Director of Public Prosecutions v Alavy
[2013] VCC 1068
•11 July 2013
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-13-00545
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| SEYED ALAVY |
---
JUDGE: | HER HONOUR JUDGE HAMPEL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 5 July 2013 | |
DATE OF SENTENCE: | 11 July 2013 | |
CASE MAY BE CITED AS: | DPP v. Alavy | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1068 | |
REASONS FOR SENTENCE
---
Subject:
Catchwords: sentence – importation – marketable quantity – boarder controlled substance – guilty plea – finding importation for gain – risk of recurrence of depressive symptoms in custody – remorse – limited to sorry for current predicament – good family support – specific deterrence – prospects for rehabilitation
Legislation Cited:
Cases Cited: Nguyen&Phommalysack [2011] VSCA 32
Nguyen (2010) 2005 ACrimR 106
De La Rosa (2010) 2005 ACrimR 1
Barbaro & Zirilli (2012) VSCA 288
Sentence: 7 years imprisonment, 5 years non-parole period
---
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms M. Brown | |
| For the Accused | Mr J. Saunders |
HER HONOUR:
1 On 22 December last year, Customs officers discovered a package of just under half a kilogram of methamphetamine, concealed in a parcel of wire cable wound around a spool. It was imported from Tehran in Iran and destined to be delivered to you, Seyed Alavy. Analysis revealed that its pure weight was just 2.2 grams under 400 grams, meaning it was 80 per cent pure. Its market value is estimated to be a minimum of $228,800 wholesale. That converts to a minimum of just under half a million dollars, $495,500 to be precise.
2 Eventually a controlled delivery of the parcel was arranged and on 14 January this year you took delivery of it.
3 You have pleaded guilty to one charge of importing a marketable quantity of a border controlled substance. A marketable quantity is two grams. This was 199 times that minimum.
4 The agreed summary reveals the following matters. The parcel was addressed to your home address, but directed to a made up name at a non existent company at that address. Between 27 December and 8 January, nine calls were made to the shipper, DHL, and to Customs, enquiring about the whereabouts of the parcel. The calls were made using two different mobile telephones. Both were registered in false names and addresses. A number of these calls were made by your brother-in-law. This was apparently at your request because he speaks better English than you. He quoted the consignment number of the parcel and the made up names of the company and its representative. In one of the calls enquiring about the parcel, the caller described its contents as containing cable. It follows from this that you were expecting the parcel, were aware of the apparent or legitimate contents, or disguising contents of the parcel, knew who the carrier or shipper was and had the consignment details, including the false name and made up company. It also follows that the mobile telephones that were registered in the false names and addresses and that were used to make enquiries about the whereabouts of the parcel were deliberately used to distance you from the transaction.
5 The agreed summary also reveals that you used at least one of these falsely registered phones to make calls to an Iranian number. Telephone intercepts reveal conversations which, although cryptic, clearly refer to the expected arrival of the parcel and to the arrangements for a third party to collect the parcel from you and pay for it. Within minutes of the delivery of the parcel on 14 January, you used one of these falsely registered phones to call the same Iranian phone number that you had previously called. Again, although cryptic language is used, it is clear that you were reporting that the parcel had arrived.
6 You were arrested later that day. When questioned, you agreed that you had taken delivery of the package and that you had asked your brother-in-law to check on its whereabouts. You denied knowledge of the drugs and of participation in importing them. You denied having or using telephones registered in false names. By your guilty plea, you acknowledge that those denials were false.
7 This is a serious offence. One measure of its seriousness is a maximum term of imprisonment of 25 years. It is clear, having regard to the nature of drug importation that general deterrence requires the imposition of what has been recently described, in decisions of the Court of Appeal in this State and in New South Wales, as a significant sentence. I am referring here to the recent decision of Nguyen&Phommalysack [2011] VSCA 32 and the New South Wales decisions of Nguyen (2010) 2005 ACrimR 106 and De La Rosa (2010) 2005 ACrimR 1.
8 It was acknowledged by your counsel, Mr Saunders, that no sentence other than one of imprisonment was appropriate.
9 You are a 33 year old man who came to Australia from Iran in 2006. Although intelligent, you had to leave school early because of the financial hardship in your family. Your father had been killed when you were a boy. He had apparently been politically active, and your mother, you and your two siblings had suffered hardship as a result of the consequences of your father's political activity. You suffered a serious depressive episode during your compulsory military service in Iran. That resulted in your discharge from the army and dispensation from further service.
10 Otherwise you had a very good work history in Iran and, from what I was told, you were able to provide considerable financial support to your family. Your older brother and your mother are both, through illness or disability, unable to work or to earn sufficient income to properly support themselves and their dependants. You developed skill and expertise in making luggage and eventually bought a car, which you used apparently to operate an informal taxi service. I am told that those two sources of income provided, as a result of your hard work, a degree of comfort for you and for your family.
11 In 2006, you decided to leave Iran in order to marry your wife, Samira. She, too, is of Iranian heritage and she had come to Australia with her parents a year before your arrival. In Iran your families had been close and her father had provided assistance, both moral and financial, to your family following your father's death. You and Samira now have one child, a son, who is three. On the material before me, it has been a happy marriage and parenthood has been a rewarding experience for both of you.
12 Since your arrival in Australia you have worked in your father-in-law's family business, a tailoring and alterations business. You, your wife and son, live with your parents-in-law in the house to which you had the parcel of drugs delivered. It is apparently a close extended family. Your wife and father-in-law have been at court supporting you, and your father-in-law gave evidence on your behalf on the plea. Although he expressed his disapproval of your conduct in importing the drugs, he gave you an otherwise glowing testimonial as a person, a son-in-law and a father. You are fortunate to continue to have such strong family support.
13 It was put that you became involved in the importation of the drugs because of a need to provide further support for your mother and sister. I found this a difficult explanation, and ultimately I have not accepted it. Your counsel told me his instructions were that you and your father-in-law have continued to provide assistance to your family in Iran since your arrival here. In his evidence your father-in-law said that he had provided assistance to your family without question or hesitation whenever they needed it. On his evidence, you did not even have to ask him for money to provide to your family or to explain their need. His daughter, your wife, had access to her father's bank accounts and to large amounts of cash kept in the family home, and she had his authority to send money to your family whenever it was requested or needed.
14 The agreed statement of facts included reference to evidence that on three separate occasions during the period of surveillance, that is from the time the drugs were detected in the package on its arrival in Australia until its delivery, you deposited cash totaling $33,500 with Moneymex. That is a cash exchange operation, and the money was directed to be remitted to a person by the name of Fazad Tuba in Tehran. I was told that your instructions were that this was not payment for the drugs, but rather, money sent to Mr Tuba, a family member, to provide assistance to your mother and sister.
15 Your father-in-law gave evidence that he had sent $30,000 in cash in three tranches to your family during that period. He had not personally sent the cash, rather he was aware that the cash had come from his resources and had been sent by you. He said the cash came from the proceeds of the sale of an alterations business that he had previously had in Sydney. If this is correct, it would appear that there was no need to turn to the importation of drugs to provide funds to assist your family. Your father-in-law's generosity and unquestioning assumption of responsibility to provide assistance to your family clearly gave you access to a ready source of legitimate funds to assist them.
16 On the material before me it is a likely inference that the three transfers of that just over $30,000 related to the drugs, although it is not the only inference open on the material, and so I am not for the purpose of sentencing you satisfied beyond reasonable doubt that the money you transferred to Mr Tuba was for the drugs. However, I do not accept your explanation advanced only through your counsel's Bar table putting of his instructions that you became involved in the importation in order to provide much needed financial assistance to your family.
17 That leaves me then in the position where the sixth principle set out from the New South Wales case of Nguyen, and quoted by Maxwell, P in the Victorian case of Nguyen & Phommalysack applies. That is as a matter of common sense it should be inferred, unless there is evidence to the contrary, that a person who is importing drugs is doing so for profit. The court adds to this principle this: The fact that the offender needs money to pay off a debt does not necessarily affect culpability."
18 A psychological report prepared by Mr Warren Simmonds was provided. He had one consultation with you assisted by a Persian interpreter in the Metropolitan Remand Centre on 26 June this year, shortly before the plea hearing.
19 On the history you recounted to him, you have had no contact with or apparent need for mental health services since your recovery from the depressive episode you suffered during your military service. Not surprisingly, your arrest and remand, the appreciation of the weight of the evidence pointing to your guilt and the resultant guilty plea and pending sentence have affected you. You reported experiencing depressive symptoms since your remand and of entertaining thoughts of self harm, although you told Mr Simmonds you had no suicidal intent. You appear to have been a quiet prisoner who has kept to himself, and your relatively poor command of English has meant that you have not presented in a way that has caused concern for your mental state to the prison authorities, although I accept Mr Simmonds' advice that you are in need of continued psychiatric supervision. In one sense, your quietness, good behaviour in prison and limited English have meant that you have not come to the attention of the mental health authorities when perhaps you should have.
20 I accept that your circumstances have produced those wide-ranging symptoms of depression which Mr Simmonds sets out in his report, and that given your previous episode of depression during your military service, you are likely to continue to suffer from depressive symptoms whilst incarcerated. How much of that is due to an appreciation that you must face the consequences of your conscious decision to involve yourself in importation of these drugs is unclear. In any event, I accept that I should and do moderate the sentence otherwise appropriate because of the likelihood that you will continue to suffer depressive symptoms whilst in custody. I accept that will make imprisonment more onerous for you.
21 It was put on your behalf, and asserted in Mr Simmonds' report that you were remorseful. I accept that you are sorry for the plight you now find yourself in and for the impact on your family, particularly your wife and your son. There is, however, no evidence that was put before me of remorse in the sense of compunction or repentance for a wrong committed, penitence, contrition, or a desire to atone. There is no evidence of any determination to change your ways or to make amends for your role in drug importation. Those propositions, of course, come from the recent decision of the Court of Appeal in Barbaro & Zirilli (2012) VSCA 288 at [35-38].
22 In the circumstances you are clearly entitled to a reduction in the sentence otherwise appropriate by reason of your guilty plea and the early stage at which it was indicated for its utilitarian benefits, but I am not satisfied that the guilty plea is evidence of remorse, and the absence of any other evidence of remorse, means there is no further reduction to the sentence as there would have been had there been evidence of remorse in the sense that I have described it.
23 In my view the sentence must give some weight to specific deterrence. The very factors that properly count in your favour as enhancing your prospects of rehabilitation existed at the time of the commission of the offence, and they were insufficient to deter you from committing the offence. They are: your family support, your absence of other criminal history, your intelligence, the absence of drug or alcohol abuse, the absence of mental illness or psychological condition contributing to the offending, your good employment history and your good prospects of future employment.
24 So whilst I count those in your favour in assessing your prospects for rehabilitation as good, I nonetheless take them into account as demonstrating that notwithstanding their existence, they were not sufficient to deter you, and therefore, the sentence must give some weight to specific deterrence.
25 Mr Alavy, can you now please stand.
26 Seyed Javad Alavy, on the one charge to which you have pleaded guilty, you are convicted. You are sentenced to be imprisoned for a period of seven years, and I fix the period of five years as the term you must serve before being eligible for parole. I declare that you have spent 178 days in presentence detention and direct that that be counted and reckoned as part of the sentence already served.
27 I declare pursuant to s.6AAA of the Sentencing Act Victoria that but for your plea of guilty I would have sentenced you to a term of imprisonment of nine years and fixed seven years as the time you would have had to have served before being eligible for parole.
28 Ms Brown, do you consider that sufficient to explain the sentence and its terms within the meaning of - - -
29 MS BROWN: I do, Your Honour.
30 HER HONOUR: Any further orders that are required to be made?
31 COUNSEL: No, Your Honour.
32 HER HONOUR: Can you remove Mr Alavy, please.
- - -
0