Director of Public Prosecutions v Aydin
[2023] VCC 1685
•20 September 2023
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
GENERAL LIST
Case No. CR-16-00712
Indictment No. E14172595
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ALI AYDIN |
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JUDGE: | HER HONOUR JUDGE MORRISH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 20 February, 24 and 29 August 2023 | |
DATE OF SENTENCE: | 20 September 2023 | |
CASE MAY BE CITED AS: | Director of Public Prosecutions v Aydin | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1685 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW - SENTENCE
Catchwords: Trafficking in a large commercial quantity of a drug of dependence (two charges) – Trafficking in a drug of dependence (two charges) – Heroin – Late plea of guilty – Mid-level role in sophisticated criminal enterprise – Motivated by financial gain –Verdins – History of trauma – Delusional Disorder and other diagnoses – Parity – Serious drug offender – Automatic forfeiture of family home – General deterrence – Denunciation – Protection of the community – Significant delay – Family support – COVID 19
Legislation Cited: Drugs, Poisons and Controlled Substances Act 1981 (Vic), s71, s71AC; Evidence Act 2008 (Vic) s128, s138, s189; Criminal Procedure Act 2009 (Vic) s241; Crimes Act 1914 (Cth) part IAB; Confiscation Act 1997 (Vic); Sentencing Act 1991 (Vic) s5, s6AAA, s6D, s6E, s6F, s18, part 2A.
Cases Cited:Director of Public Prosecutions v Aydin (Ruling) [2022] VCC 1958; R v Clune [1989] VR 567; Dawid v Director of Public Prosecutions [2013] VSCA 64; R v Pidoto and O’Dea (2006) 14 VR 269; Gregory (a pseudonym) v The Queen (2017) 268 A Crim R 1; Fernando v The Queen (2017) 268 A Crim R 26; R v Mangelsdorf, Perry & Richards (1995) 83 A Crim R 272; Director of Pubic Prosecutions v Aydin and Kirsch [2005] VSCA 86; The Queen v Aydin and Flett [2005] VSCA 87; R v Madex [2020] VSC 145; Brown v The Queen [2020] VSCA 60; Wyka and Gardiner v The Queen [2020] VSCA 104; R v Verdins; R v Buckley; R v Vo (2007) 16 VR 269; Director of Public Prosecutions v Osman [2020] VCC 638; Osman v The Queen [2021] VSCA 176; Harris (a pseudonym) v The Queen [2021] VSCA 197; Director of Public Prosecutions v Harris (a pseudonym) [2021] VCC 2145; DPP v Margus [2020] VCC 342; Director of Public Prosecutions v Wahab [2018] VCC 1892; R v O’Rourke [1997] 1 VR 246; Director of Public Prosecutions v Grabovac [1998] 1 VR 664; Director of Public Prosecutions v Josefski (2005) 13 VR 85.
Sentence: Convicted and sentenced to a total effective sentence of 12 years’ imprisonment with a non-parole period of eight years and nine months.
Section 6AAA declaration: Convicted and sentenced to 15 years’ imprisonment with a non-parole period of 11 years.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms S Pillai Mr S Lee | Solicitor for the Office of Public Prosecutions |
| For the Accused | Mr L Howsen, then Ms A Cannon | SLKQ Lawyers |
Table of Contents
Circumstances of offending
Charge one
Charge two
Charge three
Charge four
Arrest and Interview
Gravity of offending
Plea in mitigation
Personal history
Reason for offending
Procedural history
Guilty plea
Relevance of COVID-19 over and above social utility
Verdins factors and mental health issues
References
Certificates and achievements
Drug screening
Prospects of rehabilitation
Relevance of forfeiture
Principles of parity
Sentence to be Imposed
Cumulation
Minimum Non-Parole Period
Serious Drug Offender Declaration
Pre-sentence Declaration
Statement under s6AAA Sentencing Act
Ancillary Orders
ANNEXURE A
HER HONOUR:
1ALI AYDIN, you are before me to be sentenced in respect of four charges contained in Indictment No. E14172595 - two charges of trafficking in a drug of dependence, namely heroin, contrary to s71AC of the Drugs, Poisons and Controlled Substances Act 1981 (the Act), Charges 1 and 2, and two charges of trafficking in a large commercial quantity of heroin contrary to s71(1) of the Act, Charges 3 and 4.
2The maximum applicable penalties are:
(a) trafficking in a drug of dependence – Level 4 imprisonment – 15 years' imprisonment; and
(b) trafficking in a large commercial quantity of heroin – Level 1 imprisonment – imprisonment for life.
3The case has a convoluted history and it will be necessary to refer to some of it. The matter was listed for trial before judge and jury. You were arraigned in the presence of the jury on 19 October 2022 and pleaded not guilty to all charges. Pre-trial arguments then ensued in which you applied to have the prosecution evidence excluded under s138 of the Evidence Act 2008 on the grounds that such evidence was illegally or unfairly obtained.
4On 2 November 2022 I dismissed your application.[1] While I was in the process of delivering my reasons for ruling, the prosecution accepted your offer to plead guilty to the charges. Accordingly, you were re-arraigned in the presence of the jury and pleaded guilty to all charges. In accordance with s241 of the Criminal Procedure Act 2009 I discharged the jury from delivering a verdict on the charges and instead directed that an entry of guilty be made on the record in respect of those charges.
[1]Director of Public Prosecutions v Aydin (Ruling) [2022] VCC 1958
Circumstances of offending
5The Crown case is set out in the Prosecution Opening dated 10 May 2022, tendered as Exhibit A. A copy of the Prosecution Opening will be attached as Annexure 'A' to these reasons for sentence.
6In short, you, together with four others, were part of a syndicate to traffic in heroin. The other four participants, Mohammad Osman, Rami Margus, Baset Wahab and Anthony Harris (a pseudonym),[2] have all eventually pleaded guilty. Prior to that, all five of you applied unsuccessfully to have the evidence against you excluded on the grounds that the evidence was illegally obtained.
[2]The correct name of Anthony Harris was used by the Prosecution in documents tendered before me. I have amended references to that person’s real name and adopted the pseudonym used by the Court of Appeal.
7The investigation commenced after police received information from an overseas law enforcement agency. In the course of the investigations, police obtained a Major Controlled Operational Authority ('the Authority') under Part IAB of the Crimes Act 1914 (Cth).
8The Authority authorised identified persons, including a person referred to as 'male Tony', to engage in certain criminal conduct in furtherance of the investigation. There were four transactions involving the purchase of heroin under cover of the Authority.
9In the course of the investigation, police also obtained a number of warrants authorising them to intercept various telecommunications. There is no suggestion that the warrants are invalid or that the product of the warrants was obtained unlawfully.
10On 27 October 2014, an associate of yours named David contacted you. You agreed to meet David for coffee the next day, 28 October 2014. After this meeting, David introduced you to Tony, an apparent prospective purchaser of heroin.
11After your meeting with Tony you contacted Mr Osman about the proposed purchase. You both used coded language in the recorded calls and intercepted messages passing between you. As is apparent from those recordings, you and Osman had already established these codes before David first contacted you, as is evident from a series of SMS exchanges passing between you as early as 14 September 2014.[3]
[3]Exhibit E, paragraph 34; Exhibit A, pages 3598-3619
12The first transaction on 30 October 2014 involved the sale of heroin in the amount of just short of 500 grams. That is the subject of Charge one. Following the first drug sale, there were three further transactions. The second was on 19 November 2014 and involved the sale of heroin in the amount of just short of 500 grams. That is the subject of Charge two. The third transaction occurred on 9 December 2014 and involved the sale of heroin of just over one kilogram. That is the subject of Charge 3. The fourth and final transaction occurred on 15 December 2014 and also involved the sale of heroin of just over one kilogram. That is the subject of Charge 4.
Charge 1
13Charge 1 refers to the first transaction on 30 October 2014 involving the sale of 499.5 grams of heroin for $110,000.
14The circumstances of this offence are set out in the Prosecution Opening at paragraphs 47 to 66. In summary, on Thursday, 30 October 2014, you met with Tony at a café in Ascot Vale. During this meeting, Tony placed an order for heroin. You contacted Mr Osman to discuss the proposed purchase using coded language. At 6.18 pm that evening, you attended Al Diwan restaurant in Campbellfield, where you met with Mr Margus. Following a brief conversation with you, Mr Margus walked away with a grey, plastic shopping bag, which he placed into the driver's seat of his vehicle. Tony arrived shortly thereafter. He placed a bag containing $110,000 cash into your vehicle, and then Mr Margus drove that vehicle to an address in Glenroy. When Mr Margus returned to the restaurant, approximately one hour later, he removed a grey plastic bag from the front passenger side of his vehicle and placed it in the front passenger seat of a vehicle belonging to a covert operative. This bag contained 499.5 grams of heroin. You were in contact with Mr Osman throughout this transaction.
Charge 2
15The second transaction, Charge 2 on the indictment, occurred on 19 November 2014. It involved the sale of 498.5 grams of heroin for $110,000.
16Prior to the second transaction, on 12 November 2014, David told you that Tony was having trouble getting in touch with you. You then arranged to meet David. You, David and Tony met up on 12 November 2014. Seven days later, the second transaction occurred.
17The circumstances surrounding Charge 2 are set out in the Prosecution Opening at paragraphs 67 to 76. In summary, on 6 November 2014, Tony contacted you via text message to make a purchase request for half a kilogram of heroin. Whilst you expressed your doubts about Tony to Mr Osman, you eventually indicated that you were willing to sell heroin to Tony again in the future. You remained in contact with Tony, and on 19 November 2014 you met with him at Ascot Vale. Shortly thereafter you met with Mr Osman in Epping. You then drove to a car park in Thomastown, where you met with Tony again. You were joined by a covert operative who dropped off a bag containing $110,000 cash. The covert operative then drove to Al Diwan restaurant. Meanwhile, Mr Margus and Mr Anthony Harris (a pseudonym) obtained a bag of heroin from Mr Wahab's business premises, before attending the vicinity of Al Diwan restaurant and depositing a bag containing 498.5 grams of heroin into the convert operative's vehicle. Later that evening, you met with Mr Osman and handed him the $110,000 in cash.
Charge 3
18The third transaction occurred on 9 December 2014 and involved the sale of 1000.4 grams of heroin for $220,000. The circumstances leading up to and including this transaction are set out in paragraphs 88 to 112 of the Prosecution Opening. In summary, on 3 December 2014, you met with Tony and Covert Operative Villi. During this meeting, you discussed various details of your operation and agreed to meet up with Covert Operative Villi the following week, after Tony told you that he would not be available. On 9 December 2014, you arranged to meet up with Covert Operative Villi via a series of coded text messages. At 4.05 pm you met with Mr Osman in the carpark at Epping Plaza for approximately 30 minutes, before parting ways. At 6.00 pm Mr Osman instructed Mr Wahab to bring him 1 kilogram of heroin. At approximately 6.29 pm you met with Covert Operative Villi at a carpark in Thomastown. He placed a bag containing $220,000 into the centre console of your vehicle. Shortly thereafter you drove to Central Avenue in Thomastown, where you met with Mr Osman. Mr Osman handed you a red Nike shoebox, containing 1000.4 grams of heroin. You retuned to your previous location and handed the shoebox to Covert Operative Daz, who was waiting for you in his vehicle. You then met with Mr Osman at another location in Thomastown, where you handed him the bag containing $220,000 in cash.
Charge 4
19The fourth transaction occurred on 15 December 2014 and involved the sale of 1001.6 grams of heroin for $220,000. The circumstances of this offence are set out in paragraphs 113 to 142 of the Prosecution Opening. In summary, on 15 December 2014, you made plans to meet up with Covert Operative Villi. You then made contact with Mr Osman to arrange the details of the upcoming transaction, who in turn, made arrangements with Mr Harris (a pseudonym). At approximately 6.36 pm you attended the Al Diwan restaurant. You were then met by Mr Osman, and shortly thereafter by Mr Harris (a pseudonym) and Mr Al‑Hamza. Mr Al-Hamza went outside and retrieved a black plastic garbage bag from Mr Harris' (a pseudonym) vehicle and deposited it into your vehicle. This bag contained 1001.6 grams of heroin. A short time later, you exited the restaurant, entered your vehicle and drove away. At approximately 8.03 pm, you met with Covert Operative Villi and Covert Operative Daz at the carpark on Highlands Road in Thomastown. You exchanged the heroin for a bag containing $220,000 in cash. You then returned to the vicinity of the Al Diwan restaurant to meet with Mr Osman and handed him the bag containing $220,000 cash. Mr Osman later provided this to Mr Harris (a pseudonym).
Arrest and Interview
20On 17 December 2014 members of Victoria Police, Australian Federal Police, Australian Customs and Border Protection and the Australian Crime Commission executed search warrants at the respective residential addresses, business addresses and vehicles of you and the other members of the drug syndicate.
21You were arrested at your home in 8 Sienna Court, Roxburgh Park. Your home and vehicle (Ford Mondeo registration XLW-896) were searched. The following items were seized during the search:
· $17,600 in cash found in the glovebox of the Ford Mondeo; and
· 11 Nokia mobile phones.
22In relation to the money found in the glove box of your car, the $17,600 consisted of 176 x $100 banknotes, which were identified by their unique serial numbers as notes provided to the Covert Operatives for the purchase of the heroin on 15December 2014.
23Three of the mobile phones located in your home were identified by forensic digitation examination as being used by you during the offending. You had provided Covert Operative Daz with one of the mobile numbers '0469 272 951' as your contact number.
24Following your arrest, you were taken to Australian Federal Police Headquarters where you were interviewed. You declined to answer questions although you consented to give your fingerprints.
25You were remanded on 17 December 2014 and have remained in custody ever since.
Gravity of offending
26Drug trafficking is undoubtedly a very serious offence. Its gravity is inherent in the maximum applicable penalties. In your case, on Charges 3 and 4 the maximum applicable penalty is life imprisonment.
27Time and time again Appellate Courts have stressed the harmful and evil nature of this category of offence. The authorities referred to by the Prosecution make this clear.[4]
[4]R v Clune [1989] VR 567; Dawid v Director of Public Prosecutions [2013] VSCA 64; R v Pidoto and O’Dea (2006) 14 VR 269; Gregory (a pseudonym) v The Queen (2017) 268 A Crim R 1; Fernando v The Queen (2017) 268 A Crim R 26. The Court was also referred to The Queen v Kilic (2016) 259 CLR 296 and Director of Public Prosecutions v Dalgliesh (a Pseudonym) (2017) 262 CLR 428 on the question of current sentencing practice.
28Ordinarily in cases such as these, deterrence, denunciation and condemnation and protection of the community are dominant sentencing factors. Although imprisonment is usually a sentence of last resort, in cases that involve a commercial element of trafficking, such as in this case, condign punishment is to be expected.[5] The importance of deterrence often requires that less weight be given to factors personal to an offender than might otherwise be given.
[5] See R v Mangelsdorf, Perry & Richards (1995) 83 A Crim R 272, at 278
29In assessing the gravity of this particular case, among the matters I must take into account are:
(a) the quantity of heroin involved – in the case of Charges 1 and 2, the amount was at the uppermost end of the quantity referrable to trafficking simpliciter; in the case of Charges 3 and 4, the quantities were at the lower end of a large commercial quantity. The total amount of heroin trafficked was approximately 3 kilograms;
(b) the number of transactions and the duration of your offending, being four transactions over a period of 6 weeks and 4 days;
(c) the level of sophistication involved in the transactions, which I assess in this case as being of a moderately high level;
(d) your role in the transactions, which I shall later discuss in more detail; and
(e) your motivation being for financial gain.
30Although this was an undercover operation, meaning that no heroin you trafficked ever found its way onto the streets, your moral culpability is not reduced.
Plea in mitigation
31Your counsel, first Mr Howson and then Ms Cannon, made a comprehensive plea in mitigation on your behalf. Although initially, Mr Howson submitted that in the unusual circumstances of this case you should be released forthwith on a Community Correction Order, Ms Cannon later conceded that such a disposition is not open. Ms Cannon quite frankly and properly conceded that in all the circumstances the only appropriate response to your offending is the imposition of terms of imprisonment. She submitted however that the overall sentence should be such that you should become eligible for parole either now or in the very near future.
32I now turn to the factors advanced on your behalf.
Personal history
33You were born in Turkey in June 1974. You are the middle of three sons born to your parents. Your family immigrated to Australia in 1980. You learnt English as a second language.
34Your father was self-employed in a restaurant and your mother worked as a tailor/dressmaker.
35Your father was a strict disciplinarian and was often drunk. He physically assaulted you. You remained in fear of your father until you were aged in your mid-20s when you stood up to him.
36You witnessed unhappiness at home between your parents. They fought often. Your father abused your mother, and this turned you against him and against the idea of having children of your own.
37Your younger brother is autistic. He contracted meningitis as a baby, and you cared for him while your mother worked.
38So far as your education is concerned, you attended Fitzroy Primary School and then Fitzroy Secondary School. You were a good student although you struggled with mathematics. Unfortunately, you were suspended as a result of being involved in fights.
39Your parents separated in 2000 after a particularly violent altercation during which your father choked your mother and threatened her with a knife. Your parents subsequently divorced. Your father returned to live in Turkey and has re-partnered. Your mother never re-partnered and has remained in Australia.
40You lived in the family home until you were aged 34 years and you supported your mother throughout this time.
41Your mother does not enjoy good health. She is on a number of medications. She has found it difficult to cope with the trauma she suffered at the hands of your father. Your mother also suffers physical injuries as a result of having been struck by a car while she was walking over a pedestrian crossing. Until the time of your arrest, you played an active role in supporting your mother including taking her to her medical appointments.
42Returning to your education and subsequent employment, after graduating from high school, you were accepted into, and successfully completed, a Bachelor of Arts Degree with Honours and a Bachelor of Laws at Latrobe University. You then joined the firm of Yiannoulatos Lawyers as an articled clerk. That is where your trouble with the law began. Helmut Kirsch, formerly known as Middap, was a law clerk at the firm and was one of your de facto supervisors there. Unfortunately, you turned to him for guidance and advice and you were influenced by him. Mr Kirsch was disqualified from practice in 2000. He was older than you and he has 76 prior convictions and 17 court appearances. His criminal record includes a term of imprisonment for five years for being an accessory after the fact to murder.
43Both you and Kirsch were charged with justice offences relating to Mr Kirsch's and your client, Mr Houssam Zayat. The full facts surrounding the charges are set out in the judgment of the Court of Appeal in Director of Public Prosecutions v Aydin and Kirsch [2005] VSCA 86.
44The presentment against you alleged that at Melbourne on 4 July 2001, with intent to pervert the course of public justice, both you and Kirsch did a series of acts which had a tendency to pervert the course of public justice: you made threats to Detective Senior Constable Benjamin Archbold for the purpose of improperly influencing the prosecution of Houssam Zayat, in which Mr Archbold was the informant, by inducing him not to oppose the granting of bail to Zayat and to reduce the number of charges against him, contrary to Mr Archbold's duty.[6]
[6]DPP v Aydin and Kirsch [2005] VSCA 86 at paragraph 1
45You were also charged with conspiracy to attempt to pervert the course of justice, together with a member of Victoria Police, Detective Darrin Flett. The circumstances of this charge are set out in R v Aydin and Flett [2005] VSCA 87. Flett tried to exert influence over a junior member of police to reduce charges against Mr Zayat by offering him money. When you were attempting to negotiate a plea deal for Mr Zayat, you too attempted to have the charges reduced in number and severity with the suggestion to the police member that Mr Zayat would pay for the favour.
46Not long after this, you witnessed the shooting death of Mr Zayat.
47You refused to testify at the committal hearing conducted in relation to Mr Zayat's murder.
48On 2 July 2004, in the County Court of Victoria at Melbourne you were convicted on one charge of attempting to pervert the course of justice. You were sentenced to 12 months' imprisonment with a non-parole period of six months.
49On 18 August 2004, in the County Court of Victoria at Melbourne you were convicted of one charge of conspiracy to commit an indictable offence (attempt to pervert the course of justice). You were sentenced to 5 years' imprisonment and a new non-parole period of three years was set.
50The Crown appealed against the inadequacy of the sentence imposed on 2 July 2004. You appealed against the conviction and severity of the sentence imposed on 16 August 2004. On 3 May 2005, the Supreme Court allowed the Crown appeal in respect of the sentence imposed on 2 July 2004 for attempting to pervert the course of justice. You were resentenced to a period of two years imprisonment with a non-parole period of nine months. The Supreme Court also allowed your appeal in respect of the sentence imposed on 16 August 2004 on conspiracy to commit an indictable offence. You were resentenced to 2 years' imprisonment, 12 months of which was to be served concurrently. That resulted in a new total effective sentence of three years' imprisonment. A new non-parole period of 22 months was fixed, backdated to 16 August 2004.
51Upon your release from prison, you struggled to find employment because of your criminal record. You were exploited by some of the employers who hired you. Knowing how desperate you were to find work, they used your criminal record as leverage against you.
52You obtained various forms of employment including as a driver, as a quality control officer and as a labourer.
53You married in June 2008 and have two children.
54On 28 April 2009 you appeared in the Magistrates' Court at Broadmeadows on a charge of importing prohibited imports and on a charge of knowingly make a false statement. You were convicted and fined $750 on each charge.
Reason for offending
55You instructed your counsel, and it does not appear to be in dispute, that in 2014 you were approached by an old acquaintance, David, whom you had met in prison. Over the course of a number of meetings, David suggested that you might be able to help source heroin for a person he called 'Tony'. Initially, you were reluctant to become involved, thinking the risk was not worth it. You were however ultimately persuaded to participate. You took the proposal to your friend and co-offender Mr Osman, whom you had met years earlier through the law firm where you had worked. You went on to facilitate the exchange of heroin between Mr Osman and 'Tony'. Your fee for making the arrangement was $10,000 paid to you by Mr Osman. David also promised to pay you more money and he promised to introduce you to a person named Vivian. Neither of David's promises were fulfilled.
56As mentioned, the first transaction occurred on 30 October 2014 and involved just under 500 grams of heroin.
57David proposed a further transaction. You again facilitated the exchange, this time needing less convincing to become involved. You received a further $10,000 for playing your part. The second transaction took place on 19 November 2014 and involved just under 500 grams of heroin.
58You played the same role of facilitator in two further transactions, each involving just over 1 kilogram of heroin, for which you were paid $20,000 on 9 December 2014 and the same again on 15 December 2014.
59As mentioned earlier, you were arrested on 17 December 2014 and have remained on remand ever since. As at today, not including today, you have now spent some 3,199 days in custody, or eight years, nine months and three days.
60There has been significant delay in this matter coming to final resolution. It is necessary to explain the procedural history to understand why.
Procedural history
61As mentioned earlier, your case has a complicated history. It is necessary to refer to some of that history in order to explain why it has taken so long to arrive at this point. The prosecution has provided a helpful table setting out the significant events in the history of this matter:[7]
[7]Exhibit C
Date Event/Hearing 17 December 2014 All accused (OSMAN, WAHAB, MARGUS, ANTHONY HARRIS (A PSEUDONYM), DANESH, AYDIN) charged 9 June 2015 Committal mention 26 October 2015 Committal hearing (5 days – adjourned part-heard)
DANESH resolved9 December 2015 DANESH sentenced at Melbourne Magistrates’ Court.
Plea of guilty to:
1. Deal property suspected of being proceeds of crime
Sentence:
1. Fined $15,000;
2. Pecuniary Penalty Order $43,700
26, 27 April 2016 Committal hearing – resumed
All accused were committed to stand trial.28 April 2016 Initial Directions Hearing
- Listed for trial commencing 1 May 2017 (estimate 6 weeks)
- Listed for Further Directions on 28 June 2016
28 June 2016 to 2 September 2016 Various directions hearings 27 April 2017 Pre-trial hearing (Judge Lyon)
Pre-trial in relation to application by you, WAHAB, MR HARRIS (A PSEUDONYM) and MARGUS to have evidence excluded. Adjourned to 1 May for ruling.1 May 2017 Ruling and day 1 of trial (Judge Lyon) commenced
- application by you, WAHAB, MR HARRIS (A PSEUDONYM) and MARGUS to have evidence excluded is refused.
- Subpoena to Australian Federal Police set aside.
- Certification of decision for interlocutory appeal granted.
- Adjourned to 3 May 2017 for further pre-trial.
3 May 2017 Pre-trial hearing (Judge Lyon)
- Sasha VUJIC (Australian Forensic Drug Lab) called; XXN
- Christiaan PIETERSE (toolmark examiner, AFP) called; XXN (part-heard)
28 June 2017 Interlocutory appeal – Court of Appeal 30 June 2017 Mention (Judge Lyon)
Christiaan PIETERSE (recalled – nil XXN)20 July 2017 Interlocutory appeal – Court of Appeal (Whelan, Santamaria and Ashley JJA)
Yates (a pseudonym), Waters (a pseudonym), Cobb (a pseudonym), Wilson (a pseudonym) v The Queen [2017] VSCA 188
- Application for leave to appeal granted
- The appeal was dismissed
21 July 2017 –
15 August 2018Various directions, mentions, bail applications, costs application. 22 October 2018 Trial was listed (did not commence on this date due to discussions being held between the parties) 9 November 2018 OSMAN, yourself and MARGUS matters resolved. These accused arraigned and pleaded guilty to respective plea indictments.
ANTHONY HARRIS (A PSEUDONYM) trial listed to commence on 14 November 2018
14 November 2018 Trial commences (MR HARRIS (A PSEUDONYM) only) 15 November 2018
DPP v Mohammed Wahab [2018] VCC 1892 (Judge Wilmoth)
WAHAB sentenced:
TES: 11 years imprisonment, NPP 6 years
Forfeiture, disposal and 464ZF orders made.
7 December 2018 MR HARRIS (A PSEUDONYM) found guilty of all charges on trial indictment 1 February 2019 You applied to have your plea changed 14 February 2019 to 15 February 2019 Plea hearing (OSMAN, MARGUS, HARRIS (A PSEUDONYM)) – and your plea hearing was vacated due to your change of plea application 12 April 2019 Further plea hearing (MR HARRIS (A PSEUDONYM)) 23 August 2019 Your change of plea hearing was heard before His Honour Judge Trapnell 20 September 2019 DPP v Harris (a pseudonym) [2019] VCC 1546 (Judge Trapnell)
ANTHONY HARRIS (A PSEUDONYM) sentenced:
TES: 12 years imprisonment, NPP 8 years
Disposal order made.
Forfeiture order was to be negotiated between parties and it was agreed in chambers.
27 November 2019 Further plea hearing (MARGUS) 13 February 2020 DPP v Rami Margus [2020] VCC 342 (Judge Trapnell)
MARGUS sentenced:
TES: 13 years 6 months imprisonment, NPP 7 years
Disposal and forfeiture orders were made by consent.19 March 2020 MR HARRIS (A PSEUDONYM) forfeiture order application granted by Judge Trapnell 19 May 2020 DPP v Mohammad Osman [2020] VCC 638 (Judge Trapnell)
OSMAN sentenced (later varied on appeal, see 18 Jun 2021):
TES: 19 years imprisonment, NPP 13 years
Disposal and 464ZF orders made.
Mr Osman's sentence was later varied on appeal
2 July 2020 Your application to change your plea was granted by His Honour Judge Trapnell 4 September 2020 to 23 February 2021 Various mentions, administrative adjournments in your matter and it will be recalled this was the period of COVID‑19 1 June 2021 MR HARRIS (A PSEUDONYM) appeal (Priest, Forrest and Emmerton JJA) 2 June 2021 MR OSMAN sentence appeal (Priest, Forrest and Emmerton JJA) 18 June 2021 MR OSMAN sentence appeal allowed (Priest, Forrest and Emmerton JJA)
OSMAN Sentence varied:
Resentenced to TES 16 years, NPP 12 years
14 July 2021 Harris (a pseudonym) v The Queen [2021] VSCA 197
ANTHONY HARRIS (A PSEUDONYM) appeal:
Appeal allowed – convictions quashed – retrial ordered
27 August 2021 ANTHONY HARRIS (A PSEUDONYM) matter resolved. Harris was re-arraigned before Judge Marich 17 December 2021 DPP v Anthony Harris (a pseudonym) [2021] VCC 2145 (Judge Hampel)
ANTHONY HARRIS (A PSEUDONYM) sentenced:
TES: 8 years imprisonment, NPP 6 years
26 April 2022 Your matter was listed for 7 week trial 19 October 2022 You were arraigned before jury: you pleaded not guilty to all 4 charges 20 October to 2 November 2022 I heard pre-trial argument 3 November 2022 You were re-arraigned before jury: you pleaded guilty to all charges on the indictment (2 x trafficking in a drug of dependence (499.5 grams on 30 Oct 2014; 498.5 grams on 19 Nov 2014) 2 x trafficking in a drug of dependence – large commercial quantity (1,000.4 grams on 9 Dec 2014; 1,001.6 grams on 15 Dec 2014)
Guilty plea
62You have pleaded guilty and you are entitled to have that fact taken into account in your favour. Although your plea was not entered at the earliest opportunity, you have never really sought to challenge the facts asserted against you by the prosecution. Your defence was not one of denial, rather it was that the evidence gathered against you was done so illegally or improperly and that you were effectively induced into offending by the police.
63You gave evidence before me on the voir dire during the course of your application to have the evidence against you excluded. You were quite candid about the role you played, agreeing that you reluctantly became involved, that you facilitated the sales of heroin and that you did so for financial reward. I accept that you were truthful in this regard. Had the matter proceeded to trial, the evidence you gave on the voir dire would not have been admissible before the jury by virtue of ss189(8) and 128(10) of the Evidence Act 2008.[8]
[8] Evidence Act 2008 sections 189(8) and 128(10)
64Once it was held that the challenged evidence was admissible, you indicated to me your intention to plead guilty, and you did so when re-arraigned in the presence of the jury.
65Had the trial run its full course, it would have been lengthy and costly.
66Although your guilty plea came very late in the piece, I take into account the history of the proceedings and the circumstances in which your plea was finally offered.
67A guilty plea, no matter why or when it is entered, must almost always attract a sentencing discount. In assessing the weight to be given to your guilty plea I take into account the following matters:
(a) The timing of your plea;
(b) You are entitled to a statutory discount because of your plea;
(c) I accept that your plea evidences some level of remorse;
(d) You have avoided the cost of a trial and, more significantly, you have spared witnesses the inconvenience of giving evidence at trial; and
(e) There is social utility involved in your guilty plea.
68Dealing with the question of the social utility inherent in your guilty plea, I note that aside from the delay caused by the various steps you took in furtherance of your defence, there was an additional element of delay in the matter proceeding, largely attributable to the world-wide pandemic of COVID-19.
Relevance of COVID-19 over and above social utility
69
In addition to the extra weight that your guilty plea must attract because of
COVID-19, I also take account of the impact that COVID-19 might have had upon you whilst you were on remand and that it may have on the service of a sentence of imprisonment, including:
(i)You may have faced a higher risk of contracting the disease whilst in custody, a risk that cannot be eliminated in the near future;[9]
(ii)There is an increased likelihood of periods of quarantine or isolation; and
(iii)The pandemic may have caused and may continue to cause additional stress and concern for you and for your family.[10] I accept that because of COVID-19 there were times that you felt isolated from your loved ones who were prohibited from visiting you. I have a letter from your wife confirming this.[11]
[9]R v Madex [2020] VSC 145 at paragraphs [51]-[52]
[10]Brown v The Queen [2020] VSCA 60 at paragraph [40]
[11]Exhibit 4, letter from Nazli Aydin dated 1 February 2023
70Apart from your wife's letter, there is no other evidence before me as to the effect of these factors upon you. I am however prepared to assume that you have faced these risks and burdens during the period of your remand and that these risks will continue during your imprisonment.[12]
Verdins[13] factors and mental health issues
[12]Wyka and Gardiner v The Queen [2020] VSCA 104
[13]Rv Verdins; Rv Buckley; Rv Vo (2007) 16 VR 269
71A report prepared by Ms Carla Ferrari, Forensic Psychologist, was tendered on your behalf.[14] Ms Ferrari also gave evidence before me.
[14]Exhibit 2, Report of Carla Ferrari, Forensic Psychologist, dated 2 February 2023
72In recounting your personal history to Ms Ferrari, you told her that you were an unhappy child because of the violence perpetrated by your father against you and your mother. You reported having attempted suicide by overdose when you were in secondary school, and that your mother called an ambulance when she realised you had locked yourself in your bedroom and were not responding to her. Following this you were admitted to St Vincent's Child and Adolescent Mental Health Unit for one to two weeks and you were subsequently prescribed medication to help you sleep and relax. You took the medication for only a short period.
73You denied any further deliberate attempts at self-harm or suicide, and you have not been prescribed any medications whilst on remand.
74You told Ms Ferrari about the murder that you witnessed. You said that you were almost shot in the incident. You said that the incident occurred after your client asked you to accompany him somewhere. You now think he invited you so that you could be a witness. You drove into 'the sticks' before stopping at a fuel station for cigarettes. Your client then started to follow another car. You all stopped and a man from the other car entered the rear of the car you and your client were in. The man spoke to your client in a foreign language, and then the two of them exited the car. Two other people then emerged from the other vehicle. They shot your client three times with a sawn-off .22 calibre long arm. You panicked, not knowing whether to flee on foot or attempt to move to the driver's seat to make your escape. One of the men ran at you, at which point you tried to drive off, but you hit a tree. You watched, frozen in shock, as the man pulled the trigger. Fortunately for you the weapon failed to discharge. You fled on foot and flagged down another vehicle, thus making your escape.
75After this incident you became extremely paranoid and did not know who to trust. You have developed a persistent mistrust of police and you rarely feel safe. You believe that one of the men who shot your client was an off-duty member of police. Since then, you have remained hypervigilant and are easily startled.
76For a period of five years after this incident you experienced intrusive memories, thoughts, flashbacks and nightmares. You did not receive any counselling.
77You then left the State of Victoria fearing for your safety, although you had to attend Court to give evidence at the murder trial. As mentioned earlier, you declined to give evidence in that case. Apparently, you were punished for contempt as a result, although this does not appear in your prior criminal record.
78You described to Ms Ferrari your ongoing fears and concerns about police, saying that you believe every member of the Australian Federal Police has somehow infiltrated and corrupted every aspect of the case against you.
79You told Ms Ferrari of other traumatic experiences you suffered in your childhood. This included being struck by a drunk taxi driver when you were aged six and jumping off a moving tractor when you were aged approximately 12 or 13 years. You also told Ms Ferrari of the violence you suffered at the hands of your father. On one occasion your father smashed a beer bottle over your head, causing you to lose consciousness. You said that your father usually bashed you whenever you fought with your brother.
80As to your current state of mental health, you described having poor sleep, experiencing night sweats, and ruminating and worrying about your family. You said you sleep with 'one eye open', worrying about the potential actions of other inmates. You explained that you often ruminate about everything and that you think about all of the intricacies of your case. You reported that you have not sought mental health support whilst in custody as you do not trust the psychologists as they 'work for the system'.
81You told Ms Ferrari about a number of traumatic experiences that you have had whilst on remand. One such incident occurred on 9 October 2018 when a person you had befriended committed suicide. You told Ms Ferrari that this incident has significantly affected your mental health. You also said that on 11 January 2019 another person you knew committed suicide whilst in custody. You feel a sense of guilt that you did nothing to prevent their deaths.
82You described a number of physical problems that you have including chronic back pain which you suffer as a result of a back injury sustained in approximately 2011 or 2012. You have also developed arthritis in your back, elbow and knee. You also have sciatica. You have declined the offer of strong pain medications for fear that you may be subjected to stand over tactics from others. You take Panadol as needed. You also currently suffer from gastrointestinal issues, and you take Nexium for that.
83On the question of alcohol and substance use, you told Ms Ferrari that in the past you had used drugs recreationally, including cannabis, heroin, cocaine, ecstasy amphetamine and methamphetamine although you have 'always been scared of drugs'. You said that ecstasy brought you 'out of [your] shell' and that amphetamine made you 'a little bit active and talkative'. You described however that methamphetamine had a paradoxical effect, making you 'sit in a corner' with 'nothing to say' and 'no thoughts'. You reported that you smoked heroin mixed with cannabis on two occasions to ease your back pain. Apparently that gave you relief for about 10 days. You then realised how addictive the drug was as you found yourself wanting to use it again due to its effectiveness. You were able to stop using this drug.
84You told Ms Ferrari that you first tried cannabis at a high school party but you did not use it again until after your back injury saying it 'took the edge off' your pain several times. You did not use cannabis regularly.
85You told Ms Ferrari that you used drugs on average three times a year until you were married. You claimed that you only used illicit drugs approximately three times since then, until the offending period.
86You also described your alcohol use to Ms Ferrari. Alcohol does not appear to be a problem for you.
87Ms Ferrari asked you to describe the circumstances of your offending. She found your explanation to be disjointed and difficult to follow. She considered your account was:
'often more related to [your] perceived injustices, conspiracies against [you], and the manner in which alleged evidence has been collected against [you]. [You] continually related [your] current case back to past events which [you] consider are linked. It was difficult to obtain specific information related to [your] current case without [you] becoming tangential and circumstantial, dominating the conversation with issues [you] believed were pivotal to [your] case being a set up and that unethical practices have occurred.'[15]
[15]Exhibit 2, page 8, paragraph 85
88Ms Ferrari reported that you still have concerns that police may retaliate against you or your family. You expressed your belief that you have continually been set up and sabotaged because there is a fear that you will disclose the identity of the police member who shot your client.
89Regarding her mental state examination of you, Ms Ferrari noted that whilst there was no indication of psychotic symptoms such as hallucinations, thought alienation or passivity experiences, you presented with overvalued beliefs which without substantiation appeared to be delusional in nature. She described your thought processes as tangential and circumstantial when discussing these beliefs, but they would 'return to being normal, logical, comprehendible and sequential when discussing other topics.'[16]
[16]Exhibit 2, paragraph 98
90Ms Ferrari thought you displayed limited insight into your overvalued ideas and beliefs. She considered your judgment appears grossly intact, however when discussing your case your judgment was impaired and affected by your delusional beliefs.
91Ms Ferrari opined that you developed Post Traumatic Stress Disorder (PTSD) as a result of witnessing the murder of your client and almost being shot yourself. That said, however, she did not think you currently meet the diagnostic criteria for PTSD although you have symptoms of it which fluctuate in severity and frequency.
92Ms Ferrari further opined that you have developed an Adjustment Disorder (AD) with symptoms of depression and anxiety in response to your current circumstances of having been on remand for eight years, and in light of your perceived injustices and beliefs that there are conspiracies working against you. Ms Ferrari reported:
'126. … It is difficult to retrospectively comment on whether at the time of offending, Mr Aydin diagnostically met criteria for a major mood disorder, however by his account he appeared to have been experiencing an Adjustment Disorder at that time in relation to psychosocial stressors due to unemployment, financial stress, and difficulties with his former employer whom he believes was defaming him to other potential employers in their community.
…
129. Mr Aydin exhibits a Paranoid Personality Disorder (PPD), characterised by a pervasive, persistent, and enduring mistrust of others, and a profoundly cynical view of others and the world. Persons with Paranoid Personality Disorder are hypervigilant to physical, verbal or social attacks, and do not trust others, and therefore tend to have few if any close or intimate associates….
…
131. Finally, and most concerningly, Mr Aydin displays evidence of Delusional Disorder (DD); the essential feature of this condition is the presence of one or more delusions that persist for at least one month, with no other evidence of psychotic symptoms. With the exception of the impact of delusions or their ramifications, the individual's functioning is not markedly impaired, and their behaviour is not obviously bizarre or odd. Indeed, Mr Aydin demonstrates a history of otherwise neurotypical functioning and is able to demonstrate logical, sequential, articulate, rational thought and communication when discussing topics other than his offending….
132. Whilst the exact onset of Mr Aydin's Delusional Disorder condition is difficult to establish, it appears that it has onset between witnessing the murder in 2002 following which he became particularly worried and paranoid for the safety of himself and his family to the extent he left Victoria for a period, and this offending which he believes was a set up by AFP and prosecutors involved in the murder case who now have a vendetta against him. He also makes reference to a former employer having a vague alleged link to the AFP as being motivation for his unemployment and potentially being involved in some way in this set up (claiming one of his subsequent employers was a signatory on the authority which authorised the raid to occur).
133. It may be the case that eight years in prison has contributed to his paranoia and to his development of delusions, however without contemporaneous collateral from other professionals who were involved in the early stages of his case… as to his mental state at that time and whether these beliefs were present, it is not possible to confirm this.
134. By definition, delusions are false beliefs based on incorrect inferences about external reality, that persist despite the evidence to the contrary; these beliefs are not ordinarily accepted by other members of the person's culture or subculture and are viewed as irrational, sometimes resulting in marital, social, occupational or legal difficulties. Mr Aydin presents with persecutory-type delusions.
135. Delusional Disorder is a rare and difficult to treat; lifetime prevalence is approximately 0.2 per cent in the general population and delusions often only partially respond to pharmacological interventions. The additional barrier to the treatment of DD is that individuals display little to no insight into their delusions, holding them as vehemently accurate; they are incorrigible to challenge and often refuse treatment as they do not identify themselves as having an illness. This is consistent with Mr Aydin's presentation, and collateral from his solicitor via teleconference regarding her observations of him in their interactions.
136. There was evidence during the current assessment that Mr Aydin's delusions remain present and continue to influence his perception of himself, others, and his environment and have implications for his interpersonal interactions as his delusions appear to be dominant and intrusive, he is preoccupied with his case and the failings and injustices that have occurred which have resulted in his imprisonment, and that he will continue to fight this matter to have any conviction overturned, therefore demonstrating an ongoing impact on his functioning. Irritability and low mood are common reactions to one's own delusions which can precipitate anger and aggression.'[17]
[17]Exhibit 2, paragraphs 126 - 136
93Ms Ferrari considered you to be at a low to moderate risk of general recidivism. You present with a major mental illness (Delusional Disorder) which is untreated and you displayed poor insight and judgment with regard to your mental health, increasing the likelihood that you will refuse treatment.
94Ms Ferrari thought there was evidence of poor problem-solving, impulsivity, risk‑taking behaviour, and self-regulation issues which are inherent in your psychiatric conditions. These factors however are amenable to treatment and thus your risk of recidivism will substantially reduce with engagement in appropriate interventions and with adherence to pharmacological treatment.
95Ms Ferrari observed that to your credit you have abstained from substances and alcohol because of your imprisonment for the past eight years, and you continue to have the support of your wife and children to whom you will return upon your release. Ms Ferrari further opined that you are also likely to experience mood fluctuations associated with your Post Traumatic Stress Disorder and that your Delusional Disorder is likely to make you less inclined to engage with others due to paranoia and hypervigilance.
96Ms Ferrari noted that imprisonment would likely weigh more heavily on you than a person unburdened by these conditions. She reported: 'There is no doubt that the unpredictable, volatile and tense prison environment will cause exacerbation of [your] symptoms.'[18]
[18]Exhibit 2, paragraph 143
97Ms Ferrari opined:
'144. [Mr Aydin's] symptoms are of concern, and therefore access to intensive psychological and pharmacological treatment is necessitated to alleviate undue stress which can adversely impact his cognition, behaviour, and mood. Access to programs and treatment is generally reduced comparative to the community and with the current COVID‑19 pandemic, incarceration is unlikely to have any positive impact and his symptoms are unlikely to be adequately treated, resulting in a higher risk of exacerbation.
145. In individuals with PTSD, Paranoid Personality Disorder, and Delusional Disorder, there is potential for significant mood fluctuation, behavioural disinhibition and impulsivity in the volatile nature of the prison environment can trigger inappropriate or disproportionate responses, increase his paranoia and mistrust of others which can lead to conflict and misinterpretation of others' behaviour or comments. This therefore places him at increased risk of unintentional sanctions, as well as further exacerbating his symptom profile and risk of decompensation.
146. The main consideration of prison weighing more heavily on Mr Aydin is his PPD and DD; he already exhibits persecutory beliefs against police and there is a high risk that this may lead (if it has not already) to him incorporating other inmates, Correctional staff, and the system into his delusional beliefs, as he vehemently perceives others as conspiring against him, being involved in unethical practices and/or unfair treatment, and this may extend to paranoia that others have intentions to harm him or are involved in the setup against him. This could worsen Mr Aydin's conditions and in extreme cases, and may result in acts of violence or self-harm in order to protect oneself against these apparent threats by others.
147. If a custodial sentence is considered necessary, there is likely to be a role for Forensicare to be involved with Mr Aydin through their Forensic Mental Health Outpatient services, available within the prison system. This would ensure that his mental health is monitored whilst in custody and specialist advice regarding his treatment and care planning could be facilitated. He would require regular psychiatric review for ongoing monitoring of [his] DD, as he requires pharmacological intervention. At present, the likelihood of him voluntarily accepting treatment is low as he holds his beliefs as true and accurate and these cannot be challenged.'[19]
[19]Exhibit 2, paragraphs 144 – 147
98Finally, Ms Ferrari recommended that you have transitional support, noting:
'Any custodial sentence should incorporate a period of support and supervision after his release to support his transition between prison and the community, specifically, to provide relevant referrals to the aforementioned support services and treatment programs and ensure continued engagement.'[20]
[20]Exhibit 2, page 16
99In her evidence before me, Ms Ferrari confirmed the opinions expressed in her report.
100I accept Ms Ferrari's evidence and take it very much into account. Accordingly, I accept that imprisonment has, and will continue to weigh more heavily upon you than it would for a person unburdened with your conditions. I also accept that imprisonment may worsen some of your symptoms.
References
101The following references were tendered on your behalf:
(a) A letter from your wife, Nazli Aydin, dated 1 February 2023;[21]
(b) A letter from Fatma Kural, your wife's cousin, dated 31 January 2023;[22]
(c) A letter from your older brother, Salim Aydin, dated 20 February 2023;[23]
(d) A letter from a relative, Durmus Tuncer, dated 1 February 2023;[24] and
(e) A letter from Faith Agirkan, a family friend, undated.[25]
[21]Exhibit 4
[22]Exhibit 5
[23]Exhibit 6
[24]Exhibit 7
[25]Exhibit 3
102As is apparent from these letters, your family and friends consider you to be a respectful and hardworking man, who is an important part of your community. They described you as family-oriented, and a loving husband and father.
103The last eight years have been very difficult for your family.
104The letters also disclose your regret at having been involved in this offending.
105Despite the gravity of your offending, it is apparent that you continue to enjoy the loving support of your wife, children, family and friends.
Certificates and achievements
106A bundle of twenty certificates ranging in date from December 2015 to July 2022 was tendered on your behalf.[26] These certificates demonstrate your ongoing engagement in professional, rehabilitative, educational, first-aid, trade, support and personal development courses whilst in custody.
[26]Exhibit 8
107I am satisfied that your participation in the opportunities for advancement offered to you bode well for your prospects of rehabilitation.
Drug screening
108Whilst on remand you have submitted to regular screening for a number of substances. A bundle of pathology reports was tendered to show that you have abstained from all illicit substances.[27]
[27]Exhibit 9
Prospects of rehabilitation
109As mentioned, Ms Ferrari considered that you pose a low to moderate risk of re‑offending.
110Because of the various mental health conditions you suffer, you maintain a high distrust of police and believe that they are conspiring against you. Your conditions will be difficult to treat if you maintain your belief that health care practitioners provided through the State are part of the system and will work against you. That said, I consider that your hypervigilance of police and fear of being set up again, makes it less likely that you will re-offend in like manner.
Relevance of forfeiture
111I was told and accept that as a result of conviction and sentence in respect of these matters your family home is subject to automatic forfeiture. There is no evidence that you acquired or maintained your home through the use of the proceeds of crime. As a matter of law, however, this is a matter I cannot take into account when sentencing you in respect of Charges 3 and 4, [28] since they are defined as 'serious drug offences' under the Confiscation Act 1997.
[28]Section 5(2A)(f) Sentencing Act 1991; see also s5(2A)(e) of the Sentencing Act in force as at the date of the commission of the offences.
112Regardless, and noting that Charges 1 and 2 are not categorised as 'serious drug offences' for the purposes of the Confiscation Act, it is clear that your family will suffer as a result of the loss of the home they have lived in with you and by themselves since your remand.
Principles of parity
113The prosecution has tendered submissions regarding the roles of each of the participants in these offences, and I now refer to the Prosecution's submissions:
'2. The main members of the syndicate were:
Mohammed Osman (DOB 20 November 1965)
Rami Margus (DOB 11 December 1991)
Baset Wahab (DOB 15 November 1988)
Anthony Harris (a pseudonym) (DOB 26 March 1984).
3. The four transactions occurred on 30 October 2014, 19 November 2014, 9 December 2014 and 15 December 2014.
4. The relationships between the various members of the syndicate (and, where relevant, sentences) were as follows:
Aydin
5. Aydin was 'the facilitator' of the drug transactions. AYDIN conducted all correspondence and meetings with buyers, received the money for the drug transactions and at times transported the heroin to these transactions with covert police operatives.
Osman
6. Osman had control over the syndicate members, the sale of heroin, the storage of the heroin and the money derived from the sale of heroin. In relation to Charge 3, being the transaction that occurred on 9 December 2014 Osman delivered 1 kilogram of heroin to a covert operative. Osman was referred to as the ‘boss’. Osman had a pre-existing relationship with WAHAB[29] and ANTHONY HARRIS (A PSEUDONYM)[30]. WAHAB referred to Osman as 'uncle'. Osman refers to WAHAB as 'Baset son'.
[29] Relationship from at least 2 September 2014
[30] Relationship from at least 10 November 2014
7. Osman pleaded guilty and was sentenced by his Honour Judge Trapnell on 19 May 2020 to a total effective sentence of 19 years' imprisonment with a 13 years' non-parole period.[31]
[31] DPP v Osman [2020] VCC 638
8. On appeal, Osman was sentenced by their Honours Justices of Appeal on 18 June 2021 to a total effective sentence of 16 years' imprisonment with a non-parole period of 12 years.[32]
[32] Osman v The Queen [2021] VSCA 176
Anthony Harris (a pseudonym)
9. Anthony Harris (a pseudonym), his role was as a courier when called upon to deliver the drugs.
10. He was also a facilitator for the drug transactions. As soon as an order was placed for the heroin, Osman would immediately seek Harris (a pseudonym) to organise for a courier to transport the heroin for the purposes of the sale. Harris (a pseudonym) was the first point of contact for Osman for the second and fourth drug transactions (Charges 2 and 4).
11. Harris (a pseudonym) pleaded not guilty and was found guilty at trial. Harris (a pseudonym) (under the pseudonym Anthony Harris) was sentenced by his Honour Judge Trapnell on 20 September 2019 to a total effective sentence of 12 years' imprisonment with an 8 years' non-parole period.[33]
12. On appeal, [I have already mentioned this] convictions were quashed, a new trial was ordered.[34]
13. On 27 August 2021 Harris (a pseudonym). He pleaded guilty to an indictment containing 1 charge of Trafficking Simpliciter and 1 charge of Trafficking in a commercial quantity.
14. Harris (a pseudonym) was sentenced on 17 December 2021 to a total effective sentence of eight years' imprisonment, with a minimum non parole period of six years.[35]
[Margus]
[33] DPP v Harris (a pseudonym) [2019] VCC 1546
[34] Harris (a pseudonym) v The Queen [2021] VSCA 197
[35] DPP v Harris (a pseudonym) [2021] VCC
15. The primary role of Margus was to prepare the heroin for sale on behalf of the syndicate by apportioning the heroin into bags and then sealing the bags to be later sold. Numerous bags of heroin prepared by Margus were kept in a stockpile for the syndicate.
16. Margus was also a drug courier. He transported the heroin and handed the heroin directly to covert police operatives on 30 October 2014 and 19 November 2014. He also transported the $110,00o cash in relation to the transaction on 30 October 2014. He was further involved in a transaction on 20 November 2014 involving 348.9 grams of heroin.
17. Margus pleaded guilty and was sentenced on 13 February 2020 to a total effective sentence of 13 years and 6 months' imprisonment with a 7 years non-parole period.[36]
Wahab
18. The primary role of Wahab was to store the heroin on behalf of the syndicate at his home and at his mechanics business address. Wahab also conveyed heroin to Osman in relation to the transaction on 9 December 2014. Wahab had a pre-existing relationship with Osman and called him 'uncle'.
19. Wahab pleaded guilty to one charge of trafficking in a large commercial quantity of drugs and was sentenced on 15 November 2018 to 11 years' imprisonment with a non-parole period of 6 years.[37]”[38]
[36] DPP v Margus [2020] VCC 342
[37] DPP v Wahab [2018] VCC 1892
[38]Exhibit B, Supplementary Information to Prosecution Opening, dated 17 February 2023, para 2-19
114The prosecution provided a helpful table summarising the sentences of your co‑offenders and the bottom line is:[39]
[39]Sentences of Co-offenders and Respective Positions in the Hierarchy, dated 19 June 2023. This document was filed but not tendered.
Name Role Sentence Osman
Control over syndicate members, sale and storage of heroin; pre-existing relationships with Wahab and Anthony Harris (a pseudonym).
16 years' imprisonment; 12 year non-parole period (after appeal)
Margus
Preparation and transportation of heroin
13 years 6 months' imprisonment;
7 year non-parole period
Harris (a pseudonym)
Delivery of heroin.
Osman's first point of contact for heroin transactions of 19 November 2014 and 15 December 2014
8 years' imprisonment;
6 years' non-parole period (after appeal)
Wahab
Storage of heroin at residence and his business; he had a pre-existing relationship with Osman
11 years' imprisonment;
6 years' non-parole period
115I have read the cases referrable to your co-accused.[40] There are a number of distinguishing features between those cases and yours. For example, Anthony Harris (a pseudonym) faced two charges, one of trafficking simpliciter, and one of trafficking in a large commercial quantity. Margus faced two indictments and was involved in a charge which you had nothing to do with. Wahab faced one charge of trafficking in a large commercial quantity. Each offender had different factors in mitigation or aggravation of penalty.
[40]Osman v The Queen [2021] VSCA 176; Harris (a pseudonym) v The Queen [2021] VSCA 197; DPP v Margus [2020] VCC 342; and DPP v Wahab [2018] VCC 1892
116As best I can determine, you were not the ringleader. I place Osman at the top of the hierarchy. He was the one calling the shots. By virtue of his position in the hierarchy he was able to distance himself from the transactions. You were exposed at both ends of the deals. You did not have direct access to the heroin. You were in essence the 'broker', receiving a fee for placing the orders from the purchaser with the supplier. You assisted in delivery of the drugs and the collection of cash. Although I place you lower than Osman in the hierarchy, yours was an essential role. You were motivated by profit and the hope of an introduction to 'Vivian'.
Sentences to be Imposed
117Because of your conviction and the sentence of imprisonment that will be imposed on Charge 3, you fall to be sentenced as a 'serious drug offender'[41] in relation to Charge 4.
[41]Sentencing Act 1991, Part 2A
118Section 6D of the Sentencing Act 1991 relevantly provides:
'If under section 5 the Supreme Court or the County Court in sentencing a serious offender for a relevant offence considers that a sentence of imprisonment is justified, the Court, in determining the length of that sentence—
(a) must regard the protection of the community from the offender as the principal purpose for which the sentence is imposed; and
(b) may, in order to achieve that purpose, impose a sentence longer than that which is proportionate to the gravity of the offence considered in the light of its objective circumstances.'
119Section 6E provides:
'Every term of imprisonment imposed by a court on a serious offender for a relevant offence must, unless otherwise directed by the court, be served cumulatively on any uncompleted sentence or sentences of imprisonment imposed on that offender, whether before or at the same time as that term.'
120I note that the prosecution has not sought a disproportionate sentence, and I do not intend to impose such a sentence. In my view, the relevant sentencing purposes can be achieved without needing to do so.
121Further, I do not consider it necessary to make any of the sentences that I impose wholly cumulative. In this regard, I note that in re-sentencing Mr Osman, the Court of Appeal did not order that all sentences be served cumulatively.
122I take into account all of the matters personal to you to which I have referred, including your prospects of rehabilitation. I must also take into account such matters as deterrence, especially general deterrence, which is of importance in a case such as this. I am required to take into account the question of the protection of members of the community from you and bear in mind the likelihood of your re‑offending.
123I am called upon by the Sentencing Act to manifest the community's denunciation of your conduct and generally to impose a just punishment. I also take into account the unusual and significant delay in your case, some of which is not your fault. Would you please stand, Mr Aydin.
124On Charge 1, trafficking in a drug of dependence – you are convicted and sentenced to 3 years' imprisonment.
125On Charge 2, trafficking in a drug of dependence – you are convicted and sentenced to 3 years' imprisonment.
126On Charge 3, trafficking in a large commercial quantity of a drug of dependence – you are convicted and sentenced to 8 years and three months' imprisonment. That will be the base sentence.
127On Charge 4, trafficking in a large commercial quantity of a drug of dependence – you are convicted and sentenced to 8 years and 3 months' imprisonment.
Cumulation
128On the question of whether cumulation is required, and, if so, how much, I take account of the fact that these four charges are discrete, were committed on separate occasions, and involved offending of such gravity that total concurrency would fail to do justice.[42]
[42] See R v O’Rourke [1997] 1 VR 246, at 253; and DPP v Grabovac [1998] 1 VR 664, at 683 – 684
129Balancing all relevant matters, I consider it appropriate to order some period of cumulation. I therefore direct that 27 (twenty-seven) months of the sentence imposed in respect of Charge 4 and 9 (nine) months of each of the sentences imposed in respect of Charges 1 and 2, be served cumulatively upon the sentence imposed on Charge 3, the base sentence, and with each other.
130That results in a total effective head sentence of 12 years' imprisonment.
Minimum Non-Parole Period
131In determining the non-parole period in your case, I am required to take into account the purpose of fixing a non-parole period which is 'to provide for mitigation of punishment in favour of [your] rehabilitation through conditional freedom'.[43] The fixing of a non-parole period requires discrete consideration of the factors bearing upon the question of when you should be eligible for release. The relevant factors I am required to take into account are:
'(a) that a non-parole period has a penal element;
(b)that, where either general or specific deterrence is important, that objective should not be undermined by an unduly short non-parole period; and
(c)that the prisoner's prospects of rehabilitation are almost always a significant consideration.'[44]
[43] See DPP v Josefski (2005) 13 VR 85 at 43
[44] Josefski, paragraph 43
132Taking all of these matters into account, including your prospects of rehabilitation, I direct that you serve a minimum period of eight years and nine months' imprisonment before becoming eligible for parole. That means you are immediately eligible for parole, on my calculation. You may be seated for the rest, thank you.
Serious Drug Offender Declaration
133Under s6F of the Sentencing Act I declare that you were sentenced as a serious drug offender in relation to Charge 4. Accordingly, under s89DI of the Sentencing Act I am required to declare that you are a serious drug offender and I so declare. I direct that the fact of these declarations be entered in the records of the Court.[45]
[45]On 5 October 2022 under section 104A of the Sentencing Act 1991 the Court made a declaration that the offender is a serious drug offender pursuant to section 89DI of the Sentencing Act 1991.
Pre-sentence Declaration
134Under s18(4) of the Sentencing Act 1991, I declare that the period of 3,199 (three thousand one hundred and ninety-nine) days in custody, or eight years, nine months and three days, is to be reckoned as a period of imprisonment already served under this sentence. I direct that the fact of this declaration and its details be noted in the records of the Court.
Statement under s6AAA Sentencing Act
135By virtue of the provisions of s6AAA of the Sentencing Act, I am required to state the sentence and non-parole period, if any, that would have been imposed in respect of the offence but for the plea of guilty. Therefore, pursuant to s6AAA, and taking into account the matters I have previously referred to as relevant to the weight to be given to your guilty plea, I state that but for your guilty plea the total effective sentence I would have imposed is as follows:
136You would have been convicted and sentenced to 15 years' imprisonment.
137I would have directed that you serve a minimum of 11 years' imprisonment before becoming eligible for parole.
138I direct pursuant to s6AAA(4) that the sentence that would have been imposed but for the plea of guilty be noted in the Court's records.
Ancillary Orders
139The Prosecution seeks disposal and forfeiture orders.
140You do not oppose the making of those orders.
141Accordingly, I propose to make the orders in the form submitted for my signature, noting that forfeiture of your home is not part of the orders that I will be making.
142May I now please have the form of the orders.
143MS PILLAI: Your Honour, I understand that the forfeiture and disposal orders were filed some time ago.
144HER HONOUR: They were. I have them.
145MS PILLAI: Thank you.
146HER HONOUR: They are just being printed now. Does anyone require me to read the disposal order into transcript?
147MS PILLAI: No, Your Honour.
148MS CANNON: No, Your Honour.
149HER HONOUR: Very well. I now make the disposal order in the form that was submitted for my signature, save for the date has been amended to today's date. I will sign additional copies for the parties, but would you please just double check that that is the correct order.
150Are the parties satisfied that is the correct order?
151MS PILLAI: That it's the disposal order?
152HER HONOUR: Yes.
153MS PILLAI: And there's a forfeiture order.
154HER HONOUR: I've got a forfeiture order, I haven't signed that one yet.
155MS PILLAI: Thank you.
156HER HONOUR: I wanted to go one at a time.
157MS PILLAI: Yes, thank you, Your Honour.
158HER HONOUR: All right. No problem with the disposal order?
159MS PILLAI: It's as per the filed order, Your Honour, that I have.
160HER HONOUR: Thank you. I now turn to the forfeiture order. And these relate to the items seized on Wednesday 17 December during the execution of the warrant at 8 Sienna Court, Roxburgh Park.
161MS PILLAI: That's correct, Your Honour. Three items.
162HER HONOUR: Please double check the order. Does anyone require me to read the order into transcript?
163MS CANNON: No, Your Honour.
164MS PILLAI: No.
165HER HONOUR: Very well. Now copies of the orders for the parties.
166MS PILLAI: Yes, thank you, Your Honour. We've checked that.
167HER HONOUR: Are there any other ancillary orders? Leave aside the question of the suppression order, I will deal with that shortly, but so far as ancillary orders, are there any further orders that need to be made?
168MS PILLAI: No, Your Honour.
169HER HONOUR: I note that I've used the pseudonym, Mr Harris. I've attached a copy of the prosecution opening as Annexure A to the reasons for sentence. I've taken the liberty of substituting the pseudonym where the true name of Mr Harris is noted in the original documents. I therefore suppress from publication the original Crown opening and any documents that indicate the true name of the person referred to as Anthony Harris (a pseudonym), that was the pseudonym given by the Court of Appeal. But the prosecution opening that is attached to the reasons for sentence is available for publication.
170All right now, let's turn to the question of the suppression order. Is the suppression order still on the door?
171ASSOCIATE: Yes, Your Honour.
172HER HONOUR: All right. May I have a copy of the suppression order, thank you. Ms Cannon, over to you. You provided an unsigned - - -
173MS CANNON: Yes.
174HER HONOUR: - - - affidavit. Is there a signed affidavit?
175MS CANNON: Yes, there is, Your Honour. I am now in a position to hand up to Your Honour a signed copy of the affidavit. I can supply the original signed copy and a copy of the original signed copy. My instructor has yet to e-file it, so I suppose we can e-file one of the copies.
176HER HONOUR: Thank you.
177MS CANNON: I will hand up both.
178HER HONOUR: Thank you. Very well, thank you.
179On 3 November 2022 I made an interim suppression order. The interim suppression order prohibited from publication all information and transcripts of the evidence given by Ali Aydin on the voir dire between 18 October 2022 and 25 October 2022. The order was expressed to expire on such time as the application for a certificate under s128 of the Evidence Act and an application for a suppression of evidence is finally determined, or until further order.
180I note that the application for a certificate under s128 of the Evidence Act has been abandoned but there is now a current application for a suppression order, that is for the order that I made on 3 November 2022 to continue. I have a sworn affidavit in support dated 20 September 2023 sworn by the applicant, Mr Ali Aydin, whom I have just sentenced on a four charge indictment.
181The application for the suppression order is dated 28 August 2023 and has been filed with the court. I have received submissions in support of the application dated 28 August 2023 prepared by Ms Cannon, counsel on behalf of the applicant.
182EXHIBIT A: Submissions in support on the suppression application dated 28/08/23.
183Do you wish to say anything further?
184MS CANNON: Your Honour, has Your Honour also received - and I apologise, I don't think it was dated - the further one page?
185HER HONOUR: Further submissions? Yes, that will be Exhibit B.
186EXHIBIT B: Undated further submissions in support of application for suppression prepared by counsel for Mr Aydin, Ms Cannon.
187MS CANNON: Yes. Your Honour, I don't wish to say anything further. In the event that Your Honour does not grant the full suppression order, then I would seek to be heard on - and I don't know whether Your Honour would be intending this in that event - whether release of transcript would be something that the court would be entertaining. In my submission, in any event that is not ordinarily something that is done by the court, because the media ordinarily are expected to, and do, observe proceedings and report accordingly. But in terms of the application itself, no, Your Honour, we have submitted everything that we can. I probably should respond to what I understand is enquiries made by the informant. Mr Aydin maintains - - -
188HER HONOUR: I haven't referred to that yet.
189MS CANNON: No, but in terms of the - - -
190HER HONOUR: I'll give you an opportunity to respond to that later.
191MS CANNON: All right, so I'll leave that, Your Honour.
192HER HONOUR: Is there any member of the media that wishes to be heard on the question of the suppression order? No member of the media has applied to be heard.
193Mr Lee, you prepared some submissions. It's a bit unusual for the prosecution to take a stance in a suppression application.
194MR LEE: Yes, I understand that, Your Honour. Those are my instructions.
195HER HONOUR: Yes.
196MR LEE: And an affidavit has been provided by the informant, Detective Sergeant Davies.
197HER HONOUR: I'm sorry, is there an affidavit?
198MR LEE: Yes, Your Honour. There's an affidavit sworn 14 September 2023. It's filed under a notice of additional evidence, a total of 23 pages, Your Honour. It's a statement, my apologies. A statement with - - -
§AYDIN instructed Covert Operative Vili to wear a black coloured Adidas peaked cap to cover his eyes so he could not identify the ‘Boss’;
§AYDIN provided the peaked cap to Covert Operative Vili;
§AYDIN said, once at the location, The ‘Boss’ would then hand over the heroin to AYDIN;
§AYDIN said, once the heroin was handed over, he and Covert Operative Vili would then return to the car park where AYDIN would hand over the heroin to Covert Operative DAZ;
§AYDIN stated the ‘Boss’ had said he was going to call off the exchange but AYDIN convinced him to go ahead with it;
§AYDIN stated the ‘Boss’ was going to pick up the heroin and text AYDIN when he was 5 minutes away.[108]
[108] Refer statement of Covert Operative 290 Vili NOLAN – Depositions 776 to 783.
101.AYDIN and Covert Operative Vili then exited the vehicle and walked around the block where they continued the conversation. During the conversation, the following occurred:
§AYDIN stated that once he received Covert Operative Vili’s order, he sent a text message to his ‘Boss’ confirming the arrangements;
§AYDIN said that if there were any issues with ‘drivers’ for future arrangements, AYDIN would send a text message to Covert Operative Vili stating ‘DIRECT’ with an address for Covert Operative DAZ to meet AYDIN directly.
§ AYDIN said the ‘Boss’ was happy with the current arrangements;
§ AYDIN stated he had been using his current driver (MARGUS) for approximately 12 months but has had minor problems during this time;
§ AYDIN then sent a text message to the ‘Boss’ who replied via text message to AYDIN that he was ten minutes away.[109]
[109]Refer statement of Covert Operative 290 Vili NOLAN – Depositions pp.776 to 783. Transcript at Depositions pp.3361 to 3399.
EXCHANGE OF CASH FOR DRUGS
102.At approximately 7:00pm OSMAN drove to the Lalor Plaza Shopping Centre where he parked next to WAHAB’s vehicle, a white Holden Commodore station wagon registration YAP161 (OSMAN’s vehicle).
103.WAHAB exited his car and removed a package (which contained heroin) from the rear of the wagon. WAHAB approached driver’s door of OSMAN’s vehicle and handed OSMAN the package through the open window.[110]
[110] Refer surveillance logs of 09/12/2014 – Depositions pp.956 to 973.
104.At approximately 7:06pm AYDIN received a text message from OSMAN stating he was at the location. AYDIN and Covert Operative Vili then entered AYDIN’s vehicle and Covert Operative Vili put on the black peaked cap as he had been instructed to do.
105.AYDIN then drove to Central Avenue, Thomastown where OSMAN was in his parked vehicle.[111]
[111] Refer statement of Covert Operative 290 Vili NOLAN – Depositions pp.776 to 783.
106.AYDIN exited his vehicle and approached the driver’s side window of OSMAN’s vehicle. OSMAN handed AYDIN a red Nike Shoe box. AYDIN returned to his vehicle carrying a red ‘Nike’ shoebox and placed it on the centre console between himself and Covert Operative Vili.
107.AYDIN and Covert Operative Vili returned to the car park in Highlands Road, Thomastown where AYDIN parked directly next to a vehicle being driven by Covert Operative Daz. AYDIN then leaned out his open window and passed the red ‘Nike’ shoebox to Covert Operative DAZ.[112]
[112]Refer audio recording and statement of Covert Operative 290 Vili NOLAN at Depositions pp.3361 to 3399 and Covert Operative 279 Darren SCHULTZ at Depositions pp.3358 to 3360.
108.The red ‘Nike’ shoebox contained a clear vacuum seal bag containing 1000.4 grams of heroin.[113]
[113]Refer Exhibit No. 26-32 – Photographs of Red Nike shoebox and heroin inside – Depositions pp.1264 to 1269. Later analysed to be 1000.4 grams of heroin by Deborah STEPHEN (VPFSC Scientist). Refer to Item 8 of her Certificate of Analyst – Depositions pp.3120 to 3124
109.At approximately 7:16pm OSMAN and AYDIN met in the car park of Woolworths on the corner of High Street and Hurtle Street, Thomastown. They had a brief discussion on the kerb then AYDIN retrieved a green enviro shopping bag with white text identical to the bag he received containing the $220,000 cash from the boot of his vehicle (the Ford Mondeo). AYDIN handed the bag to OSMAN. OSMAN left this meeting and travelled directly to the Chadstone Shopping Centre car park.[114]
[114] Refer Surveillance statements of 09/12/2014 – Depositions pp.955 to 973.
PROVISION OF CASH TO DANESH
110.At approximately 7:27pm OSMAN contacted and arranged to meet with DANESH who operated a money exchange shop and was responsible for the remittance of money from the drug transactions.[115]
[115] Refer TI Warrant A8887(02) CSN 1870 – Depositions p.4138 to 4139.
111.At approximately 8:06pm,[116] DANESH entered the front passenger seat of OSMAN’s vehicle, where they spoke briefly with OSMAN. A short time later, DANESH exited OSMAN’s vehicle carrying a green reusable enviro shopping bag with white text.[117] This bag was identical to the bag containing $220,000 cash, which Covert Operative Vili gave to AYDIN who had then given it to OSMAN.[118] DANESH walked a short distance carrying the green reusable enviro shopping bag to his shop, DANESH Exchange in Lonsdale Street, Dandenong.[119]
[116] Refer TI Warrant A8887(02) CSN 1872 – Depositions p.4141.
[117] Refer surveillance logs of 09/12/2015 – Depositions pp.955 to 973.
[118] Refer surveillance logs of 09/12/2014 – Depositions pp.955 to 973.
[119] Refer surveillance statements
112.Later there was a recorded coded conversation between OSMAN and DANASH during which OSMAN enquired about exchange rates for the laundering of money which the Prosecution says was in relation to the money derived from drug sales.
J. TRANSACTION ON 15 DECEMBER 2014 (‘THE FOURTH TRANSACTION’)
Charge 4: Trafficking in a drug of dependence (large commercial quantity) 15 December 2014 (1001.6 grams)[120] for $220,000
[120] Ibid.
113.On Monday 15 December 2014 between 2:41pm and 2:44pm Covert Operative Vili exchanged a series of coded text messages with AYDIN during which Covert Operative Vili arranges to meet for “Dinner” that night.[121]
[121]Refer TI Warrant A8939(07) CSN 8-10 at Depositions pp.4148 to 4150 and statement of Covert Operative 290 Vili NOLAN.
114.At 2:44pm AYDIN (0418363265) send a text message to OSMAN (0411586699) with the letter “C”.[122] ‘C’ is short for ‘Check’. AYDIN was telling OSMAN to check a covert phone which was not intercepted by police.
[122]Refer TI Warrant A8887(02) CSN 1980 and TI Warrant A8939(01) CSN 773 – Depositions pp.4151 to 4152.
115.At 2:48pm AYDIN called OSMAN and told him he needs to see him in “twenty minutes max” because he needs “to give answer”. OSMAN says he’ll come soon.[123] The Prosecution case is that AYDIN needed to see OSMAN to co-ordinate the drug transaction with Covert Operative Vili and to ascertain the answer he had to give to Covert Operative Vili about the deal.
[123] Refer TI Warrant A8939(01) CSN 775 and TI Warrant A8887(02) 1982 – Depositions pp.4153 to 4154.
116.At 3:05pm AYDIN (0469132905) sent a coded message text message to Covert Operative Vili:
AYDIN: “Going to see my dinner partner in 30 m to final dinner will let you know the arrangements as soon as possible”
Covert Operative Vili: “ok”[124]
[124] Refer TI Warrant A8939(07) CSN 11, 12 – Depositions pp.4155 to 4156.
117.The ‘dinner partner’ AYDIN is referring to is OSMAN. This is a coded message to inform Covert Operative Vili that AYDIN is meeting with OSMAN to arrange the drug transaction.
118.At approximately 3:30pm OSMAN and AYDIN met at Shankland Reserve in Roxburgh Park where they had a conversation for approximately three minutes. They then left in their respective vehicles.[125] The meeting was to arrange the final drug transaction with Covert Operative Vili.
[125] Refer surveillance logs of 15/12/2014 – Depositions pp.974 to 998.
119.Between 3:39pm and 3:42pm AYDIN (0469132905) exchanged a series of text messages with Covert Operative Vili:
AYDIN: “Ok the girls can meet at 8 at the usual restaurant we can have pre dinner drinks at 7.45 at the same bar”
Covert Operative Vili: “Cool”
AYDIN:“Ok see you then”[126]
[126] Refer TI Warrant A8939(07) CSN 13-15 – Depositions pp.4159 to 4161.
120.At approximately 4:23pm OSMAN attended Baset Autotech in his vehicle and he remained for only one minute.
121.At 5:19pm OSMAN called ANTHONY HARRIS (A PSEUDONYM)[127] where OSMAN informed ANTHONY HARRIS (A PSEUDONYM) that a drug transaction had been arranged and asked ANTHONY HARRIS (A PSEUDONYM) to send ‘the boy’, being a courier for the drugs. They arranged to meet.
[127]Refer TI Warrant A8887(02) CSN 1990 and TI Warrant A9109(01) CSN 1594 – Depositions pp.4162 to 4163.
122.At approximately 5.40pm Covert Operative Vili received $220,000 cash from Detective Acting Sergeant Grant HILL. It was comprised $100 notes. He placed the cash in a grey coloured plastic bag and then put that bag into a green coloured Woolworths enviro bag.[128]
[128]Det S/C Grant HILL – Depositions pp.1062 to 1065 (at1063[10]); Vili NOLAN – Depositions pp.784 to 791 (at 785).
123.At approximately 6.00pm OSMAN attended at the Al Diwan restaurant in his vehicle. ANTHONY HARRIS (A PSEUDONYM) was already present in his vehicle (the Jeep Cherokee). OSMAN and ANTHONY HARRIS (A PSEUDONYM) met together. OSMAN and ANTHONY HARRIS (A PSEUDONYM) then left this location.
124.At approximately 6:28pm ANTHONY HARRIS (A PSEUDONYM) attended the Caltex Service Station in his vehicle where he picked up AL-HAMZA.[129]
[129]Refer surveillance logs for 15/12/2014 – Depositions pp.974 to 998. Also refer TI Warrant A9109(01) CSN 2369 – Depositions p.4164.
125.At approximately 6:36pm AYDIN attended at the Al Diwan restaurant where he sat inside by himself. He then exchanged a series of text messages with Covert Operative Vili:
AYDIN: “Sorry bro small change. I will go direct with your girl at 8 at the Bar. No need for you to come. If that helps. Ok?”
Covert Operative Vili: “Hey bro, I will meet you at the bar at 8 with my girl. Ok?”
AYDIN:“Ok no problem bro”[130]
[130] Refer TI Warrant A8939(07) CSN 16, 18, 19 – Depositions pp.4165 to 4167.
126.Approximately 45 minutes later, OSMAN returned to the Al Diwan restaurant and met with AYDIN.
127.A short time later, ANTHONY HARRIS (A PSEUDONYM) and AL-HAMZA attended the Al Diwan restaurant and met with OSMAN and AYDIN.
128.AL-HAMZA then walked back to the passenger door of ANTHONY HARRIS (A PSEUDONYM)’s vehicle, retrieved a black plastic garbage bag from the front passenger side of the vehicle and carried it to front passenger side of AYDIN’s vehicle (the Ford Mondeo). He opened the door and placed the black plastic garbage bag inside AYDIN’s vehicle. The Prosecution case is that the garbage bag contained a package of heroin.
129.AL-HAMZA re-entered the Al Diwan restaurant.
130.A short time later AYDIN exited the restaurant, entered his vehicle[131] which contained the black plastic garbage bag contained the 1 kg of heroin and drove away.
[131] Refer surveillance photos and statements.
131.At approximately 7:42pm Covert Operative Vili and AYDIN had a coded text exchange during which Covert Operative Vili stated “Hey bro, I’m here with my girl at the bar. Where are you”. AYDIN asked him to come to the carpark “With your girl”.”[132]
[132] Refer TI Warrant A8939(07) CSN 20-26, 28-30 – Depositions pp.4168 to 4177.
132.Covert Operative Vili was given $220,000 cash in $100 bank notes to purchase the heroin. These bank notes had unique serial numbers which were recorded in a Microsoft Excel spreadsheet
CONVERSATION BETWEEN AYDIN AND COVERT OPERATIVE VILI ON 15 DECEMBER 2014
133.At approximately 8:03pm AYDIN met with Covert Operative Vili and Covert Operative DAZ in the car park in Highlands Road, Thomastown. AYDIN entered Covert Operative Vili’s vehicle and had a conversation. During this conversation, the following occurred:
§AYDIN told Covert Operative Vili that the codename ‘restaurant’ referred to the Al Diwan restaurant and ‘bar’ referred to the car park;
§AYDIN stated he would get the heroin to give to Covert Operative DAZ;
§Covert Operative Vili signalled to AYDIN that the $220,000 in cash was under the front passenger seat;
§AYDIN reached down and pulled out the green enviro shopping bag containing the $220,000 cash;
§AYDIN counted the cash;
§AYDIN mentioned the ‘Boss’ had problems with his driver;
§AYDIN stated the heroin was at their location;
§AYDIN said it was a full kilogram of heroin.[133]
[133]Refer audio recording and statement of Covert Operative 290 Vili NOLAN – Depositions pp.3404 to 3410.
EXCHANGE OF CASH FOR DRUGS
134.AYDIN exited Covert Operative Vili’s vehicle with the green enviro bag containing the $220,000 cash, walked to his vehicle (the Ford Mondeo) and placed the bag containing cash inside the vehicle. AYDIN walked to a row of plants in front of his vehicle, reached in between the plants and removed a black plastic garbage bag. AYDIN approached Covert Operative DAZ’s vehicle, and placed the black plastic garbage bag through the open window onto the front passenger seat.[134]
[134] Refer statements of Covert Operative 290 Vili NOLAN and Covert Operative 279 Darren SCHULTZ
135.This black plastic garbage bag, tied in a large knot at one end, contained a clear vacuum seal bag containing 1001.6 grams of heroin of approximately 60% purity.[135]
[135]Refer Exhibit No. 33-37 - Later analysed to be 1001.6grams of heroin by Deborah STEPHEN (VPFSC Scientist). Refer to Item 14 of her Certificate of Analyst – Depositions pp.3120 to 3124.
136.AYDIN left this car park and drove straight back to the vicinity of the Al Diwan restaurant where he met with OSMAN who arrived a short time earlier in vehicle registration YOU257 (the blue Ford RX6). OSMAN and AYDIN then walked along Mahoney’s Road where they had a conversation for about 13 minutes before returning to their respective vehicles.[136]
[136] Refer surveillance statements.
137.At approximately 8:29pm AYDIN and OSMAN entered their respective vehicles drove around the corner in convoy. AYDIN and OSMAN stopped their respective cars in Kwinana Court facing in opposite directions, the cars being adjacent to each other. AYDIN then handed OSMAN the green enviro bag containing $220,000 cash from the drug transaction through the open window.[137].
[137] Refer surveillance statements.
138.OSMAN immediately returned to the Al Diwan restaurant and contacted ANTHONY HARRIS (A PSEUDONYM) asking him to meet him.[138]
[138]Refer TI Warrant A8887(02) CSN 1994 and TI Warrant A9109(01) CSN 2395 – Depositions pp.4178 to 4179.
139.A short time later, OSMAN moved his vehicle further east, entered the rear seat and locked the doors. A short time later, ANTHONY HARRIS (A PSEUDONYM) parked his vehicle (the Jeep Cherokee) next to OSMAN’s vehicle, and both men exited their vehicles empty handed. ANTHONY HARRIS (A PSEUDONYM) and OSMAN meet at the rear of OSMAN’s vehicle and ANTHONY HARRIS (A PSEUDONYM) walked away from OSMAN carrying a green enviro shopping bag identical to the bag Covert Operative Vili gave to AYDIN containing the $220,000 cash. ANTHONY HARRIS (A PSEUDONYM) then drove away.[139]
[139] Refer surveillance logs of 15/12/2014 – Depositions pp.974 to 998.
PROVISION OF CASH TO DANESH
140.On Tuesday the 16 December 2014 OSMAN called DANESH and they discussed exchange rates.[140] The conversations between OSMAN and DANESH relate to the exchange rates between Australian Dollars, United States Dollars, New Zealand Dollars, Afghan Afghani and Pakistan Rupees
[140]Refer TI Warrant A8887(03) CSN 105 – Depositions p.4180; Refer TI Warrant A8887(03) CSN 106 – Depositions p.4181; Refer Line ID S3019 Optus LBS 0411586699.
141.OSMAN then met with DANESH in the Chadstone Shopping Centre area. The Prosecution case is that OSMAN handed DANESH cash derived from the fourth drug transaction based on calls made to DANESH leading up to this time.[141]
142.At 11:13pm OSMAN (0411586699) sent a text message to ANTHONY HARRIS (A PSEUDONYM) (0455559000):
OSMAN:“Thank you so much brother.”
ANTHONY HARRIS (A PSEUDONYM): “U welcome”[142]
[142]Refer TI Warrant A8887(02) CSN 2019, 2022 and TI Warrant A9109(01) CSN 2574 and 2584 – Depositions pp.4184 to 4187.
K. SEARCH WARRANT EXECUTED ON 17 DECEMBER 2014
143.On 17 December 2014 members from Victoria Police, Australian Federal Police, Australian Customs and Border Protection and the Australian Crime Commission executed search warrants at the respective residential addresses, business addresses and vehicles of AYDIN and the other members of the drug syndicate.
Search of AYDIN’s residence and vehicle
144.AYDIN was arrested at his home in 8 Sienna Court, Roxburgh Park[143]. His home and vehicle (the Ford Mondeo registration XLW-896)[144] were searched. The following items were seized during the search:[145]
[143] Search Warrant for 8 Sienna Court, Roxburgh Park (AYDIN’s residence) – Depositions p.2159.
[144] Search Warrant for 2009 Black Ford Mondeo XLW 896 (AYDIN’s car) – Depositions p.2160.
[145] Property Seizure Record – Depositions pp.2161 to 2164.
§$17,600 cash; and
§11 Nokia mobile phones.[146]
[146] Refer Exhibit No. 77- 96.
145.In relation to currency located in the glove box of the Ford Mondeo, the $17,600 consisted of 176 x $100 banknotes which were identified by unique serial number[147] as being provided to the Covert Operatives for the purchase heroin on 15 December 2014.
[147] Details on the spreadsheet contained on a USB disc served on each accused.
146.Three mobile phones located in AYDIN’s home were identified by forensic digitation examination as being used by AYDIN during the offending.
147.AYDIN had provided Covert Operative Daz with one of the mobile numbers ‘0469272951’ as his contact number.
Search of premises and vehicles related to other members of drug syndicate
148.Police searched WAHAB’s home address at 13 Cranberry Place, Bundoora. At that address, they located and seized nine vacuum-sealed bags each containing heroin with a combined total weight of approximately 9.019 kilograms.
149.Police searched WAHAB’s work address, Baset Autotech, at 22 Miller Street Epping. At that address, they located and seized one bag containing 995.9 grams of heroin.
150.Police searched MARGUS’s home address at 8/32-34 Napier Street, Essendon. At that address, they located in a kitchen cupboard and seized two white Sunbeam VS4400 vacuum heat bag sealing machines, one with Serial Number 242.
L. EVIDENCE OF SIMILAR TOOL MARKINGS ON BAGS CONTAINING HEROIN
151.The white Sunbeam VS4400 vacuum heat bag sealing machine with Serial Number 242 was used to seal each of the nine bags containing 1 kilogram each of heroin seized from WAHAB’s bedroom at his home address of 13 Cranberry Place, Bundoora, one bag containing 995.9 grams of heroin seized from WAHAB’s work address, Baset Autotech, 22 Miller Street, Epping, the bag containing 1000.4 grams purchased on 9 December 2014 and the bag containing 1001.6 grams of heroin purchased on 15 December 2014.[148]
[148]Statement of Forensic Member Christiaan PIETERSE – Depositions pp.792 to 799; Notes at pp.3229 to 3236; Photographs at pp.3237 to 3309.
152.The Prosecution relies on the similarities of the tool markings as coincidence evidence (refer to Coincidence Notice dated 10 May 2022).
M. DRUG ANALYSIS
153.The substances seized during the course of the investigation were lodged with Victoria Police Forensic Services Centre and were analysed by Scientist Deborah Jane STEPHEN[149]. The analysis is as follows:
[149] Statement – Forensic Member Deborah STEPHEN (Drug Analysis) – Depositions pp.3120 to 3124.
Item 1 - The compressed light brown powdered substance purchased by Covert Operatives on 30 October 2014 (the First Transaction) was found to weigh 499.5 grams and is approximately 60% pure diacetylmorphine (heroin);
Item 4 - The compressed light brown powdered substance purchased by Covert Operatives on 19 November 2014 (the Second Transaction) was found to weigh 498.5 grams and is approximately 50% pure diacetylmorphine (heroin);
Item 8 - The compressed light brown powdered substance purchased by Covert Operatives on 9 December 2014 (the Third Transaction) was found to weigh 1000.4 grams and is approximately 60% pure diacetylmorphine (heroin);
Item 14 - The compressed light brown powdered substance purchased by Covert Operatives on 15 December 2014 (the Fourth Transaction) was found to weigh 1001.6 grams and is approximately 60% pure diacetylmorphine (heroin);
Item 16 - The compressed light brown powdered substance located in the nine WAHAB’s home address of 13 Cranberry Place, Bundoora was found to weigh 9019.6 grams and is approximately 60% pure diacetylmorphine (heroin);
Item 20 - The compressed light brown powdered substance located at WAHAB’s work address, Baset Autotech, 22 Miller Street, Epping was found to weigh 995.9 grams and is approximately 60% pure diacetylmorphine (heroin);
N. TACTICAL COMPARATIVE ANALYSIS
154.A tactical comparative analysis of the heroin seized by police was conducted by a Sacha Vujic, Forensic Chemist.
155.There are chemical links between each of the four batches of heroin from the transactions and in the heroin seized from WAHAB’s home and business addresses.[150]
[150]Statement of Karina Craig (AFP Senior Investigator) dated 21/10/2016. Statement of Sasha Vujic (Forensic Chemist/Analyst) dated 13/10/2016. – NB – These statements are not in the Depositions, and had been obtained post-Committal.
156.The batches of heroin seized from the transaction on the 9 December 2014 (the Third Transaction) and the 9 kilograms located WAHAB’s home on the 17 of December 2014 have similar chemical profiles.
157.The batches of heroin seized from the transactions of 30 October 2014 (the First Transaction), 15 December 2014 (the Fourth Transaction) and WAHAB’s business on 17 December 2014 all have similar chemical profiles.
158.The batch of heroin seized on the 19 November was found to differ from the other samples.
159.All samples of heroin were found to share a similar origin, namely South West Asia.
160.The Prosecution relies on the similarities of the chemical profiles and source of origin of the heroin as coincidence evidence (refer to Coincidence Notice dated 10 May 2022).
O. COINCIDENCE EVIDENCE
161.The Prosecution relies on the Tool Mark analysis and Tactical Comparative analysis as coincidence evidence to show that, because of the similarities in the source of origin of all the heroin samples, the similar chemical profiles of groupings of the heroin and the similarities in the tool markings on the vacuum-sealed bags containing that heroin with the cast of the vacuum bag-sealing machine located at MARGUS’s address, it is improbable that the heroin involved in the four transaction was not sourced and packaged by the drug trafficking syndicate which AYDIN entered into an agreement with to traffick heroin.
Shivani Pillai and Gregory Buchorn
Counsel for the Director of Public Prosecutions
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