Director of Public Prosecutions v Akbus

[2021] VCC 1885

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 21 00052

DIRECTOR OF PUBLIC PROSECUTIONS

v

ONUR AKBUS

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JUDGE:	HIS HONOUR JUDGE CHETTLE
WHERE HELD:	Melbourne
DATE OF HEARING:	08 November 2021
DATE OF SENTENCE:	19 November 2021
CASE MAY BE CITED AS:	DPP v Akbus
MEDIUM NEUTRAL CITATION:	[2021] VCC 1885

REASONS FOR SENTENCE

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Subject:

Catchwords:

Legislation Cited:

Cases Cited:

Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms K. Farrell	Office of Public Prosecutions
For the Accused	Mr J. Portelli	C Marshall & Associates

HIS HONOUR:

1(Recording malfunction 05:16:20)

2You also pleaded guilty to one summary offence of dealing with proceeds of crime.  The facts of your offending are set out in exhibit A, the summary of prosecution opening.  I was informed by your counsel that I can treat that document as an agree statement of fact.  I incorporated it into these reasons for sentence, and sentence you on the basis of the facts set out therein. 

3Very briefly stated, in May 2020 you and a co-accused checked into the Quest Apartments located in William Street, Melbourne.  Between 18 and 20 May, you trafficked drugs from those premises.  On 20 May, police seized numerous drug-related items from your rooms at the Apartments.

4You were found with drugs, cash and a mobile phone upon your arrest.  In your vehicle, scales, bags, a vacuum sealer, and other drug-related paraphernalia were located.  You initially did a no comment interview.  When re-interviewed on 2 June 2020 by police, you told them a number of lies about your ongoing drug activities. 

5Police analysed your phone calls, messages, and CCTV footage.  The details of the disclosed drug dealing activity are set out in exhibit A, the prosecution opening, and summarised at paragraphs 41 to 48 of that document.

6Between 4 December 2019 and 20 May 2020, you trafficked 130.6 grams of MDMA.  21.7 grams were located in your room in the Quest Apartments, and 108.9 grams was evidence (indistinct) trafficking from your phone records.  Three grams is the traffickable quantity as prescribed by Parliament, and this is the basis of charge 1.   

7Between 6 December 2019 and 17 May 2020, your phone records reveal you trafficking 19.5 grams of cocaine.  Three grams is a traffickable quantity.  This is the basis of charge 2.

8Between 13 December 2019 and 20 May 2020, you trafficked 77.6 grams of cannabis.  You were found in possession of 2.6 grams at arrest, and your phone records disclosed a further 75 grams being trafficked.  A traffickable quantity of cannabis is 250 grams, so your conduct can be seen as low-level trafficking in that drug.  This represents charge 3, to which you pleaded guilty. 

9Charge 4 relates to your trafficking 7.3 kilograms of 1,4-Butanediol.  You were found with 3.36 kilograms of the drug, and your records evidence the trafficking of a further 3.94 kilograms.  A commercial quantity of this drug is 2 kilograms.

10Between 9 February 2020 and 26 March 2020, your phone messengers evidence you trafficking an unspecified amount of alprazolam on three separate occasions, and this is the basis of charge 5.

11Between 13 March 2020 and 20 May 2020, you trafficked 299.35 grams of methylamphetamine.  You were arrested with 1.6 grams in your possession.  Your co-offender had 5.5 grams, and your phone records evidence a further 292.25 grams, at least, being trafficked prior to your arrest, in over 20 separate transactions, with quantities of up 28 grams in a transaction.    

12A traffickable quantity of methamphetamine is 3 grams.  You trafficked in a quantity nearly 100 times the amount of a traffickable amount, and your offending represents an upper-level example of the offence of trafficking.  This is the basis of charge 6.  

13Your phone records also evidenced you trafficking 6.2 grams of ketamine on 17 May 2020.  A traffickable quantity of ketamine is 3 grams, and this is the basis of charge 7. 

14When arrested, you possessed 2 grams of hydroxyphencyclidine, an analogue of phencyclidine.  I was informed that this is a designer street drug, and that is the basis of charge 8, to which you pleaded guilty.  You were found in possession of $780 in cash when arrested.  This is the basis of the summary charge of possess suspected proceeds of crime.  

15The seriousness of your conduct varies from charge to charge.  Although all charges can be described as serious, charge 1, for example, involves significant trafficking; charge 6, an upper-level example of trafficking methamphetamine, as I said.  And Parliament has set a maximum penalty of 25 years' imprisonment in respect of charge 4.        

16The Court of Appeal has made it clear that commercial-level drug trafficking calls for significant terms of imprisonment.  However, the authorities also recognise that a court should take into account the anticipated financial rewards when assessing the objective gravity of the offending.

17In this case, you sold 7.3 litres of 1,4-Butanediol, at $600 per litre, or a total of $4,200.  You made only a relevantly small profit when compared to the profits that are made from the sale of commercial quantities of other drugs and the figures often seen in this court.

18I accept that your offending lies at the lower end of offences of trafficking in a commercial quantity of a drug of dependence. However, the offence is a category 2 offence. This court must impose a term of imprisonment, and not a term of imprisonment combined with a community corrections order, unless you fall within a number of exceptions set out in the Sentencing Act, none of which apply in your case. Your counsel conceded that a term of imprisonment must be imposed on this charge.

19Turning to your personal circumstances.  You are now 27 years of age, being born in August 1994.  Your history is set out in exhibit 2, the report of psychologist Warren Simmons.  You were born in Turkey and came to Australia at the age of two.  You have two younger siblings, who were born in this country. 

20According to Mr Simmons' report, you felt lonely and isolated as a child.  Your father was an aggressive alcoholic who made you feel inadequate and unloved.  You left school at 17 years after an argument with your father, midway through Year 11 level.    

21Two years later you found work in logistics, but have an unstable work history, due to the effect of drug use developed over the years.  You claimed to have started using cannabis at age 16, then moved to cocaine.  In 2018 you commenced smoking methylamphetamine, and, according to you, peaked at 3 grams' use per day.  You were also using GHB up until your arrest on these matters. 

22You have had three relationships, all of which were short-lived.  Your first was apparently with an older teacher when you were just 14.  Your last ended in early 2020, in the context of your increasing drug use.  Mr Simmons reports that you informed him that it was your drug habit that led to your trafficking. 

23You were unemployed and developing an expensive – something like $600 or $700 a day – habit.  You claim that this led you to sell, to fund that habit.  Since being in custody, you have had difficulties sleeping.  You have been prescribed Avanza – an antidepressant – to help you deal with custody and to sleep better. 

24Your counsel, Mr Portelli, provided helpful sentencing submissions; exhibit 1.  I take into account in sentencing you, firstly, your pleas of guilty.  I accept that those pleas were entered at an early stage in the proceedings.  You are entitled to a reduction in sentence to reflect those pleas.

25Secondly, those pleas of guilty are even more significant, and have greater value, because of the effect of COVID-19 on our legal system.  The pandemic has made our system very difficult indeed.  You are entitled to a greater reduction as a result of that increased facilitation of the course of justice. 

26Thirdly, I take into account the effect that COVID-19 has had, and will continue to have on your time in custody.  You have endured lockdowns, prohibition of visits, and cancellation of many courses usually available to those in custody.  Your time in custody has been, and will be more onerous to you a result.

27Fourthly, I accept that your pleas of guilty evidence some remorse on your behalf for your offending.  This morning your counsel tendered exhibit 4 – your letter to the court – and that provides further evidence of your remorse.

28Fifthly, significantly, you have no prior criminal convictions.  That you are a first offender serving your first time in custody entitles you to a separate and special consideration in sentencing.  You will receive a more lenient sentence as a result. 

29I take into account your age.  You were 25 when you offended.  You cannot be said to be youthful, but hopefully now you have developed maturity and the ability to remain drug-free in the future.  Your counsel submitted that your time in custody has caused you to re-evaluate your life.  He says you are determined to change your life.  He says you have been drug-free since being in custody, and you have done what work you can, and completed what courses were available to you. 

30Drug screens were provided this morning – exhibit 3 – that demonstrate between June of last year and August of this year, you have been screened on eight occasions, and none of them have returned dirty samples.  Only one of them was unable to obtain a result.  The others were all clean. 

31It is to be hoped that you are now mature enough to avoid drug relapse and reoffending.  Your prospects of rehabilitation can be seen as reasonable if you do maintain a drug-free status.  Your letter to the court – exhibit 4 – seems to demonstrate some maturity in this regard. 

32You say, 'I realise how lucky I am to have family and friends I do, and I owe it to all of them to build a productive and positive life in the future.  I will not accept this behaviour from myself any further, and have drawn a line in the sand on these issues.  I have been foolish, reckless and inconsiderate in my actions, and promise that if the court sees fit to allow me to return to my family sooner, have a longer parole period, I will not let anyone down in this way again.'

33Finally, I take into account the fact that you have spent six months in protection whilst in custody.  You were the victim of a carjacking, and, as a prosecution witness, required protection.  This has made your time in custody more onerous for you.  You informed the court in your letter – exhibit 4 – that you are likely to serve the rest of your sentence in protection, and I take that into account in sentencing you.  

34General deterrence, specific deterrence and denunciation of your conduct are significant sentencing considerations in this case.  Those who deal in drugs need to understand they will be significantly punished.  You need to appreciate that you cannot offend as you did.  The community is totally overwhelmed by the effects drugs have on our society, and those who deal in drugs should expect, as I said, substantial jail sentences.      

35I do, however, propose to impose a significant parole period to promote your rehabilitation and to support you on your release from custody.  Would you stand up, please.  On all charges, you are convicted.  On charge 1, the charge of trafficking, you are sentenced to be imprisoned for 12 months. 

36On charge 2, the charge of trafficking, you are sentenced to be imprisoned for 10 months.  On charge 3, the charge of trafficking the relatively small quantity of cannabis, you are sentenced to be imprisoned for six months.  On charge 4, the charge of trafficking a commercial quantity of 1,4-Butanediol, you are sentenced to be imprisoned for four years.

37On charge 5, the charge of trafficking, you are sentenced to be imprisoned for six months.  On charge 6, the charge of trafficking methamphetamine, you are sentenced to be imprisoned for 15 months.  

38On charge 7, the charge of trafficking ketamine, you are sentenced to be imprisoned for nine months.  On charge 8, the charge of possession of the phencyclidine, you are fined $500.  On the summary charge of possession of proceeds of crime, you are fined $250. 

39I declare charge 4 as the base sentence, and I order that six months of the sentence imposed on charge 1 and six months of the sentence imposed on charge 6 be served cumulatively upon the sentence imposed on charge 4.  The other charges are all going to be served concurrently.  That is an effective term of imprisonment of five years, and I order that you serve three years before being eligible for parole. 

40Pursuant to s6AAA of the Sentencing Act, I indicate that but for your pleas of guilty, I would have imposed a term of imprisonment of seven and a half years, with a non-parole period of five and a half years. I have PSD of 454 days, is that correct?

41MS FARRELL:  446, I had, you.  

42HIS HONOUR:  You have 446? 

43MS FARRELL:  Yes, Your Honour. 

44HIS HONOUR:  Where did I get 454 from?   

45MS FARRELL:  I'm not sure, Your Honour.  It was – I'll just check it.  It was 435 about 11 days ago. 

46HIS HONOUR:  Do you agree with that, Mr Portelli? 

47MR PORTELLI:  I do, yes, Your Honour. 

48HIS HONOUR:  All right.  I declare 446 days of the sentence I've just imposed have already been served by way of pre-sentence detention.  Are there any other orders I need to make?   

49MS FARRELL:  Forfeiture.  Yes, Your Honour. 

50HIS HONOUR:  I make the forfeiture orders sought by the Crown. 

51MS FARRELL:  As Your Honour pleases.  

52MR PORTELLI:  As Your Honour pleases. 

53MS FARRELL:  Thank you.  Remove Mr Akbus, and I will leave the bench.  

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