is of no significance in my sentence today.
6 I shall proceed to sentence you both on the basis of the Prosecution summary of facts that was read into the transcript at the plea hearing and is marked Exhibit 1. No issue was taken with the summary at the plea hearing.
7
The offending relates to two consignments of methamphetamine that were sent from Armenia, the first of which consignment arrived in Australia on
11 December 2014. The second consignment arrived on 20 December 2014.
8 The Prosecution case is that you were both engaged in a joint enterprise to import the two consignments of methamphetamine of a commercial quantity into Australia. Kazemi, your primary role was to organise a “safe” address in Australia for the consignments to be delivered to, whilst Shahbazi, you had contacts in Iran with whom you arranged the importation of the drugs and you provided to those contacts the details of the delivery address.
9 The summary of facts sets out in comprehensive detail a number of telephone and SMS messages passing between Shahbazi and Kazemi, and Shahbazi and other parties, that were lawfully intercepted by the Australian Crime Commission that confirmed your respective roles. I do not propose to repeat that detailed information; it was set out in full in paragraphs 2 to 37 of the Prosecution Summary of Facts, Exhibit 1.
10 Forensic analysis of the two consignments was undertaken by crime scene investigator, Rebecca Carswell.
11 Consignment 1 was contained within a brown Pierre Cardin suitcase that contained items of clothing and a pair of shoes, and secreted within the lining of the suitcase were four hard plastic panels under which the substance was concealed. The total gross weight of the substance taken from Consignment 1 was 2,138.7 grams. NMI analysis of the methamphetamine showed a purity of 79.1 per cent. Based on the NMI analysis it was determined that the total weight of pure methamphetamine in Consignment 1 was 1.69 kilograms.
12 An identical method of importation was applied with respect to Consignment 2, that was contained within a black Pierre Cardin suitcase, and that contained items of clothing and a pair of shoes. Secreted within the lining of the suitcase were four hard plastic panels under which the substance was concealed. The total gross weight of the substance taken from Consignment 2 was 2,008.0 grams. NMI analysis of the methamphetamine showed a purity of 80.3 per cent. Based on the NMI analysis it was determined that the total net weight of pure methamphetamine in Consignment 2 was 1.61 kilograms.
13 Therefore, the total net weight of pure methamphetamine imported by you both was 3.3 kilograms.
14 An estimate of the value of the drugs seized was provided by AFP Officer Keith Randall. The wholesale value (low range) $820,000 to wholesale value (high range) $902,000, with a street value estimated at more than $4 million.
15 On 19 December 2014 you were both arrested. You were formally interviewed and when interviewed made no comment. You have both been held on remand since your arrest.
16 In sentencing you both I must impose a sentence that is of a severity appropriate in all the circumstances of the offending (s.16A(1) Crimes Act 1914 (Cth)). As you are being sentenced as federal offenders, I must have regard to matters set out in Part 1B of the Crimes Act 1914 (Cth) and more specifically to the matters set out under s.16A thereof.
17 I am required to have regard to the important consideration of general deterrence.[1] The principles applicable to sentencing for serious federal drug offences, including offences of importation, are set out in R vNguyen; R v Pham (2010) 205 A Crim R 106 at 72, approved by the Court of appeal in Victoria in Nguyen v R; Phommalysack v R (2011) 31 VR 673 where the President of the Court of Appeal Maxwell, stated at [33] that those principles substantially accord with the course of decisions in Victoria, and I am guided by those principles.
[1]See s16A(2) Crimes Act 1914 (Cth)
18 Courts in Australia have consistently stated, those who engage in the illicit drug trade, no matter what their status in the enterprise, must expect heavy sentences in which general deterrence is the principal purpose of the punishment. The sentence must signal to would-be drug traffickers that the potential financial rewards to be gained from such activities are neutralised by the risk of severe punishment. Nguyen v R; Phommalysack v R (2011) 31 VR 673 per Maxwell P @ [ 34] – point 8.
19 I will now turn to the objective gravity of the offending and the role in the offending.
Objective gravity of offending
20 The Crown submitted that you were both principals, that you organised the imports and you were to receive the packages. I am not satisfied that the features highlighted by the Crown, as set out in their written submissions, demonstrate that you two were the principals of this importation.
21 Ms Kaddeche, on behalf of Kazemi, accepted that he had committed serious offending. She submitted that Kazemi undertook the offending for the purpose of financial gain, and that he was to receive $10,000 for his role, the majority of which money was to pay the person whose address was going to be used for the delivery of the consignments. She submitted that it was a lesser role than played by Shahbazi.
22 In terms of roles, she submitted that there was no evidence to illustrate anything more than Kazemi had provided an address for the consignments to be sent to for delivery. She submitted that there was no evidence that Kazemi knew how much drug was being imported.
23 Whilst I accept that there is no evidence that Kazemi knew how much drug was being imported, I do not accept that his role was merely to obtain a safe address for delivery of the consignments.
24 The evidence of the intercepted telephone calls and SMS messages between Kazemi and Shahbazi between 10 October 2014 and 18 December 2014, demonstrates that Kazemi were actively involved over that period and that he took active steps to secure a safe address and, once successful, provided those details of 2/2 Cooper Street, Sunshine, and the name of the person to whom delivery should be directed, namely, Faramaz Jafari Nik, to Shahbazi and he offered to attend the address to be present when the delivery occurred. Shahbazi provided that information to the Iranian contacts and that name and address was listed on the two consignments that were sent to Australia.
25 From the nature of the discussions between Kazemi and Shahbazi, and in particular, on 17 November and 28 November 2014, I infer that he was aware that drugs were being sent and was interested in their arrival in Australia. He asked Shahbazi to be kept updated.
26 On 15 December 2014, there was a further discussion between Kazemi and Shahbazi about “waiting for the guest” and Shahbazi asked whether Kazemi had been in touch with Akbar about that.
27 On 18 December 2014, Kazemi confirmed with Shahbazi via telephone that the parcel had not arrived. Following that conversation Shahbazi made further enquiries of his contacts in Iran about the whereabouts of the package and eventually obtained the tracking details.
28 I therefore conclude that Kazemi's role can be characterised as akin to a mere courier but at the highest level of that sort of role. Kazemi's was still an important role in the joint criminal enterprise. I accept his role was only marginally less serious than that of the co-accused, Shahbazi, and that will be reflected in the sentence.
29 Ms Fox, on behalf of Shahbazi, accepted the prosecution summary. She confirmed motivation for the participation in the offending was for profit, and that Mr Shahbazi was to get $10,000. She characterised Shahbazi's role not as principal or organiser; rather, Shahbazi was just the link to the people in Iran, known as “Mohamed” and “Mehdi”, who were responsible for dispatching the drugs.
30
She submitted the offending occurred over a limited and confined period, as set out in the indictment; namely, two months. She accepted the drug was
4.4 times the threshold for a commercial quantity, and that that was an aspect to be taken into consideration when assessing the objective seriousness of the offending. She submitted that the offending was at the lower end of the quantitative scale and she further submitted there was no evidence that Shahbazi was aware of the quantity contained in the two consignments.
31 Whilst I accept there is no evidence that Shahbazi was aware of the actual quantity of the drugs contained in the two consignments, I do not accept that this offending is at the lower end of the scale of seriousness for this type of offence.
32 Shahbazi was an active participant in arranging the importation of the drugs contained within the two consignments of a commercial quantity of methamphetamine. I am satisfied that he was the intermediary who facilitated the operation and worked with the Iranian contacts to effect this importation of the two consignments into Australia. Shahbazi was an essential cog in the criminal enterprise but I am not satisfied on the evidence currently before me, that he is the principal.
33 I shall now turn to personal matters put by respective counsel. I will deal firstly with Kazemi's personal circumstances.
Kazemi – Personal Circumstances
34 Kazemi, you are aged 26. You were born in Tehran, Iran. Your parents are of Farsi Kurdish extraction. You are the third of five children. You have three brothers and a sister and your parents are alive and live in Iran. You are the only member of your family in Australia, with your remaining family members domiciled in the country of origin.
35 You have never held Iranian citizenship. As Farsi Kurds your family was persecuted on a regular basis and denied basic human rights, including restricted access to schooling and employment. Consequently your upbringing was fairly impoverished and you have no formal education.
36 You fled Iran in 2010 and came to Australia, transiting through Indonesia by boat. You spent 14 months on Christmas Island, and then you were transferred to Darwin for 12 months in a detention centre and a further five months in a detention centre at Maribyrnong here in Melbourne.
37 A Protection Visa (Class XA) sub-class 866 was granted on 23 April 2013. Currently you have the same rights and responsibilities of other permanent residents in Australia. You are therefore currently lawfully in Australia.
38
When arrested in December 2014, you had been in Australia for about
16 months and at the time of the arrest you had been working as a bricklayer, living with some friends in St Albans.
39 You have no family members at all in Australia, and have only had telephone contact with your family once every two weeks following your remand. Your English is poor and you are isolated linguistically and culturally within the prison.
40 You time spent in custody has been difficult and has coincided with the more onerous conditions that were imposed following the July 2015 riots.
41 Following conviction and sentence for this offending, where you are sentenced for a term of imprisonment exceeding 12 months, the scheme now provided for under the Migration Act (1958) (Cth), means that your visa is liable to mandatory cancellation
42 Thereafter, the responsible Minister retains a discretion to revoke any decision made to cancel a visa under s.501(3A), and the provision of the legislation gives the Minister an apparently broad discretion to revoke the original decision to cancel the visa if – despite the person failing the character test, “there is another reason why the original decision should be revoked.” That decision is subject to a merits review in the Administrative Appeals Tribunal.
43 The Court of Appeal has recently confirmed that the principles as enunciated in the decision of Guden v R[2] apply. I refer to the decision of Nei Lima da Costa junior v The Queen.[3] The Court in Guden confirmed that the prospect of an offender’s deportation was a factor which may bear on the impact which a sentence of imprisonment will have on an offender, both during the currency of the incarceration and upon his or her release.
[2] (2010) 28 VR 288.
[3] (2016) VSCA 49.
44 The Court accepted the prospect of deportation was capable of bearing upon sentence in two distinct ways. First, the fact that the offender would serve the term of imprisonment in the expectation of being deported following release, may well mean that the burden of imprisonment would be greater for that person than for someone who faces no such risk. Secondly, in an appropriate case, it will proper to take into account the fact that a sentence of imprisonment will result in the offender losing the opportunity of settling permanent in Australia, and taking a practical approach this may well be viewed as a “serious punishing consequence" of the offending.
45 The Court in Guden made it clear, however, that the sentencing Court was not required and could not be expected to speculate about the likelihood of deportation occurring.
46 In the particular circumstances of your case it is inevitable, given the seriousness of this offending, that you will be sentenced to a term of more than 12 months' imprisonment, and that fact means that your visa will be cancelled. There is a risk of deportation and, further, you may face the prospect of losing the opportunity to remain in Australia. However, it cannot be assumed that the Minister will not revoke the original decision to cancel your visa, nor can it be said with any certainty, what will happen upon your release. To do so would be to engage in speculation.
47 Ms Kaddeche relied on hardship as a consequence of your migration status. She was aware of the mandatory provisions of the Migration Act and the effect it had on your situation. She further highlighted the fact that you are a Stateless person and she highlighted that there is a prospect that upon your release you will be held in detention indefinitely, and that causes you significant distress.
48 I cannot speculate as to whether the particular risk of deportation is a real one, given that currently no assessment can be made of your risk of deportation when you are to be released, nor whether you will be held in detention indefinitely due to your Stateless situation.
49 Rosemary Wilmot, Director, National Character Considerations Centre, at the Department of Immigration and Border Protection (DIBP), in a statement dated 10 November 2015, states there remains a prospect that you could apply for a Bridging R (Class WR) Visa upon cancellation.
50 The Crown, in the circumstances of your case, Mr Kazemi, confirmed that as a consequence of the uncertainty of your migration status, that will mean your time in imprisonment is more burdensome and therefore it is a factor that I have taken into account.
51 I further accept that as a consequence of the sentence to be imposed you will continue to be isolated whilst being held in custody, being separated from your family.
52 In mitigation Ms Kaddeche highlighted a number of features. She noted the early plea of guilty. The Crown accepts that you entered a plea of guilty at the earliest stage. The plea was entered at the committal mention on 11 May 2015. At no stage have you attempted to limit your responsibility and you have not challenged the Crown evidence. There is real utility in your plea and by your plea you have demonstrated a willingness to facilitate justice and your sentence will be discounted accordingly. I further accept in the circumstances that the plea of guilty does demonstrate evidence of remorse.
53 Ms Kaddeche highlighted your lack of prior criminal history and the difficulties that have been associated with the time that you have spent in custody, noting it is the first time you have been held in adult custody. She submitted specific deterrence was of less weight given your circumstances.
54 A report of Mr Tim Watson-Munro, consultant psychologist, dated 29 September 2015, was tendered. Ms Kaddeche relied on the contents of that report.
55 In that report Mr Watson-Munro confirms, following his examination, that you developed features of an Adjustment Disorder upon your arrival in Australia due to language and cultural nuances, that you suffer from Major Depression and features of Post-Traumatic Disorder according to DSM‑V criteria. Those conditions pre-date your remand and are attributed to the traumas that you faced in Iran and during your detentions. Gaol has caused a re-emergence of your symptoms.
56 In the absence of treatment for your mental health conditions you drifted into drug use in the past. You have suffered from substance abuse involving stimulants, opiates and marijuana. You commenced smoking marijuana at the age of 24, and then moved onto opiates, which you smoked. You were using Ice heavily, up to 1.3 grams per day in Australia, which Mr Watson-Munro considered to be a significant level of abuse.
57 You have detoxified whilst in prison, but you continue to experience some symptoms of psychosis and you are currently un-medicated.
58 Whilst in detention centres in the past, you were given anti-depressants and sleeping pills that you took for about two years. That continued on an intermittent basis up until the time you were remanded in custody and you are under no treatment at this stage.
59 You also reported heavy alcohol use on a daily basis prior to your remand. You have now detoxed successfully from alcohol.
60 In prison you have not had any access to psychological treatment for any of your mental health conditions.
61 I accept you are now drug and alcohol free and you now have a real appreciation of the gravity of your situation, and I noted that you are fearful of deportation and you expressed a fear to Mr Watson-Munro of being executed were you to return to Iran.
62 Mr Watson-Munro records some suicidal ideation whilst you have been held at the Melbourne Assessment Prison.
63 He confirmed his clinical impression was of Major Depression with an integral component being Post-Traumatic Stress.
64 He recommended treatment with a clinical psychologist, preferably somebody who spoke Farsi, and medication being resumed. He recommended cognitive behaviour therapy, and opined, even with expert appropriate care your prognosis is bleak.
65 I accept by reason of your mental health conditions that your time spent in prison has been, and will continue to be, more difficult than for others who do not suffer those conditions, and I have taken that into account.
66 Ms Kaddeche submitted that it is difficult to assess your prospects of rehabilitation because whilst on remand you have not had any access to programs because of your lack of English skills. Nonetheless, she relied on the absence of any prior criminal history and submitted that your rehabilitation prospects are good, which submission I accept.
67 I accept that your experience following your arrest has been a salutary and difficult one and that you do have insight into your offending and you are genuinely remorseful.
Mr Shahbazi – Personal Circumstances, Background and Plea Material
68
I now turn to Mr Shahbazi's personal circumstances and background.
Mr Shahbazi, you too have had the opportunity whilst in custody to reflect on your situation and now appreciate the gravity and seriousness of your offending.
69 Ms Fox submitted that you are remorseful and understand that you have ruined whatever future you had in Australia and that you now face deportation. You too fear that were you to be returned to Iran that you would face execution.
70 You are aged 27, you were born in Tehran, Iran. You are a person of Shi’a Muslim faith. The majority of Iranians are Shi’a. Your family are well respected. Your father is a builder. Your mother is engaged in home duties. You have a sister who is a university student. Your family are aware of your arrest and remain supportive of you.
71 Whilst in Iran you were working as a professional wrestler. You practised religion but you were a moderate. As a consequence of some of your conduct you came to the attention of the religious police in Iran, who enforce Shari’ah law.
72 Because of your constant troubles, your family assisted you to enable you to leave Iran. Your father paid for you to fly to Indonesia, and there you caught a boat to Australia. You were intercepted and held on Christmas Island in 2013, and then transferred to a refugee camp in Darwin for about 46 or 47 days, at which time a Bridging Visa Class E was issued. You had two weeks in Adelaide following your release, and then you came to Melbourne to live.
73 You were working illegally, initially as a painter and then as a concreter, and working at a car wash establishment. You had not worked for about a month prior to your arrest.
74 Your bridging visa was cancelled on 31 December 2014, and therefore you are an unlawful non-citizen. You are unable to apply for another visa unless the Minister personally intervenes. You are liable to be considered for removal from Australia.
75 Ms Fox submitted that you continue to have protective concerns about your situation and the situation in Iran. She provided to the Court an email that was transmitted by your father from Iran, that confirms that the police in Iran have attended his home and questioned him about your whereabouts, and that they were seeking you so that you so that you could be interrogated.
76 A summons from the Revolutionary Court was attached to the email that confirms the interest of the police in Iran in respect to your present situation.
77 Your father confirms that there have been two summons received: on 16 January 2016; and 27 January 2016, seeking for you to be produced to the court to be questioned and interrogated, to explain when you left Iran. He has attended the court on your behalf and provided the necessary explanation. All your identity documents have been confiscated by the authorities. Your uncertainty about what will eventuate following the imposition of your sentence causes significant concern.
78 According to a statement dated 11 February 2016 provided by the Crown from Nigel Muir, Director, General Cancellations Network, Department of Immigration and Border Protection (“DIBP”), the process of removal in Australia is subject to provisions in the Migration Act and other policy considerations, such as additional checks to determine whether the person can be safely removed to their country of residence or long term stay, and to identify any non-refoulement issues which require consideration. Non-refoulement refers to the principle that a person shall not be returned to a country in which they are likely to face death or torture.
79 He states Mr Shahbazi will, in future, have the opportunity to present claims for protection. The process for this includes the Minister lifting the current bar to visa applications and Mr Shahbazi being invited to a lodge an application for a temporary protection visa.
80 Like Kazemi, the court cannot speculate about what might happen upon your eventual release. The Crown does, however, accept that in your particular circumstances, that as a consequence of the uncertainty of your migration status, imprisonment would be more burdensome, and I have taken that factor into account.
81 I have had regard to the factors put in mitigation by Ms Fox. You also pleaded guilty at committal mention on 11 May 2015 at the earliest stage and similar considerations apply to you. I accept your plea has real utility and that it indicates a willingness to facilitate justice and your sentence will be discounted accordingly. I further accept in the particular circumstances that the plea of guilty is an expression of remorse.
82 Ms Fox conceded that a sentence of imprisonment would be imposed. She stated that the motivation for you to become involved in this offending was due to your drug addiction and confirmed that you were instructed by your contact in Iran, Mehdi, to provide the address so that they could send a package. You initially refused to get involved, but later agreed and your role was limited to providing the address and you would be paid a total of $20,000, and that was to be split between yourself and Kazemi. You were instructed when the package arrived you were to let Mehdi know, and he would send people to pick up the package, and then you would be paid. You were aware that methamphetamines were being sent.
83 Your ice addition, whilst providing an explanation for your offending, in no way excuses your behaviour.
84 Ms Fox confirmed that since you have been in custody you were held initially at the Melbourne Remand Centre (“MRC”) and only recently you have been transferred to Port Phillip. You too have been subjected to the same onerous lockdown conditions following the July 2015 riots, and I have taken that into account.
85 Within the system you are isolated. Your English skills are said to be reasonable. You only have two friends who have visited you, but that is not ongoing. I further accept that as a consequences of the sentence to be imposed upon you, that you will continue to be isolated in custody, being separated from your family.
86 Ms Fox tendered a report from Mr Watson-Munro, who had interviewed you, and he prepared a report dated 30 September 2015. He diagnosed Major Depression with features of Anxiety Disorder and some aspects of Post-Traumatic Stress Disorder, according to DSM‑V criteria. He recommended appropriate treatment for your longstanding symptoms. He confirms you are now detoxified and that there is a greater clarity in your thinking and you understand and appreciate the gravity of your offending.
87 He noted that you expressed your fear of being placed in the detention centre indefinitely, as if you have to return to Iran, you will in all likelihood be executed. He stated, in this context your symptoms are still very intense and you require treatment with the assistance of a therapist who is fluent in Farsi, who understands the culture and nuances associated with your country of origin.
88 Both Ms Kaddeche and Ms Fox submitted that the court ought to impose a sentence of total concurrency, because the two consignments essentially involve the same criminality. The same people were involved and the same modus operandi employed.
Conclusion
89
I will move now to my conclusions. In sentencing you both, I have had regard to the sentencing principles that I have earlier referred to. I have also had regard to the submissions made by respective counsel and the Crown.
I consider that objectively this offending is very serious. I accept the Crown’s submission that your conduct constitutes serious breaches of s.307.1(1) but is not in the category of the worst case.
90 You were both engaged in a joint enterprise to import the two consignments of methamphetamine of a commercial quantity into Australia for a period of just over two months from 10 October 2014 to 18 December 2014.
91 Kazemi, your primary role was to organise a “safe” address in Australia for the consignments to be delivered to, whilst Shahbazi, you had the contacts in Iran with whom you arranged the importation and provided those contacts the details of the delivery address.
92 It is my view, from the conduct relative to the importation, that Shahbazi is the primary contact for the operation in Australia and that you, Kazemi, played a lesser, though essential role in the importation.
93 I am not satisfied on the evidence that it can be demonstrated Shahbazi was the principal in the importation. As stated earlier, I consider his role to be somewhat lower in the hierarchy than the principal. but nonetheless, an important and essential role. Your respective roles will be reflected in the disposition to be imposed.
94 This was a considered decision by you both to participate in this importation, rather than just impulsive involvement.
95 I have had regard to the total amount of the drug, that is, 3.3 kilograms of pure methamphetamine, imported in two the separate consignments. Schedule 4 to the Criminal Code Regulations 2002 prescribes, at Item 117, that a commercial quantity of methamphetamines for the purpose of the Criminal Code is 0.75 kilograms, so that the amount you imported was a little over four times the commercial quantity threshold. Your offending is a serious example of this type of serious offence.
96 Insofar as financial gain is concerned, I accept that you both became involved for financial reasons. The high potential value of the imported drugs has already been stated and is a factor to which I have had regard. You have both admitted, through counsel, that you were to profit financially from your respective roles.
97 You have both pleaded guilty at the earliest opportunity at committal mention. You have both accepted responsibility for your crimes. Your sentences will be discounted with respect to your early pleas of guilty.
98 I have had regard to your character, antecedents and background. At the time of the offending, both of you had no prior convictions and therefore your character must be taken into account. On the other hand, it is a well-established principle in cases of this nature, prior good character is generally of less weight as a mitigating factor.
99 You have both spent time in custody in difficult circumstances with the restrictions in place since the July 2014 riots and your isolation is magnified by cultural differences, lack of English, absence of any real connections to Victoria, and also your mental health conditions.
100 The Crown concedes that there is uncertainty facing you both in respect to your futures in Australia and that is a factor that can be taken into account in the sense that it makes your time spent in custody more burdensome.
101 Overall, I have come to the conclusion that a sentence of imprisonment is the only appropriate sentencing option (s.17A Crimes Act 1914 (Cth)) and I do not consider a sentence of imprisonment to be followed by a recognizance release order is appropriate. Rather, I will be imposing a sentence with a non-parole period.
102 I have had regard to current sentencing practices and have considered the comparative cases provided to me by the Crown during the plea hearing.
103 Given the two consignments were received within a short timeframe and arise from the same course of conduct, I consider, in those circumstances, the imposition of an aggregate sentence is appropriate.
104 I now come to the formal sentence. Could you please stand, Mr Kazemi and Mr Shahbazi.
105
Firstly, Hadi Kazemi, on Charges 1 and 2, you will be convicted and sentenced to an aggregate term of imprisonment of seven years’ imprisonment, with a
non-parole period fixed of four years. Such sentence to commence from today’s date.
106 I make the following declaration, pursuant to s.6AAA, but for your plea of guilty, I would have imposed a sentence of nine years' imprisonment, to serve seven years'.
107 Shahrouz Shahbazi, in respect to Charges 1 and 2, you will be convicted and sentenced to an aggregate term of imprisonment of eight years' and six months' imprisonment, with a non-parole period of five years and six months. Such sentence to commence from today’s date.
108 Section 6AAA declaration, but for your plea of guilty, I would have imposed a sentence of ten years', six months', to serve seven years', six months'.
109 I make the following declaration with respect to pre-sentence detention. I direct that it be entered into the records of the court that both Kazemi and Shahbazi have each individually served 482 days in custody.
110 I do not believe there were any ancillary orders sought.
111 MS HOOD: No, Your Honour, and the PSD's agreed by the parties.
112 HER HONOUR: All right. I think that covers everything.
113 MS KADDECHE: Yes, Your Honour.
114 MS FOX: As Your Honour pleases.
115 HER HONOUR: Good. Thank you all for your patience and assistance. We can adjourn the court.
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