Director of Public Prosecutions v Abad
[2019] VCC 870
•14 June 2019
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-18-01265
| THE QUEEN |
| v |
| NADER KHANMOHAMMADI AHMAD ABAD |
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JUDGE: | HIS HONOUR JUDGE CARMODY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 7 June 2019 | |
DATE OF SENTENCE: | 14 June 2019 | |
CASE MAY BE CITED AS: | DPP v Abad | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 870 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Attempt to possess marketable quantity of an unlawful imported border controlled drug – opium – Verdin’s case.
Legislation Cited: s16A, s17A of the Crimes Act 1914 (Cth).
Cases Cited: Stephen Loftus v The Crown (2019) VSCA 24
Sentence:Total effective sentence of four years and six months' imprisonment with a non-parole period of three years' imprisonment.
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APPEARANCES: | Counsel | Solicitors |
| For the Queen | Ms O. Go | Commonwealth Director of Public Prosecutions |
| For the Accused | Mr J. Fitzgerald (Plea) Ms G. Donohue (Sentence) | Victoria Legal Aid |
HIS HONOUR:
1 Nader Khanmohammadi Ahmad Abad, on 7 June 2019, you pleaded guilty in the County Court of Melbourne to the following charge on indictment No.CR-18-01256:
Charge 1, attempt to possess a marketable quantity of an unlawfully imported border controlled drug. The drug in that case was opium. The maximum penalty for this offence is 25 years' imprisonment.
2 Nader Abad, you were born in Iran. You came to Australia by boat and you were granted a temporary protection visa in March 2013. You were granted a bridging visa on 6 June 2019, the day before you plea.
3 You have been in custody for a total of 498 days at the date of your plea.
Circumstances of your offending
4 The prosecution tendered a summary of prosecution opening for plea dated 10 May 2019. It was Exhibit “A”. I am now going to read from parts of it.
5 On 9 January 2018, an international air cargo consignment was examined by Australian Border Force officers at the FedEx Australia distribution centre at 100 Park West Drive, Derrimut. The consignment consisted of one wooden crate and one cardboard box and the contents were described as asphalt machine and consigned to “Nader Khanmohammadi” at 24 Manfred Avenue, St Albans, Victoria. The consignment bore the airway bill number (AWB) 811480723670.
6 The wooden crate contained a vibrating plate compacter machine typically used in the building industry to flatten asphalt, soil or other surfaces. Australian Border Force officers conducted a physical examination of the consignment which established that opium was concealed within the baseplate.
7 Documentation accompanying the consignment listed the consignee as Nader Khanmohammadi of 24 Manfred Avenue, St Albans. There was a contact telephone number on that documentation, which was the number to your co‑accused, Saeid Balagar.
8 On 8 January 2018, you and your co-accused, Balagar, attended at the FedEx Derrimut distribution centre and enquired about collecting the consignment. On 12 January 2018, the Australian Federal Police forensic crime scene investigators conducted an examination and destructed the steel baseplate of the consignment. The opium was removed from the consignment and weighed.
9 On 15 January 2018, the Australian Federal Police commenced lawfully intercepted communication data on the consignment mobile phone number which was the one belonging to Balagar and communications service in your name.
10
On 8 January 2018, Balagar told you that there was opium in the consignment. “Sia” is a person identified in the telephone intercepts as the Iranian person directing the importation. There were numerous phone calls by your co-accused Balagar making enquiries about the consignment at FedEx whilst he was pretending to be you between 16 January and
19 January 2018.
11 At around 10pm, on 19 January 2018, Balagar, used the consignment mobile telephone number, and received an incoming call from Sia. In that phone call the following things were said:
12 (a) Sia advised his friends want to come to Melbourne to sort out release;
13 (b) Sia advised he is accountable here;
14 (c) Sia advised his partner reckons now that the shipment has arrived he should pay him;
15 (d) Sia advised he has lost all his life, his car has gone and his house has gone; (e) Sia advised that they had a big one grounded in Turkey. They have no idea what will happen to it. They have eight or so. If one is lost that is fine. It is all theirs;
16
(f) Sia advised that they said he is accountable and that he needs to respond to them;
(g) Balagar, your co-accused at the end, advised he is chasing it. What else did he expect him to do?;
17 (h) Sia stated he thought it would be bread that he can have a piece of;
18 (i) Sia advised Balagar, that Abad, that is you, bailed on them from the beginning;
19 (j) Balagar stated that he spoke to him and it is done. He accepted;
20
(k) Sia asked about the address provided by Abad, again being you;
(l) Balagar advised that Abad, you, gave your previous address. There is no one there.
21 You were not a party to that telephone conversation between Sia and Balagar. The contents of this conversation assist the court in making an assessment of your role in this offending when taking into account, with other evidence, including your answers to police in the record of interview and other police observations of your involvement in this offence.
22 At around 5.11pm on 23 January 2018, Balagar, using the consignment phone number that he had, called you and the following conversation took place:
“BALAGAR: asked if you were working the day after tomorrow.
ABAD: you said yes, that you were working tomorrow and the day after tomorrow.
BALAGAR: advised you to go to work after 12, stating, he will have his hands on the ‘eight’ the day after tomorrow.
ABAD: You advised that you took today off, meaning 23 January 2018.
BALAGAR: said ‘To take your – tell him', meaning the boss, 'appointment on Thursday’. The guy called. It is being delivered between eight am and 12pm.
ABAD: To what address is the delivery?
BALAGAR: stated the address that you had provided.
ABAD: You asked Balagar if he was sure?
BALAGAR: responded that he was hundred per cent sure.
ABAD: You said that you will stay, but will you get labour wages from him if it did not happen? Meaning you will get compensated. You then said that you will wait from eight am until 12pm at the front of the house and then you were done if he does not show up.
BALAGAR: stated that the delivery person sets the time. He, Balagar, is not the one who sets the time”.
23 Shortly after that conversation, on the same day, Balagar called you again.
“BALAGAR: asked you to call him.
ABAD: You said, give him some time. That you needed some time and that you needed to know a couple of days ahead”.
24 Then later on the same day you called Balagar.
“ABAD: You asked if he, Balagar, had paid the duty.
BALAGAR: advised that it is done. It does not require duty.
BALAGAR: He then said he (being Sia) had called, and the driver had called him that day and was told it is cleared so they will deliver it. They were checking the receipts and paperwork and the driver will contact them, meaning Balagar, in the afternoon. He, the driver, called and said it was between eight am and 12 pm on Thursday.
ABAD: You asked if Balagar was sure.
BALAGAR: confirmed that the duty had been paid.
ABAD: You then said, 'The duty's got nothing to do with the shipping. God willing there won't be any dramas'.
25 In the early hours of 25 January 2018, Balagar, using his consignment telephone number, sent you an SMS. The SMS read, 'Don't you forget about tomorrow 8.30, thanks'. Again on the same early morning, Balagar, using the same consignment mobile telephone number, called you. You advised that you will be home in 10 minutes. Balagar said, 'You set the alarm. We'll go at 8.30'.
26 On 25 January 2018, the Australian Federal Police (“AFP”) conducted delivery of the consignment under the authorisation of a controlled operation authority. The border controlled drugs within the consignment had been fully replaced with an inert substitute.
27 At around 11 am on 25 January 2018, Balagar, using the consignment mobile telephone number, received a call from the telecommunications service of the AFP operative purporting to be the delivery driver. The call in relation to the consignment being delivered to 24 Manfred Avenue in St Albans. Balagar identified himself as ‘Khanmohammadi’, as in you, and the driver advised him he was five to 10 minutes away.
28 At 11.10am on 25 January 2018, the covert AFP operative acting as the delivery driver conveyed the consignment to the address at 24 Manfred Avenue in St Albans where you were present with your ID, signed for the consignment and assisted the driver with the moving of the consignment. The delivery driver sighted Balagar getting out of his vehicle register number ANB 518 nearby and walking down the driveway of the premises. The AFP operative then departed the vicinity.
29 At around 11.15am, you and Balagar loaded the consignment into the back of the vehicle. You departed 24 Manfred Avenue, St Albans and drove to 42 Wilkins Crescent, Burnside Heights. That was your address. You drove into the driveway of the address. The consignment is then removed from the vehicle and carried towards the premises.
30 At 11.41am, you have departed that premises in a Volkswagen Golf sedan bearing the registration number YFO 438. Balagar remained at the address with the consignment.
31 Shortly after, you called Balagar and told him that you would swing around the house for about 10 minutes to see what is going on. Balagar said, 'Okay. I'll see you. Good luck'.
32 You then called Balagar at five to 12. You told Balagar to take a photograph of the consignment and send it to Sia and ask if that was the consignment because it did not look like the one Sia had. You told Balagar that if Sia said, 'Yes, it is', delete the photograph from his phone.
33 At about 12.34pm, on that same day you called Balagar again.
“ABAD: You asked Balagar if he had sent it.
BALAGAR: Said, 'Relax, the guy's asleep'.
ABAD: You said it's been two hours that he had been swinging around and checking, that you were now going to work and you had been back and forth to the house three times.
BALAGAR: Said to you they are not going to open it.
ABAD: You have then said, 'So it's all for nothing?'.
BALAGAR: Said, 'They are not going to open it. Opening it is not their job'.
ABAD: You said, 'Just do something, tell Sia to send his guy in one day'.”
34 The AFP entered your premises at 42 Wilkins Crescent in Burnside Heights and arrested Balagar. Documents and other items were seized including the consignment that had been delivered. You had changed the address on your licence to 24 Manfred Avenue, St Albans, so you could collect the consignment from the delivery person. The address was an address owned by your employer and where you had previously resided.
35 You were later arrested. You were interviewed. In the course of that interview you said the following:
a) Balagar made an arrangement with a friend called “Siavesh”.
b) Balagar told you that he was sending a sand processing machine to 24 Manfred Avenue in St Albans. Balagar requested that the parcel be put in your name which you agreed to. 24 Manfred Avenue in St Albans was your old address and you told Balagar that he could use that address. The number, that is the phone number, belonged to Balagar.
c) On 8 January 2018, you had accompanied Balagar to FedEx and then to another company near the airport to pick up the consignment which you were not able to do. Later on the same night Balagar told you that the consignment contained a quantity of opium.
d) You had an argument with Balagar about receiving drugs. Balagar kept telling you not to worry and that you would receive a monetary reward. You told Balagar you did not wish to receive a reward.
e) You said the opium had been packed in such a way it could not be detected.
f) Balagar needed the money and was pushing you and you could not dob in his friend.
g) A few days ago, Balagar had told you that the delivery was going to be on Thursday.
h) On the day of the interview, when you received the package you knew something was not right. You told Balagar not to touch it and not to leave it in the house.
i) The person who sent the parcel was supposed to send a person to pick up the parcel from Balagar.
36 The opium resin that was contained in the intercepted consignment was analysed by Australian Federal Police forensics. The consignment contained 10.83 kilograms of pure opium. That amount is 540 times the marketable quantity or 54 per cent of the commercial quantity for pure opium.
37 The drug valuation was estimated by Federal Agent Keith Randall, and stated that the street value low range is $309,000 and the value of high range street value is $743,000. The wholesale value low range is $184,000, high range $246,000.
38 The benefit or reward you were to receive for your part in this offending was $8,000.
39 You have spent a total of 505 days presentence detention to this day.
Personal circumstances
40 You have recently turned 40 years of age and have been in custody for 505 days since your arrest for this offence on 25 January 2018. You were born in Tehran, Iran. You are the fifth child of a sibship of eight. Your parents are both deceased. Your father died in 2011 and your mother died in 2012. Your upbringing was supportive and harmonious.
41 You completed your formal education at secondary school level aged 17. When you turned 18 you commenced your two year period of compulsory military service in Iran. In your case you were stationed on the Iran-Iraq border. Your main duties were clearing unexploded ordnance. The heat was your closest enemy. On one occasion you were hospitalised for 15 days due to dehydration.
42 Upon completion of your military service you returned to your family in Karaj, a city just outside of Tehran. Upon return to your family you commenced working as a tailor and designer in your brother's tailor shop. You worked six days a week. You remained in that employment for 13 years prior to leaving your country for Australia.
43 You are also a successful singer and performed at formal occasions such as weddings and other ceremonies. It was this hobby or passion that inspired you to enter a singing competition conducted in Turkey in 2012. You there sang some songs that the authorities in Iran deemed to be anti-government. These songs were shown on social media and other media platforms within Iran.
44 Upon your return to Iran in 2012 you were subjected to interrogation and harassment by Ettelaat, the Iranian security service. Your family advised you to leave Iran. Your brother placed a property as security for your bail. You left Iran for Indonesia on a plane. Your proposed destination was Australia.
45 Once you arrived in Indonesia you secured a passage on a small leaky vessel to travel to Australia. In total there was 74 persons on the boat. After four days at sea the boat began to sink. Attempts to bail the water from the boat failed. The whole group of passengers were in the sea for approximately five hours before being rescued by the Australian Navy. One of your fellow passengers was Balagar.
46 You arrived in Australia on 17 March 2013. After your rescue you spent 40 days in detention centres initially at Christmas Island, then Darwin and Perth. You were granted a temporary protection visa and released into the Australian community.
47 After your release into the community you settled in Melbourne. You commenced full time work as a bricklayer. You lived in rented accommodation owned by your employer. This was the same address you used to nominate a delivery address for the consignment.
48 In your time in Australia you have lived and worked as a law abiding person. You have sent money back to your family in Iran to assist with your youngest sister's education. You lived alone and socialised with your employer's family.
49 In the month before your offending Balagar contacted you and you reluctantly allowed him to live at your new premises. Within a month you were drawn into this offending by Balagar and are now facing a serious criminal charge. Whilst on remand in prison you have obtained work in the metal shop making water heaters for farms, as I understand it. You are in prison in a foreign country with no visitors and no connections now in the outside community.
50 You have been assessed by Mr Guy Coffey, clinical psychologist, for the purpose of this plea. His report is dated 3 February 2019 and is Exhibit “2” on the plea. In Mr Coffey’s opinion, you were not suffering any mental disorder at the time of your offending. Mr Coffey is of the opinion that your mental state has deteriorated to a mild to moderate degree whilst in prison. Mr Coffey diagnoses your present position as meeting the diagnostic criteria of Post Traumatic Stress Disorder.
51 The prosecutor conceded that limbs five and six of Verdin’s case are applicable in your sentencing considerations.
Sentencing Considerations
52 The most significant consideration in sentencing a federal offender such as yourself is set out in section 17A of the Crimes Act, which provides as follows:
'The court shall not pass a sentence of imprisonment on any person unless the court, having considered all other available sentences, is satisfied that no other sentence is appropriate in all the circumstances of the case.'
53 A term of imprisonment is the only appropriate sentence for your offence. Section 16A of the Crimes Act, sets out a non-exhaustive list of factors a court must take into account and take into consideration when sentencing federal offender, such as yourself.
54 There are many factors I must take into account and they are set out in that section. These factors include the following matters:
(a) The nature and circumstances of your offending;
(b) If your offending forms part of a course of conduct consisting of a series of criminal acts. In your case, there are two charges.
(c) Any loss or injury or damage resulting from the offence;
(d) The degree to which a person has shown contrition for the offences. In your case, your remorse has been set out in Mr Coffey’s report and it is confirmed by your plea of guilty;
(e) You have pleaded guilty to the offence;
(f) That the deterrent effect of any sentence or order under consideration may have on you personally - that is, specific deterrence;
(g) That the deterrent effect that any sentence under consideration may have on other persons - that is, general deterrence. In a case such as this, general deterrence is the prime consideration in sentencing;
(h) The need to ensure that you are adequately punished for your offending;
(i) Your character, antecedents, age, means and physical and mental condition;
(j) The prospects of your rehabilitation; and
(k) The probable effect any sentence or order under consideration would have on your family.
55 As I have said before, you have pleaded guilty to this charge. Your plea of guilty was indicated at an early stage. Your plea does have the utilitarian value of allowing for the orderly and effective administration of justice. There is assertive outcome and a resolution of the substantive issues raised by your offending. Your plea also allows for the preservation of court and police resources to deal with other matters and your plea vindicates the public confidence and the legal process set up to protect the community.
56 Your plea is also a clear indication and acknowledgement by you that you accept responsibility for your criminal behaviour on this occasion. Your plea also recognises that you are willing to facilitate the course of justice in this community and I accept that your plea, to this charge, indicates and demonstrates remorse on your part. Your plea of guilty in this case is of particular significance due to the number of witnesses and the complexity of the evidence that would necessarily need to be called in a trial.
57 You have no prior convictions either in Iran or here in Australia. You have engaged positively in work whilst in prison. The combination of previous good character and proven work history in Iran and Australia and in custody, lead to an assessment by me that your prospects of rehabilitation are good.
58 I accept that you have been diagnosed as suffering from Post Traumatic Stress Disorder. I accept that this condition will make your time in custody more burdensome than for a prisoner of normal mental health. I note that the prosecutor concedes that limbs five and six of Verdins case apply to your case and I make allowances for those matters in fixing your sentence for this offending.
59 The day before your plea you were granted a bridging visa. The chance of your deportation is unknown to the court. There was no evidence called in the proceeding upon which the court, could make an informed assessment of the likelihood of your deportation from Australia at the conclusion of the sentence I am about to impose upon you.
60 Between March 2013 and January 2018 you had settled into a law abiding life working as a bricklayer on a full time basis here in Australia. Your criminal actions have now placed at risk your chances of permanent settlement and citizenship in Australia.
61
The Court of Appeal in Stephen Loftus v The Crown reported at
[2019] VSCA 24 have considered the issue of deportation of offenders and stated as follows, paragraphs 79 to 81 and I will read them.
'The potential for an offender to be deported at the completion of a sentence is relevant to sentencing in two ways. First, the prospect of deportation renders imprisonment more onerous because the prisoner will face the prospect of deportation. This, in turn, may render the incarceration more difficult.
Secondly, the deportation, should it occur, would constitute an additional punishment because it destroys the opportunity to settle permanently in this country.
In assessing for the purpose of sentencing the chance of deportation, it will be relevant to consider whether the sentence imposed would trigger a discretion or alternatively a duty to cancel the visa by the offender. Although the potential the offender may be deported following sentence is a relevant consideration in sentencing in the way explained above. that potential cannot control or dictate the sentencing outcome. It would be an error for the sentencing judge to impose a sentence that would otherwise not be appropriate for the purposes of avoiding the operation of the Migration Act.'
62 In your case, if you are to be deported from Australia after your sentence you face the added difficulty of potentially being deported to Iran where you have escaped political and religious persecution and I am there referring to Exhibit “3” on the plea.
63 Your counsel informed the court that you had an immigration lawyers working to improve your prospects of remaining in Australia after your release from prison. This may include detention in a migration centre. I take these matters into account when finalising your sentence.
64 In sentencing you I have also regarded the current sentencing practices. This is but one factor I am required to take into account and your case is different from every other case, as they are, from one another.
65 In order to obtain some national sentencing consistency for this type of offending I have regard to the decisions of the intermediate appellate courts in all states and territories in Australia.
66 The use of comparable cases is to assess a yardstick to illustrate the range of sentences but not to define those sentences with any mathematical precision.
67 I have had regard to the table of case summaries helpfully tendered to the court by the prosecutor during submissions at the time of the plea. None of those cases are exactly the same as your case. The relevant factors to take into account in assessing the seriousness of your offending in this case include the following:
1) The quantity of opium resin was 10.83 kilograms which is 541 times the marketable quantity or 54 per cent of the commercial quantity under the legislation for that border controlled drug.
2) Your involvement in this importation was to supply a delivery address for the consignment.
3) In the process of providing the delivery address you changed your driver's licence address from your true address in Burnside Heights to your previous address at 24 Manfred Avenue, St Albans. The St Albans address was to be the delivery address.
4) On 8 January 2018, you were told by Balagar that the consignment was to contain opium.
5) After you knew the consignment contained opium you continued to be involved to effect the delivery of the consignment.
6) The benefit you were to receive for your role was $8,000.
7) I do not accept the prosecution's submission that you were crucial to this importation of drugs. I do find that your role was integral to the importation in the sense of providing a legitimate delivery address for the consignment. Your role was a minor role in this case because Balagar was the main organiser and in control of the shipment of this consignment at the Melbourne end. You acquiesced to his request for assistance with a delivery address. If you did not comply no doubt he would have arranged another delivery address.
68 The fact that I find your role as minor does not mean a lenient sentence. It is appropriate rather it does not dictate an aggravating feature for a more significant role player in the importation of illicit drugs. Any person involved or participating in illicit drug trade, regardless of level, will receive heavy penalties.
69 The principles of general and specific deterrence, just punishment and the protection of the community dictate that a term of imprisonment and with a non-parole period is the only appropriate sentence in your case.
70 Would you stand please?
71 On Charge 1, you are convicted and sentenced to four years and six months' imprisonment. I fix a non-parole period of three years' imprisonment. I declare that you have served 505 days pre-sentence detention and pursuant to s.6AAA, which is a provision in the Sentencing Act, but for your plea of guilty I would have sentenced you to seven years and three months' with a non-parole period of five years.
72 So Mr Abad, the sentence I have imposed on you is four and a half years and a non-parole period of three years and you have served 505 days of your sentence. Do you understand?
73 OFFENDER: (Through Interpreter) You mean that I have to be in prison for three more years?
74 MS DONOHUE: I can explain.
75 HIS HONOUR: Thank you. Your barrister will explain to you. The answer to that question is no one knows the answer to that question. Yes, is there something else I have to order?
76 MS GO: Your Honour, just if the court can to explain Mr Abad the purpose and consequence of fixing that non parole period.
77 HIS HONOUR: Yes.
78
MS GO: Just that if a parole order is made the order will be subject to conditions. That the parole order may be amended or revoked and of the consequences that may follow if the person fails to comply and also that the service of the sentence will entail a period of imprisonment of not less than the non-parole period and if a parole order is made the period of service in the community of the parole period. Sorry Your Honour, that is a per s.16F of
the - - -
79 HIS HONOUR: Yes, yes, all right. This is a federal offence and it is a sentence for a federal offence. What I have done is I have given you what is called a head sentence. The most time you will spend in gaol is four years and six months. I have fixed a three year non-parole period. The reason I have fixed the period between the four and a half years and the three year period is, if you are released from prison in that time, to encourage your rehabilitation and there will be conditions if you are released on parole about how you live in the community.
80 In your case I do not know whether you are going to be put in a migration detention centre or you are going to be allowed out into the community generally. So I cannot tell you about that. That is an administrative thing that is done by, as I understand it, the Commonwealth Attorney General.
81 So for your non parole period, the three years, what that means is you serve every day of the three years but as you stand there now, you have already served 505 days of that three years. Could you interpret that last part for him?
82 INTERPRETER: Can I state from the beginning (indistinct)?
83 HIS HONOUR: Just the last part about parole. That his minimum time inside is three years and he has served 505 days already. If you are released on parole there are conditions upon which you have to comply. If you are not released on parole you will serve every day of the four and a half years.
84 If you could just interpret this part. If you are released on parole and you offend or breach the conditions of your parole you will go back into prison and serve every day that you have not served of the four and a half years. Do you understand what I just said?
HIS HONOUR: Does that cover them all, Ms Go?
MS GO: Yes, Your Honour.
HIS HONOUR: Thanks for your assistance, Madam Interpreter and again thanks very much for making yourself available at such short notice. I'll let you out of there first.
INTERPRETER: Thank you.
HIS HONOUR: You just wait there please, Mr Abad. Thanks. You can take a seat, thank you. You can remove the prisoner, thanks very much. Thank you both for your assistance. If you'd kindly spell out in very clear detail to your client.
MS DONOHUE: Certainly, Your Honour.
HIS HONOUR: I know you will but - - -
MS DONOHUE: Yes.
HIS HONOUR: - - - I'll feel better if I say it.
MS DONOHUE: As Your Honour pleases.
HIS HONOUR: Thanks.
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