Director of Public Prosecutions (Cth) v Kiraci
[2021] VCC 1427
•5 October 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-19-02017
| COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| EGEMEN KIRACI |
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JUDGE: | Her Honour Judge Davis | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 21 September 2021 | |
DATE OF SENTENCE: | 5 October 2021 | |
CASE MAY BE CITED AS: | DPP (Cth) v Kiraci | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1427 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Attempted possession of a commercial quantity of MDMA – delay – plea during the currency of the COVID-19 pandemic – no criminal history – good prospects of rehabilitation – impaired intellectual functioning
Legislation Cited: Crimes Act 1914 (Cth); Criminal Code Act 1995 (Cth); Sentencing Act 1991 (Vic)
Cases Cited:Barbaro v R (2014) 253 CLR 58; Dmitri Shakhanov v The Queen [2019] VSCA 38; DPP v Dalgliesh (2017) 349 ALR 37; DPP v Foley [2019] VSCA 99; DPP (Vic) v Lang [2020] VCC 759; Hili v R (2010) 242 CLR 52; Hon Wing Lau v The Queen [2021] VSCA 162; R v Boimah [2017] QCA 50; R v Nguyen and Pham (2010) 205 A Crim R 106; R v Pham (2015) 256 CLR 550; Nguyen & Phommalysack v The Queen [2011] VSCA 32; Worboyes v The Queen [2021] VSCA 169
Sentence: 4 years’ imprisonment with a non-parole period of 2 years and 8 months
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APPEARANCES: | Counsel | Solicitors |
| For the CDPP | Ms S Pillai | Commonwealth Director of Public Prosecutions |
| For the Accused | Mr S Tovey | Stephen Andrianakis & Associates |
HER HONOUR:
1Egemen Kiraci, you have pleaded guilty to one charge of attempting to possess a commercial quantity of an unlawfully imported border controlled drug, namely 3,4-Methylenedioxymethamphetamine (“MDMA”), contrary to sections 11.1(1) and 307.5(1) of the Criminal Code (Cth). The maximum penalty for this offence is imprisonment for life or a fine of 7,500 penalty units or both.
The offending
2The details of your offending were set out in the Summary of Prosecution Opening on the Plea,[1] and I sentence you on the basis of the facts contained in that document.
[1] Exhibit 1.
3Briefly stated, your offending took place between 6 and 14 February 2019, when you were 23 years old. An acquaintance named “Megagym” (who was a drug dealer who had supplied drugs to you) was responsible for ordering and importing the consignment, and he enlisted you to have the consignment delivered to your own home in your own name. The package arrived into Melbourne and was intercepted on 26 January 2019. It contained silver foil packages weighing a total of 1064.8 grams of MDMA, of which 731-861 grams was pure MDMA. You are to be sentenced on the basis of the lower figure of 731 grams, which is 1.46 times the commercial quantity of MDMA.
4Police arranged for Australia Post to provide tracking data indicating an attempted delivery at your address. “Megagym” then directed you to track down the consignment. You admitted making two phone calls to Australia Post on 7 February 2019 asking about the whereabouts of the consignment, as well as attending the Seaford delivery centre on that day to attempt to retrieve the consignment. There were about 10 further calls made to Australia Post about the consignment on 7, 8, 11 and 13 February 2019 by a person or persons other than you. Two further calls were placed on 14 February 2019, a day when you were in police custody.
5“Wickr” messages retrieved from your mobile phone disclosed discussions with “Megagym” on 10 February 2019 in which he told you he had instructed a person named Jordan to follow up and find the package.
6On 11 February 2019, you received a message from Australia Post indicating that they were investigating the whereabouts of the consignment and would update you shortly. You forwarded that message to “Megagym” and were told to “ … leave it alone see what happens”.[2] The consignment was not delivered but sent for analysis.
[2] Exhibit 1, [30].
7The prosecution conceded that you did not have actual knowledge of the weight and type of the drug contained in the consignment, but that you were reckless as to the type of the drug that is the subject of the attempted possession.
Arrest
8You were arrested on 14 February 2019 and made a no comment record of interview. The matter resolved on 10 September 2021.
9You have spent 964 days in pre-sentence detention, not including today. During this period of over two and a half years, you have worked as a gym billet, and, according to the documents from Fulham Prison,[3] have conducted yourself in an exemplary fashion.
[3] Exhibit D.
The hearing
10The parties filed written submissions and made further oral submissions. In addition, I was provided with and have considered: a neuropsychological assessment report of Mr Mathew Staios, neuropsychologist, dated 14 September 2021;[4] a letter to you from Toyota dated 24 June 2019 offering you employment if you received bail (which you did not) and indicating an intention to review the situation upon conclusion of these proceedings;[5] a statement of employment from Hungry Jack’s Moorabbin (undated) indicating that you worked there from February 2010;[6] a Mental Health Plan dated 4 December 2018;[7] a Court Integrated Services Program (“CISP”) Report dated 21 June 2019;[8] Case Management Notes from Fulham Correctional Centre dated 24 February 2021;[9] and Negative Drug Screen Results dated 23 April and 20 August 2021.
[4] Exhibit B.
[5] Exhibit C.
[6] Ibid.
[7] Exhibit E.
[8] Exhibit F.
[9] Exhibit D.
Personal circumstances
11Your personal circumstances were set out in detail in the neuropsychological assessment report of Mr Staios. You are 26 years old and were 23 years old at the time of offending. You have one brother. Your parents migrated from Turkey in 1987 and have very limited English skills, speaking Turkish at home. Your father did factory work and your mother stayed at home. You had a teaching aid in primary school because of your limited English and your learning difficulties continued in secondary school until you left at the end of Year 10. You worked at Hungry Jack’s from the age of 15 for five years. You experimented socially but very minimally with cannabis and MDMA. You moved out of home at the age of 18, to live with your girlfriend. At the age of 20, you began a four year apprenticeship at Toyota in motor mechanics, which you completed. You then formed another relationship with a woman with whom you have a son, but separated in mid-2018. You developed depression as a result of that separation and began to abuse alcohol, opioid medication as well as illicit drugs, overdosing on one occasion.
12You told Mr Staios that you were asked to receive the package by a known acquaintance who was also your drug dealer, at a time when you were vulnerable and dependent on him. You expressed remorse for your offending.
13Mr Staios assessed you as having a level of intellect falling within the Extremely Low range, performing better than only 2% of the population. Within that level of intellectual functioning, you displayed relative strength (low average range) on tasks assessing spatial processing, working memory and verbal fluency skills. However, you displayed a limited capacity (borderline range) on tasks assessing verbal reasoning, vocabulary knowledge, general information, non-verbal reasoning, basic attention and speed of processing information. Mr Staios considered that your cognitive profile suggests that you are vulnerable to exploitation by negative peer influences, and that you would have a limited ability to monitor your actions, respond appropriately, rely upon consequential and alternative thinking skills, and effectively monitor your behaviour. He considered that your current presentation is multifactorial and includes poorly controlled symptoms of depression, substance abuse, limited general intelligence and a rigid thinking style.
14Mr Staios identified a number of protective factors that may assist you to rehabilitate yourself in the community: your history of stable and long-term employment; a supportive family network; stable long-term accommodation; and no evidence of anti-social personality disorder. He recommended that you engage in psychological treatment for your depression, and undergo drug and alcohol counselling.
15In his viva voce evidence, Mr Staios said your cognitive profile was not quite that of a person with an intellectual disability, but that given your poor scores for non-verbal and reasoning skills, you would have trouble with critical thinking and problem-solving, and be prone to making errors of judgment. These difficulties would be greater if you were depressed and abusing substances, and you would find it difficult to resist the requests of the dealer on whom you depended.
Prosecution submissions
16The prosecution submissions were to the following effect. Your actions were unsophisticated but, by acting as a delivery point for the package and by making inquiries about the package as directed by “Megagym”, you played an essential role in the attempted possession. There is no evidence that you acted for financial gain. Some of the delay in this matter is attributable to the actions of your lawyers. The opinion of Mr Staios is not challenged, and, in the light of his viva voce evidence, it is conceded that you have a cognitive impairment in the form of overall intelligence which has been assessed as putting you in the 3rd percentile, with deficits in critical and consequential thinking which made you more amenable to being influenced and less able to foresee the consequences of your actions. There is therefore a nexus between this impairment and your offending. On this basis, your moral culpability for your offending is somewhat reduced and it is appropriate for there to be some moderation in the weight given to specific and general deterrence.
17In relation to the burden of imprisonment, although you may have suffered depression earlier, your prison files indicate that you have coped very well in prison and therefore there is no evidence that imprisonment will weigh more heavily on you in this regard.
18Your offending is objectively serious and mid-level because of the weight and purity of the drug; the maximum penalty for the offence being imprisonment for life; and because you played an essential role in it. Whilst you made no admissions, and your plea was not an early one, it nonetheless serves a utilitarian purpose, indicates some remorse (along with the remorse expressed to Mr Staios) and warrants a more pronounced amelioration of sentence because it is made during the currency of the COVID-19 pandemic.[10]
[10] Worboyes v The Queen [2021] VSCA 169 [39].
19Your previous good character is to be given less weight because drug-offending causes such damage to the community.
20Comparable cases provide a yardstick against which to determine the appropriate sentence.[11]
[11] R v Pham (2015) 256 CLR 550 [29], [47]; Hili v R (2010) 242 CLR 520, 537 [54]; Barbaro v R (2014)
253 CLR 58 [41].
21In your case, the appropriate sentence would include a head sentence and a non-parole period in excess of the time you have already spent in custody.
Sentencing considerations
22I accept the matters put on your behalf by your counsel.
23In sentencing you, I bear in mind that while offences of attempting to possess drugs are not less serious than those of importing the drugs, the act of attempted possession can be “attended by a wide range of moral culpability, so that the circumstances in which a person so charged attempted to come into possession of the drug, and what it was that the person intended to do with the drug, is relevant to determining the degree of moral culpability attached to the act of attempted possession”.[12]
[12] R v Nguyen and Pham (2010) 205 A Crim R 106, [72].
24In sentencing you, I also bear in mind that comparable cases from intermediate appellate courts across the country may serve to illustrate, but not define, the possible range of available sentences.[13]
COVID-19
[13]R v Pham (2015) 256 CLR 550 [29], [47]; Hili v R (2010) 242 CLR 520, 537 [54]; Barbaro v R (2014) 253 CLR 58 [41].
25It is well-established that the Court is entitled to mitigate sentence because being in prison during the currency of the coronavirus pandemic is more burdensome for offenders for a number of reasons.[14] These include: anxiety about the risk of contracting the virus; the restrictive conditions of incarceration; restricted visits to the prison; as well as limited access to rehabilitation programs and recreation. I have taken these matters into account.
Delay
[14] R v Madex [2020] VSC 145, [51]; R v Kelso [2020] NSWDC 157, [45]; DPP (Vic) v Lang [2020] VCC
759, [113]-[119].
26You are not responsible for much of the delay in this case. You were committed for trial in September 2019 but your original trial date was delayed by over a year and then the trial due in September this year has also been vacated. In addition, there was delay occasioned by your lawyer’s failure to engage in resolution discussions between August 2020, when the matter was referred to Emergency Case Management, and June 2021. I take into account the that you are an offender with no prior history who has been in custody for over two and a half years, much of that time in very onerous conditions due to the coronavirus restrictions.
27I am required to consider the relevant matters set out in the Crimes Act 1914 (Cth) and I turn to those matters.
Nature and circumstances of the offence (s16A(2)(a))
28In assessing the gravity of your offending, the central matters to be considered are the steps taken by you, your role and knowledge, the level of sophistication of your conduct, the duration of the offending, the weight of the drug imported, and whether profit was the motive.[15]
[15]R v Nguyen and Pham (2010) 205 A Crim R 106; Nguyen & Phommalysack v The Queen [2011] VSCA 32.
29I am satisfied on the material before me that, in the lead up to the offending, you were a relatively young man with no criminal history, and a continuous work history, albeit of low intellectual functioning, who was suffering from depression and had fallen into alcohol and drug abuse. You did not think through your offending. You were not the importer of the package, nor the ultimate receiver, but rather the evidence shows the drugs were for “Megagym”, to be trafficked by him for his own profit. You did not know that what was being sent to you was a border-controlled drug, although you were reckless as to this fact. You did not know the weight of the drugs in the package nor that it contained a commercial quantity of that drug. There is no evidence that you tracked the package online. There is no evidence of a financial motive. Your offending is confined to placing two phone calls to Australia Post on 7 February 2019 from your own phone where you gave your own name, attending the Seaford depot on that day to attempt to retrieve the consignment, and discussing the package with “Megagym” on 10 February then forwarding a text from Australia Post to “Megagym” on 11 February 2019. You were not the caller following up the package on 8, 11, 13, or 14 February 2019; and two of the calls on 14 February occurred after your arrest.
30Moreover, your offending was far from sophisticated. You agreed to have the package sent to your personal address, where you lived alone. Even after becoming aware that the package had arrived in Melbourne, you called Australia Post from you own phone, giving your name and details. You made no attempt to conceal your identity, nor to protect yourself from exposure. Whilst it is clear that the messages indicate that you knew “Megagym” and, possibly, Jordan, your relationship with “Megagym” was not a business relationship nor one driven by profit. As you did not know you were being involved in the delivery of a commercial quantity of drugs, you did not know the magnitude of what you were getting yourself into.
31I consider that by virtue of your intellectual limitations and your depression and substance abuse in the lead up to the offending, that you were vulnerable to exploitation and were taken advantage of by “Megagym”, who took steps to insulate himself from detection (and has yet to be apprehended). Your moral culpability is therefore considerably less than that of other offenders not affected by intellectual or cognitive limitations.
32The weight of the drug being relied upon, that is 731 grams, is relatively low compared with many other instances of this type of offending.
33I consider overall that you played a very small role in the importation arranged by “Megagym”. Objectively, given the limited nature of your role, the maximum penalty for the offence and the weight of the drug involved, I consider that your offending, while serious, falls at the lower end of seriousness for offending of this kind.
The need for general and specific deterrence (s16A(2)(j) and (ja))
34Given the nexus between your limited intellectual functioning and your offending, I consider that there ought to be some moderation of the role of general and specific deterrence in your case.
Contrition (s16A(2)(f)) and guilty plea (s16A(2)(g))
35Whilst your plea was not made early, it has facilitated the course of justice and serves a utilitarian purpose in saving the time, cost and inconvenience of a trial. Some remorse inheres in your plea, and I accept that you have expressed remorse to Mr Staios for your offending. Given your intellectual limitations, it is somewhat unfair to expect you to demonstrate insight into the impact of your offending on the community. Your plea has a particularly high utilitarian value at a time when the Court’s operations are disrupted by the coronavirus pandemic, and warrants a more pronounced amelioration of sentence than at another time.[16]
[16] Worboyes v R [2021] VSCA 169 [39].
Character, antecedents, age, mental condition (s16A(2)(m))
36You were 23 years old at the time of offending and are now 26 years old. Notwithstanding the seriousness of your offending, your youthfulness remains a relevant consideration. You have no prior convictions, a solid work history, and completed an apprenticeship which may enable you to obtain employment upon your release. Your behaviour in prison has been exemplary and you have worked continuously as a gym billet as well as completing some programs. I have already outlined the evidence concerning your intellectual limitation (above at paragraphs 13 to 17). I accept that your offending occurred in the context of your depression after the break-up of your relationship and your abusing drugs, against the background of your intellectual limitations, which made you vulnerable to exploitation by “Megagym”. I consider that there is a clear nexus between your intellectual limitations and your offending.
Prospects of rehabilitation (s16A(2)(n))
37I consider that your prospects of rehabilitation are very good in the light of the fact that you have: no prior convictions; a solid work history; training as a motor mechanic; stable accommodation and family support.
Parsimony (s17A)
38While the sentence imposed must adequately punish an offender, I must impose a sentence that is no more severe than is appropriate in all the circumstances.
The need for adequate punishment (s16A(2)(k))
39The offence you have committed is a serious one, carrying a maximum penalty of life imprisonment. Ordinarily, this kind of offending would attract a sentence involving a substantial period of imprisonment.
40On the other hand, you are a youthful first-time offender with markedly limited intellectual functioning, vulnerable to exploitation, who played a secondary role in the overall offending at the behest of another and did so without knowledge of the amount of drugs inside the package. In your case, there is no evidence that your offending was motivated by profit.
41I was taken by counsel for the parties to a number of cases of the Court of Appeal which are said to be comparable to this case. I am mindful that these do not set the limits within which a sentence must be exercised, but merely form one factor amongst several in the instinctive synthesis.[17]
[17] DPP v Dalgliesh (2017) 349 ALR 37.
42For the sake of completeness, I note that the prosecution drew my attention to the cases of R v Boimah[18] and DPP v Foley[19], which involved attempted importation of similar commercial quantities of methylamphetamine. Neither of these cases involved sentences imposed during the currency of the coronavirus pandemic.
[18] [2017] QCA 50.
[19] [2019] VSCA 99.
43Mr Boimah was 29 years old at the time of the offending, had no prior convictions, pleaded guilty, and played a similar role to you in making contact with a courier company in relation to the delivery of the parcel, which was not addressed to him, and taking (controlled) delivery. He was also charged with possessing a false passport. He made admissions. He had escaped civil war in Liberia, lived in a refugee camp for seven years, and upon arriving here on a humanitarian visa had studied to improve his literacy and numeracy. He was sentenced for the drug offence to imprisonment for 8 years, with a non-parole period of 4 years.
44Mr Foley was 36 years old at the time of offending, had no prior convictions, pleaded guilty at an early stage, played a role as the delivery point of the parcel (which was not addressed to him) and made an inquiry with the transport company using a pseudonym. He presented with anxiety and depression, had a work history and family support as well as a number of glowing references. He also faced the prospect of deportation. He was under financial stress because his visa prevented him from working here. His principal motivation was found to be one of profit. Mr Foley was sentenced to 7 years and 6 months’ imprisonment, with a non-parole period of 5 years.
45Your counsel drew my attention to the cases of Dmitri Shakhanov v The Queen[20] and Hon Wing Lau v The Queen[21]. Each of these cases turned on the issue of parity with sentences imposed on co-offenders. Leaving aside the issue of parity, I note that in Hon Wing Lau, the role of the offender, whose motivation was purely financial (a reward of $3,000) but who had no knowledge of the weight of the drug being imported, was to search out and provide two addresses to which the consignments would be sent. The total weight of the consignments was 5.89 times the commercial quantity. In that case, it was conceded by defence counsel that the part Lau played was necessary for the conduct of the offending that was to be undertaken principally by others. However, Lau was found by the sentencing judge to have played no part in arranging or financing the importation and had no role in the intended distribution of the drug. Given the differences between the roles of Lau and his co-accused Lam, the Court of Appeal reduced Mr Lau’s sentence from one of 8 years’ imprisonment with a non-parole period of 5 years and 6 months to one of 5 years’ imprisonment with a non-parole period of 3 years.
[20] [2019] VSCA 38.
[21] [2021] VSCA 162.
Conclusion
46None of the cases above concerned a person with very limited intellectual functioning. Your moral culpability for your offending is reduced. Your role was a very limited one, both in actions taken and duration. In all the circumstances, and having regards to all of the matters referred to above, I consider it appropriate to sentence you as follows.
47On charge 1, attempting to possess a commercial quantity of an unlawfully imported border controlled drug, namely 3,4-Methylenedioxymethamphetamine, you are convicted and sentenced to 4 years’ imprisonment with a non-parole period of 2 years and 8 months. I declare that 964 days of pre-sentence detention are to be administratively deducted from your sentence.
48Pursuant to s6AAA of the Sentencing Act 1991 (Vic), I indicate that if you had not pleaded guilty and been convicted at trial, I would have imposed a sentence of 6 years imprisonment with a non-parole period of 4 years.
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