Director of Public Prosecutions v Ale
[2019] VCC 432
•8 March 2019
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
CR-17-02464
CR-17-02570
CR-18-00340
CR-18-00353
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ROBERT ALE |
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| JUDGE: | HIS HONOUR JUDGE HIGHAM |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 10 and 21 December 2019 |
| DATE OF SENTENCE: | 8 March 2019 |
| CASE MAY BE CITED AS: | DPP v Ale |
| MEDIUM NEUTRAL CITATION: | [2019] VCC 432 |
REASONS FOR SENTENCE
---Subject: CRIMINAL LAW
Catchwords: Sentence – plea of guilty – trafficking in a drug of dependence – conspiracy to commit arson – trafficking in a drug of dependence large commercial quantity – conspiracy to recklessly cause injury – possess unregistered handgun – conspiracy to reckless conduct endangering serious injury – knowingly deal with proceeds of crime – theft – possess drug of dependence – criminal enterprise – high moral culpability – remorse – genuine steps towards rehabilitation since arrest – post traumatic stress disorder – parity – totality – general deterrence – specific deterrence – denunciation – protection of the community
Legislation Cited: Crimes Act 1958; Sentencing Act 1991
Cases Cited:
Sentence:Total effective sentence of 18 years’ imprisonment with a non-parole period of 13 years and 9 months.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr J Livitsanos | Solicitor for Public Prosecutions |
| For the Accused | Mr D Edwardson QC (Plea) Ms S Radovic (Sentence) | Radovic Lawyers |
HIS HONOUR:
1Robert Ale, you have pleaded guilty to two charges of trafficking in a drug of dependence (Charges 1 and 4) for which the maximum penalty is a term of imprisonment of 15 years, two charges of conspiracy to commit arson (Charges 2 and 9) for which the maximum penalty is a term of imprisonment of 15 years, one charge of trafficking in a large commercial quantity of a drug of dependence (Charge 3) for which the maximum penalty is life imprisonment, one charge of conspiracy to recklessly cause injury (Charge 5) for which the maximum penalty is a term of imprisonment of 15 years, one charge of possessing an unregistered general category handgun (Charge 6) for which the maximum penalty is a term of imprisonment of seven years, one charge of conspiracy to engage in reckless conduct endangering serious injury (Charge 7) for which the maximum penalty is a term of imprisonment of five years, one charge of knowingly dealing with proceeds of crime (Charge 8) for which the maximum penalty is a term of imprisonment of 15 years, one charge of theft of a motor vehicle (Charge 10) for which the maximum penalty is a term of imprisonment of ten years, and one charge of possession of a drug of dependence (Charge 11) for which the maximum penalty, depending on the finding of the court, is either a term of imprisonment of one year and/or 30 penalty units or a term of imprisonment of five years.
2You have also admitted the summary charges of one rolled up charge of possessing cartridge ammunition for which the maximum penalty is 40 penalty units, one charge of possessing body armour without approval for which the maximum penalty is two years' imprisonment or 240 penalty units, one charge of being a prohibited person possessing a weapon without exemption for which the maximum penalty is two years' imprisonment or 240 penalty units, one charge of committing an indictable offence whilst on bail for which the maximum penalty is three months' imprisonment or 30 penalty units, one rolled up charge of contravening a conduct condition of bail for which the maximum penalty is a term of imprisonment of three months or 30 penalty units, one rolled up charge of driving whilst authorisation suspended for which the maximum penalty is four months' imprisonment or 30 penalty units, and one charge of possessing a Schedule 4 poison for which the maximum penalty is 40 penalty units.
3Tendered on the plea as Exhibit 1 was a summary of the prosecution opening in which the full details of your offending were set out. I incorporate that document in its entirety into these sentencing reasons.
4The circumstances of your offending can be stated as follows.
5In October 2016, after a series of violent and destructive offences, investigators from the Echo Taskforce commenced an investigation into the Comanchero outlaw motorcycle gang and an associated street gang known as the Last Kings. The investigation revealed a drug trafficking enterprise operating in the south-eastern suburbs of Melbourne. That drug trafficking enterprise was headed, directed and controlled by you.
6You were apparently at the time a patched member of the Comanchero outlaw motorcycle gang. You were also the head of the Last Kings. You used underlings, friends, family members, intermediaries and associates to assist you in your offending and to ensure the success of your criminal enterprise. The primary business of your criminal enterprise consisted in the trafficking of large quantities of drugs of dependence and related crimes of enforcement linked to that primary criminal purpose.
7Investigative techniques employed included interception of telecommunications, surveillance and forensic examination. That investigation provided the evidence underpinning the charges to which you pleaded guilty.
8Charge 1 is not a rolled up charge but relates to the trafficking by you of amphetamine, cannabis, MDMA (otherwise known as ecstasy) and 1,4-butanediol between 1 November 2016 and 11 March 2017. Pages 101 to 103 of Exhibit 1 sets out the evidence derived from intercepts which underpin the charge. It reveals the offering, selling and sourcing by you of drugs of dependence, in multiples of half-ounces of amphetamine, ounces of MDMA, a litre of 1,4-butanediol and pound weights of cannabis. The intercepted communications therefore show the scale of your trafficking enterprise in relation to those drugs of dependence.
9Charge 4, trafficking of cocaine between 11 November 2016 and 12 March 2017, is underpinned by telephone intercepts, physical intercepts and arrests, including that of your courier Christian Hamilton on his return from Sydney with 577.2 g of cocaine located in his vehicle. The total quantity of cocaine transactions discussed, although not necessarily completed as I understand it, amounts to 1,681.8 g; the total monetary value of transactions, $159,575. This again evidences the scale of your cocaine trafficking.
10Charge 3 relates to the trafficking of a large commercial quantity of methamphetamine between 4 October 2016 and 6 March 2017. Again, the evidence underpinning that charge derives from telephone intercepts, arrests and execution of warrants. The total amount of methamphetamine actually trafficked by you was 2,560 g. The total amount of methamphetamine transactions that were discussed, proposed or attempted totals 5,556.8 g. The amount of money discussed or actually exchanged equals just under one and a quarter million dollars, $1,214,150. I make clear, Mr Ale, that I deal with you on the basis of the amount of methamphetamine in fact trafficked.
11On 8 November 2016, telephone intercepts captured a conversation between you and Omid Said, your second-in-command in the Last Kings gang, where you discussed the burning down of the Kittens Gentlemen's Club at 68 Cecil Street, South Melbourne. The owners of this club were later said by Mr Said to be your rivals. You and Mr Said agreed to the burning down of the nightclub.
12In later conversations, Mr Said reported back to you of the steps he had taken pursuant to the agreement, describing the building and its layout and how he had tried to light the fire and other factors about where he had spread fuel and left fuel containers so as to stoke the fire. Mr Said viewed the job as very important and clearly demonstrated his willingness to put the plan into effect. It is also an illustration of the closeness with which Mr Said worked with you, serving both your interests in terms of enforcing your territory and advancing, it would seem, his interest by improving his standing with you as being the person who, in his words, "had the balls to do the job". That is Charge 2.
13Charges 5, 6 and 7 relate to the accepting by you of the enforcement of a third party debt and your willingness to act as an enforcer for that third party between 10 November 2016 and 17 November 2016. Between 10 and 12 November 2016, you recruited Mustafa Baydar to go to an address in Doreen to assault the occupant so that payment would be made by the intended victim to the third party. The debt was not owed to you. It seems that this task had been outsourced to the Last Kings, a task that was willingly accepted. Intercepts reveal the communication between you and Mr Baydar. Mr Baydar displayed a willingness to perform the tasks that you had set for him, a willingness you exploited by your encouragement and direction of him.
14On 11 November 2016 at 8.42 pm, Mr Baydar left his home address, communicating all the while with you. Having arrived close to the target address, Baydar got out of the motor vehicle, placed a hood over his head and an aluminium baseball bat down the right side of his trouser leg. He reconnoitred the property but reported back to you that the house was huge with numerous cars at the address and that the gates were closed. Shortly thereafter, Mr Baydar was stopped by police who had been monitoring the entire operation. You stood Mr Baydar down. This is Charge 5.
15Matters did not stop there, however, because on 16 November 2016, a new plan was devised by you for the enforcement of that debt owing to the third party. The plan had now changed from assaulting the occupants of the Doreen address to spraying bullets at the property from the outside. When you discussed the arrangements with Mr Baydar, he willingly offered you his agreement. You made arrangements with your co-accused, Oguzhan Kucukvardar, a man who had fallen on hard times and who, in my view, had fallen under your spell and offered you his unconditional loyalty. You recruited Mr Kucukvardar to give to Mr Baydar the firearm that you intended to be used in the shooting. This is Charge 6.
16According to you, this was a .22 semi-automatic pistol which you believed to be at your house and that you believed to be loaded with live rounds. You arranged that Mr Kucukvardar was also to ride with Mr Baydar on his own motorbike to ensure that Mr Baydar performed the task. Once arrangements had been made and Mr Baydar was driving towards the Doreen address, you texted him to "Be safe, brother. Enjoy the adrenaline rush. It doesn't last long lol", to which Mr Baydar replied, "I'm excited bro can't wait." Once in the vicinity of the address, Mr Kucukvardar handed the firearm to Mr Baydar.
17Fortunately, police were aware of the plan and sought to prevent its execution by staging firstly, a vehicle intercept a short distance away from the premises and later, when it became clear that you were still intent upon the attack being carried out, a full crime scene with numerous police cars being brought to the area. Intercepts reveal Mr Baydar's disappointment and upset that he did not get the adrenaline rush that you had promised him. The weapon (Charge 7) was given back to Mr Kucukvardar.
18Charge 8 relates to the instructions that you gave to Mr Baydar to collect $30,000 in cash from the Nitro Gym in Hallam, and to cash, high-end watches and a gold ring found at your Lyndhurst home when search warrants were executed on 28 December 2016, the date of your first arrest, and on 14 March 2017, and from the apartment of your then partner, Carly Epskamp. The funds were known by you to be the proceeds of your criminal activity.
19Charges 9 and 10 relate to the theft of a Mercedes silver ML350 from Reservoir on 1 November 2016 and which then had false New South Wales registration plates attached to it. The vehicle had apparently been used in connection with “a job”. On 26 November 2016, you instructed Mr Kucukvardar to go and find the parked vehicle in the Dandenong area and to "torch it". Mr Kucukvardar, your loyal and abject lieutenant, acted on your instructions and was waiting around the corner from the vehicle. He was waiting for your say-so to put the plan into operation. You, however, noticed a police presence in the area which led you to change the plan. Mr Kucukvardar was stood down by you and the vehicle was later recovered by police.
20Charge 11 refers to the various drugs of dependence that were recovered from your home address in Lyndhurst on the execution of the search warrant on 14 March 2017.
21The summary charges relate variously to items located at your home address on 14 March 2017, police observations of you driving whilst your authorisation had been suspended, and failing to comply with your conditions of bail.
22I turn now to your personal circumstances.
23You were born on 6 March 1982 and have just had your 37th birthday. You were aged 34 and 35 during the offending period. You were raised in Frankston and lived with your parents and younger sister Amanda.
24Your childhood was marked by your father's abuse of alcohol, illicit drugs and prescription medication. There were frequent incidents of family violence where you were both the victim and the witness to assaults of your sister and your mother. The assaults upon you involved significant injuries.
25You attended local schools and completed Year 12 in an attempt to impress your father. When you were completing your VCE, your mother attempted to leave your father and your father threatened to kill the whole family if your mother failed to return. You encouraged your mother to return to the family home and she did so.
26Your father died of a heart attack when you were 27. You were alerted to your father's collapse by your sister and you arrived at your family home to find him in cardiac arrest. Your family called for an ambulance and you reportedly performed CPR until the paramedics arrived and advised you that your father could not be resuscitated. Sometime prior to his death, you had confronted your father, declaring that you were not scared of him anymore. You were, not surprisingly, conflicted by your grief. You recognised the abuse that your father had inflicted on your family but were nonetheless distraught at losing him.
27You began using cannabis at age 21 and ecstasy and cocaine at age 25. By the age of 27, you were using every second day and within a few years, you were using 2 g of cocaine per day, and then using cannabis to assist you to get to sleep. You also reported regular use of methamphetamine over the last five years.
28You have been in a relationship with Ms Epskamp for approximately 17 years. Since your arrest on these matters in March 2017, that relationship has ended but I was told on your plea you have now embarked upon a new relationship.
29You reported that you considered tertiary study but ultimately chose to work full‑time after high school in order to support your family. In the decade after you finished school, you worked in a factory, then ran your own businesses including a bottle shop, café and nutrition and supplements store. You commencing working for Nitro Gyms in 2014 in a marketing and event management role. This was where you first had contact with members of the Comanchero outlaw motorcycle gang. It seems that you were attracted to that group by the sense of brotherhood and belonging that they offered to you. You then became a patched member. Within that lifestyle, your drug use began to accelerate and this, it seems, was the background for your offending.
30You have two prior court appearances: one matter in 2010 for driving whilst your authorisation was suspended for which you were dealt with by means of a term of imprisonment of one month wholly suspended for 12 months and licence cancellation, and, in 2008, you were dealt with by means of an adjourned undertaking for importing and possessing anabolic steroids. I find that your prior matters are not relevant to the exercise of my sentencing discretion.
31In February 2018, you were shot whilst getting tattooed. Some nine or ten rounds entered your body and you suffered life-threatening injuries. You survived the attempt on your life but you still suffer from ongoing health issues as a result including a serious hernia condition which I have been told requires urgent invasive surgery.
32Tendered on your plea as Exhibit 2RA was a bundle of defence material which included reports from treating clinicians, Dr Michael King, clinical psychologist, Amanda Brown, drug and alcohol clinician, Dr Anthony Cidoni, consultant psychiatrist, John Campbell from Arrow Health and Arthur Tsonis, a forensic drug and alcohol clinician who I was told had been your sponsor in Narcotics Anonymous, and letters from family and friends and references detailing your involvement in Narcotics Anonymous. I have read them all. Some of the authors gave evidence on your plea.
33Ms Brown spoke of the connection between your childhood trauma and your drug use, which in turn was the context for your offending. She surmised that the attraction of the motorcycle gang for you with your fractured and conflicted childhood was the sense of belonging that it gave to you. She described your behaviour since your arrest and your release on close conditions of bail as being, in short, one of exemplary dedication to your recovery. She described you as having been given "the gift of desperation" in your work to remain drug free. She was of the opinion that your life had been punctuated by the attempt on your life and now formed two parts: either before or after the shooting. She spoke of your determination and your resolve not to go back to the lifestyle that you had before.
34Dr King described your clinical presentation as having the combination of post-traumatic stress disorder and a more enduring disassociate personality disorder which conditions he linked back to your profoundly violent and abusive childhood experiences. One consequence of the attempt on your life was that your post-traumatic stress disorder had become more acute, leading to a significant deterioration in your mental health. This deterioration in your mental health has required treatment provided by Dr King, and he raised the prospect of the unavailability of sufficient clinical treatment within a custodial setting.
35Dr Cidoni emphasised that the attempt on your life has had a direct impact upon your mental health. It has left you with a constant sense of anxiety and depression, these being symptoms of your now aggravated PTSD with two causes of origin: your childhood, and the attempt on your life. The ever acute pain being presented by your hernia condition has created another layer of anxiety, impacting upon your mental health. Dr Cidoni believed that your engagement in rehabilitation and drug and alcohol counselling is genuine and that you have positive prospects of rehabilitation. He expressed concern as to the availability of appropriate clinical treatment as well as appropriate medical treatment within the Corrections setting.
36Mr Campbell gave evidence of his observation of your engagement and participation in drug and alcohol treatment. He noted how you had thrown yourself into your recovery, that you had never lost enthusiasm and that you have been helping younger people. He was of the opinion that your rock bottom occurred when you were in prison following your arrest in relation to these matters before you were granted bail on strict conditions and said that it was in prison that you had a change of heart and that you now have pro-social views.
37Lastly, Mr Tsonis, your sponsor in Narcotics Anonymous, stated that from his professional and personal perspective, recovery is tested by adversity. He stated that you had not relapsed or acted out and he described your interactions with younger persons in the 12‑step program as being of invaluable assistance.
38I turn now to the submissions of counsel.
39On your plea, your counsel Mr Edwardson QC conceded most realistically that an immediate and significant custodial sentence was the inevitable punishment.
40He submitted that you had a deep and unique understanding of the nature of your criminal conduct and of its impact upon the community in terms of the harm caused to the community by the scourge of drugs. You recognised that you must take responsibility for that impact.
41He submitted that your undiagnosed post-traumatic stress disorder linked to the brutal childhood that you experienced might explain your drug use and the attraction of belonging to an outlaw motorcycle gang. He noted that your offending began eight months after you had become a patched member. I did not understand your counsel at any stage, however, to be suggesting a causal link between your offending and your past, nor was he suggesting that your past was in any way a mitigating feature or an excuse for your offending. Rather, it was placed in front of the court as providing context for that offending.
42Mr Edwardson submitted that since your release on bail in May 2017 you had embraced every opportunity to work towards your rehabilitation and have demonstrated genuine remorse and contrition.
43He submitted that the inevitable consequence of your imprisonment will be a deterioration in your mental health. Therefore, your time in custody will be more onerous for you than for a person without your condition. He submitted that the acute medical problems presented by your worsening hernia likewise were unlikely to be promptly addressed within the custodial setting.
44I note in this regard that on the plea I heard evidence from Rebecca Redpath, Director of Justice Health, who informed the court of the processes and procedures for securing adequate medical and mental health treatment for those in custody. She stated the commitment of Corrections Victoria to the principle of “community equivalence”.
45Mr Edwardson reminded the court that rehabilitation was an important sentencing objective. He reminded the court that protection of the community is also contributed to and served by the rehabilitation of the offender. He submitted that your life of crime had truly ended with your arrest as have been demonstrated by your genuine engagement in rehabilitative steps. He accepted that general and specific deterrence were primary sentencing factors. He urged me not to pass a crushing sentence upon you, but rather to pass as short a sentence as my duty permitted. He urged me to impose a shorter than normal non-parole period in light of the rehabilitative steps that you had already taken.
46Mr Livitsanos, on behalf of the prosecution, submitted in brief but helpful submissions that the only possible sentencing disposition was a lengthy term of imprisonment.
47He submitted there was nothing in the circumstances of this case that would permit the court to impose a shorter than normal non-parole period. If, however, there was a shorter non-parole period imposed, then any reduction should be slight.
48Whilst accepting that the sentence should not be crushing, he submitted that the objective gravity of your offending is high and that your moral culpability is high. This offending, he submitted, is aggravated by its commission in the cause of an outlaw motorcycle gang.
49The offending spoke of your seeing yourself, said Mr Livitsanos, as outside or above the law and the court’s sentence must show that you are - as indeed we all are - subject to the law.
50Mr Livitsanos submitted that general and specific deterrence, denunciation and just punishment were the primary sentencing considerations in relation to your offending.
51He submitted that whilst the principle of parity of course had a role to play in my sentencing discretion in light of your criminal associates who have already been sentenced by the court, you sat at the top of your criminal organisation. The trafficking enterprise was your operation and you were dealing in multiples of the threshold of large commercial quantities of drugs of dependence.
52He pointed out correctly that you were first arrested on 28 December 2016 but after your release you carried on with the offending and that your offending escalated in the enterprise for another three months.
53Mr Livitsanos did not seek to challenge the genuine attempt that you have made at your recovery.
54He submitted that you would not be without services within the prison setting and that there was no evidence in front of the court that the level of service which will be provided to you would be inferior to that which is available in the community. He submitted there was nothing to indicate on the material in front of me that prison would of necessity exacerbate your symptoms of post-traumatic stress and conceded correctly, in my view, that at the end of the day, this became but a matter of weight.
55Mr Ale, I have no doubt that your early exposure to family violence has had a lasting impact upon you, and upon how you construct your relationships and how you have viewed the world. However, this can do no more than provide a context to your offending. In my view, it does not impact upon your moral culpability and in my view, your moral culpability for your offending is high. You ran a criminal enterprise dedicated to the wholesale distribution of drugs and to ensuring through various means of enforcement that your business could be carried on effectively, and without challenge.
56In my view, such a criminal enterprise constitutes a direct challenge to the very fabric of our community. You variously used force of personality, fear, friendship, money, loyalty and a perverted and corrupted sense of male brotherhood to bend people to your will and to get people to do your bidding, so as to improve your standing with your criminal peers and so as to continue your primary business of trafficking in drugs of dependence. You did believe that you were above the law.
57You gathered people to you, people such as Mr Kucukvardar who was himself troubled, suffering from post-traumatic stress disorder, isolated and abandoned. You took him in. You gave him a sense of purpose and then you bent him to your will. You turned him into a man who would give you his unquestioning loyalty.
58Mr Baydar was young man who likewise fell under your spell. You tasked him to carry out the assault and violent acts in Charge 5 and 7. You saw him as someone impressionable and he was to be bloodied in that offending and no doubt demonstrate to you his loyalty. In this sense, Mr Ale, you were a kind of predator, seeking out vulnerable men, grooming them and binding them to you for your criminal purpose.
59Of course, you are not to be held criminally responsible for the decisions made by others, but I find that you did to an extent corrupt them and having so corrupted them, used them for the purpose of your own criminal objectives.
60In Charge 3, you trafficked methamphetamine over a period of five months in a large commercial quantity, indeed in multiples of the threshold for a large commercial quantity, which is 1 kilogram.
61You were arrested on 28 December 2016 when your business had lost just under a kilo of methamphetamine. Your friend Leigh Sussman was arrested with those drugs in her possession. I note that they were drugs that you had persuaded her to look after for you so that you could avoid detection. Rather than stop your evil trade, you continued up until your arrest on 14 March 2017. The nature of your business was such that you were at times sourcing drugs in quantities of a kilo as is clear from the prosecution opening, Exhibit 1.
62The total amount of transactions discussed or completed were in excess of five and a half kilograms, the amount of methamphetamine actually trafficked in excess of two and a half kilograms, the monetary value of transactions identified or discussed nearly one and a quarter million dollars. The organisation was yours and it obeyed your commands. The drug dealing business was yours. The profit went to you as is clear by the seven high‑end watches and cash located at your home address in Charge 8. The profits must have been considerable and they supported your lifestyle. Those who sit at the apex of drug trafficking operations can expect stern punishment when they come before the court.
63Mr Ale, those of us who sit in the criminal courts are aware of this one simple truth. Drugs are quite simply tearing the heart out of our community. Our community is losing a generation and those who participate in this evil trade can expect to be punished if and when they come before the court. For so many people, what might start out as a fun Saturday night, what might be regarded as “recreational”, can quickly spiral into the horrors of addiction. In addiction, many lose everything and some lose their lives. The utter destruction brought about by methamphetamine is experienced by the community every single day, in terms of lives lost, and in terms of the crimes that are committed, sometimes by adolescents who have been introduced to this drug at a very tender age.
64That is something, Mr Ale, that will now be known to you by your involvement and participation in Narcotics Anonymous. The trafficking of methamphetamine has been recognised by the Court of Appeal as being so prevalent as to invite greater focus in the sentencing synthesis upon general deterrence.
65At the same time, you were carrying on a significant commercial trafficking enterprise in respect of other drugs of dependence as is clear from Charges 1, 2, 3 and 4. The facts underpinning those two charges make clear the commercial nature of that trafficking business in relation to those drugs of dependence.
66The conspiracy to commit arson in Charge 2 is, in my view, a serious example of the offence. It is clear from the recorded conversations that both you and Mr Said entered into an agreement fully intending that steps were to be taken to achieve the purposes of that agreement, i.e. to burn down the club premises. According to your co-accused, the premises belonged to a rival gang. The ease and facility with which you proposed and agreed to the setting fire to premises in a central city location with no thought to the collateral damage and harm that may be caused, serves as a stark indication, in my view, of your complete immersion in the criminal world, as is the almost matter-of-fact way that you contemplated the burning of a vehicle parked in a street, represented in Charge 9.
67According to your co-accused Mr Said, the Last Kings were a group that the Comancheros used to do the jobs which they could not be seen doing. The offending in Charges 5, 6 and 7 can be seen as an example of you lending yourself to others' criminal purpose and furthering your standing within that criminal world. It is a world in which you flourished and in which you felt you belonged. You had accepted an outsourced job to assault a person unknown to you on behalf of a third party who was apparently owed money. You used and directed Mr Kucukvardar and Mr Baydar to secure your objective. Success would improve your standing but you would not do the job yourself.
68After the failure of the proposed assault, you devised a new plan of discharging a weapon at the premises. You provided the gun and the cartridges. You encouraged your new recruit Mr Baydar by trading on his desire to please you so as to make sure that he was to complete his mission which was the discharge of the firearm at a residential house in a residential area. Fortunately for members of the public, and consequently for you, police officers prevented the attack. The victim impact statement of the occupants spoke of the impact upon them of your crime. The language and ease with which you contemplated such an assault and with which you expressed your desire for your unknown victim to have fear and to be looking behind him every time he set foot out of his house is, Mr Ale, truly chilling. In my view, it is a grave example of such offending. Your moral culpability for it is high indeed.
69In sentencing you, I must have regard to a range of different factors. I must give effect to principles of both general deterrence and specific deterrence. I must deter others from behaving as you did and I must deter you from any repeat of such behaviour. I must express the community's denunciation of your conduct and I should also promote, if possible, your rehabilitation. I must take into account the effect of your crime upon the community and I must have regard to current sentencing practices and the maximum penalties imposed by Parliament. In short, Mr Ale, I have to balance your personal circumstances with the circumstances of your offending.
70Clearly, principles of general and specific deterrence, denunciation and protection of the community become primary sentencing considerations in your case. I have had regard to all of the mitigatory factors which have been urged upon me by your counsel. For the avoidance of doubt, I have regard to:
i.Your plea of guilty, which I view as an early plea and I do view it as indicative of a desire to facilitate the course of justice and which brings with it the substantial benefit to the community of saving of the time, the cost and trauma of a trial;
ii.Your expression of remorse;
iii.The significant steps towards your rehabilitation that you have made;
iv.Your prospects for rehabilitation, which may be seen as positive provided you remain engaged in your recovery and remain drug free;
v.The potential adverse effect upon your mental health of your confinement; and
vi.The current need for invasive surgery and the pain management issue that arises until that surgery takes place.
71Nonetheless, your offending is so serious that it can only be met by a substantial term of imprisonment. Having regard to the principle of totality, I have moderated the orders for cumulation that I would otherwise have made.
72If you could stand up please, Mr Ale.
73On Charge 1, trafficking in a drug of dependence, namely amphetamine, cannabis, MDMA and 1,4-butanediol, you are sentenced to a term of imprisonment of two years and three months.
74On Charge 2, conspiracy to commit arson, you are sentenced to a term of imprisonment of four years and six months.
75On Charge 3, trafficking in a large commercial quantity of a drug of dependence, namely methamphetamine, you are sentenced to a term of imprisonment of 14 years and six months.
76On Charge 4, trafficking in drug of dependence, namely cocaine, you are sentenced to a term of imprisonment of three years and three months.
77On Charge 5, conspiracy to recklessly cause injury, you are sentenced to a term of imprisonment of three years and six months.
78On Charge 6, possessing an unregistered general category handgun, you are sentenced to a term of imprisonment of 21 months.
79On Charge 7, conspiracy to reckless conduct endangering serious injury, you are sentenced to a term of imprisonment of two years and nine months.
80On Charge 8, knowingly deal with proceeds of crime, you are sentenced to a term of imprisonment of two years.
81On Charge 9, conspiracy to commit arson, you are sentenced to a term of imprisonment of two years and six months.
82Charge 10, theft of a motor vehicle, you are sentenced to a term of imprisonment of nine months. Your driver’s licence is cancelled and you are disqualified from obtaining a licence for two years.
83On Charge 11, possession of a drug of dependence, namely cannabis, cocaine, diazepam, ephedrine, MDMA, testosterone and anabolic steroids, you are sentenced to a term of imprisonment of three months.
84On Summary Charge 11, possession of cartridge ammunition, you are convicted and discharged.
85On Summary Charge 12, possession of body armour without approval, you are sentenced to a term of imprisonment of two months.
86On Summary Charge 13, being a prohibited person possessing a weapon without exemption, you are sentenced to a term of imprisonment of two months.
87On Summary Charge 15, committing an indictable offence whilst on bail, you are sentenced to a term of imprisonment of one month.
88On Summary Charge 16, contravening a conduct condition of bail, you are sentenced to a term of imprisonment of one month.
89On Summary Charge 28, driving whilst authorisation suspended, you are sentenced to a term of imprisonment of one month. Your driver’s licence is cancelled and you are disqualified from obtaining a licence for a period of 18 months.
90On Summary Charge 58, possess a Schedule 4 poison, you are convicted and discharged.
91I direct that 15 months of the sentence on Charge 2, nine months of the sentence on Charge 5, 12 months of the sentence on Charge 7 and six months of the sentence on Charge 9 run cumulative to each other and cumulative to the sentence on Charge 3.
92This makes a total effective sentence of 18 years’ imprisonment.
93I fix a non-parole period of 13 years and nine months.
94Pursuant to s.89DI of the Sentencing Act 1991, I declare you to be a serious drug offender.
95Pursuant to s.6AAA of the Sentencing Act 1991, I declare that had you not pleaded guilty, you would have been sentenced to a total effective sentence of 24 years with a non-parole period of 20 years.
96Pursuant to s.18(4) of the Sentencing Act 1991, I declare that you have served 151 days of the sentence I have imposed upon you and direct that this be entered into the records of the court.
97Ms Radovic, custody management issues, are they being managed?
98MS RADOVIC: Your Honour, my instructions remain the same as last time. I believe that he has a drug assessment booked in for the next four weeks otherwise there has been little communication with my client with respect to where he is in regards to the hernia surgery.
99HIS HONOUR: But you are satisfied that Corrections is aware of the issues?
100MS RADOVIC: Yes, Your Honour. It is the same issues that were raised during the plea, Your Honour.
101HIS HONOUR: All right. Do you know if an assessment has taken place within the Corrections setting?
102MS RADOVIC: No, Your Honour. As far as I know, a referral has been sent to St Vincent's for him to be urgently assessed otherwise there has been no other real communication. I think there may be an X‑ray booked in in the near future but I do not know exact details, Your Honour. That is as far as I can take it.
103HIS HONOUR: Pain management. Is that being addressed?
104MS RADOVIC: Yes, Your Honour. He has been given his medication.
105HIS HONOUR: All right. Mr Livitsanos.
106MR LIVITSANOS: Ancillary orders, Your Honour.
107HIS HONOUR: Are these agreed to, Ms Radovic?
108MS RADOVIC: Yes, Your Honour.
109HIS HONOUR: Yes. I will make the forfeiture order, firearm forfeiture order and disposal order. I will stand down.
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