Director of Public Prosecutions v Azar

[2018] VCC 1908

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 18-01736

DIRECTOR OF PUBLIC PROSECUTIONS

v

ANTONIN AZAR

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Melbourne
DATE OF HEARING:	15 November 2018
DATE OF SENTENCE:	20 November 2018
CASE MAY BE CITED AS:	DPP v Azar
MEDIUM NEUTRAL CITATION:	[2018] VCC 1908

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr S. Ginsbourg	Office of Public Prosecutions
For the Accused	Mr E. James	Abba Jacobs Lawyers

HIS HONOUR: 

1Antonin Azar, you have pleaded guilty to one charge of importing a marketable quantity of a border controlled drug; one charge of importing a commercial quantity of a border controlled drug; and one charge of dealing with property reasonably suspected of being proceeds of crime.  They are all crimes under Commonwealth legislation.  They carry maximum penalties of 25 years'; life; and two years' imprisonment respectively.

2You are now 28 years of age.  You pleaded guilty at the earliest reasonable opportunity and you were not, in fact, interviewed.

3Remorse is somewhat problematic, though I am certainly satisfied that you are sorry about the situation in which you now find yourself.  You must, of course, get the utilitarian benefit of that plea of guilty. You have no relevant prior convictions for these purposes. 

4You are subject to deportation and as I understand the situation, the likelihood is that you will be deported upon the expiration of your minimum term.  In these circumstances, I cannot take that for granted, so I have tried to make an allowance for that anxiety, but of course in the future, that has got really nothing to do with me.  Your deportation is not destroying a life that you could have had in Australia, as it is in so many other situations. 

5The offending is serious indeed.  You came to Australia in early-February of 2018 on a tourist visa.  You, on 3 March 2018, created a note on an application of Apple notes in your phone containing the following text:  "238 Victoria Street, Bozo Backpack, Chapis, Nelly" and then the figures, "107700". 

6On 5 March 2018, in the mail, was detected a consignment sent from France, a total weight of - or a pure weight of 162.1 grams of cocaine.  That package had been sent to a Nelly Chapis and the address fitted what was on your phone.  She was the holder of a French passport and arrived in Australia on a working holiday visa in December of 2017.  She departed Australia in April of 2018 and I am not aware as to whether she was interviewed or not.

7When you were arrested, other materials and details were found on your phone, including images of the packaging of the drugs that had been brought into the country and you clearly were implicit in that importation. 

8Insofar as Charge 2 is concerned, I will simply annex the Crown opening to these, my sentencing remarks.  Basically what had occurred, is that two Belgium nationals came into the country and they had been contacted by your then-girlfriend, and I make no further reference to her, as her trial is yet to take place.  They were invited to come to Australia and I accept with you, was a very significant involvement, organised for them to bring in MDMA in wine.  The first importation in bottles of wine.

9MR GINSBOURG:  Sorry to interrupt, Your Honour, it was actually MDMA in the wine bottles. 

10HIS HONOUR:  What did I say? 

11MR GINSBOURG:  Methylamphetamine.

12HIS HONOUR:  I have stopped halfway through the word, sorry.  Methylenedioxymethamphetamine.  If it makes you feel better, Mr Ginsbourg.  All right.  MDMA we will ‑ ‑ ‑

13MR GINSBOURG:  And someone's saying, they both make you feel better, Your Honour. 

14HIS HONOUR:  No, they both - yes, similar concept.  All right, MDMA with a pure nett weight of 705 grams.  You were implicit in it arriving, going to the airport and contacting those people.

15Again, social - the evidence has been given by one of those people about you having taken her phone and on the face of at least taking control of the importation. 

16On 15 March 2018, further drugs, or MDMA, was brought into the country in the name of your girlfriend and you have pleaded guilty to that as being part of the overall importation, which I now take into account as
951 grams. 

17You were arrested leaving the country with your girlfriend and found on you was some 30,000-odd euros, or close enough to $50,000 if it was in Australian cash. 

18The other matters that are obtained clearly indicate you being involved in purchasing tickets, various emails, various accounts that have been opened and I do not think I need to go into the detail of that.  Obviously it is very significant importations and a very significant amount of money that was found on you. 

19The submissions put on your behalf, were that you were not a leader in this series of importations, there being three all up and you, yourself, have tendered a letter of explanation.  That letter is somewhat self-serving and does not really deal with the nature of the offending at all, in my view.  Your counsel very sensibly did not call you to give evidence.

20You have asserted that you - apparently when you spoke to the psychologist, as well as what you have said in that letter, have become effectively an alcoholic.  The fact of the matter is that between 6 February and 9 March 2018, you exchanged a total of A$193,617 into 119,400 euros.  Between the period of 16 December 2017 and 6 February 2018, the time before you arrived in this country, you received transfers of funds totalling $21,880. 

21There is no explanation before me from you as to where all that money went, even allowing for the 33,000 euros that were hidden in your luggage when you tried to get onto the plane.  If you were some sort of faltering alcoholic, Mr Azar, someone put an awful lot of trust in you to let you handle that sort of money.

22This is one of those situations where, as a sentencing judge, I know that
I probably only know about a tenth of what this is all about, but the fact of the matter is that, whilst I do not accept, for the purpose of sentencing, that you were solely involved in it, it is more than just a facilitation.  I think that on the evidence, it is clear the you were instrumental, if I can use that word, and
I sentence you on that basis.  I make no comment about the one who is awaiting trial.  The people who brought the drugs into the country, or involved in bringing the drugs into the country, as I understand it, their matters have been resolved and there is no question of parity involved. 

23Your history is that you were born in France.  Your assertions are that you had a relatively difficult upbringing because of debts of your father.  You say that you were good at sport and after that, it is a bit hard to work out exactly what you are really all about, Mr Azar.  The fact of the matter is that character plays little part, for one who decides to offend to this level, involving such pernicious substances. 

24You would appear to have worked up until fairly recently and you are still a relatively young man. 

25There is a report from Mr Watson-Munro, which does not, I think, take the matter further.  Your letter indicates that you were an alcoholic from your teens. 
Mr Watson-Munro seems to think that it came about when you arrived in Australia, so (indistinct words) to any of that.  The fact of the matter is, Verdins has no application. 

26I do accept that you will undergo a very significant gaol sentence in isolation.  Your English is limited and you will obviously receive very few, if any, visitors during your time of incarceration.  Your father had intended to come out here to support you during this process, but was unable to do so because of illness and I accept that and indeed there is a medical report in relation to it. 

27You tell Mr Watson-Munro that you want to get on with your life.  You are depressed with your custodial situation and that is totally understandable.

28You do not use drugs, you have told him and obviously therefore your offending was for financial gain.  You claimed that it was to help support your father, but again, I take that certainly with a grain of salt.  It is not up to me to speculate. 
I think I can just simply sentence you for what you did, which is a very serious crime, involving a very significant amount of drugs and clearly a commercial enterprise because of the amounts of money that you were in control of in a very short period of time. 

29The risk of you re-offending in this country is, I would have thought, is zero.  The prospects of your rehabilitation are really up to you and as I say, I am left with little in the way of material that I am prepared to accept. 

30The Crown have shown me some comparative cases.  They are always difficult and obviously I have taken them into account.  In the end all I can really do is give you a minimum term that will expire earlier that what otherwise would have been the case, because of your pending deportation and the anxiety, in effect, that that will have on you.  So bearing in mind some recent Court of Appeal authority, however, the sentence must remain a condign one for the nature of the offending.

31Accordingly, on Charge 1, you are sentenced to be imprisoned for a period of three years and six months. 

32On Charge 2, seven years.

33On Charge 3, 12 months. 

34Charge 2 is to commence today.  Charge 3 is to commence today.  Charge 1 is to commence one year and six months prior to the expiration of the sentence on Charge 2. 

35That gives an effective head sentence, as I understand it, of nine years. 

36Bearing in mind your age and the deportation prospects, I set a minimum term of five years before you become eligible for parole. 

37In these circumstances, I am sure I declare PSD, do I not?

38MR GINSBOURG:  Yes, you do.

39HIS HONOUR:  And my - I might have got this wrong, 250 days?  Have I got that right, or is that ‑ ‑ ‑

40MR GINSBOURG:  Well it was 245 last time, as I recall.

41HIS HONOUR:  I think it's 250.  I will make it 250.  If I am a day out it does not matter. 

42MR GINSBOURG:  Yes.  Yes, Your Honour, we'll check that. 

43HIS HONOUR:  So it is 256.

44MR JAMES:  Yes, Your Honour. 

45MR GINSBOURG:  Yes, we agree with that, Your Honour. 

46HIS HONOUR:  That is right, it was not last, it was the week before.  Yes,
256 days. 

47Just so you clearly understand.  What would happen if you had fought this out and been convicted, but for your plea of guilty, you would have been sentenced to be imprisoned for a period of 12 years, with a minimum term of eight. 

48Are there any other orders I have to make? 

49MR GINSBOURG:  There is no forfeiture.  No, Your Honour. 

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