Director of Public Prosecutions v Allami

[2020] VCC 1114

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-19-01243

DIRECTOR OF PUBLIC PROSECUTIONS

v

HASSAN ALLAMI

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JUDGE:	HIS HONOUR JUDGE GUCCIARDO
WHERE HELD:	Melbourne
DATE OF HEARING:	25 June 2020
DATE OF SENTENCE:	24 July 2020
CASE MAY BE CITED AS:	DPP v Allami
MEDIUM NEUTRAL CITATION:	[2020] VCC 1114

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms L. Dinola
For the Accused	Mr M. S. Habib

HIS HONOUR:

1Hassan Allami, you pleaded guilty to two charges of importing a marketable quantity of a border controlled drug, contrary to s.307(2)(1) of the Commonwealth Criminal Code.  The maximum penalty for this offence is 25 years imprisonment and/or 5,000 penalty units.  You also pleaded guilty to one charge of importing a border controlled drug contrary to sub-s.(307)(4)(1) of the Commonwealth Criminal Code.  The maximum penalty for this offence is two years imprisonment and/or 400 penalty units.  You pleaded guilty to these indictable offences, as well as three Summary Charges 10, 11 and 12, that is of having committed indictable offences whilst on bail.

2In around August 2018, you lived at an address in Mildura and also at your parents' address in Mildura.  During the period  7 August to 28 September 2018, you imported into Australia four consignments which variously contained MDMA, methamphetamine and cocaine, each was intercepted.  Three consignments contained MDMA which is a basis for a rolled up charge, Charge 1.  One contained methamphetamine Charge 2 and one contained cocaine Charge 3.

3The first charge encompasses two consignments, one on 7 August 2018 and one on 28 September 2018.  On 7 August, a mail article from Italy was intercepted.  It was addressed to your home and secreted in the DVD case and contained two heat sealed bags with a total of 72.2 grams of crystals.  The first bag had 57.6 grams of MDMA and forms part of Charge 1.  The second bag had 14.6 grams of methamphetamine and it is the subject of Count 2.  On
13 September, a mail article from Germany addressed to your parents' address, which contained tablets with a gross weight of 149.9 grams was intercepted.  On 28 September 2018, another mail article from Italy was intercepted.  It was addressed to your home address.  It contained a radio speaker inside of which two bags of crystals and tablets weighing a total of 94.1 grams was concealed.

4On 19 September 2018, a mail article from Slovenia was intercepted.  It was addressed to your home address under a false name.  It contained a package within which it was found in a ziplocked bag, containing white powder, cocaine.  The gross weight was 2 grams.  This consignment, the subject of Charge 3, was seized as a result of a mail stop placed on items addressed to you, which had been put in place as a result of the first interception.

5On 3 October, police arrested you and seized some items under a search warrant.  One of the items, a phone, one of two seized, revealed you had downloaded an express BBN platform capable of being used to access the Dark web.  That is a website on encrypted networks where it is possible to purchase drugs.  The phones provided proved you had set up a blocked chain email account, which could be used to transfer crypto currency such as Bitcoin on the Dark web.  Some discussions regarding the importation was found on the phone, upon an encrypted messaging applications. 

6You were interviewed, you initially denied expecting any delivery of mail or ordering drugs.  Later you admitted using an anonymous browser to access illegal items on the Dark web, the purchase using Bitcoin.  You said you did not recall buying methamphetamine.  The items seized would have been ordered ten days before.  You told police the items containing MDMA had been shipped a second time by the supplier and the first did not arrive.  You told police you had made up the name to whom three consignments were addressed, to import cocaine. 

7You indicated that drugs were imported because you had a drug debt.  You would give the drugs to someone outside Victoria to clear that debt.  The material was analysed, as to Charge 1, the substance on 7 August was 74 per cent pure MDMA being 43 grams.  The substance on 13 September was 37 per cent pure MDMA being 55 grams.  On 28 September, the combined weight of pure MDMA was 61 grams, made up of 75 per cent pure, 53 grams and 35 per cent, 8 grams.  The total MDMA weight therefore was 159 grams.  The marketable quantity of MDMA is .5 of a gram.  Therefore, the substances imported were 318 times the marketable quantity.  The commercial quantity is .5 of a kilograms, that is you had imported MDMA 14 per cent or fourteen and a half per cent of the commercial quantity.  The value of MDMA is about $250 for mixed gram. 

8The methamphetamine subject to Charge 2 was 69 per cent pure methamphetamine being 10 grams.  The marketable quantity of methamphetamine is 2 grams.  So the subject drug of Charge 2 is five times the marketable quantity and 1.3 per cent of the commercial quantity, which is .75 kilograms.  The value is about $300 per mixed gram.  The cocaine subject to Charge 3 was 71 per cent pure, being 1.4 grams.  The marketable quantity is 2 grams, so it was 70 per cent of that value and its value in money is approximately $350 per gram. 

9There are some sentencing principles in relation to this matter which must be given chief weight, when sentencing drug importers.  The primary amongst this is deterrence, both general and specific.  The factors which are relevant to this aspect are the maximum penalties which are significant, the quantity of the drugs involved and particularly the MDMA is relevant, though not determinative to the assessment of objective seriousness.  As well as the serious social consequences which would flow from the dissemination of these drugs into the community, the difficulty in detecting the crime, the use of covert websites, the use of digital currency to complete the transaction, the use of a false name.

10Other factors pertinent to you which aggravate your culpability are the fact that you were on bail at the time and on a community corrections order, at the time of your offending which suggests that some weight must be placed on personal deterrence, as does the fact that the importation was conceived and executed by you alone, for the purpose of your own financial gain.  These aspects demonstrate that you had given some thought to protecting yourself from investigative scrutiny.  These are aspects such as having used your real address, or that of your parents, which run counter to great sophistication, but nonetheless, overall, in my view, this is serious offending which must attract a significant sentence, otherwise the interests of deterrence are not met.

11As was stated in Pham v The Queen, 2016 VSCA 259, the factors personal to the offender are therefore given less weight than might otherwise be given.  However, in your case, there is some matters which I intend to take into account because they do bear on the principle of parsimony and proportionality.  Within a framework of sentencing consistency throughout Australia, which requires the court to have regard to sentencing practices across the country, pursuant to which I have received a number of cases, your personal circumstances are of some relevance.

12The authorities which I have reviewed, whilst not closely comparable to your circumstances, establish not the outer bounds of the sentencing discretion, but the range of sentences imposed which can guide as yardsticks, the court against which I have endeavoured to measure my sentence.  I accept that your plea of guilty is accompanied by remorse, as in an acceptance of responsibility on your part, which has prompted you to facilitate the course of justice.

13I take into account that that plea was not made at the earliest possible time, but at a later time.  That may have been occasioned by a dispute in relation to the underlying intention of the importation, which led to a committal and subsequent hearings, headed to a trial, until a common understanding was reached on that front.  It may have been occasioned by the advice you received from lawyers, but in any event, I must reasonably assume that your legal advisors acted on your instructions at that time, until I was told, counsel who conducted your plea was briefed and settled the matter on your behalf.  Delay therefore has occurred in this matter.  A contested plea hearing was vacated and a trial date listed and again, vacated.  As I have already stated, I am satisfied that the commercial intent is established and indeed it was accepted by the defence, that is that apart from some small amounts retained for personal use, the bulk of the drugs would have been sold or replied in kind to clear a drug debt.

14I intend to apply some ameliorating value to the delay that occurred, because particularly in the intervening period, you have made efforts to change your life and attend to a rehabilitative effort.  Your plea therefore, although in a somewhat reduced fashion, will attract a reduction of sentence.  You have a prior criminal history.  The relevance of that is not to punish you again for those offences, but because it forms part of your recent background and is part of the material as to your personal circumstances which leads to an assessment of your prospects of rehabilitation.  The history is also relevant because it highlights that this will be your first time in reclusion and that you committed the current offences whilst the subject of court orders and sanctions, including bail orders.

15Your priors begin in 2015 with some driving matters in the Children's Court.  Then they are followed in February, March and April of 2018, again with driving infringements and offences in the ACT and in New South Wales.  In August of 2018 in the Magistrates' Court, you were fined $2,000 and placed on a community corrections order for reckless affray, assault, a bail offence and recklessly cause injury, intentional cause injury and assault in company.  Within ten days or so of being convicted of that offence, you again committed violent offences of recklessly cause injury and assault.  That offending is indeed the previous mention dealt with in August 2018 are symptomatic of your lifestyle and state of mind in that period leading up to these drug offences which are therefore in breach of bail and the community corrections order.

16By this time, aged 21, you had descended into significant bad behaviour, probably fuelled by your drug use.  The reckless to cause injury was, I was informed, committed in the company of others whom you joined in a fight and caused grazes, bruising and swelling by way of injury.  Before those matters were dealt with on 1 August 2019, you had completed the work requirement and other components of the Corrections order, however.  That probably explains the subsequent community corrections order which was imposed on that date, 1 August 2019, which required you to perform 175 hours community work.

17As I understand it, you have completed most of those hours, with some 16 hours outstanding, only hampered from finishing by the outbreak of the COVID-19 pandemic.  Since the time of these drug offences, you have not committed any offences and there is nothing pending.  After about a month on remand, you were bailed and have so remained, until today, without further breaches by offending.

18While you were on bail, you were part of the Court Integrated Services Program, CISP, and a report dated 2 April 2019 was tendered to the court, having been assessed as suitable for case management in October 2018.  You completed an assessment for drug treatment in November and completed your counselling by 19 December, arranged via your community corrections order.  You attended to a GP for a referral to a psychiatrist on 13 December and the doctor advised you, you did not require further psychiatric review and recommended a neuropsychological assessment.  You told the CISP case manager that you felt confident in your ability to access mental health support independently.  You participated in a neuropsychological screening assessment on 16 January 2020.  A report from Ms Luzaich from Arbias was sighted by the court.  You reported anger management issues to the CISP team and DHHS who had involvement with your family situation and directed you to engage with a Men's Behaviour Change Program.  You attended two assessment appointments in late November and commenced and attended some fourteen sessions.  You attended all scheduled case management appointments since you were placed on the CISP in late October, during the time on bail and later after on CISP.  That program was removed in early April and you worked on the family farm growing table grapes. 

19You have been more recently employed with Sunbeam Foods as a casual employee from early July 2019, as a casual factory worker.  A letter from the production manager dated 16 June 2020 speaks highly of your work ethic.  Daniel Storer, a counsellor at the Sunraysia Community Health Service wrote a letter in April 2019 to confirm your drug and alcohol treatment over six sessions, between early November and December 2018.

20As at that time, and throughout the remaining period, you remained abstinent from alcohol and other drug use.  These efforts are significant steps towards rehabilitation and they present the court with a clear indication that your prospects for rehabilitation are good.  The clinical neuropsychological assessment and intervention services report from Ms Amy Gloziniac dated 26 March 2019, outlined your history and background.

21It concluded you have borderline to low average premorbid intellectual functioning, though not consistent with an intellectual disability.  Reasoning skills were below those expected at your age.  Meaning that you tend towards concrete thinking, with limited functional skill development.  You took up her recommendation for drug and alcohol counselling and psychiatric and anger management, all to your credit.  You were 21 at the time of the offending conduct and you are 23 years old now.  You were born in Iran and came to Australia with your mother in 2001, when you were four years old.  After a year and a half on Christmas Island, you settled with your parents in Mildura.  You have resided with your parents for the majority of your life, however, both your parents have experienced some mental health issues and you have siblings with disabilities. 

22You left school at Year 8 and began working on the farm with your father until aged about 18.  You first used cannabis at age 14 and went into amphetamine and MDMA use when 16.  The use of these drugs escalated until your remand in 2018, when you used them daily before your arrest, as well as cocaine.  When you left school, you were medicated with Roaccutane for some eight months, to treat severe acne.  That medicine is a resinoid Vitamin A, medicine of last resort which can have very serious and bad side effects such as severe depressive symptoms, including suicidal ideation which occurred in your case.  The medication was ceased, but left you in a quite socially isolated situation. 

23However, by age 18 or 19, you were secretly seeing your current partner Alison.  Your family did not know of her and of your drug use.  You were spending more time with her away from the family home.  Unable to cope with this combination of factors, you left Mildura, went to Melbourne where you slept in your car for a while, then to Canberra for some months.  You had returned to Mildura to see Alison from time to time, but not your parents.  Your drug use escalated.  You found out Alison was pregnant with your child.  She already had a young child having been widowed.  She is also 23 years old.  At the time of your offending for these matters, your partner was pregnant, but you were still using drugs daily and Alison was unaware of your drug dependency.  During the time of bail, you have worked and had to live with your parents, rather than with Alison and the children.  You have, however, contributed to her rental expenses. 

24In a report from Jeffrey Cummins, an experienced forensic psychologist, a reference is included to your oldest brother who attempted to have you admitted to a psychiatric hospital in Ballarat, two to three months prior to your arrest and referred both to the six hour drug counselling sessions and 20 week Men's Behaviour Change Program, which you subsequently underwent.

25Mr Cummins reports that you have undertaken two supervised tests for Corrections and four supervised urine tests for DHHS, all clear of all illicit drugs.  He attests to your remorse and taking full responsibility for your offending and your changed behaviour post your release from remand.  You do not have a personality disorder, borderline or antisocial or otherwise and he opined you are of low average intelligence, without an acquired brain injury or intellectual disability.  He wrote that you regarded your rehabilitation as significantly advanced.  He stated that this, in his opinion, appears to be an accurate judgment.

26Importantly, he warns that time in custody would cause you to have to be in an environment where others are not committed to their own rehabilitation and this may jeopardise your own.  I have taken that into account.  There can be little doubt that if incarceration was to unravel your path of rehabilitation, this would be to the detriment not just yourself, but your family and to the community and the court should hesitate to impose a crushing custodial sentence which would frustrate and deprive you of the opportunity to fully rehabilitate yourself, particularly where you have demonstrated that your own path to successful rehabilitation has begun.

27However, the court must balance considerations in difficult cases like these and the gravity of your offending in this case, still outweighs your personal circumstances.  The relationship you have with Alison, the birth of your son, the relationship with her other son, the better relationship which you have with your family are all incentives for you to reform.  However, it is also true that most of these factors were in existence at the time of your offending.  You allowed drug use and associations formed for that addiction to effect all these good aspects in your life.  You were of course a young offender and immature, to some extent.  I take this significant aspect into account.  Placing rehabilitative prospects as an important aspect in the sentence, which is a high and worthy policy in criminal sentencing, which benefits not only the offender, but also the community.

28I also take into account the particular hardship upon a prisoner at this time, due to the current pandemic.  The situation regarding imprisonment during this epidemic means that the experience of reclusion is harder than normal, with quarantine and lockdown requirements, long periods without contact or movement, no visits or little visits or programs, an impact on anxiety and depression which are likely.  Imprisonment inevitably places persons in the presence of offenders with a criminal history and background, but the period which I consider appropriate in this case is in my view in fact a merciful and lenient disposition.  Certainly it is so when compared to the current sentencing practices which I have gleaned throughout the country, for these type of offences.

29On Charge 1, you are convicted and sentenced to three years imprisonment.  On Charge 2, you are convicted and sentenced to 18 months imprisonment.  On Charge 3, you are convicted and sentenced to nine months imprisonment.  I order that seven months on Counts 2 and three months on Count 3 is served cumulative on Count 1.  On the three summary charges, you are convicted and sentenced to one month on each, concurrent with the base sentence, Charge 1.  That is a total effective sentence of three years and ten months. 

30I order that you be eligible for parole after 22 months.  I have set a longer than usual parole period to reflect the matters to which I have referred.  But for your plea, I would have sentenced you to five years imprisonment, with three and a half years non-parole period.  I declare that you have served 27 days pre-sentence detention.  I will have that noted in the records of the court.  Ms Dinola are there any other ancillary orders that I need to make?  You cannot hear me?  No?

31MS DINOLA:  No, Your Honour.

32HIS HONOUR:  Yes thank you.

33MR HABIB:  Your Honour, I didn't quite catch the cumulative amount on Charge 3.

34HIS HONOUR:  The cumulative amount on Charge 3 is three months.

35MR HABIB:  As the court pleases.

36HIS HONOUR:  Now I understand there should be one - someone in the court there where your client is Mr Habib, to take him into custody.  I am not sure if there is anyone there currently.  There certainly should be.

37MR HABIB:  I understand that there is a court clerk in the courtroom with my instructor and my client.  I'm not sure whether there's a Corrections worker at this moment.

38HIS HONOUR:  Well if there is either - there should be a police officer there, perhaps the clerk, if they can hear me, can summon a police officer in order to take Mr Allami into custody.  I will wait.  I do not know if they have heard me, but - all right, Mr Habib your instructor can speak to Mr Allami probably there where he is, if he needs to have some clarification or instructions about any of that, then he can certainly have access to him I would have thought.

39MR HABIB:  Yes, Your Honour.

40HIS HONOUR:  Thank you.  Sine die.

41MR HABIB:  Thank you, Your Honour.

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