Director of Public Prosecutions v Afford

[2015] VCC 1231

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR -14-01136

DIRECTOR OF PUBLIC PROSECUTIONS

v

STEVEN AFFORD

---

JUDGE:	HIS HONOUR JUDGE GUCCIARDO
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	2 September 2015
CASE MAY BE CITED AS:	DPP v Afford
MEDIUM NEUTRAL CITATION:	[2015] VCC 1231

REASONS FOR SENTENCE
---

Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:
---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms E. Ticky
For the Accused	Mr P Lewis with Ms A. Burchill

HIS HONOUR:

1Steven Afford, by jury verdict, you were found guilty of having imported a commercial quantity of a border controlled drug, heroin, contrary to the Commonwealth Criminal Code, on 14 May 2014. 

2In this matter the prosecution provided a written opening, which was exhibited and will be retained on the court file. 

3It suffices to say for purposes of this sentence, that at the beginning of 2014, you received some unsolicited emails from persons unknown to you, who were purporting to be the legal representatives of a Government minister for a middle-eastern country and were engaging in this exchange of emails to involve you in a project worth many millions of US dollars, in which a luxury hotel would be built by you on their behalf. 

4Your reward in this seemingly legitimate building contract was to be a monthly retainer and a percentage of the functioning hotel, although what that term meant in the paperwork is difficult to decipher.  You believed this building contract was worth half a billion dollars US. 

5Over the next few months, various emails were exchanged which alluded to large amounts of funds being held in Australia by a so-called security company, as well as a typed memorandum of understanding which purported to be indeed a partnership between the minister for the United Arab Emirates and yourself as a principal partner. 

6Also in mid-January you were informed that the cash funds held in Australia for this project had been defaced and required “cleaning”, by what was described as "separation oil", a substance which would be provided to you through an agent in India, where you were asked to travel to retrieve the oil.  It is noteworthy that at the end of January in an email, you had stated that you had never heard of such a matter and you raised the prospect that tampering with currency was against the law. 

7By the end of January you expressed being "not convinced" of this process and to being a little reluctant to act.  However you agreed to travel to India.

8For their part, the people who had set up this elaborate scam, kept encouraging and reassuring you that your trust and co-operation would be rewarded.  There were difficulties obtaining a visa for you to travel to India, and so in early-March, you were instructed to travel to Manilla in the Philippines to obtain this separation oil and to view the architectural advantages of buildings in Manilla for purposes of the construction process for the hotel project.  However in early-March you expressed further suspicions and the somewhat further hope that this was "above board and not any drug process or any other illegal activity."

9You were advised that when in Manilla, a woman would bring you some cash and some goods.  Whilst in Manilla, pursuant to the advice received, you photographed some of the hotel infrastructure of the city .  You arrived back in Melbourne on March 14.  Customs officers intercepted you at the airport.  You told them of the exchange of emails and their contents, specifically referred to the hotel building projects, produced some documents, including the memorandum of understanding. 

10An examination of your luggage revealed organic matter concealed therein and you were arrested.  You were interviewed and told the police that the trip to Manilla was to pick up the oil bottles and deliver them to the client with  in Adelaide.  You had said to the investor, you claimed, "I hope these are not frigg'n drugs" and you were advised they were not.  You believed the investor was legitimate and that the contract was a gift from God. 

11You told police on the day of departure from Manila, a woman had given you a suitcase, which was the one containing the oil and she told you that there were also presents for your family.  You hoped there was nothing illegal in the bottles.  You had not opened the suitcase.  When the substances were examined and weighed, there was a powder weighing 4,563.9 grams, with a pure heroin weight of 2,415.4 grams.

12There is little doubt that the correspondents duped you into believing that there was a building contract into which you were being asked to participate.  Although, from an objective view, such a scam should be easily and readily seen for what it is, a swindle designed to entice naïve and susceptible people to travel and collect the substance and deliver it back into Australia. 

13I do accept that for all intents and purposes, you were conned into participating into this enterprise and you had a genuine belief that once you had completed this task, you would likely receive the go-ahead in relation to this contract.  To your mind, a seemingly legitimate enterprise.  What appeared to persuade you was the fact that the so-called investors from the UAE had funded this trip, providing not just the return flight, but accommodation and other spending cash.

14You, I accept, are a deeply religious man and the so-called investors used this fact cleverly to impress upon you that this project was mandated divinely and sanctioned to achieve the financial success which you so fervently believed God would provide to you, as demonstrated by the entries in your diaries and in some of the exchanges. 

15The prosecution put to the jury a case essentially of recklessness.  The verdict must imply a finding that you were aware of the substantial risk that the suitcase you brought in contained a border controlled drug and all the subjective facts known to you indicated that, but that you took the risk in an unjustifiable fashion objectively, even if you were hoping that the risk did not eventuate.

16I accept that you had a genuinely held belief that the project would come to fruition to your benefit, because you were manipulated as a naïve and unsophisticated and gullible man to assume that substantial risk. 

17This recklessness in demonstrated and accepted by the verdict, even in the face of your previous good character, and is strengthened, in my view, by your suspicions which adverted to the enterprise being in relation to illicit substances, which you expressed. 

18The importation of border controlled drugs of this quantity and quality are an insidious and ongoing reality which creates a market for such drugs and that can only lead to the inevitable spiral of crime, disease, damage and death, often in the young and always to the despair of families.

19It is clear that general deterrence must be a primary sentencing principle to be applied, together with denunciation and just punishment.  However, principles of parsimony and rehabilitation and the value of a  good character, must also be considered. 

20The maximum penalty for this offence is life imprisonment and/or a fine, or both.  Such a penalty reflects the gravity with which the court should view such offending. 

21I have considered the factors specifically to be taken into account under s.16A.  Drug importations of this calibre are difficult to detect and here the distinguishing fact is that your reward was not to be directly derived from the importation.  Had this been the case, the greater the anticipated reward, the higher the moral culpability.  Similarly, your reward was tied to an activity you thought legal, which reduces your moral culpability, in my view. 

22In a sense, you are a type of courier, except that by the nature of the scam practiced upon you, you were not to be rewarded for anything in connection with the substance actually imported, but with the concomitant building contract.  Apart from your travel and accommodation, you had not been promised any other money, and it is clear from the material that you are at the lowest level of this drug enterprise.  I accept that on the balance of probabilities. 

23The amount of the drug is at the low end of the commercial quantity scale and the prosecution moreover accepts that you have reasonable prospects of rehabilitation because of your circumstances, and accordingly, specific deterrence is unlikely to be a weighty factor and I agree with that proposition. 

24You are 56 years of age.  You were born on a Pacific island east of Fiji.  One of five siblings.  At age nine you were separated from your birth parents to be adopted by your uncle who lived in New Zealand.  Later your older brother also moved there.  You experienced there a period of poverty and deprivation. Upon leaving school, you obtained employment.  You unfortunately did not see your father again and although your mother moved to New Zealand when you were 19 years old, she too soon passed away. 

25You have been gainfully employed ever since, mostly in the building industry in New Zealand.  You met your wife when aged 16 or so and you were married at 19.  In 1983 you had a son and a few years later you adopted a daughter, who lives in Perth.  In 1995 you separated from your wife for about six years and you suffered an emotional breakdown and were treated for depression.  Between 2000 and 2012, you operated a building company in New Zealand and you then decided to come to Australia, settling in Perth and setting up Afford Property, a construction property and general maintenance company. 

26During these years your religiosity, which was already strong, took control of your life. I accept that your deep faith defines your life and this devout approach had a significant impact in your decision making and thinking.  Unfortunately on this occasion, such faith led you to a fundamental error of judgment, motivated by what can only be greed that is sadly disguised as a prospective divine favour or blessing.

27

I accept that as a naïve, uneducated man, you were vulnerable as a victim of a relatively sophisticated international internet scam and that you acted on a promise of a lucrative contract, at least which you thought was legitimate. 

I consider your moral culpability relatively low.  Although it may be difficult to envisage that such naivety could co-exist with the objective reality and the suspicions you expressed yourself, I accept that ultimately you were reckless and aware of the risk, but you were blinded by what you genuinely believed and hoped would lead to a legitimate contract. 

28In this sense, as a dupe, you fall to be sentenced at the lower end, of the category of courier.  In this sense also, your good character, given also your age, is relevant.  In cases of true couriers, the impact of such a character is often moderated because a courier's otherwise good character is an asset to the operation.  However here a much more elaborate scheme was put in place, so as to make your good character secondary to the complexity of the proposed partnership.  In this sense you good character is of some relevance. 

29I accept that your wife has had to move to Melbourne, so that you will be able to be visited by her and that that constitutes some hardship.  I accept that you were co-operative with the authorities and you provided documents and passwords to enable them to investigate fully the importation.  And you made certain enabling admissions during the trial, which I will take into account. 

30I do not aggravate your penalty because you pleaded not guilty.  But your facilitation of the course of justice  and the utilitarian value  of that at this juncture must be limited by your initial plea. 

31I am of the view that your prospects of rehabilitation are good and that you are not likely again to re-offend, and specific deterrence can be accordingly moderated in your case.  However, in my view, the only available option for this type of offence which deals adequately with all relevant sentencing principles, is a term of imprisonment. 

32I take into account that during your remand, you have undertaken work as a billet and completed some educational courses, about which I read certificates of completion, as well as a negative urine screen. 

33I was provided with a number of authorities and a schedule of relatively comparable case, which I have reviewed and read, in order to have an understanding of current sentencing practices in cases of importation.  I have used these cases only as a reference point, with the caveat that most of them are for other substances and that I should primarily  but not exclusively rely on Victorian sentencing practices when arriving at an appropriate sentence. 

34You have been in custody since 15 March 2014 and therefore been on remand by way of pre-sentence detention for this matter for 537 days, excluding today and these days will be noted in the records of the court and taken into account. 

35Would you please stand, please Mr Afford.

36On the count of importation, you are convicted and sentenced to 36 months' imprisonment - sorry, 38 months' imprisonment. 

37I order that you serve a non-parole period of 24 months.

38MR LEWIS:  If Your Honour pleases.

39HIS HONOUR:  Should I stipulate the start of this sentence as being 15 March 2014? 

40MS TICKY:  No, Your Honour, - - -

41HIS HONOUR:  Those days will be taken into account.

42MS TICKY:  Yes, Your Honour.

43HIS HONOUR:  Yes, thank you.  I don't think there are any other ancillary orders, are there? 

44MS TICKY:  No.

45HIS HONOUR:  Yes, thank you.  I will stand down. 

- - -