Director of Public Prosecutions(Cth) v Naidu
[2017] VCC 557
•11 May 2017
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
| GENERAL LIST |
Case No. CR-15-02247
CR-16-01229
| COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| SHAVNEEL NAIDU |
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| JUDGE: | HIS HONOUR JUDGE JORDAN |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 24, 26, 27, 28, 29 April, 1, 2, 4 and 11 May 2017 |
| DATE OF SENTENCE: | 11 May 2017 |
| CASE MAY BE CITED AS: | DPP(Cth) v Naidu |
| MEDIUM NEUTRAL CITATION: | [2017] VCC 557 |
REASONS FOR SENTENCE
---Subject: CRIMINAL LAW
Catchwords: Sentence – trafficking in a drug of dependence (3 charges) contrary to s71AC of the Drugs Poisons and Controlled Substances Act 1981 – attempting to import a border controlled drug contrary to s11.1 and s307.3 of the Criminal Code (Cth) – procuring the conduct of another to deal with money reasonably suspected of being proceeds of crime contrary to s400.9(1A) of the Criminal Code (Cth) by virtue of s11.3 of the Criminal Code (Cth)
Legislation Cited: Drugs Poisons and Controlled Substances Act 1981, s71AC; Criminal Code (Cth), s11.1, s11.3, s307.3, s400.9(1A); Sentencing Act 1991 (Vic); Crimes Act 1914 (Cth)
Cases Cited: R v Truong [2016] VCC 682; R v Verdins & Ors (2007) 16 VR 269
Sentence: Total effective sentence (State and Commonwealth) of 32 months’ imprisonment with 12 months to be served on the State sentence before becoming eligible for parole. Recognisance Release Order to be of good behaviour for six months. Section 6AAA declaration: State charges – 3 years’ imprisonment (Indictment 2); Commonwealth offence – 9 months’ imprisonment (Indictment 1), making a total effective sentence of 3 years and 9 months’ imprisonment with a non-parole period of 2 years.
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APPEARANCES: | Counsel | Solicitors |
| For the Offender | Mr B Wilkinson | Brendan Wilkinson Lawyers |
| For the Commonwealth Director of Public Prosecutions | Ms N Sheridan-Smith | Commonwealth Director of Public Prosecutions |
HIS HONOUR:
1Two indictments have been filed, CR-15-02247, Indictment one, and CR-16-01229, Indictment two. There are five charges before the Court for sentence today. I will deal with these in the order of the maximum sentences applicable across the two indictments.
2Firstly, there are three charges of trafficking in a drug of dependence which you have pleaded guilty to on Indictment two. These are State offences and each carry a maximum penalty of 15 years’ imprisonment.
3Secondly, you pleaded not guilty but were convicted by a jury on 2 May 2017 of attempting to import a border controlled drug, namely MDMA. This is a Commonwealth offence that carries a maximum penalty of ten years’ imprisonment. This charge was also on Indictment two.
4Thirdly, you have pleaded guilty on the earlier Indictment one to a charge of procuring the conduct of another to deal with money reasonably suspected of being proceeds of crime. This is also a Commonwealth offence and carries a maximum penalty of two years’ imprisonment.
5The circumstances of your five offences are set out in exhibits A to D tendered by the prosecution. These are:
(a)Crown Opening for trial
(b)Crown Opening for plea
(c)Chronology; and
(d)Prosecution Submissions on plea.
6Turning to the State trafficking charges, the first trafficking charge involves trafficking in MDMA (ecstasy) between 14 June 2014 and 12 August 2015. The second trafficking charge involves trafficking in cocaine between 9 August 2014 and 8 August 2015. The third trafficking charge involves trafficking in LSD between 15 October 2014 and 15 April 2015.
7Of the five charges before me, I consider the three State trafficking offences as the most serious offending. Due to the facts involved in these three charges, including the dates, your suppliers, your customers, as well as the nature of the transactions, I raised with counsel the question of dealing with these three State offences by way of an aggregate sentence.
8I also raised the prospect of making such an aggregate sentence the base sentence in dealing with the five charges before me. Both the prosecution and defence agreed that these were appropriate approaches. In fact it needs to be said at the outset that there is a factual overlap across all of the five charges before me, arising as they do in a very direct way from your involvement in the drug trade.
9This overlap will be reflected in some concurrency, but there is still a real difference between the three State offences and the two Commonwealth charges. That difference is you moving from local drug trafficking around suburban Melbourne into roles associated with the movement of drugs and drug money from overseas into that Melbourne market.
The three State trafficking offences
10As already stated, the circumstances of your offending are set out in the exhibits. In addition, the evidence led at your trial on the attempt to import shed light on your trafficking.
11It is not necessary to elaborate on the facts to any great extent. Some ten thousand SMS and other text messages were reduced to several thousand and were part of the Crown case at your trial. Often in trafficking cases there is clear evidence about quantity which can assist the sentencing court. In your case, it is hard to work out what transactions took place and in what amounts as opposed to what was referred to as just “big talk” by you in a lot of these messages.
12The prosecution evidence is that examination of all these telephone records revealed some 131 MDMA transactions involving up to 19,423 pills in lots of a single pill up to a box of 1000 at different times. Cocaine was said to be over fourteen transactions and LSD about four transactions. The defence did not concede these transaction numbers, nor the amounts.
13After undertaking the exercise of perusing the massive number of mobile phone SMS and other messages, it is simply not possible to reach firm conclusions on quantities with respect to your three trafficking offences. What is clear is the multitude of similar transactions across many months and involving a number of different customers of yours.
14An aggregate approach is warranted. Your three trafficking offences encompassed the three different drugs and occurred over many months. It was fourteen months with respect to MDMA, twelve months with respect to cocaine and seven months trafficking in LSD.
15In a descending order, the amount of drugs, transactions and customers involved was clearly far greater with respect to MDMA in Charge 1 than the cocaine in Charge 2 and then the LSD in trafficking, Charge 3.
16Essentially, you obtained your drugs from Mr John Truong, whom you met whilst working together at a Coles supermarket. He introduced you to drugs and became your primary supplier. You obtained drugs for your own usage as well as for sale at a financial profit to you. You supplied a number of other users who were mostly friends or acquaintances.
17The evidence indicates that you freely gave advice about the drug market, prices, multiple varieties and even sales tips. You organised where to meet and pick up drugs, for example in a shopping centre car park, and the vehicle to look for. The evidence is that you were in contact with suppliers higher up the drug chain. While I accept there was a degree of bravado and “big talk” by you on certain occasions, you were involved in drug trafficking that led you to meet people higher up that chain than Mr Troung.
18I regard your three trafficking offences as constituting a serious example of drug trafficking, there are a number of features which render it so. While I accept you first experimented with drugs due to some peer pressure or desire to be accepted, your involvement went beyond this. You sought, and indeed gained, financial profit from selling drugs. Your offending went over a considerable time, and with respect to Charge 1 that was some fourteen months. You freely advised other people about the drug trade and gave them tips that you thought might be useful to them in that regard.
The Commonwealth offence of attempt to import
19With respect to the attempt to import MDMA, I must sentence you on the basis of the jury’s rejection of your defence that your conduct in that regard was just “big talk” and merely preparatory. Again, I consider this a serious example of an attempt to import. You moved, in my opinion, from local trafficking around Melbourne to attempting to facilitate the important step of bringing drugs into this country.
20Again, the Prosecution summary speaks for itself. Suffice to say your attempt involved such details as advising on different post office box addresses from different people, advice about the quality of certain overseas drugs, the best ways to avoid detection and you getting other people engaged deeper into the drug trade.
The Commonwealth offence of procuring the conduct of another
21With regard to the final offence of procuring another to deal with money reasonably suspected to be the proceeds of crime, again, I consider it a serious example of this offending.
22Again, prosecution exhibits set out your role. Suffice to say that you played a pivotal part in a total of $36,000 being remitted overseas by way of international money transfer on four separate occasions. You may have only received $200 for each transaction which your “recruits” satisfactorily completed, thus amounting to a total of between $600 to $800, but you achieved this by assisting a dealer named Adam.
23You clearly knew Adam was involved in importation of drugs from overseas into this country. To assist Adam you recruited four of your acquaintances to use their banking identities. They did this, and four transactions of $9000 each were successfully carried out for Adam. These involved you driving around Melbourne to different banks in various locations in the western suburbs.
24In the car, large wads of cash were handed out and then a banking transaction would be completed by one of the young men you had enlisted before moving onto the next bank. There was an organisational aspect over a course of time involved in this offence. Possible detection was being avoided by the planned separate transactions at different banks in different suburbs. You played a central role in seeing this was carried out successfully.
25You have no criminal history. I accept that other than this offending you are a person of good character. Also, there are no matters pending. You are now aged 24 years and you were relatively young, being only 22 at the time of most of this offending.
26Your personal history has been set out in the documents tendered on your plea. I will list these:
·Outline of Defence Submissions, exhibit 1.
·Report of Alison Maynard, clinical psychologist, dated 6 April 2016, exhibit 2.
·Urine drug screen tests, exhibit 3.
·Academic transcript from Swinburne and Victoria Universities, exhibit 4.
·Letter from Silvia Kennett, psychologist, dated 2 November 2015, exhibit 5.
·Letter from Gwen Hammett, Mother of God School, dated 21 April 2017, exhibit 6.
·Email from Beyond Blue dated 19 March 2016, exhibit 7.
·Reasons for Sentence of Hiep (John) Truong dated 20 May 2016 ([2016] VCC 682), exhibit 8; and
·Letter from Atish Basant dated 4 May 2017, exhibit 9.
27While there have been a number of personal difficulties in your background and family life, you have shown progress at tertiary studies and you have a good work ethic. Your history of drug abuse commenced as a teenager and progressed after you met Mr Truong. You have made progress in that regard and all your urine tests have been negative.
28I assess your prospects of rehabilitation as being good. The prosecution agreed. You are an intelligent young man and while you suffer from depression and anxiety and some PTSD symptoms, I do not consider these are permanent, based on the evidence. While there had been difficulties in earlier times, essentially, these mental health symptoms manifested themselves at a clinically recognisable level after you were charged with criminal offending.
29I will direct some remarks specifically to Verdins.[1] It has been suggested that Verdins’ principles are enlivened, based on the report of Alison Maynard. The prosecution did not agree. However, the prosecution accepted you suffered from the clinical conditions of Major Depression and Anxiety Disorder and PTSD, as diagnosed by Ms Maynard.
[1]R v Verdins & Ors (2007) 16 VR 269
30Ms Maynard’s report is limited. It is based on a single assessment of you back in March 2016. So it is quite dated now and came before a lot of events relevant to sentence in May 2017. By way of example, as stated in the first paragraph of the report, its focus is really only on the offence of dealing with money reasonably suspected to be proceeds of crime.
31Personal use only is the thrust of what you told her about drugs. In fact, you specifically denied to her dealing in any drugs. Now before me are guilty pleas to three charges involving multiple trafficking transactions. The evidence is simply insufficient to enliven Verdins to any real extent in the sentencing task.
32After considering the submissions on both sides, I am not prepared to take Verdins into account, save to say I do accept that these mental health problems would presently make your prison time more burdensome than for others in better mental health. Whether prison would aggravate those conditions or not I am unable to say without more up-to-date expert evidence on your present conditions and future prognosis generally.
33Your counsel pointed to a number of matters which you are entitled to have taken into account in mitigation and I do so. Your guilty pleas as to the three trafficking charges and the federal offence of procuring others to deal with money suspected to be proceeds of crime are to your credit.
34Those pleas indicate remorse which you have also expressed to others and is confirmed in exhibits. There are also the obvious utilitarian benefits of saving the community time and expense and sparing witnesses from giving evidence. I take these factors into account in mitigation with respect to the offences you have pleaded guilty to.
35Other matters in mitigation your counsel referred to include your positive work ethic and self-employment plans. You have been drug free for many months and you have shown a willingness to assist others in community type roles. Also, you have moved away from former friends involved in drugs and you have good family and other support as evidenced by those attending Court.
36Defence counsel referred to the five-year sentence Mr Truong received for trafficking. His was a higher trafficking offence. He apparently entered some negotiated plea arrangement that involved him assisting in other drug prosecutions. Counsel also pointed out that the four friends you recruited to assist in moving the $36,000 in four lots of $9000 were not prosecuted by the authorities.
37The evidence invites really no more than speculation about these other people as the facts are not clear as to whether anything transpired between them and the authorities and what their personal circumstances were. In the end, I am not assisted by the submissions about Mr Truong and these other men.
38The prosecution submitted immediate custodial sentences were required for both the State offences and the Commonwealth offences. Your counsel sensibly and, in my view, responsibly, agreed with that submission.
39As well as those matters personal to you to which I have referred, I must also take into account other relevant sentencing considerations pursuant to s5 of the Sentencing Act 1991 (Vic).
40General and specific deterrence must be given weight in the sentence I impose. The community cannot and will not tolerate offending which so seriously promotes the spread of illicit drugs into our community. The message must be clear and consistent that punishment will result in such circumstances.
41Your sentence must manifest the community’s denunciation of your conduct and impose just punishment. I must protect the community from any repetition of this type of offending. I must seek to deter you and others from such offending, but as to specific deterrence, I accept it requires less weight in your case than with some other offenders.
42I must also take into account the sentencing principles and the matters to which I must have specific regard when sentencing on the two Commonwealth offences. The relevant matters are set out in s16A of the Crimes Act 1914 (Cth) and have to be taken into account.
43These are set out in detail in s16A(2) and, as conceded by the prosecution, several clearly are not relevant. I take account of all those relevant to your offending which must lead to a sentence of a severity appropriate in all the circumstances as required by s16A(1).
44You are convicted and sentenced on the three State trafficking charges by way of aggregate sentence to two (2) years’ imprisonment. This is the base sentence.
45On the Commonwealth charge of attempt to import, you were found guilty by the jury and are convicted and sentenced to twelve (12) months’ imprisonment.
46I direct that six (6) months of the sentence on this Commonwealth offence be served concurrently with the base sentence.
47On the Commonwealth charge of procuring the conduct of another person, you are convicted and sentenced to six (6) months’ imprisonment. I direct that four (4) months on this charge be served concurrently with the base sentence and with the sentence on the Commonwealth charge of attempt to import.
48The total effective sentence is two (2) years and eight (8) months or 32 months’ imprisonment. I direct that you serve twelve (12) months on the State sentence before becoming eligible for parole. I declare nine days pre-sentence detention be reckoned as already served under these sentences.
49I make a Recognisance Release Order required by the Commonwealth Act and I will hear counsel’s submissions as to its terms. I will then explain this sentence to you as required by s16F of the Commonwealth Act.
50But for your pleas of guilty on the three aggregated State trafficking charges, I would have sentenced you to three years’ imprisonment with a non-parole period of two years. On the Commonwealth charge of procuring another person, but for your plea of guilty, I would have sentenced you to nine months’ imprisonment.
51I will hear counsel as to the appropriate start dates and generally as to the form of the orders reflecting this sentence. I have a draft copy of those remarks that is unrevised, as I indicated, that you can see the arithmetic if you wish and I will give you an opportunity to agree on the orders and the start dates and then I will hear what you wish to say about the recognisance that is appropriate in the Commonwealth context that I have not done before.
52MS SHERIDAN-SMITH: Yes, of course, Your Honour. I am just wondering if it might be a suitable time just to have perhaps a ten-minute break while I confer with my instructor and my friend about that.
53HIS HONOUR: Yes, certainly.
54MR WILKINSON: We will sit down together.
55HIS HONOUR: So you don’t need Mr Naidu to remain for that, do you,
Mr Wilkinson?56MR WILKINSON: No, Your Honour.
57HIS HONOUR: You can take Mr Naidu and if you like I will come back at quarter past or if you need longer just let me know.
58MS SHERIDAN-SMITH: Quarter past should be more than sufficient,
Your Honour, to work through the mathematics, thank you.59HIS HONOUR: Thank you.
60(Short adjournment.)
61MS SHERIDAN-SMITH: Apologies, Your Honour. I was a little ambitious in saying it would only take us about 15 minutes to sort that out, but between all of us I think we’re satisfied that we’ve got the correct orders in place.
62HIS HONOUR: Counsel have had close to two hours to try and agree on the form of orders that reflects my sentencing remarks so are you both happy with the form that we have now reached?
63MS SHERIDAN-SMITH: Yes, Your Honour.
64MR WILKINSON: Yes, Your Honour.
65HIS HONOUR: It still behoves me to explain to him this sentence in as plainer language as I can.
66MS SHERIDAN-SMITH: Yes, effectively the ‑ ‑ ‑
67HIS HONOUR: But just with respect to the recognisance that he needs to agree to, I order six months with the surety or security I should say of $1000, in effect he will then just go on to serve a State sentence, won’t he?
68MS SHERIDAN-SMITH: That’s right, so the Recognisance Release Order itself will start on the same day that his sentence in prison starts for the drug trafficking. So they’ll run simultaneously effectively.
69HIS HONOUR: So the good behaviour requirement and the $1000 will be while he is in custody?
70MS SHERIDAN-SMITH: That’s right, so there’s no need for any money to be paid, it’s just the terms of that good behaviour bond will run whilst he’s still in custody. There’s obviously - another way we could have structured it, it would have run simultaneously with his period on parole in any case or if he hadn’t been eligible for parole for some reason, it would have run with that part of the sentence in any case.
71HIS HONOUR: I will explain it as best I can. As I have indicated I have not done this before in terms of a combination sentence of this nature and after I have given that explanation if there’s anything either of you want to say that makes it clearer we can get it on the transcript.
72MS SHERIDAN-SMITH: Yes, Your Honour.
73MR WILKINSON: Yes, Your Honour.
74HIS HONOUR: So in terms of this order, Mr Wilkinson, he understands his recognisance, does he?
75MR WILKINSON: Yes, I have just been down and told him what it means and he is going to sign it.
76HIS HONOUR: Yes. Mr Naidu, I am required by the legislation to explain the sentence to you as best I can and I will do that in as plain a language as I can, but it has taken counsel two hours to reduce it to the form of the orders, so forgive me if that language is not as plain as I would otherwise like it to be.
77You understand that the total effective sentence that I have imposed upon you is 32 months and I have made a direction that you serve 12 months on the State sentence before becoming eligible for parole. The nine days that you have been in custody is taken into account with respect to that.
78Your sentence involves Commonwealth and State offences and pursuant to s16F of the Commonwealth Act, I have to undertake this explanation. The purpose of the sentence is to reflect the gravity of your offences, but it is also to have you bound over to be of good behaviour in effect at the end of your Commonwealth sentences.
79The way the structure of this sentence will work - you do not have to worry about the logistics of this, all you will be concerned about is the time you have got in custody, but the authorities require that the service of your sentences must be the Commonwealth sentences first and then the State sentences.
80As I say, I do not think that is going to concern you so much in terms of the logistics of it, but that is how it is structured. The way I have made the sentencing orders with respect to concurrency, and concurrency means that one sentence is being served at the same time as another sentence, in effect means that your first Commonwealth offence starts - commences now.
81Then there is a second Commonwealth offence and all of that will take you until 11 January 2018 to serve. So that will be the end of the Commonwealth sentences except that you will then, if you agree, be entering a recognisance to be of good behaviour with the penalty of $1000 if you are not, and that is to be of good behaviour for six months.
82During that six months you will be serving time in prison for your State offences. Do you follow what I am saying to you?
83OFFENDER: Yes.
84HIS HONOUR: In any event, I am still required to undertake that exercise. Is there anything else you want me to say to comply with the Act?
85MR WILKINSON: No, Your Honour.
86MS SHERIDAN-SMITH: No, Your Honour.
87HIS HONOUR: I tried to reduce it to as plainer language as I could.
88MS SHERIDAN-SMITH: Absolutely, and there is no complaint taken with the way Your Honour has said it.
89HIS HONOUR: Is it appropriate for me then to sign this? I need to get his agreement, don’t I, and his signature, Mr Wilkinson?
90MR WILKINSON: Yes, Your Honour. I’ll go and take it down and get him to sign it.
91HIS HONOUR: Thank you. I will give you that then and then I will attend to execution of it. What is the requirement with respect to that order? Do I give a copy to the prisoner?
92MS SHERIDAN-SMITH: Yes, if possible ask your associate to make some copies for the parties and for the accused.
93HIS HONOUR: I will revise those sentencing remarks as soon as they come through to me on the transcript service and I have indicated more than once my heavy dependence on counsel in the course of both this trial and plea and I am grateful for your assistance and the last two hours have confirmed the heaviness of that dependence.
94Take Mr Naidu please.
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