Director of Public Prosecutions (Cth) v Panczuk

[2020] VCC 863

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR-18-02172

DIRECTOR OF PUBLIC PROSECUTIONS (CTH)

v

DEAN PANCZUK

---

JUDGE:	HER HONOUR JUDGE COHEN
WHERE HELD:	Melbourne
DATE OF HEARING:	Trial: 25 November – 13 December 2019 Plea: 27 May 2020
DATE OF SENTENCE:	16 June 2020
CASE MAY BE CITED AS:	DPP (Cth) v Panczuk
MEDIUM NEUTRAL CITATION:	[2020] VCC 863

REASONS FOR SENTENCE
---

Subject:  Criminal Law; Sentencing

Catchwords:  Attempted Possession CQ illegally imported drugs; 232kg

Pure MDMA; Offender physically received delivery; limited but important role; not organiser nor sharing profits; drug and gambling problems; strong rehabilitation since; family supports; jury verdict but co-operation presenting evidence; Covid-19 conditions impact on imprisonment; exceptional circumstances warranting mercy due to impact on very young children.

Legislation Cited:                  Crimes Act 1914 (Cth) s16A(1) & (2), 17A(2); Sentencing Act 1991 (Vic) s6AAA

Cases Cited:R v Nguyen; R v Pham (2010) 205 ACrimR 106; Nguyen v R; Phommalyscak v R (2011) 31 VR 673; Cheung v R [2001] HCA 67; DPP (Cth) v Alford [2017] VSCA 201 at [31]; Lau v R [VSCA] 324; Akoke v R [2017] VSCA 214; Markovic v R; Panteli v R [2010] VSCA 105; R v Pham [2015] HCA 39; DPP v Dalgliesh (a pseudonym) [2017] HCA 41; Kassir v R [2020] NSWCCA 88; CDPP v Brown [2017] VSCA 162; R v Hildebrand [2015] QCA 294; DPP(Cth) v Thomas; DPP(Cth) v Wu  [2016] VSCA 237; Shakhanov v R [2019] VSCA 38; Luong v DPP (Cth) [2013] VSCA 296; R v Pham [2015] HCA 39; DPP v Hyunh [2019] VSCA 311

Sentence:On Federal offence: 10 years imprisonment; non-parole 5½ years

State summary charges: 1 month imprisonment wholly concurrent 

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions (Cth)	Mr K. Armstrong	Commonwealth DPP
For the Accused	Mr J. Dickinson QC	Melasecca Kelly & Zayler

HER HONOUR: 

1Dean Michael Panczuk, you are to be sentenced for offending that occurred almost two years ago. 

2Last December, you were found guilty after a trial on a charge of attempting to possess a commercial quantity of an unlawfully imported border-controlled drug.  The maximum penalty for this offence is life imprisonment, and/or a substantial fine.

3There are also two related summary charges which you have agreed to have transferred to this court, and to which you have pleaded guilty, being two charges of possession of a prohibited weapon without exemption.  For each of these, the maximum penalty is two years' imprisonment and/or a fine. 

4As we are operating under emergency protocols and you are hearing this sentence over electronic equipment which is not always stable, I am going to tell you the sentence at this stage, and then explain my reasons. 

5The total sentence I will impose is 10 years' imprisonment with a non-parole period of five-and-a-half years.

6I shall now explain my reasons.

7I start with the general circumstances of the offending.  The charge for which you stood trial arises from your involvement in an attempted chain of delivery of a large quantity of recently-imported drugs. 

8In June 2018, a very large quantity of the border-controlled drug 3,4-Methylenedioxymethamphetamine, (known as “MDMA”), was imported into Australia disguised as coffee.  Arrangements had commenced in mid-May through a freight forwarding company for two consignments containing coffee beans, originating from the Netherlands, to be handled on arrival and delivered. The first consignment of six cartons arrived by air on 1 June 2018, and was collected and temporarily stored. The second consignment of 12 cartons arrived on 15 June, from the same consignor and shipper’s agent in the Netherlands. Both had the same named consignee, being a company with an address in Hong Kong.

9When the second consignment was collected, the first was transported to the same warehouse where the boxes were opened, found to be sealed bags, purportedly of coffee, which roughly matched the description on the documentation.  They were repacked and the boxes retaped. 

10On 26 June 2018, instructions were received from the Dutch shipper's agent to deliver both consignments that afternoon to a single location, being a shop address in Ascot Vale. In the circumstances to which I shall refer further shortly, as they involved you, the alert delivery driver became suspicious of discrepancies between her instructions and the circumstances, reported these matters to the company for which she worked, and the consignment was not delivered but returned to the warehouse and a report made to Australian Border Force.

11As a result, Australian Border Force officers attended the warehouse, examined the consignment, initial testing there indicated the presence of MDMA in the second consignment, and Australian Federal Police then arranged a substitution and controlled delivery. As part of that, the cartons were delivered to  your home address in Avondale Heights, where you accepted delivery and placed them in your garage.

12From soon after detection, a number of telephone numbers were monitored, including some used by you, and interceptions and surveillance were put in place.

13On the morning after the delivery - that is, 3 July 2018 - search warrants were executed at your home, and you were arrested, interviewed and subsequently charged. 

14During the search, a locked safe in the garage was found to contain two knives which were controlled weapons, and they are the subject of the two summary charges.  Those charges are much less serious and I shall concentrate on the much more serious charge of which you were found guilty by a jury.

15The main charge is based on your actions on 2 July 2018 of taking possession of the cartons which would have contained drugs but for having been substituted by the authorities.  There was no dispute that you had physically and intentionally taken possession of those cartons.  The sole issue in the trial was whether you had the necessary state of mind to have committed this offence. The prosecution case was that you knew, believed or were at least reckless as to the prospect that the cartons you were to receive contained illegal drugs. It was not necessary that you knew the exact type of drugs, nor the quanity.

16Forensic examination and analysis of the contents of consignment 2 showed that it contained a substance with a total weight of over 300 kilograms which, based on minimum purity, was estimated to be a total pure weight of 232.9 kilograms of MDMA. 

17Although the subject of the charge was your conduct on 2 July, preceding and following events were relied upon to prove your state of mind in relation to the content of the cartons being drugs.

18Your known involvement commenced by 25 June 2018, when you arranged the hire of a delivery van to be collected by you the following day for a proposed one day hire.  You used your own name and driver's license to arrange this. 
At about midday the next day, you attended the rental company, collected a Toyota HiAce vehicle, and drove it to the address of a shop in Ascot Vale to which delivery of the cartons had been arranged. About 2.40pm, you arrived there, approached the shop and were met by the driver of the consignment, who was looking for a contact named “Ken”. Initially, you said you were Ken and that the shop was yours, but you did not have the key to the shop, which was visibly empty with a ‘For Lease’ sign on it. You said you would load the coffee directly into your van to take it to another shop. Your false name and identity quickly fell away on the driver’s questioning, and you then gave your own first name, and said you worked in the warehouse and were just picking it up for Ken. Despite some phone calls, the driver was not willing to allow the cartons to be transferred into your van and the delivery was not completed. The driver took photos of you and your van while you made a phone call, and she then returned the cartons to the warehouse.

19Over the next few days, you received messages on a phone number registered to a false name.  You told police that that phone was given to you at Crown Casino when you were asked to do this favour.  It was used by you for communication to one or more persons from whom you were taking instructions for this delivery. On 28 June, in a series of texts, you asked if the person on the other phone still needed you to do that favour, and the response was that the person was not sure. Next day, you were asked if coffee could just be dropped off at your place, as it ‘makes everything a lot easier’, and you agreed to that if told time and date. You sent an SMS saying the person was such a good guy to let you do a favour instead of repaying the money lent, as your wife would have left you if she found out.

20On 2 July 2018, you were called on the falsely registered phone number and answered to the name 'Peter.'  That call was from a federal agent pretending to be a delivery driver to confirm the time of delivery. Shortly before midday, Federal Agent Bellasai, disguised as a delivery driver, arrived at your home in Avondale Heights with the cartons. These were unloaded and you moved them into the garage. Listening and tracking devices had been placed in them.

21At about 12.30 pm, you received a call from the other falsely-registered number to the one you had, and in that call, you said 'It's probably not a good time to talk', because “cousins” were there, but “all was good”.  The prosecution alleges that this was code and a way of telling whoever you were answering to that the drugs had arrived.

22About 20 minutes later, you used a radio frequency signal detector in the vicinity of the consignment to check for tracking or surveillance devices.  You used that for about 14 minutes, as was able to be detected through those devices. 
It indicated strongly positive.  You later told police that you only thought of doing this, with a long-disused detector, because of the state of the cartons on arrival, being partly breaking open and with different tapes.

23You left your house about 2.15 pm by car.  You contacted someone on the same phone used to communicate with those giving instructions, and asked to meet for lunch at the same place as last time.

24Meanwhile, your partner, Ms Natalie Zahra, had been making clear from late morning, and after the delivery, that she was unhappy with you having those cartons at your home, and she thought there was a risk that she was not prepared to take, especially for your young child's sake.  She refused to come home for the night, and later in the day, hired an apartment hotel room. 

25About 3 pm, you again used the signal detector on the cartons.  Later that day, you left home and went to the Westlake restaurant in the city, where you met two men of Asian appearance, and stayed for approximately an hour before all of you left.  You then drove to where Ms Zahra was staying, and then home again.  Much later that night, you went to the apartment and stayed overnight with her and your child. 

26There were further communications in the late evening and into that night from you to the telephone number from which you appeared to have been taking instructions.  In those, you texted that you could not do the favour any more due to your 'Mrs', and you demanded that the other person 'come and grab the stuff' and you would find another way to repay him.  You threatened to leave it on the side of the road.  Although there was no response, your messages continued.  You said, 'Come and get your coffee, mate.  I have no room for it.  I'll repay you some other way.'

27An hour or so later, you communicated on a different phone line with someone by forwarding a picture of, and admiring, a sports car. 

28Next morning, you returned home from the apartment hotel where you had stayed with your partner and son.  At about 9.20 am, police arrived with a search warrant and arrested you.  You were interviewed over a considerable period that day.  You denied knowing or suspecting the presence of drugs in the car.

29You were remanded in custody on 3 July 2018.  You were granted bail on
17 September 2018 to immediately enter residential rehabilitation for your drug abuse.  You remained there for almost 12 weeks, then your bail was varied to permit you to return to live with your partner and child, which you did until after the trial.

30After the guilty verdict, I granted bail to allow you to be present at the imminent birth of your second child, and you surrendered yourself into custody on
13 January this year.

31The time you have spent on remand will count towards your sentence. 
You have heard me confirm this morning that that is 232 days, and I have also taken into account other aspects of it and of your time in residential rehabilitation, as I shall explain further. 

32As for your personal circumstances, you are now aged 35 and were not quite 34 at the time of this offending.  Shortly after the trial, you married your partner of over six years, Natalie Zahra.  You and she have two very young children, the older now aged four and the younger born only three weeks after the trial - so barely five months old. 

33You and your sister grew up in Melbourne in what appears to have been a supportive, immediate and extended family. You apparently engaged well and successfully at school, both academically and in sports and other school activities, winning a scholarship to secondary school. You completed Year 12 and commenced a university course, but did not continue after suffering serious injuries from a car crash. You then obtained work and commenced an apprenticeship in roof plumbing, but working at heights was a problem with that. You then undertook an apprenticeship with Porsche as a mechanic, and were employed for seven to eight years at Porsche service centre.

34In 2013, that employment unexpectedly collapsed, and shortly afterwards your father, with whom you had a very close relationship and who had been seriously ill from cancer for many years, passed away. Following that, you became introverted and lost focus on employment. It may well be that you turned to heavier use of drugs to help you cope with your losses, although I have been told that you had been using illicit drugs for many years. It was soon after your father’s death that you met and started a relationship with Natalie Zahra. About two years later, you regained employment as a service technician, and then were employed at Ultra Tune until June 2018, including a period as a manger of Ultra Tune centre.

35As I have said, your relationship with Natalie Zahra commenced in 2013. 
There was an indication during the trial that there were some difficulties in the relationship leading up to and at the time of this offending, but the two of you have not only clearly reconciled, but whilst you were on bail awaiting trial, you must have decided to have another child together. Several of the references from family members speak of your strong and mutual bond with Natalie and your devotion to your older son.

36As related to your drug counsellor, Ms Amanda Brown, you apparently had a long history of using illegal drugs to which you told her you were introduced in your teens.  This may not have been known to many of your family members who wrote references. You have told Ms Brown that your drug use was confined to weekends until, at about age 25, you were using “ICE” most days. You apparently reduced your use of ice after the birth of your first child, but there were signs found by police of drug paraphernalia in the safe when they searched your garage, and it is implicit in the recommendations for your entry into residential rehabilitation, that you had an active drug addiction at the time of your arrest.

37You also had a history of gambling which had become hugely problematic by your late 20s.  According to the letter from your wife, both of your lives revolved around finding money for drugs, and your life was chaotic, and your gambling was a problem in that you gambled what money was available.  This changed dramatically after your intensive rehabilitation following your arrest and release on bail.

38Reports of your progress at Refocus and since indicate that you engaged very well during the compulsory residential period and following it, such that you maintained your abstinence from drug use up to the time of the trial and indeed, since.

39You were reviewed in February this year by a psychologist, Luke Armstrong, who had originally assessed you in prison as suitable for that rehabilitation.  Although he found you were anxious regarding the plea hearing (then scheduled for late February) there was none of the distress, anxiety, depressed mood or withdrawal syndrome that he had assessed in July and August 2018. At that stage, you had acknowledged candidly that drug-taking and gambling had led to your incarceration, and you had resolved to cease them, although he notes that you had not been completely candid at the initial assessment about the extent of your ongoing drug-taking, and he attributes that to the magnitude and severity of that drug problem.   

40On assessment and testing, there was no diagnosed disorder that would be mitigatory in sentencing considerations. Your drug abuse disorder fulfils the status of “sustained remission”, and he felt your gambling disorder could also be said to be in sustained remission. Mr Armstrong considered that your drug and gambling use was intertwined with chronic identity problems, and that you present with traits of dependency and narcissistic personality disorder. He recommended that those receive attention through specialist psychologist therapy upon your release from prison. He felt that your strong attachment to your children and to your wife provide positive support, and should serve as a significant protective factor against relapse into drug and gambling use in the future.

41A report from Dr Ralf Humphries of Refocus confirmed your positive engagement through that agency in first residential, and subsequently outpatient, rehabilitation.  I accept that you engaged very well and applied yourself fulsomely to that program, including interacting well with staff and other residents.  I discount what I regard as the hyperbolic assertion that you are the clearest and steadiest and most able of all of his clients in the past five years, as I have read similar phrases in reports from that agency of other people who have come before me in this court.

42Nevertheless, I do accept that your remand into custody and then release into the Refocus rehabilitation program both brought you to the point of recognising how seriously your addictions had undermined your judgment, put you in the position you now face of a significant term of imprisonment, and that you remain genuinely resolved to address the underlying reasons for and to avoid relapse into either of those addictions. 

43I turn next to reports from Ms Amanda Brown, a senior clinician in drug and alcohol treatment and rehabilitation, who was part of the team arranged by your solicitors to obtain bail and entry into residential rehabilitation, and after completion of your residential period there, continued treatment consultations with you.  I have read her reports of August 2018 and one prepared in March this year. At the original assessment, you explained that your drug use was combined with gambling addiction that had increased over the last five years, bringing you to many points of desperation.

44You completed over 11 weeks in residential rehabilitation, during which your activities were closely supervised, and there was a rigorous program.  For the first four weeks, there was minimal outside contact.  As an outpatient of the program you undertook fortnightly counselling with Ms Brown, alternate fortnightly counselling with Dr Humphries, completed twice-weekly supervised urine screens for drug use, and attended Narcotics Anonymous three times per week.

45In Ms Brown's view, the recovery program has “worked” and has been successful in addressing both addictions.  In her view, drug use mainly led you to gamble, along with internal unrest throughout your adult life, and she believes you used drugs and gambling to ease the agitation and unrest.  She speaks in glowing terms of your interaction with your wife, and now two young children, and describes your dedication to your recovery as exemplary in her experience.  Although she overstates the duration of your success at that, I accept that it is now almost two years since you ceased using either drugs or gambling on your initial remand into custody, and that you are firmly resolved to maintain that abstinence.  Ms Brown assesses you to be in the maintenance phase of recovery.

46As I have said, I accept that you did engage fulsomely with what was an intense program, first residential and then in the community.  Both you and your partner and elder child apparently appreciated and enjoyed the very positive result that that had on your family relationships.

47Ms Brown considers the prospects of you sustaining long-term recovery are now excellent.  She also noted that since being back in custody since January this year, you used your time constructively.  She found you to be thoughtful and intelligent and devoted to your family, and believed you recognised the poor choices you made that led to your arrest for this charge.  She describes you as remorseful and ashamed that you have brought such dishonour to your family.

48I turn now to the sentencing principles which I must apply as they relate to your case.  In doing this, I shall not specify sections and sub-sections or case citations, but I will footnote those in the revised transcript of these reasons. 

49The court must impose a sentence that is of a severity appropriate in all the circumstances of the offence.[1]  It must not impose a sentence of imprisonment unless, after having considered all other available sentences, the court is satisfied that no other sentence is appropriate in all the circumstances of the case.[2] 

[1] S.16A(1) Crimes Act (Cth).

[2] S.17A(1).

50The court must take into account a number of specific matters if relevant in the particular case,[3] and now I turn to those.

[3] S.16A(2).

51First, I must take into account the nature and circumstances of the offence.[4]  In doing this, I must assess both the objective seriousness, and the level of criminality of your role in this offence.

[4] S.16A(2)(a).

52The maximum sentence of life imprisonment is the most severe sentence for any crime in Australia, so is a yardstick reflecting very high objective seriousness for offences of this nature.  The reasons for this include the widespread harm done within the Australian community by the distribution and use of such drugs, the difficulty of detection of this type of offence, and the large sums of money to be made by those cynical enough and greedy enough to make a business from this activity.[5] 

[5]R v Nguyen; R v Pham (2010) 205 ACrimR 106; Nguyen v R; Phommalyscak v R (2011) 31 VR 673.

53Where drugs have been intercepted and replaced by the authorities, that does not decrease the seriousness of the offending and the maximum penalty is the same for such an attempt, as those involved endeavour to take possession with the same state of mind as if the delivery contained its original contents.

54The quantity of drugs and its proportionality to the defined commercial quantity does not determine the seriousness of the offending, but it is highly relevant to it.[6]  In this case, it was very large indeed, estimated at 232.9 kilograms pure MDMA, being more than 465 times the threshold for a commercial quantity of this drug. The prospective wholesale value was between almost $9 million and almost $15 million it sold in bulk quantities of 1 kilogram. Clearly, both the quantity and potential value indicate that huge profit was likely from this shipment.

[6]Nguyen v R; Phommalyscak v R op.cit.

55The arrangements for the importation were relatively sophisticated, with the use of legitimate freight forwarders and their contractors and two consignments arriving two weeks apart - from which it might be inferred the first was a test to see if it was intercepted, as it contained no drugs.  There was also the use of mobile phone numbers registered in false names, and the distancing of the organisers from the delivery process.

56Whilst not the largest ever importation into Australia of illicit drugs, nor the most sophisticated, objectively, this was a very serious instance of this offence.

57As to your role and culpability, or criminality, the prosecution did not suggest that you organised the importation nor stood to share in profits from it.  However, it did submit that I should find that your culpability should be assessed on the basis that you actually knew or intended that there would be drugs in the consignment of which you took delivery, as had been presented during the trial before the jury, as well as the option of you having a reckless state of mind.

58For this offence, the law sets recklessness as the fault element or necessary state of mind, of an offender that has to be proven.  Where recklessness is that element, proof of intention or knowledge will also satisfy that element. 
The prosecution case to the jury was that you were at least reckless, meaning that you were aware of a substantial risk that there were drugs in the consignment and that in the circumstances, it was unjustifiable for you to take that risk. However, the prosecution case was also that the jury should find beyond reasonable doubt that you in fact knew or intended that the consignment would contain drugs, and it is on that factual point that there is a difference.

59For sentencing purposes, the prosecution submitted that I should make a finding that you knew or intended that the consignment would contain drugs, being a more culpable state of mind than recklessness as to there being drugs.  On your behalf, that submission was resisted. 

60Both sides agreed on the principles of how I should approach that,[7] and I will not repeat them all here. The key aspects are that to make such a finding of fact, I would need to be satisfied of it beyond reasonable doubt, and that although it is not necessary for the sentencing judge to take the most lenient view of facts which could have been found by a jury consistent with the verdict, the practical effect of having to find such facts beyond reasonable doubt may be that the judge will be obliged for that reason to sentence upon a view of the facts which is most favourable to the offender.

[7]Cheung v R [2001] HCA 67.

61The view of the facts to be taken depends on the evidence as presented in the trial, but the sentencing judge may also take into account further matters that emerge during the sentencing hearing. 

62Consistent with the jury's verdict, I am satisfied that there was plenty of evidence to support a finding beyond reasonable doubt that at the time you accepted delivery of the consignment on 2 July 2018, your state of mind was at least reckless as to there being drugs in the consignment: 

·You knew in hiring a van to attempt to collect the delivery that there was a sizable quantity of goods to be collected. 

·You used a separate phone supplied by those for whom you were doing this to communicate about it. The reluctance and suspicions of the delivery driver on 26 June would have alerted you to there being discrepancies in the arrangements and heightened suspicion of this not being a legitimate delivery.

·Ms Zahra’s reluctance to be at your home at the time of delivery, or to return to stay there overnight, reflected that she was aware that there was something seriously untoward about this delivery, to the extent that it or the people associated with it could place her and your child at risk. Within 20 minutes or so of its delivery, you used a scanner to see whether it had tracking devices in it, and that confirmed that it did and clearly made you nervous enough to seek an urgent meeting with whomever was giving you instructions. While you claimed that you only used the scanner because of the broken state and retaping of the boxes, it was well open, in my view, to the jury to not only reject that explanation but to infer from your actions of using the scanner that you were alert to the possibility of tracking devices because of what you at least strongly suspected was inside.

·During your interview with police, you said, in relation to the positive response when you used the scanner,[8] that you “never thought it was drugs” but it could have been guns or bombs.  That answer, in my view, confirmed that you knew at that stage that there was likely to be serious illegality involved with this consignment. As I have now been told that you have a long history of personal drug abuse, it was in my view patently ridiculous to suggest that you would think it might be guns or bombs, but never thought that it could be drugs. While disbelief of an explanation does not make an alternative explanation true, in my view, this answer destroyed any realistic prospect that you were not aware, at the time of the delivery and not merely afterwards, of a significant risk that the consignment contained drugs.

[8] Q1139.

63The question, however, is whether I can be satisfied beyond reasonable doubt that you actually knew there would be drugs in the delivery you accepted. 
As well as the already-mentioned parts of the evidence, I have also considered whether the messages later that night indicate, as the prosecution urged, that you were deliberately creating a cover story to disguise your knowledge of the drugs.

64I am not convinced beyond reasonable doubt that that was the reason for those messages, because it is clear that your partner was indeed insisting that you get the goods out of the garage before she would return there with your child.  Although she did not mention that this was due to there being no room to store them, I take your mention of that to be an added explanation by you, and possibly to disguise to whoever was giving you instructions, the level of your partner's concern and with it implicit knowledge about the contents.

65I regard your turning in a message to a different number to praise a sports car as a reflection of your lack of appreciation of how very serious a situation you were in by then. 

66I am therefore going to sentence you on the basis that your state of mind was recklessness rather than actual knowledge, but that distinction is not one that invokes mitigation of penalty.[9]  As it has been held that offenders who are reckless as to the nature of the substance imported, rather than having a specific intention to import a border-controlled drug, are to be treated in the same way as offenders who do so intentionally.[10]

[9]DPP (Cth) v Alford [2017] VSCA 201 at [31].

[10]Lau v R [VSCA] 324.

67I note, without criticism of any of the writers, that a number of personal references that were tendered on your behalf referred to your only being found guilty of recklessness, and one equated that with negligence.  So far as the criminal law is concerned, recklessness by being aware of a substantial risk that the consignment would contain drugs and not being justified by circumstances in taking that risk, makes an offender guilty of a very serious drug charge.

68I am satisfied that your motive for involvement was money, but I am not able to find how much you stood to gain.  You told police that you had agreed to receive the delivery as it was offered as a way of repaying a debt of $1,500 from gambling, without having to admit to your partner that you had been gambling again. In light of the whole of the evidence at the trial, I do not find it likely that you would have become involved for no more than $1,500, and if it was to avoid revealing to your partner that you had been gambling, that could not still have been the situation on 2 July as she was well aware that you were having goods delivered about which there was something so untoward that she felt the risk too great to return home with your child. I am not able to find beyond reasonable doubt how much you really stood to gain, but I do find that it was for monetary gain.

69Your role was not confined to a single day, although that is the limit of what is charged.  You clearly were involved no later than 25 June when you arranged the hire of a van intended to collect the consignment next day.  When that was not achieved, you remained available to participate. I accept that you were not making the plans about how that would be achieved, but even after the initial failure to obtain the delivery and experiencing the suspicions of the courier driver, you were willing to stay involved, kept the hire van for longer, and agreed when asked to allow the goods to be delivered to your home.

70It is not possible for me to assess where in a hierarchy or amongst others involved your level of culpability lay, as no-one else is known to have been charged.  Obviously, there were others involved in organising the importation itself, and clearly in asking you to accept delivery. I am satisfied that you were not in control of the importation or delivery, and that your role was limited. However, your role was being the person to initially receive the goods, and while limited, that was inevitably an important role in the chain of delivery. Anyone who becomes involved at any level in such arrangements must expect to be punished for their role, as every role assists in the chain of delivery and distribution of the drugs- a very serious crime.

71I return briefly to discuss the two summary charges.  In relation to those charges of possessing a controlled weapon without exemption, there were two knives found in a locked safe in your garage which had to be forced open as you did not give a correct combination when asked.  The knives were with some other suspicious paraphernalia that is not the subject of any charge. I was told that they were part of a collection started by your father. I am not in a position to make a finding on whether or not that was true, nor how likely that was. I regard their presence and your possession of them as of relatively low seriousness in the circumstances, because although you had been fined without conviction on a similar charge in 2014, there is nothing to indicate that on the day that they were found, you were likely to access them, nor to use those knives as weapons. They were in a locked safe unable to be accessed by anyone else, and this was in the context that you had a young child living in the premises at the time.    

72I turn then to the next necessary consideration.  There can be no doubt that the nature and seriousness of the main offence requires general deterrence[11] to be the principle sentencing purpose, together with considerable weight given to adequate punishment[12] and community denunciation.  General deterrence means that the sentence must send a message to other people tempted to engage in offending of this nature, that it will attract stern punishment.  It is important that any person contemplating playing any role in the chain of importation or delivery of substantial quantities of drugs is aware of the stern punishment that such offending attracts.

[11] S.16A(2)(ja).

[12] S116.A(2)(k).

73You stood trial on the main charge.  It was your legal right to do that, and your sentence will not be increased as a result.  However, you do not receive the reduction in sentence to which you would have been entitled had you pleaded guilty.[13] I have taken into account as warranting a little moderation of the sentence, that there was cooperation in presentation of evidence that reduced the time and number of witnesses involved in the trial than might otherwise have been required. I take that as some willingness on you part to facilitate the legal process, if not to plead guilty. This was not cooperation in the sense of assisting investigation, but as I say, it was at the trial stage, and I have given you some credit for that cooperation in the presentation and minimisation of time taken in the trial itself.

[13] S.16A(2)(g).

74Although you have not expressed true contrition in that you do not acknowledge that you are guilty of this offence,[14] I accept that you deeply regret your decision to become involved with this arrangement, and as expressed through some of the references, you have expressed your remorse and shame, including the consequences to your family of your decision.

[14] S.16A(2)(j).

75You did plead guilty to the two summary charges, and I take that into account as mitigatory in respect of the sentences on them in that it has utilitarian value and also was acknowledgement of wrongdoing by you.  

76Next, I take into account your character, prior offences, age, means and health.[15]  I have already outlined the facts about your personal circumstances. You were aged just under 34 at the time of the offending, and are now almost 36.  Your prior criminal history was very limited, and not relevant to the main charge, but as I have said, there was a similar charge to the two summary charges.  You had apparently used illegal drugs for many years but had no prior criminal history in that regard, and certainly none of more serious drug-related offending.

[15] S.16(a)(2)(m).

77I have read a large number of personal references, mostly from family and extended family members, and from some friends.  All describe you as a kind and caring person who, having given both practical and emotional support to extended family and friends, has gone out of his way to do that.  They all describe you as truly devoted to your wife and children, and a role model as a father to the elder of your children. It would appear that your history of drug abuse may not have been known to them all, or if it was, they take a different view of being ‘law-abiding’ than this court would. Nevertheless, I accept that significant numbers of people think very highly of you and express shock that you would have been involved in a large drug delivery, which they describe as out of character for you. All, including your wife’s brother and father, the former conceding that he did not originally think much of you, are fulsome in their praise for your devotion to your wife and children and say that they will continue to support your while in prison and on your release. 

78There are also personal endorsements from those involved in your rehabilitation since being charged.  I have summarised those as to your strong and successful engagement in that rehabilitation, and what they think of you, and what they have observed of your role as husband and father.

79You have no major health problem, physical or mental.  You have been diagnosed to have had a Substance Abuse Disorder, now in remission, and in the maintenance stage.  Neither this nor your gambling problem provide mitigation for your offending.  They put it in some context, but that does not play much of a role in this case, nor are those addictions now in remission likely to make imprisonment more onerous for you.

80I next turn to your prospects of rehabilitation,[16] which I assess as being good. 

[16] S.16A(2)(n).

You have already shown strong commitment to overcoming your drug and gambling problems, and recognition of what led to those.  You have a wife and two young children as high motivation to re-establish your life with them on release from prison.  There is strong and widespread family support, expressed through the references, and you have substantial employment training and experience, with some people willing to help you obtain fresh employment.

81I also note that since returning to custody in January this year, you applied yourself in several constructive ways, first, to work, when you were at Port Phillip Prison, then again when you were moved to Ravenhall.  You have undertaken certificates and some further studies in English and Maths, which you explained to Ms Brown as motivation to continue to learn and grow while you are in prison.  The challenge for you will be to maintain that positive attitude and motivation and not feel crushed by a significant term of imprisonment. 

82In relation to rehabilitation, I have also taken into account that while undertaking the residential component, you lived for the first month under very restricted, disciplined and supervised conditions, and that for the following near eight weeks, you were still engaged full-time in programs, heavily supervised, and living in a disciplined environment. Although not a period in custody capable of being formally credited towards your sentence, I have adjusted your sentence to take into account that this was a near three-month period of significant restrictions and supervision.[17]

[17]Akoke v R [2017] VSCA 214.

83I have also borne in mind that you complied with strict bail conditions from December 2018 until the trial,  and then from 13 December last year when
I extended bail under even stricter conditions. In particular, I recognise that it must have been particularly difficult for you to comply with the requirement that you surrender yourself into custody on 13 January this year, when, unfortunately, your wife had suffered serious complications and undergone urgent surgery following the birth of the baby a few days earlier, and she and the baby were still in hospital when the date arrived for you to answer your bail. I have read of the role of various family members who looked after your other child, and the visits and their observations of you and your wife in the hospital. I am satisfied that the burden on you of having to go into custody against that background carried much greater than usual anxiety on separation, as to the welfare of your wife and children, and would have borne on you very heavily at that time and since. I have made an appropriate adjustment in your sentence to take into account that the surrendering of yourself into custody would have been onerous than would normally be expected.   

84I must also take into account the probable effect that a lengthy sentence of imprisonment would have on your family.[18]  I have no doubt that there has already been, and will continue to be, very significant impact on your wife, and in particular on your two very young children by your being imprisoned for a lengthy period.

[18] S.16A(2)(p).

85There is mention of some behavioural changes in references in relation to your elder son, through his missing you to the extent that it was noted after your first term on remand, that when you returned home he was particularly anxious and clingy if you disappeared from his sight.  Your wife also writes that since your return to custody this year, there have been behavioural changes to the extent that he was to be seen by a psychologist, although no report has been provided.

86Your younger child was only days old when you physically left his daily life, and although he may not yet know what he is missing, it is inevitable that over time he will learn of what he has missed of a close relationship in his early years with his father.  I note the descriptions of how well you bonded with and undertook a parental role with your elder child when you had the opportunity to be with him in his first two years.

87Unfortunately, it is very often the case that the imprisonment of an offender causes significant hardship to his or her family.  Courts are not unmoved by such circumstances, but the law is clear that it will only be in cases where the hardship is exceptional, and those will be rare, that it is appropriate for a court to reduce or otherwise significantly moderate a sentence for that reason.[19]  There is no residual power to moderate a sentence out of mercy if the circumstances are not exceptional.

[19]Markovic v R; Panteli v R [2010] VSCA 105.

88During the hearing, the implications of the COVID-19 pandemic on your experience of imprisonment were raised and discussed.  There would have been no contemplation of any implications from this pandemic when you committed this offending when you were first arrested and remanded in 2018, nor even when you surrendered yourself into custody again on 13 January this year.

89Since early-to-mid March this year, there has been general concern in the community, and inevitably in the prison population, about the spread of this virus and its potentially very serious results.  That concern grew significantly from mid-to-late March and early April. Thankfully there has been no known diagnosis of any Victorian prisoner having contracted this virus. As the spread in the general community has been significantly, although not totally limited or suppressed, the concern for the prison population, where it would be very difficult to control its spread by sufficient isolation or distancing, must in my view also have reduced somewhat. As you have no particular health or other vulnerability to such a virus, I do not consider that ongoing concern in the general sense about the risk of you catching this virus would be significant.

90However, since 21 March, there have been restrictions imposed on prisoners which have impacted the conditions in prisons.  Significantly, in your circumstances, all personal visits have been suspended, and for you that has meant no family visits from your wife and two young children, nor from your mother, sister or other family or friends.  Apparently, you were entitled to up to 10 hours of visits until then.

91Also, most programs and many activities have been suspended, and the time for prisoners to spend out of their cells has been considerably limited.  That has depended in extent on the particular units in the various prisons. I assume that the studies that you were undertaking had to cease, and that you would have been prevented from attending Narcotics Anonymous meetings. I accept that all of the restrictions will have been making your experience of imprisonment for the last three months considerably more onerous than had those restrictions not been in place.

92I said at the plea hearing that I would take into account in some moderation of your sentence the likely impact of all of those restrictions on you in making this portion of your time in prison more onerous, with particular emphasis on the lack of family visits. 

93Last week, your lawyers sent a submission elevating the incidence of these restrictions to the level that it is submitted that I should regard the ongoing suspension of family visits of such significance to you in your circumstances that it amounts to exceptional circumstances that would warrant an exercise of mercy in the reduction of your sentence. That is, beyond just the burden on you of your experience of imprisonment.

94It was submitted on your behalf that in combination, the very young age of your children, the description of your elder son being particularly distressed by your absence, and with the suspension of prison visits, for which at this stage there is no timeframe for resumption, I should find the circumstances “exceptional” and warranting significant mitigation of your sentence.

95The prosecution provided a response accepting the principles that apply,[20] and also accepting that, to an extent, there could be exceptional circumstances found due to your particular circumstances.

[20]Markovic at [5], [7] & [77].

96I am satisfied that your imprisonment is likely to be very hard on your partner and both of your children.  I have already explained the reasons for that. 
The fact that they have not been able to visit you in person over the last three months, and will not be able to do so for an indefinite period in the future, must be making that separation even harder for them. I take into account the circumstances in which you had to leave them and return to custody, in that your wife was seriously ill in hospital, and that was even more upsetting and disruptive of what their circumstances were on losing you from being amongst them, and you could not spend the last few days in normal living at home with them.

97I had some hesitation in deciding whether or not to classify the circumstances as exceptional in the sense of enlivening a particular exercise of mercy. 
You were aware of your responsibility to your partner and older son when you decided to engage in this offending.  Your devotion to them was apparently not enough to dissuade you from participating in this offending. Further, the decision to have another child was obviously made when you were aware of the impact of your temporary absence on initial remand on your first child, and when you were aware that you were awaiting trial on a very serious charge for which I am sure you had been warned that you would almost inevitably be sentenced to a substantial term of imprisonment if found guilty. While you could not have envisaged the impact of the COVID-19 virus, the fact that you have such a young baby who is likely to spend many of his early years without his father having an active role in his daily life, caused me to pause considerably as to whether to classify the circumstance as a whole as “exceptional”.

98However, taking into account the very real impact that the COVID-19 restrictions have had, in that family visits have been suspended indefinitely, and taking into account the evidence of the very heavy burden there was initially and will continue to be on your wife and children, and the concession by the prosecution that these amount to exceptional circumstances, I have been persuaded that some further moderation of your sentence beyond just the impact on you of your concern about them, should be applied.

99Finally, I must have regard to current sentencing practice for offences of this type.  In doing so, I must take into account Australia-wide practices to apply consistency in sentencing on Commonwealth offences,[21] of which this is one.  While sentences in other states used to be regarded as generally higher than those in Victoria, the cases presented to me have tended to emphasise that Victorian sentencing practice is at least as high, if not higher now, compared with some recent interstate decisions.

[21]R v Pham [2015] HCA 39.

100I have considered the range of cases to which I was referred by the prosecution and by your counsel, and considered features of similarity and dissimilarity. 
I will attach to my revised sentencing reasons a short precis of those.  I am not going to explain all of those at this stage.

101However, consideration of other cases does not call for exact comparisons, and while consistency in levels of sentencing is important, other sentences are no more than a historic record of what happened in previous cases and do not restrict the upper or lower levels of sentences available.[22]

[22]DPP v Dalgliesh (a pseudonym) [2017] HCA 41.

102As already stated, it is my view that the seriousness of this offending is high, even taking into account factors in moderation.  It was conceded during the hearing by your counsel, and again this morning, that no sentence short of a term of imprisonment would be appropriate.  Indeed, a substantial term of imprisonment is warranted, and that is reflected very much in a consideration of comparable cases.

103As I find that no sentence other than imprisonment is appropriate, I will be directing, pursuant to s.17A(2B) of the Crimes Act (Clth.) that these reasons be entered in court records.

104I come now to the sentence, although I have already indicated to you its total effect.  I will not require you to stand, because you are sitting at the end of an audio-video monitor.

105Dean Panczuk, on the Commonwealth charge of attempting to possess a commercial quantity of a border-controlled drug, you are sentenced to 10 years' imprisonment. 
That sentence commences today.

106I set a non-parole period of five-and-a-half years.

107I declare 232 days of pre-sentence detention reckoned served.  That amount will be deducted from both the head sentence and the non-parole period.

108I interpolate here:  it is also possible, but I cannot speculate about it, that there may be other administrative remissions deducted having regard to the restrictive nature of some of your time in custody, but they are well outside my control and I cannot speculate about how much that might be. 

109So the sentence is 10 years' imprisonment with a non-parole period of five-and-a-half years, of which 232 days will count as already served.

110On each of the two summary charges, you are sentenced to one month's imprisonment. Under State sentencing laws, those sentences commence today, and as I am not going to order any cumulation, they fall to be served concurrently with each other, and I direct that they be served concurrently with the Federal sentence I have imposed on the indictment.   

111I formally direct, pursuant to s.17A(2)(B), that these reasons be entered in court records.

112I believe that there is no longer a request for an ancillary forfeiture order.  Is that correct?

113MR ARMSTRONG:  That is correct, Your Honour.  I understand that there has been agreement from the defence that Mr Panczuk will sign the forfeiture order.  That’s for the two phones and the scanner.

114HER HONOUR:  All right.  I will not make any order about that.

115Now, finally, in relation to the summary charges to which, Mr Panczuk, you pleaded guilty, I find it particularly artificial but I formally do make a statement for the purposes of s.6AAA of the Sentencing Act that but for your pleas of guilty to those charges, I would have imposed an aggregate sentence of two months' imprisonment.

116Now, is there anything I have not covered?

117MR ARMSTRONG:  Not from my point of view, Your Honour.

118HER HONOUR:  Mr Dickinson?

119MR DICKINSON:  No, Your Honour.  Not from my point of view.

120HER HONOUR:  All right.  Mr Panczuk, I have explained your sentence and no doubt your lawyers will explain it a little further to you, and eventually, there will be a typed version where you can read the details of other people's cases. 
Is it requested that there be some time on the link to talk directly with
Mr Panczuk on me leaving the Bench, or can we disconnect the WebEx connection, the link connections, and the communication with him can be afterwards?

121MR DICKINSON:  We would be most grateful for a bit of time, Your Honour.

122HER HONOUR:  All right.  What I will do is ask that Commonwealth,
Mr Armstrong, and anyone with you, to withdraw from the WebEx in a moment and I will also leave and that should leave the ability for there to be some confidential discussion with Mr Panczuk. 

123MR DICKINSON:  We'll do so, Your Honour.  Thank you, Your Honour. 

124HER HONOUR:  All right.  I will also ask that others leave the court room, because there may be some hearing of confidential information, which would not be fair.  Yes, 2.15.

‑ ‑ ‑

ADDENDUM TO SENTENCING REASONS

Current Sentencing Practice- comparative cases

1In the most recent case to which I was referred, Kassir[23], the offender pleaded guilty to having been an accessory to the importation of 166 kgs pure methamphetamine (221 times a CQ for that drug).  He had misused his inside knowledge as an employee at with DHL to create false documentation to achieve the importation of 6 packages that contained the drugs.  It was accepted that he had a lesser role compared to others, was easily identifiable, and had excellent prospects of rehabilitation and family and community support with low risk of reoffending. His initial sentence was increased on a crown appeal to 10 years imp with a non-parole period of 6 ½ years.

[23]Kassir v R [2020] NSWCCA 88

2In Brown[24], the offender had stood trial on two charges of importing a commercial quantity of methamphetamine (48.1 kgs pure, being approx. 65 times the CQ), relying on a defence of duress through threat to his girlfriend, which did not succeed.  He had stored the first shipment at his parents’ house and then delivered the goods in which the drugs were hidden elsewhere, and in the second he stored them at his apartment and was arrested prior to delivering them elsewhere.  He was not a co-ordinator, principal or mastermind, but had played an important and essential role as he was responsible for dismantling and unloading the engines and storing them until delivery to the buyer. He was found to be motivated by greed, and although the amount of gain was unknown the inference was drawn that it was significant. He had good prospects of rehabilitation. General deterrence was noted to be of great importance in the case, and the quantity was significant.  The Court of Appeal increased the sentence to a TES of 20 years imprisonment with NPP of 15 years, with 11 years imposed on the first charge and 16 on the second. 

[24]CDPP v Brown [2017] VSCA 162

3In Hildebrand[25], a sentence was upheld of 14 years imprisonment with non-parole period of 9 years, for an offender found guilty on trial of conspiring to possess a commercial quantity of MDMA – there was 104kg pure in liquid form, being approx. 208 x commercial quantity.  The offender was found to have known there were drugs and that the quantity would have been substantial; he was an intermediary, using a mobile phone registered in a false name to communicate with others involved, and had a number of meetings with people connected with the importation, at which cash was exchanged. He was aged 37 at the time of the offending, found to have impeccable character, to have been on bail since arrest without re-offending, and to have good prospects of rehabilitation.

[25]R v Hildebrand [2015] QCA 294

4Although not one of the cases to which either party referred as comparable, I have also had regard to dual cases of Thomas and Wu[26].   In separate unrelated cases, each offender had pleaded guilty and the discount for doing so had included recognition of the utilitarian value of the plea. Mr Thomas had attempted to possess 3.6 kg of methamphetamine, being 4.8 times the commercial quantity, by booking accommodation and having a consignment delivered to that accommodation, reporting to overseas contacts, and arranging for a customs broker to facilitate the movement of the consignment through customs.  His role was found to be above that of a courier, but at the lower end of the distribution chain in Melbourne; and it was inferred he was motivated by monetary gain.   Upholding the utilitarian value of the plea of guilty, the Court of Appeal raised his sentence to 9 years imprisonment with a non-parole period of 6 years and 3 months.

[26]DPP(Cth) v Thomas; DPP(Cth) v Wu  [2016] VSCA 237

5Mr Wu pleaded guilty to a charge of importing a commercial quantity of a border controlled drug- being two packages containing a combined weight of 3.965 kg pure methamphetamine, being approx. 5.29 times a commercial quantity.  He had established two residential addresses for himself, and provided each address to enable a parcel to be posted to it from overseas, and he was to deliver the parcels’ contents to someone else.   He was to be paid $10,000 per parcel.  His role was found to be more serious than the role of a mere carrier or courier as more sophistication and initiative was required in setting up the addresses, and his role had considerable value to the overall operation, but he was doing this for others and was not a principal or organiser. He was from Hong Kong, working in Australia on a visa, in his late 20s, sending money home to support his widowed mother and siblings, and was likely to be deported on release from prison.  His sentence was increased on appeal to 10 ½ years’ imprisonment with a non-parole period of P of 7 ½ years, after the utilitarian value of his plea was upheld.

6In Shakhanov,[27] an offender who pleaded guilty to a charge of attempting to import 107 kg of methamphetamine (for which 0.75 kg is a CQ), had his sentence reduced on appeal to 8 years imprisonment with a non-parole period of 5 years.   He was found to have a more limited role than a co-offender who received initially only one year more then he had.  The sole ground of appeal was of insufficient disparity to reflect his lesser role.  I accept that a lesser role was recognised and warranted a lesser sentence, but the issue of parity does not arise in the present case as no other offender has been charged at this stage.  Also, the quantity while large was less than half the amount in the present case.

[27]Shakhanov v R [2019] VSCA 38

7Your counsel also referred me to Minh Nguyen [28], in which an offender with a limited role was sentenced to 3 years imprisonment with a recognisance release after 518 days, for attempting to possess a commercial quantity of three border controlled drugs.   As that case precedes the High Court decision Pham[29], requiring comparisons of sentences Australia-wide, I do not regard it as useful in indicating a suitable range in the present case.

[28][2013] VSCA 296

[29]R v Pham [2015] HCA 39

8I was urged by your counsel to apply the same approach as I did, and was approved by the Court of Appeal, in a case last year of Ngoc Huynh[30], where strong rehabilitation was recognised as an appropriate sentencing purpose despite serious drug-trafficking offending.  In that case there was evidence of very positive rehabilitation between the time of offending and that of sentence, and no further term of imprisonment was imposed beyond the 3 to 4 months spent initially on remand before the offender was bailed to a drug rehabilitation program.  While that offender underwent the same rehabilitation program as you, including being assessed by Mr Armstrong for it, attending ReFocus, and his rehabilitation was co-ordinated by Ms Brown, and his application and progress was described as “remarkable”, there were several important features that differ from the present case.  First, he pleaded guilty thereby accepting responsibility and showing remorse, as well as the plea having utilitarian value.  Secondly, his charges related to 1,4 Butanediol, which drug is often not regarded as of such serious culpability as MDMA, and indeed it turned out that actual transactions had not been for the genuine drug at all.  There was no commonwealth charge relating to recent importation, nor attracting the need for interstate consistency.  As to his rehabilitation, he spent more than a further 8 months in supervised transitional accommodation after leaving the initial 12 week residential program, still adheres to a daily program.  He was not in custody when sentenced, and I took the view that to interrupt his rehabilitation and remove him from positive ongoing therapeutic relationships and peer group was likely to set back his very strong progress to the detriment of the community as well as him personally.  Finally, he had no prior criminal record at all, and came before a court for the first time in his late 20s.

[30]DPP v Hyunh [2019] VSCA 311