Director of Public Prosecutions v Abudullayev
[2022] VCC 735
•13 May 2022
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised (Not) Restricted Suitable for Publication |
Case No. CR-21-00970
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| RUSLAN ABDULLAYEV |
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JUDGE: | HER HONOUR JUDGE DALZIEL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 10 February 2022 | |
DATE OF SENTENCE: | 13 May 2022 | |
CASE MAY BE CITED AS: | DPP v ABUDULLAYEV | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 735 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Attempting to traffick drug of dependence – Possession of drug of dependence
Legislation Cited: Sentencing Act 1991 (Vic)
Cases Cited:Nguyen v The Queen; Phommalysack v The Queen (2011) 31 VR 673; DPP(Cth) v Maxwell (2013) 228 A Crim R 218
Sentence: Convicted and sentenced to a total effective sentence of 3 years imprisonment with a non-parole period of 2 years.
Section 6AAA declaration: Conviction and total effective sentence of 4 and a half years imprisonment with a non-parole period of 3 years.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr B. Sonnet | Office of Public Prosecutions |
| For the Accused | Mr H. Rattray | Balmer & Associates |
HER HONOUR:
1Ruslan Abdullayev, you have pleaded to one charge of attempting to traffick a drug of dependence and two charges of possession of a drug of dependence.
2The charge of attempting to traffick a drug of dependence relates to your attempt to collect a consignment of 1, 4-Butanediol. The telephone number of an associate of yours who was under police investigation was subject to a lawful intercept. Police became aware by this that he was tracking a consignment on the Direct Freight Website.
3This consignment had been ordered from a business in Altona and was addressed to “Peter Davies” at an address in Pascoe Vale. It was established that the address was of a closed business and that no person named Peter Davies was able to be linked to the consignment.
4On 12 August 2019 the police executed a search warrant at the Direct Freight warehouse, where the consignment was being held. They found that the consignment consisted of eight 25 litre containing 1,4-Butanediol. The weight of this was 200.2 kilograms.
5The police substituted the substance in the barrels with water, and then arranged a controlled delivery of them.
6On 13 August 2019 Mathew Gray went to the delivery address. A police covert operative, acting as a delivery driver, called the phone number on the consignment and spoke with someone who identified himself as Peter Davies and who said he was at the delivery address. The prosecution case is that the person the police officer spoke to was you.
7One minute after that call, you contacted Mr De Luca, by phone. Seconds later he tried to call Mr Gray, and when that call was not answered he called again immediately. Mr Gray answered and had a short conversation with Mr De Luca. The mobile phone towers put you and Mr Gray in the Pascoe Vale area and De Luca in the area of Prahran.
8A short time later Mr Gray left the delivery address, approached the truck and asked if the driver was there to deliver to the address. Mr Gray assisted the driver to unload the 8 boxes, and signed the collection form in the name of “John” purportedly on behalf of his boss, Peter.
9The police maintained surveillance on the delivery address.
10In the minutes after the boxes had been delivered, Mr Gray called Mr De Luca, and Mr De Luca called you. Two minutes later you pulled up at the delivery address in a van, and called Mr Gray, using the consignment phone number, to tell him you were there. A short time later you reversed the van in, and you and Mr Gray loaded the boxes into the van.
11As you drove away with the boxes you called De Luca’s number three times. De Luca’s phone was still registering at towers in Prahran and Richmond.
12At 3.05 pm, around an hour after the consignment had been delivered, you pulled up outside Mr De Luca’s home in Kew East. He was at that time using a black Volkswagen Golf. Around 10 minutes after you parked in front of De Luca’s home De Luca came outside and approached your van. He then went to the Golf, and put an item in it, before going back inside his home and coming out with a white box. He showed this to you and then put it in the Golf.
13He then got into the van with you. Following that you both drove in your respective vehicles to your home in Reservoir. You parked your van in the driveway and De Luca parked in the street.
14Once at your home you both went to the side and rear doors of the van, before going into the house. Mr De Luca then drove away, returning 5 minutes later. You both unloaded a box each from the van and took it inside the house. Then, you put the boxes back in the van.
15Both of you got into your respective vehicles and drove away before parking in another street in Reservoir. Once there you got into the Golf with Mr De Luca.
16The police moved in to arrest you both. Mr De Luca, reversed at speed and in the process collided with a car driven by a passer-by.
17After your arrest you were searched. You had in your possession the receipt for the delivery of the boxes. The mobile phone which had been used for the consignment phone number was found by the police in the Golf.
18Later that evening your home was searched. Police found 0.5 grams of cocaine, 25.4 grams of stanolozol and 5.7 grams of testosterone, each of which relate to Charge 3. When your van was searched the police found the 8 boxes with the drums containing the water which had replaced the 1,4-Bd, and a Blackberry phone.
19Your mobile phone was interrogated after your arrest. Information on it showed you had searched Direct Freight on the web on 9 August 2019, and also visited the delivery address in Pascoe Vale that date.
Offence Gravity
20The maximum penalty applicable to Charge 1 is 15 years’ imprisonment.
21Whilst you are charged with an attempt to traffick, the gravity of the offending and your culpability is to be assessed by what you did and the other facts of the offending. The Court of Appeal has said:[1]
[I]t should be kept in mind that the act of attempted possession can be attended by a wide range of moral culpability, so that the circumstances in which a person so charged attempted to come into possession of the drug, and what it was that the person intended to do with that drug, are relevant to determining the degree of moral culpability attached to the act of attempted possession itself. A sentencing judge should have regard to the offender’s involvement in the overall transaction for the purpose of determining the offender’s degree of involvement in a drug-smuggling enterprise.
Offences of attempting to possess imported drugs are not, for that reason, in a less serious category than that of importing the drugs.
[1]Nguyen v The Queen; Phommalysack v The Queen (2011) 31 VR 673 at [36]; See also Nguyen v The Queen (2011) 31 VR 673, 681-682 [34](12).
22These principles apply equally to attempted trafficking.
23You did all you could to take possession of the 1,4-Bd. This charge is one of attempt because the substance had been replaced by water, not because of something undone by you. Both the prosecution and your counsel have submitted that this was a mid-range example of this offence. In assessing your culpability, I take into account that:
(a) You are not said to be the person who placed the order for the drug, or who was to sell them in due course;
(b) You took an active role in the collection of it, being the holder of the phone receiving the calls on the consignment contact number, and part of the chain of contact between the delivery service and the receiver, Mr Gray;
(c) The process of taking delivery of the drug was sophisticated. It was intended to insulate you and Mr De Luca from identification and involved the use of false names, addresses, and multiple phones;
(d) Your activity on 9 August 2019 indicates you were not involved in this collection at the last minute;
(e) You used your own van to collect the boxes, increasing your risk of detection, but at the same time you and Mr De Luca had attempted to create a chain of communication, so that you were not in direct contact with the delivery person; and
(f) Whilst you were using the OPPO phone that day, the box it had come in was found at Mr De Luca’s home, suggesting he provided the handset to you.
24The prosecution do not allege that you knew the precise nature of the drug or the precise quantity, but you were aware of the real and substantial risk that what you were dealing with was a drug of dependence and that it was to be possessed by others for sale and subsequently sold by others. By the time you had put the boxes in your van you must have been aware that there was a significant quantity of drug involved.
251,4-Butanediol is a solvent which when consumed is metabolised by the body to become GHB, which is a drug of dependence. At the time of this offence a commercial quantity of 1-4Bd was 2 litres, and the large commercial quantity was 20 kilograms. You are charged with trafficking simpliciter, but it is relevant in assessing the gravity of the offending that the amount of drugs you were attempting to collect was 100 times commercial quantity threshold and 10 times the large commercial quantity threshold.
26It was submitted that I should take into account the nature of the drug in Charge 1, in assessing the gravity of the offending, in view of the lower potential financial reward from the sale of the drug.[2] This submission is correct but more important to the assessment of your offending is your limited role. I was given no information about what if any reward you were to receive for your participation. I do not sentence you on the basis that you were going to receive any of the sales profits.
[2]DPP(Cth) v Maxwell (2013) 228 A Crim R 218, [21]
27Regarding Charges 2 and 3, each involved a small quantity of the relevant drug. The maximum applicable penalty to each offence is 12 months’ imprisonment.
Personal Circumstances
28At the time of the offending, you were 33 years old, and you are now 35.
29You were born in Azerbaijan. As a child you were a witness to domestic violence inflicted by your father on your mother. Your father had a drinking problem and was violent to your mother, and to you and your older brother. Your parents’ marriage came to an end when you were around 10 and three years later you, your mother and your brother all emigrated to Australia.
30You report that you did not want to come to Australia and your father resisted you and your family moving. When you arrived in in this country you were 13. Your family lived with a friend of your mother for around 10 months. You began to learn English. You became an Australian Citizen in 2005.
31After your family moved to Australia you had very little contact with your father, who visited Australia but once in around 2006 or 2007. You had no further contact with him until 2013 when you went to Azerbaijan for a visit. Since then, you have been in contact with him around once a month.
32Your small family group moved to Lalor, where you went to secondary school. You completed VCE in 2004. After school you found work in various labouring type jobs, before taking up an accountancy course at Preston Northern Melbourne Institute TAFE. You completed a year of that course before deciding that office work was not for you.
33In 2006 you started an apprenticeship as an electrician, and you completed that in 2011. You set up your own business as an electrician. You had two apprentices who have gone on to become qualified. You also invested, as a part owner, in a nightclub, in the CBD between 2011 and 2014.
34The van used in your offending was your work van, and once it had been seized in this investigation your work was impeded so that you were only able to take up short term contracts with people you knew in the industry. You took up other types of work, labouring and taking on a role in 2020 as a building manager. During the pandemic you had, for the first time in your life, to rely on government support.
35Whilst on bail you provided really practical assistance to a fundraising event in December 2020. You helped with logistics and organising many aspects of that event. You also raised money yourself. A glowing reference was provided from the organiser of this event.
36At the same time as successfully completing school, gaining qualifications, working and running your own business you were taking drugs. Your report that you started drinking at 13 and using amphetamine from the age of 14. You first tried methylamphetamine when you were 16. Your use of drugs was off and on until you were around 25 when your drug use increased.
37You report that you used methylamphetamine to stay alert at work, and also socially. You report that you were also using GHB, and sometimes cocaine, LSD and heroin. You report that in the lead up to the matters that you were sentenced for in 2017, you were wholly dependent on drugs, using drugs to wake up and concentrate, and then to come down for rest. You wanted to make the methylamphetamine, and bought chemicals and equipment for that purpose.
38In January 2015, you were sentenced in this court to a total of 16 months for offences including possession of chemicals used in the manufacture of drugs, possession of drugs and dishonesty offences. Your criminal history before that appearance is effectively irrelevant to the charges before me.
39I was told that after you were released on parole in July 2015 you remained drug free until weeks before the offending that brings you before me for sentence. In that time, you worked, trained your apprentices, bought a work van and were doing well. You had been training in boxing and had three wins in amateur boxing matches. You were training to go pro as a boxer.
40For a combination of reasons your stress and distress increased and, in the weeks before these offences you started to use drugs again. You were using methylamphetamine.
41You say that you were asked to help out, using your van, and that you were given the phone and told what to say and where to go. You suspected the boxes contained illegal substances, but you nevertheless agreed to do this.
42Following the plea hearing, I had you assessed for suitability for a CCO. You reported to the assessor that you have been diagnosed with severe depression, but for financial reasons were not seeing a psychologist. A report from the Mental Health Advice and Response Service was also provided as part of the assessment process in which you indicate that you did try some counselling but that this was made difficult over COVID-19 particularly due to your lack of income. No material from a psychologist or psychiatrist was put before me.
Prospects of rehabilitation
43The prosecution submits that your prospects are guarded in view of your criminal history, and heavy drug use. Your counsel, on the other hand, pointed to the more than two years you have spent on bail, with no issues and submitted that your prospects are fair, or indeed good.
44You have relevant prior convictions, and a long history of drug use. It is a concern to me that on the background of a jail sentence and parole, you remained clean for some years, then relapsed into drug use. You told the assessor for the mental health assessment as part of the CCO assessment that you had been injured whilst boxing, you could not train, and your relationship had broken down. With those factors and stress from your business you used ice as an escape.
45Whilst it is positive that while on bail you have committed no further offences and remained clean, your history demonstrates that you have relapsed in similar circumstances, due to a combination of troubles in your life.
46I am reluctant to ascribe a label such as “guarded” or “fair” to your prospects of rehabilitation. I think you do have the capacity to remain free of drugs and out of trouble, but that you need to make better choices in future. I do consider that specific deterrence remains a real factor in the sentencing mix.
Plea of Guilty
47A powerful factor in mitigation is your plea of guilty to these offences. You entered into negotiations prior to the committal. The committal hearing and resolution of your matter occurred in May 2021, during the pandemic. Your plea of guilty is a strong factor in mitigation. The utilitarian value of the plea is significant, particularly in the context of the pandemic, and you entered your plea in the awareness that you might be required to serve a further term of imprisonment in circumstances where custody was much more onerous due to the pandemic.
Parity
48Your counsel did not seek to draw any distinctions between your and Mr De Luca’s offending in respect to Charge 1. I note that Mr De Luca has significant and relevant prior convictions for drug trafficking, which make his prospects for rehabilitation much worse than yours.
49Your counsel submitted that I should have some regard to the sentence imposed on Mr Gray. Mr Gray pleaded guilty to attempting to possess of a drug of dependence, in the Magistrates’ Court. That offence carried a maximum penalty of 5 years, whereas Charge 1 in your case has a maximum of 15 years. His role was different to yours, and I know nothing of his personal circumstances. The sentence he received is not a valid point of comparison to your case.
Conclusion
50General deterrence is an important factor in sentencing, particularly for drug related offending such as yours.
51The Court of Appeal has indicated that in cases of trafficking GHB and by extension 1,4-Bd the weight to be given to general deterrence is somewhat less than for substances such as methylamphetamine. This is because the profits to be made on the sale of 1,4-Bd or GHB is much less than on other substances. Offenders who are able to make vast profits are more likely to take the risk of the offending than those who will make less.[3]
[3]DPP (Cth) v Maxwell 228 A Crim R 218 [34]-[36]
52In your case you were not the buyer or seller of the drug. Nothing has been said about what you were to receive for your part in the movement of the drug and further, but I infer that if there was to be any reward, it was for this job, not on the profits of sale. Nevertheless, people must be deterred from taking any role in drug trafficking, whether as a receiver of the profits, or for lesser roles in the trade. Whilst I will give somewhat less weight to general deterrence in view of the nature of the drug, this factor still carries real importance in sentencing you.
53I was provided with the Judicial College summaries which have been of some use, but these demonstrate that trafficking, and attempted trafficking, cover a wide range of activities and quantities. The cases under the heading 7.4.1.3 Court of Appeal Recent Cases (Pre-2020) provided the most assistance bearing in mind the different facts of each matter, and this matter. Relevant here is the very significant amount of drug, although you are not to be sentenced on the basis that you knew the precise nature of the drug or quantity. Whilst your offending occurred on one day, it had elements of sophistication, notably the efforts to protect your identity, and Mr De Luca’s, from detection. The use of your own van does not detract from this, in view of the use of Mr Gray as intermediary for collection of the delivery.
54Your history shows that you have an impressive capacity to work and advance yourself. It is regrettable indeed that you made the bad decisions you did in 2019, leading to your incarceration, the seizure of your van, and the consequential impact on your ability to run your business. Even accepting that you were asked by De Luca or some other person to participate, you did agree and thus were involved in serious offending.
55The prosecution submitted that a sentence including a further jail term and a non-parole period was called for. Your counsel submitted a combination of time served and CCO would be appropriate. Your counsel pointed to the added burden upon you if, after two years on bail, you were required to return to custody, particularly in the context of the impact of the pandemic on those in prison.
56I had you assessed for a CCO so that option would be open to me on sentencing, if I considered such a disposition appropriate. You were assessed as suitable for a CCO, and the issues regarding your mental health were noted. The assessor considered you showed insight into you need for routine and that you appeared genuine about working on the issues that led to offending.
57Ultimately, I have concluded that a combination sentence would be inadequate to meet the sentencing purposes and principles, and in view of the gravity of the offending the subject of Charge 1. I am mindful that returning to prison will be stressful for you and that the prisons are still being affected by the pandemic and have taken this into account in formulating your sentence.
58On Charge 1, trafficking, you are sentenced to three years' imprisonment.
59On Charge 2, possession of cocaine, you are sentenced to seven days' imprisonment.
60On Charge 3, possession of steroids, seven days' imprisonment.
61I will not order any cumulation between the sentences, so your total effective sentence is three years and I have set a non-parole period of two years.
62I declare that you have already served 220 days as presentence detention, and I direct that this be entered into the record of the court.
63I will make the forfeiture and disposal orders as have been agreed between the parties.
64Pursuant to s6AAA of the Sentencing Act, I declare that if you had not pleaded guilty, I would have sentenced you to four and a half years' imprisonment, with a non-parole period of three years.
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