Director of Public Prosecutions (Cth) v Kul

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-17-02203

DIRECTOR OF PUBLIC PROSECUTIONS (CTH)

SAM KUL

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JUDGE:	HIS HONOUR JUDGE WRAIGHT
WHERE HELD:	Melbourne
DATE OF HEARING:	Trial: 5-9 August 2019 Plea: 26 August 2019
DATE OF SENTENCE:	3 September 2019
CASE MAY BE CITED AS:	DPP (Cth) v Kul
MEDIUM NEUTRAL CITATION:	[2019] VCC 1438

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords:   Plea of not guilty – guilty verdict – one change of importing a commercial quantity of a border controlled drug – cocaine concealed in false bottom of suitcase – 4.081.1 kilograms of pure cocaine – general deterrence given primary consideration – offender was reckless to the fact that the substance was a border controlled drug.
Legislation Cited:  Criminal Code (Cth), Crimes Act 1914 (Cth).
Cases Cited:Cheung v The Queen [2001] 209 CLR 1, Nguyen v The Queen (2011) 31 VR 673,
Sentence:  9 years imprisonment. Eligible for parole after serving 6 years imprisonment.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr A Swartz	Office of Public Prosecutions
For the Accused	Mr M Kowalski	Pica Criminal Lawyers

HIS HONOUR:

Introduction

Sam Kul, you have been found guilty of importing a commercial quantity of a border controlled drug contrary to Section 307.1(1) of the Criminal Code (Cth), which carries a maximum penalty of life imprisonment and/or 7,500 penalty units.
You have also admitted your Criminal Record.

Circumstances of the offending

In sentencing you, I am bound by the principles in the case of Cheung v The Queen.[1] As such, I must interpret the facts in a way that is consistent with the jury's verdict.
[1] [2001] 209 CLR 1.
The offence is that you intentionally imported a substance into Australia. The substance being a commercial quantity of a border controlled drug, knowingly or being reckless, as to the substance being a border controlled drug. In this instance, the prosecution concedes that it is not in a position to demonstrate that you knew the substance was a border controlled drug, but rather, you were reckless to that fact. I accept that submission and will proceed to sentence on that basis.
In February 2017, you offered your friend, Yulia Ryasnova, the opportunity to accompany you on a one week holiday to Italy, telling her that you had previously booked a holiday with your ex-girlfriend and that you were unable to get a refund. You told Ms Ryasnova that she would only need to bring shopping money, as everything else would be paid for by you, including food.

Ms Ryasnova accepted your offer.
On 27 March 2017, you purchased two airline tickets via a travel agent for travel from Melbourne to Rome, Italy return. The tickets were in the names of

Yulia Ryasnova and yourself.
On 28 March 2017, you and Ms Ryasnova departed Melbourne for Rome on Emirates flight EK 405. In the week following your arrival, you and

Ms Ryasnova spent time sightseeing and shopping in Rome, and visited Venice.
Prior to your scheduled return, you and Ms Ryasnova had a discussion about extending your stay in Europe. Ultimately, Ms Ryasnova decided to return home as scheduled, as she needed to get back to Melbourne because she had university classes and obligations. However, Ms Rysanova also stated in evidence that while travelling, you told her you were going to bring back money to Australia before she decided to return to Australia alone.
On 6 April 2017, Ms Ryasnova departed Rome as scheduled and arrived in Melbourne on 7 April 2017.
On 9 April 2017, you changed your return flight from Rome to Melbourne, when you were in Paris on a sightseeing trip. You departed Rome on 13 April 2017 and arrived in Melbourne, Australia on the evening of 14 April 2017.
After passing through immigration, you collected a grey hard sided Modo brand suitcase and walked towards the secondary examination area. You were also carrying a white coloured plastic shopping bag, a red coloured neck pillow and a Prada brand satchel.
At about 10.12 pm, you were approached by an Australian Border Force (ABF) officer, having been selected for a baggage examination.
You were escorted to the baggage examination area where, in response to questioning, you stated that you had packed your bags yourself, were aware of the contents of the bags and that you were not carrying $10,000 or more in cash.
Your Prada brand satchel and Samsung mobile phone were swab tested for the presence of drugs and a swab taken from the inside of the Prada satchel returned a presumptive positive result for cocaine.
Your suitcase was then examined. The suitcase appeared to be new and you stated that you bought it in Rome five days earlier for 50 euros. As soon as you placed the suitcase on the examination bench, and before it was opened for examination, you said that ‘One of the zippers is out of the lock’ and that ‘The zip was partially open’. You then proceeded to unlock the suitcase by entering the combination on the lock. The suitcase contained items including new clothing that was folded, shoes and deodorant.
The suitcase was emptied and ABF Officer Church noticed that the inside of the base of one side of the case looked noticeably different to the other side. When he lifted the side of the suitcase that appeared different off the bench, Officer Church noticed it appeared unusually heavy. The lining of the inside of the suitcase was unzipped and a piece of plywood was observed. The suitcase was then X-rayed which revealed what appeared to be three packages concealed in a false bottom of the suitcase. A presumptive test on the inside of the suitcase returned a positive result for cocaine.
Customs officers then removed the piece of plywood which had been glued to the inside of the base of the suitcase and three packages were located, each wrapped in brown packaging tape. An incision into one of the packages revealed a white powdery substance which returned a presumptive positive result for cocaine.
During the continuation of the baggage examination, you stated that you had purchased the Modo suitcase in Rome in the street for approximately 55 euros, you were unaware there were any drugs secreted inside the suitcase and believed you had been set up or framed.
Analysis of the mobile telephone in your possession upon your arrival into Australia on 14 April 2017, revealed that you performed several internet searches in March and early April 2017, including: ‘bringing money into Australia’; ‘bringing money through Customs’, ‘can money be seen on airport scanners?’, ‘bringing a million dollars through airport’; ‘does Customs check every bag Australia?’; ‘does every bag get scanned airport?'; and, ‘how to browse privately on Samsung’.
A photograph of the Modo brand suitcase that contained the drugs which was taken on 12 April 2017, prior to the departure of you from Rome, was also located on your mobile telephone.
On 15 April 2017, you participated in a recorded interview with Australian Federal Police officers, during which you stated inter alia:
·        When Customs officers were checking your bags, you realised that one of the zips on your suitcase was already unlocked, but the suitcase was locked when you checked it in;
·        You asked Customs to check their cameras because you believed the suitcase had been opened and you didn’t open it;
·        The suitcase was yours, and that you had carried it through the airport, in your possession;
·        You had purchased the suitcase because the small white suitcase you had taken with you was too small to fit in the new clothes that you had bought;
·        You could not remember the name or exact location of the shop and you did not get a receipt for the purchase;
·        You left the small white suitcase you took with you from Australia in your hotel room in Rome. You could not recall the name of that hotel;
·        You had packed your clothes for the trip home on your last day in Rome, and you didn’t notice the false-bottom or plywood then;
·        You took the photograph of the Modo suitcase so you could describe your suitcase should it become lost;
·        You did not send the photograph to anybody to confirm or clarify that you had the suitcase; and
·        You denied all knowledge of the border controlled drugs contained in the suitcase.
You gave evidence at the trial and largely confirmed the matters you outlined in your record of interview. However, you admitted that you lied to the ABF officers during the baggage inspection and in your interview, in relation to your comments about the zip having been out of the lock.
Subsequent formal forensic analysis of the contents of the suitcase revealed that it contained 4.081.1 kilograms of pure cocaine. A commercial quantity of cocaine is 2 kilograms. Thus, you imported just over twice the threshold amount for commercial quantity.
The potential wholesale value of the drug was estimated to be between $882,000 and $1,176,000. The street value was estimated to be between $2,717,940 and $4,076,910.

Nature and gravity of offending

I turn to the nature and gravity of your offending.
The offence of importing a commercial quantity of a border controlled drug is a very serious offence which is reflected by the maximum penalty of life imprisonment.
The fact that the prosecution is unable on the evidence to demonstrate that you knew that the substance was a border controlled drug, does not mitigate the offending. However, I accept the submission made on your behalf, that a finding of knowledge would be a feature of aggravation and you do not fall into that category.
The amount of the drug that you imported was just over two times the commercial quantity with a potential street value exceeding $4,000,000. As is well established on the authorities, the amount of the drug involved in an importation, is a highly relevant factor in determining the objective seriousness of the offence.
While I accept the submission of the prosecution, that the common sense inference, is that your offending was motivated by profit, I note that you gave evidence that in relation to your importation of what you claimed was money, your reward was to be $20,000. Further, it was submitted on your behalf on the plea, that at the time, you were significantly in debt due to the purchase on finance of an expensive car and that you were behind on your mortgage repayments.
The prosecution accepts that your role was that of a courier and there is no evidence to suggest that you were the organiser of this importation. Nonetheless, the role of a courier is indispensable and drug networks can only continue to exist if people like you are willing to take the risk and undertake the task of being a courier.

Personal circumstances

You are now 36 years of age and were 33 at the time of the offending. It was put on the plea that you had a difficult early life. At age four, you lost your mother in a car accident and as a result of that tragedy, your father did not react well. Three years after the death of your mother, your father took you to Turkey where you remained for four years. You relationship with your father has not been good since that time.
It would seem that your aunts and uncles on your mother’s side remain close to you and indeed during the trial, and through the plea, they supported you in court.
When in Turkey, you were essentially cared for by your grandfather who was very strict and you had a difficult time through those younger years while you were there.
You came back to Australia at age 12 and as a result of you being in Turkey four years, your English was not at a proficient standard. As such, you were placed in a boarding school in Broadmeadows, which was a Turkish Islamic boarding school. In addition to attending the boarding school in the evenings, you also attended Upfield Secondary College during the day. You remained at the boarding school till age 14.
From the ages of 14 to the age of 18, you lived with your uncle, Mehmet Kul. Mr Kul provided a reference which was tendered, where he outlines that you had a difficult time in your younger years, because of the loss of your mother and the breakdown of relationship with your father. In his view, you were a young boy who fell through the gaps. He is of the opinion that because of a lack of strong parental guidance, you had no one to teach you morals or values.
You left school in Year 11 and then completed a year at TAFE in information technology. At aged 18, you were living on your own.
In 2002 to 2003, you worked at a factory which made parts for trade tools. From 2003 to 2005, you worked at a factory that produced plastic containers and from 2006 to 2013, you were a truck driver with a milk company. A letter was tendered from that company which outlines that you were an honest and respected employee and a team player.
From 2013 to 2017, you worked for MMS Security. Your employment was raised as part of the factual matrix of this matter. It was submitted by the prosecution that your knowledge of airport security assisted you to plan the importation. However, in my view your offending, while risky and audacious, was not informed by your knowledge of working as a security agent at the airport and as such, I do not view your employment as an aggravating feature of the offence.
In 2016, you purchased an expensive Mercedes car in order to impress a female friend. At the same time, you were paying a mortgage on your home and despite being employed, you had great difficulty trying to maintain your assets. Thus it was put, that that was one of your motivations for your involvement in the offence.
Since your offending, your car has been repossessed, your house has been sold and you still owe money on the mortgage.
You have one prior conviction in relation to making a false document and providing false information. The offence related to an application by you in 2006, for benefits where you stated you were a full-time student. The amount obtained by you was $24,000.
As noted, a reference from Mehmet Kul was tendered on the plea. In addition to the matters outlined above, Mr Kul states that you still have an extended supportive family. Further, he believes that your mistake on this occasion is able to be put behind you. A further reference was tendered from Philomena Bolgi who is a long term family friend. She also outlines your difficult background and she notes that you have in fact expressed remorse for your actions and are willing to take responsibility and learn from your mistake.
You spent over a year in custody in relation to this matter before being granted bail as a result of the trial not being reached on a number of occasions. You have had no issues of misbehaviour in custody and it was submitted that you have accepted that you will be required to serve a substantial period in custody. As such, you intend to enrol in educational courses to enable you to have a fresh start when you are released.

Sentencing considerations

As the charge to which you fall to be sentenced is a Commonwealth charge, I am required to take into account a number of matters pursuant to s.16A of the Crimes Act 1914 (Cth). Mr Kowalski who appeared on your behalf, highlighted a number of the matters in s.16A(2), that he submitted should be given weight.
He submitted that despite the fact that you pleaded not guilty, and thus there is no remorse or utilitarian benefit to the community, he notes and I accept, that your trial was not run in a way that was contrary to the administration of justice.
The trial was run efficiently and with cooperation, and most of the facts were largely uncontested. The central issue came down to whether the jury accepted your explanation that you believed you were importing money, rather than a border controlled drug. As such, the trial was a relatively short trial and unlike the way some trials of this kind may be run, you did not simply put the prosecution to their proof, but rather, narrowed the issues from the outset.
The principles applicable to sentencing an offender for drug importations have been clearly expressed in decisions of the Victorian Court of Appeal and other intermediate appellate courts.[2]
[2] See for example, Nguyen v The Queen (2011) 31 VR 673 at [33]-[34] (Maxwell P).
While there are a number of propositions that must be taken into account in assessing the seriousness of the offence and thus the sentence, the authorities are clear, that given the great social consequences that flow from drug importation, general deterrence must be given primary consideration in the sentencing equation and that stern punishment will be warranted in almost every case.[3]
[3] Ibid at [34], point 7.
In addition to general deterrence, denunciation of your conduct and just punishment are also relevant sentencing considerations which was conceded by your counsel. As to specific deterrence, you do not have an extensive prior history and the letters of reference convey that you have learned from your mistake. In my view, although some weight must be given to specific deterrence, that weight is not substantial in this instance.
As to your prospects of rehabilitation, as already noted, you have accepted that you will be required to serve a significant term in custody. You have taken that on board and decided to re-educate yourself while in custody and look to the future. Further, you have a very supportive extended family who will continue to support you in custody and upon your release. Thus in the circumstances, in my view, your prospects of rehabilitation can be assessed positively.
I also take into account that your trial was not reached on two previous occasions and therefore, there has been considerable delay which was not attributable to you, ultimately resulting in you being released on bail.
Finally, while it is common ground that a term of imprisonment must be imposed, pursuant to s.17A(1) of the Crimes Act 1914 (Cth), I am satisfied that no other sentence is appropriate other than a term of imprisonment.

Sentence

Mr Kul, please stand.
Sam Kul, on Charge 1, import a commercial quantity of a border controlled drug, you will be convicted and sentenced to nine years imprisonment. I direct that you serve a period of six years before becoming eligible for parole.
I declare that 443 days be reckoned as the period of imprisonment already served under the sentence I have imposed. That does not include today.
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[2019] VCC 1438

3 September 2019