Director of Public Prosecutions v Arici
[2018] VCC 1744
•25 October 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE | Revised Not Restricted Suitable for Publication |
GENERAL LIST
CR 17-00512
Indictment No: C160922.1
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| AKIN ARICI |
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JUDGE: | HER HONOUR JUDGE CONDON | |
WHERE HELD: | Melbourne | |
DATE OF PLEA HEARING: | 5 July 2018 and 21 September 2018 | |
DATE OF SENTENCE: | 25 October 2018 | |
CASE MAY BE CITED AS: | Director of Public Prosecutions v Arici | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 1744 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – plea of guilty – trafficking in a commercial quantity of 1-4
butanediol
Sentence: Total effective sentence of 6 years’ imprisonment with a non-parole
period of 4 years
6AAA declaration: 8 years’ imprisonment with a non-parole period of 6
years
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr J Goetz | Solicitor for the Office of Public Prosecutions |
| For the Accused | Mr R Melasecca | Melasecca, Kelly & Zayler |
HER HONOUR:
1 Akin Arici, you have pleaded guilty before me to two charges of trafficking in a commercial quantity of a drug of dependence, three charges of possession of a drug of dependence, one charge of prohibited person possess a firearm and one charge of negligently dealing with the proceeds of crime.
2 Exhibit A on the plea in mitigation was the Crown plea opening. I incorporate that document into my Reasons for Sentence. However, I will briefly summarise the offending that gives rise to these charges.
3 On 19 April 2016, Drug Task Force detectives executed search warrants in the north-western suburbs of Melbourne. They attended at an address in Fawkner, where you were residing with your fiancée, Victoria Araceli Fletcher. Upon the execution of a search warrant at these premises, investigators located a loaded firearm (a Fabrique National semi-automatic handgun), 74.5 kilograms of 1,4-butanediol, 442.7 grams of methylamphetamine, 849 ecstasy tablets, 13 grams of amphetamine, 11.1 grams of cocaine, 265 grams of cannabis and cash totalling $19,950.
4 On the same day you were taken to Melbourne West Police Station for an interview. You initially exercised your right to silence as to whether or not the cash found was indeed your money and later claimed, in fact, that it was not yours. You asserted that you had come into possession of most of the items on the preceding day, being the 1,4-butanediol and ice (methampetamine) and that you had obtained the firearm a week earlier. You also said that you had received the ecstasy tablets about three weeks prior to the execution of the search warrant. You claimed that the 1,4-butanediol, ecstasy and firearm had been dropped off by various third parties, but declined to identify them.
5 The items were analysed at the Forensic Services Department on 30 May 2016, with the following results:
·a commercial quantity of 1,4-butanediol (74.5 kg in total)
·a commercial quantity of methylamphetamine (442.7 grams testing out for purity to 352 grams)
·MDMA (ecstasy) in a traffickable quantity of 311.9 grams of four per cent purity
·three separate MDMA tablets, totalling 0.8 grams
·11.1 grams of cocaine of untested purity
·cannabis in three lots, totalling 265.8 grams
6 Given a commercial quantity of 1,4-butanediol is 2 kg, the amount seized here was well in excess of the threshold.
7 You were not licensed to possess a firearm at the date of the execution of the warrant, and the handgun found was unregistered and without identifying marks.
8 Additional bags, electronic scales and ammunition consistent with drug-dealing activity were also seized during a search of the kitchen. A number of telephones were found in the second bedroom during the search, together with assorted documents and receipts.
9 In relation to charge 1 on the Plea Indictment, being a charge of trafficking in 1,4-butanediol, you are co-accused with Constandinos Raptis (“Raptis”). In the course of the plea on mitigation, the question of parity arose as to the respective roles played by the two of you in respect of this offending. The Crown’s position in relation to charge 1 was that your involvement can be categorised as being as one of a "sitter".
10 The Crown was willing to make this concession for the following reasons:
(i)the existence of CCTV footage of your co-accused, Raptis, dropping off the product in three large containers at your home on 18 April 2016, the day before the execution of the search warrant;
(ii)as a consequence, the 1,4-butanediol was in your possession for approximately 24 hours prior to Victoria Police executing the search warrant and seizing it;
(iii)there is no evidence as to when the product came into the possession of Raptis; and
(iv)there is no evidence to assist in determining who was the primary organiser and/or distributor of the 1,4-butanediol.
11 Therefore, the prosecution’s position is that insofar as charge 1 is concerned, there should be a measure of parity between you and your co-accused, Raptis. However, insofar as charges 2 and 3 are concerned (charges faced by you alone), the Crown position is that I should sentence you on the basis that you were actively involved in trafficking methamphetamine and prepared to traffick MDMA in the quantities located. I accept the Crown’s submission insofar as these matters are concerned.
12 A formal plea offer was made on your behalf shortly after the committal hearing which was held in March 2017. Some delay ensued regarding the correct charge surrounding the activity that is now constituted by charge 3. In the circumstances, I find it is a plea of guilty at the earliest available opportunity and one consistent with a desire to facilitate the administration of justice.
13 Your counsel submitted that the motive for your offending related to a desire to support your financially destitute and psychologically impaired mother. In my view, given the number of charges and the accoutrements of trafficking found at your premises on the date of the execution of the search warrant, there is sufficient evidence from which I can infer that your involvement in this offending was for financial profit. Whether that be to enrich your own circumstances or to partially assist your mother financially, neither reduces your moral culpability in any way for this serious offending.
14 Indeed, the somewhat unrealistic submission from your defence counsel was that, despite the seriousness of the offending, you were an appropriate candidate for a community-based disposition. For the reasons expressed in the course of the plea in mitigation with your counsel, I remain of the view that this offending is much too grave and warrants condign punishment, which can only be satisfied by the imposition of a gaol term.
15 You are now 28 years of age. At the time of these offences you were 25. Before me, you admitted your prior criminal history. While not lengthy, there are some relevant matters. In particular, on 11 March 2011 you were convicted at the Broadmeadows Magistrates’ Court for a number of offences, one of which included possession of an unregistered handgun. Further, in November 2009 at the same court, you were released on a bond for possession and use of amphetamine.
16 You were arrested in relation to these matters on 19 April 2016 and bailed not long afterwards, on 29 April 2016. The submission was made on your behalf that in the intervening period you had commenced the path of self-realisation and rehabilitation. In that vein, I heard evidence from Ms Amanda Brown, drug and alcohol counsellor at Lamberti Associates. She initially met with you in April 2016 when you were being held at the Melbourne Assessment Prison, and you were bailed to her supervision. Throughout 2017, you attended upon her.
17 Ms Brown supervised your drug screens. These were exhibit 1 on the plea, which were from the period 11 May 2016 to 23 June 2018. The urine screens show that you have been free of drug use, with the exception of benzodiazepine, as you have been prescribed that medication to address your anxiety. From her evidence, it was clear that in the lead-up to this offending, being 18 and 19 April, your main drug of choice was cannabis.
18 I also heard from Luke Armstrong, registered psychologist, on the plea in mitigation. While not entirely clear, I take the import of his evidence to be that you were not medicated at the time of this offending. The medication that you are currently receiving to assist in the reduction of your anxiety relates to your predicament subsequent to being charged. You also expressed your remorse to Mr Armstrong, describing yourself as a "bum". You told him "I got involved with a dealer and someone paid me to sit on drugs. I'll never do that again".
19 In Mr Armstrong's opinion, you suffer from substance use disorder in relation to cannabis; although he noted that it was in remission, as you have remained abstinent from drugs for the last 20 months. Further, he has assessed you as having a dependant personality disorder and borderline to mild intellectual disability. I note however with regard to the latter assessment I had no evidence of your IQ, as according to Mr Armstrong, your overall cognitive ability eluded being summarized. This is due to the fact that your non-verbal reasoning abilities are better developed than your verbal reasoning abilities.
20 In any event, your counsel did not seek to press any Verdins submission on your behalf. I have however taken into account the general background matters raised by Mr Armstrong in his evidence and from his report, exhibit 3.
21
I also heard evidence from Ms Victoria Araceli Fletcher. She is your partner of ten years. You have one child together, who is two years of age.
Ms Fletcher is pregnant with your second child, who is due in November. She indicated in her evidence that since being charged with these offences you have expressed your remorse regarding your involvement. She also gave evidence to the effect that she was unaware as to your drug use, in particular, that you were a heavy cannabis user at the time of the offences. She also indicated to me that as far as she was concerned, at the relevant time, she was under the impression that you were working regularly.
22 However, it does appear that as at April 2016, you were not living together continuously as she indicated in her evidence that she was living at her mother’s house intermittently. Her evidence was that at the time of these offences you were not yourself. She said that because you would get angry at the smallest things. She also said that in her view, you were feeling extreme pressure and part of that pressure related to financial problems. Not surprisingly, you have expressed to her your fear of going to gaol.
23 Finally, I heard evidence from your uncle, Mr Alattin Arici. Mr Arici owns a flooring company called Vinyl Floor Solutions. Upon your release on bail, you worked with him for a couple of months and were then employed by another company called Project Flooring as a subcontractor. His evidence was that after two or three months with him you moved to Project Flooring because you needed to earn more money to support your pregnant partner and mother.
24 The evidence of each of these witnesses put forth on the plea was in aid of the submission as to your favourable prospects for rehabilitation. Your counsel submitted that in light of all the evidence before me, in particular, the profound efforts made by you upon your release on bail, that your prospects of rehabilitation were excellent. I accept, on the basis of the evidence I heard from these witnesses, and the character references tendered on your behalf, that your prospects of rehabilitation remain favourable. I take that into consideration when assessing the weight to be attached to the sentencing principle of specific deterrence in your case.
25 I turn, now, to your personal circumstances. You are the younger of two children. You attended a local primary school until Grade 2, before moving to Coburg North Primary School. Growing up, you spent a lot of time with your grandfather, as both of your parents worked full-time. Your father owned a taxi licence and your mother worked in a fabric mill. You attended Box Forest Secondary School, and completed Year 9 before leaving. You lost interest in academic pursuits at around 14 years of age. After leaving school around that time, you began to work with your brother in the flooring industry.
26 When you were around 20 years of age, your father left your mother. This had a profound impact upon the family constellation. Your mother suffered deep depression and her mental health deteriorated. The relevance of this related to the submission made by your counsel on your behalf, being that because your mother was unable to support herself financially, the obligation fell to you to assist. Post the separation from your father, you moved the family to Craigieburn, and rented a house in your name until you were about 23. You then moved your mother to Fawkner to be closer to extended family.
27 You met Victoria Fletcher at around 17 or 18 years of age. She began working as a bank teller from the age of seventeen and she is very supportive of you, as was evidenced by the fact she gave live evidence before me on the plea. In my view, the relationship certainly appears to be a stable and loving one.
28 It is clear from the evidence on the plea, and the fact that there were so many supporters present in court on each occasion, that you will have the benefit of a supportive and stable network available to you upon your eventual release from gaol.
29 In support of the factors in mitigation on your behalf, your counsel relied on the following factors:
·your early plea of guilty and expressions of remorse
·your concerted efforts towards rehabilitation while on bail
·your work history
·the favourable character references and evidence presented on your behalf
·the strong stable network which you will have available to you upon release.
30 I take into account all of these matters when imposing sentence upon you.
31 I note that in relation to charge 2 on the Indictment, trafficking in a commercial quantity of methylamphetamine, you are to be sentenced as a serious drug offender pursuant to s 6B of the Sentencing Act 1991 (Vic). Accordingly, I am bound to regard protection of the community from you as the principal purpose for which sentence is imposed. I may, in order to achieve that purpose, impose a longer sentence than that which is proportionate to the gravity of the instant offence, considered in light of their objective circumstances. Any sentence imposed on these charges must be served cumulatively unless otherwise ordered.
32 I have determined that it is not necessary, nor appropriate, to achieve the protection of the community to impose a sentence longer than that which is proportionate to the gravity of each relevant offence, considered in light of its objective circumstances. I note, in this regard, the prosecution did not seek to make submissions before me.
33 Here, I propose to make orders for partial cumulation. Bearing in mind the application of the totality principle, I am mindful, in your case, of the genuine attempts that you have made to redeem yourself whilst on bail.
34 The basic purposes for which a court may impose a sentence are punishment, general deterrence, specific deterrence, denunciation and protection of the community. In sentencing you, I must have regard to a range of matters, such as the seriousness of the offending, your culpability for it, and your personal circumstances.
35 Please stand, Mr Arici.
36 In relation to charge 1, being a charge of trafficking in a commercial quantity of 1,4-butanediol, I sentence you to a period of imprisonment of four (4) years.
37 In relation to charge 2, being a charge of trafficking in a commercial quantity of methamphetamine, I sentence you to a period of imprisonment of four (4) years.
38 In relation to charge 3, being a charge of possession of a drug of dependence, being MDMA, I sentence you to a period of imprisonment of twelve (12) months.
39 In relation to charge 4, being a charge of possession of a drug of dependence, being cocaine, I sentence you to a period of imprisonment of three (3) months.
40 In relation to charge 5, being a charge of possession of a drug of dependence, being cannabis L, I sentence you to a period of imprisonment of three (3) months.
41 In relation to charge 6, being a charge of prohibited person possess a firearm, I sentence you to a period of imprisonment of eighteen (18) months.
42 In relation to charge 7, being a charge of negligently dealing with proceeds of crime, I sentence you to a period of imprisonment of six (6) months.
43 Pursuant to s 6B(2)(a), I sentence you as a serious drug offender in relation to charge 2. Accordingly, I order that two (2) years of the sentence on charge 2 be served cumulatively upon the sentence upon charge 1. I order that all other sentences be served concurrently upon one another and upon the sentence imposed upon charge 1.
44 That makes for a total effective sentence of six (6) years’ imprisonment.
45 I order that a period of four (4) years be served before you become eligible for parole.
46 I take into account ss 6D and 6E of the Sentencing Act, and order that your status as a serious drug offender be entered into the records of the court.
47 Pursuant to s 18(4) of the Sentencing Act, I declare that you have served a period of 123 days (not including today) pre-sentence detention and I order that such declaration be noted in the records of the court.
48 Pursuant to s 6AAA of the Sentencing Act, were it not for your plea of guilty, I would have sentenced you to a period of imprisonment of eight (8) years, with a non-parole period of six (6) years.
49 An application for a forensic sample has been made and I grant that application. I make the disposal/forfeiture orders in the terms sought by the prosecution. You may be seated, Mr Arici. Yes, are there any other orders, Mr Goetz?
50 MR GOETZ: Just pardon me, Your Honour.
51 HER HONOUR: Yes.
52 MR GOETZ: No, there are not, Your Honour.
53 MS CARUSO: Your Honour - - -
54 HER HONOUR: Yes, the sentence appeal in relation to Mr Raptis.
55 MS CARUSO: Your Honour, I seek leave to abandon the appeal.
56 HER HONOUR: Yes. Well, leave is granted. Thank you. No other orders from the prosecution?
57 MR GOETZ: No, Your Honour.
58 HER HONOUR: Yes. We will adjourn now till 2.15. Thank you.
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