Director of Public Prosecutions v Barkho
[2014] VCC 1182
•25 July 2014
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised (Not) Restricted Suitable for Publication |
Case No. CR-13-00190
CR-13-00191
| DIRECTOR OF PUBLIC PROSECUTIONS |
| V |
| RICHARD BARKHO SARGON BARKHO |
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JUDGE: | HER HONOUR JUDGE WILMOTH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 17 July 2014 | |
DATE OF SENTENCE: | 25 July 2014 | |
CASE MAY BE CITED AS: | DPP v BARKHO | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 1182 | |
REASONS FOR SENTENCE
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SUBJECT: Criminal law - sentence
CATCHWORS First accused, plea guilty to one charge of trafficking in a drug of dependence, in a quantity not less than a large commercial quantity, one charge of possessing drug of dependence and one summary charge of possessing the proceeds of crime – frequent trafficking (Giretti). Similar prior conviction more than ten years ago – offending over 8 months – depression and polydrug use – unresolved emotional issues – good work history – remorse – delay – strong family support - good prospects for rehabilitation.
SENTENCE: 7 years three months, with a non-parole period of 5 years.
CATCHWORDS: Second accused, plea of guilty to one charge of trafficking in a drug of dependence. No prior convictions- excellent work history – remorse – delay – stable lifestyle –strong family support - good prospects for rehabilitation – very little need for specific deterrence
SENTENCE: 2 years and 9 months’ imprisonment, wholly suspended for three years.
LEGISLATION CITED: Sentencing Act 1991
Cases Cited: Giretti [1998] 24 A Crim R 112; Xi v R [2011] VSCA 342; R v Buhagiar and Heathcote (1984) 4 VR 540; Howden (1999) 108 A Crim R 240
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr G Hughan | Solicitor for Office Public Prosecutions |
| For the Accused Richard Barkho | Mr P Morrissey | Koutsantoni & Associates |
| For the Accused Sargon Barkho | Mr L Gwyn | Grigor Lawyers |
HER HONOUR:
1 The accused may remain seated while I read these sentencing remarks. I will ask you to stand later.
2 Richard Barkho and Sargon Barkho have each pleaded guilty to charges on one indictment. I shall set out the details of the charges and describe the background to the offences common to the two offenders before dealing separately with each offender.
3 Richard Barkho, who is the older brother of Sargon Barkho, has pleaded guilty to one charge of trafficking in a drug of dependence, namely methylamphetamine in not less than a large commercial quantity. He has also pleaded guilty to possessing 4.49 grams of cocaine and to a summary charge of dealing in the proceeds of crime.
4 Between 29 November 2010 and 3 August 2011 he trafficked in a quantity of at least 92 ounces or 2.576 kilograms, which is at the lower end of the range for a large commercial quantity. The purity of the substance ranged between six per cent and 16 per cent, except for one batch weighing half a kilogram which was of poor quality and was returned to the supplier. The frequency of the trafficking by both accused brings it within the definition of the business of trafficking as defined in R v. Giretti.[1]
[1] (1986) 24 A Crim.R 112
5 Sargon Barkho has pleaded guilty to one charge of trafficking in a drug of dependence, namely methylamphetamine, a quantity of approximately 480 grams, between 12 May and 20 June 2011. He will be sentenced to a term of imprisonment which will be wholly suspended for reasons which follow.
6 In 2010 a police operation investigating drug trafficking, using means which included telephone intercepts and covert police operatives, identified both men and three others involved in the trafficking of amphetamines. The principal offender and supplier was Dorry Dawid who was later sentenced on the basis of having trafficked between three and four kilograms of mixed methylamphetamine and at least four ounces of cocaine.
7 Richard Barkho was identified, together with Dawid, as having supplied Neil Turner and others with methylamphetamine. Dawid would travel to Sydney for supplies and Richard Barkho made the trip on one occasion. Andrew Borg was a significant customer of Dawid. Dawid and Richard Barkho would dilute the methylamphetamine using a cutting agent, and intercepted conversations revealed they each stood to receive $60,000 from each kilogram they sold.
8 Sargon Barkho engaged in transactions with Turner delivering methylamphetamine to him from Dawid, and also delivering separate smaller quantities to Dawid, on four occasions, performing the role of storeman in the enterprise. He trafficked 480 grams of substance containing methylamphetamine over approximately two months. At the time of his arrest his home was searched and nothing of interest was found; indeed there were no indications of lavish lifestyle or spending inconsistent with the combined incomes of him and his wife.
9 Richard Barkho was intercepted while driving his car and was arrested. Found in his possession were three mobile phones, and on searching his home police found the sum of $16,750 in cash and the cocaine referred to earlier.
10 In June 2012 Her Honour Judge Patrick of this court sentenced Dawid to nine years' imprisonment with a non-parole period of six years and two months. He trafficked a considerably larger amount than Richard Barkho for a slightly longer period, and was the preeminent connection to a Sydney supplier. Later in 2012 I sentenced Turner and Borg each to a sentence of three years with a non-parole period of 18 months.
11 I turn now to the personal background of each offender, dealing first with Richard Barkho. Richard Barkho, you are aged 38, a single man living with your brother until you were recently remanded in custody following your plea hearing. After your arrest on 3 August you were remanded in custody from 4 to 22 August, a total of 18 days, and you were then released on bail.
12 You come from a hard-working family of Assyrian origin, your parents having come to Australia from Lebanon. When you were 16, your mother left the family taking your sister with her following marital conflict and you were estranged from them both until you recently saw your sister again. This was a cause of great sadness for you and your two brothers, including Sargon who was only 10 years at the time. You both went to live with your grandmother as your father was fully occupied with his work.
13 You completed secondary school until almost the end of Year 12 when you were asked to leave because of an altercation during a football game during which you assaulted a player. For this you were based on a community based order in 1994, and thereafter you were dealt with in the Magistrates' Court on several occasions culminating in a six-week prison term imposed in the County Court in 1998 for trafficking cannabis.
14 Your last court appearance was in 2000 for possession of cannabis and going equipped to steal. During the decade following that you might have been expected to have learnt from these youthful misdemeanours, but ultimately you did not, and although you managed to put aside drug use for a time after your early 20s, it seems you fell in with Dawid, a friend from school days, whose apparently glamorous lifestyle appealed to you. By contrast with him, I accept that you are a relatively unsophisticated person with ordinary aspirations, a strong commitment and loyalty to your family and demonstrably capable of earning a reliable income from steady employment.
15 You were married at the time of the offending and your wife also earned a good income. Your marriage has ended, but your ex-wife provided a reference in which she stated her belief that your mother's departure from the family resulted in your emotional vulnerability and dependency. Many of your friends and family, who have also provided references, make the same observation with the added opinion that your increasingly unhappy marriage contributed to loss of self-esteem and the undermining of the moral code by which you lived, leading to your involvement with drugs again and with Dawid. At some point you resumed the use of drugs, and by the time of your arrest you had escalated your use of amphetamines and cocaine. There is nothing to indicate that the cocaine found at your home was other than for your own use.
16 Mr Bernard Healey saw you for psychological counselling on many occasions over the last 12 months, and he reports that you consider yourself to have been depressed since your mother abandoned the family. You have been taking anti-depressant medication more recently. Mr Healey's opinion is that drug use at the time of your offending had the effect of relieving your symptoms of depression and anxiety and had an adverse impact on your reasoning and sense of moral code.
17 Mr Morrissey submitted on your behalf that for this reason your moral culpability should be reduced by a moderate degree. I take the view that the degree of reduction should be slight. I also take into account that the experience of prison will likely worsen your depressive symptoms.
18 As to parity, the criminality and personal circumstances of Dawid have some similarities with yours, but his offending was at a higher level, both as to quantity and organisation. The sentence I impose upon you should reflect that difference, but should also reflect the gravity of your offending, which continued for a little over eight months. You well know the seriousness of your wrongdoing as you had been in prison briefly for drug trafficking when you were younger. There has been considerable delay since your arrest, but you have put that time to good use. You ceased drug use, underwent counselling and helped members of your family. They and friends describe you as being remorseful and sorry that you have caused shame and embarrassment. They say your offending was out of character. Your employer, who knows you well and speaks very highly of you, has offered you a job when you are released.
19 You pleaded guilty at a reasonably early time after lengthy negotiations, a matter that has been conceded by the prosecution, and you are entitled to a discount on your sentence for having avoided the need for a trial which could have been lengthy and complex.
20 I am satisfied that your prospects for rehabilitation are good and that specific deterrence as a sentencing component can be somewhat reduced. General deterrence, that is the need to deter others and record the court's denunciation of drug trafficking is the chief purpose of the sentence I must impose. The terrible harm caused by illicit drugs must be acknowledged and the court’s strong disapproval of any aspect of drug trafficking must be reflected in the sentence imposed. Would you stand now, please, Mr Barkho.
21 For Charge 1, the charge of trafficking a large commercial quantity, I sentence you to seven years' imprisonment. For Charge 2, possession of cocaine, I sentence you to three months' imprisonment, and for the summary charge of dealing with the proceeds of crime, six months.
22 The sentence for Charge 1 is the base sentence, and I order that one month of the sentence for Charge 2, and two months of the sentence of the summary charge be served in cumulation upon the base sentence. That results in a total effective sentence of seven years and three months.
23 I order that you serve a minimum period of five years before being eligible for parole.
24 You have been in custody since the plea hearing, a period of seven days not including today. When added to the 18 days of presentence detention when you were arrested, the total time in custody is 25 days. That time will be reckoned as already served, and I shall cause it to be noted on the court record.
25 If you had pleaded not guilty to these charges, I would have sentenced you to eight years and six months' imprisonment with a non-parole period of six and a half years. You can be seated now, please, Mr Barkho.
26 I turn now to address Sargon Barkho. You are now aged 33 and have been married for three years. You have no prior convictions and have never before been involved in any criminal or antisocial behaviour. Your wife works as a mortgage clerk with a respected firm and was shocked to learn of your offending when you were arrested.
27 You completed Year 12 at school and have been part of the work force ever since. According to your supervisor, you are a valued member in the workplace where you succeed in a challenging and pressured role.
28 You were recently assessed by the forensic psychologist, Mr Patrick Newton, to whom you reported that you were active in sporting clubs, have never abused alcohol or used illicit drugs, nor have you gambled or led an ostentatious lifestyle. You have a wide circle of friends, none of who have any criminal history. You had no links with the co-offenders other than through your brother. As noted earlier, you were very young when your mother left the family, and you became dependent on your older brothers to care for you, living with your grandmother and aunt. Recently you reconciled with your mother and sister, which you have found to be a great relief.
29 Mr Newton considers that you are a relatively dependent person, but he otherwise described you as a conscientious person who espouses pro-social personal values. He goes further and says your general good character and desire to act respectfully are the diametric opposites of the traits which would be seen in anti-social individuals.
30 You expressed to Mr Newton your deep feelings of shame and remorse and your regret that you let down your family and friends and will now have to rebuild their trust. You have written a letter to the court expressing this, in which you blame yourself for being naïve and stupid. You were not a user of drugs, and so your only motive for involvement can have been greed and perhaps your relationship with your brother as it existed then. However, you were found with only one mobile phone registered in your name, rather than multiple phones, as was the case with the other offenders and there was no evidence of enrichment.
31 I accept your plea of guilty as an indication of remorse, and like your brother, you are entitled to a discount on your sentence for that plea. You have also been subject to the same delay and have used that time well. You have continued working and have accepted full responsibility. You have been determined to consign this aberrant period of your life to the past. However, the delay through no fault of your own is a matter to be taken into account because the prospect of prison has been hanging over your head for almost three years, and as I understand it, has had a very great impact on your personal life.
32 Your prospects of rehabilitation would seem to be excellent, and that therefore there is little need for specific deterrence to play a large part in the sentence I impose. You are unlikely to offend again in this way; indeed there is nothing to indicate any anti-social tendencies at all. Not only does your work history indicate a very good work ethic, but you have also demonstrated a commitment to community involvement, through your soccer club where you coach junior teams, through your church where you taught younger members, and you are well known as a person who helps others in practical ways. All these are matters which are confirmed in a large number of references provided by family members and friends.
33 The need for general deterrence is another matter, and again, it must be the primary focus of the sentence for the reasons explained earlier in these sentencing remarks. A prison term must be imposed as necessary punishment. In determining the sentence I take into account that the amount, 480 grams of substance containing methylamphetamine was not far short of a commercial quantity. I also take into account the relatively short period of just over two months during which you trafficked, the absence of a need for specific deterrence, as well as the mitigating factors in general, and overall the primary need for general deterrence in such cases.
34 The principle of parity requires me to consider the appropriate sentence taking into account the sentences imposed on your brother and the other offenders. While there can be no precise arithmetical apportionment, I consider that the term of imprisonment should be slightly lower than that imposed on Turner and Borg. Would you stand, please, Mr Barkho.
35 For these reasons a term of imprisonment of two years and nine months is appropriate, and I so sentence you.
36 I was urged by Mr Gwynn who appeared on your behalf to wholly suspend the sentence I impose. There is authority that guards against the suspension of any part of a sentence of imprisonment in a case such as this, where the offender participated in the drug trafficking scheme for profit and where the trading enterprise was a significant one. This was the decision in Zi v R[2] where the appellant had a gambling addiction and cognitive deficits and his chances for rehabilitation were slim. On the other hand, I was referred to the decision in R v. Buhajiar & Heathcote[3] where Batt and Buchanan JJA, said that a suspended sentence may be in the interests of the protection of the community and may be imposed where there is sufficient reason to provide the offender with this opportunity for reform. I was also referred to the decision in the case of Howden[4] where the appellant trafficked very large amounts of amphetamines. As in your case he had good chances of rehabilitation and specific deterrence was of less consequence, but as to his lack of relevant prior convictions, the Court of Appeal held that in sentencing for drug trafficking a clear earlier record has less significance than in other fields of crime.
[2] [2011] VSCA 342 at par 16
[3] (1984) 4 VR 540 at 547
[4] (1999) 108 A Crim R 240 at 244
37 It cannot be the case that an offender with an otherwise blemish-free record should not be given the benefit of it in an appropriate case. Your situation can be summarised this way; that you offended in a very serious way by distributing dangerous drugs to others and profiting from it apparently by reason of your dependence on your brother, if not out of loyalty to him, although that may have been a factor as well. Your family and friends have been shocked to learn of your crime and are confounded by it. In every other respect you cannot be found wanting as a sound, contributing member of society.
38 The mitigating factors in this case are unusually strong and in combination they compel a lenient view. A wholly suspended sentence is open, and I have concluded that no purpose could be served by requiring you to serve it or indeed part of it.
39 Accordingly the sentence of imprisonment of 2 years 9 months will be wholly suspended with an operational period of three years. If you were to offend again during that time in any way which might attract a prison sentence you will have breached the suspended sentence and would have to serve it unless you could show exceptional circumstances.
40 Pursuant to s.6AAA of the Sentencing Act, if you had pleaded not guilty to this charge, I would have sentenced you to three years' imprisonment and suspended 18 months of it.
41 The prosecution seeks orders for forensic samples to be obtained. Through counsel Richard Barkho has consented to this application and there is no opposition from Sargon Barkho. I must advise both offenders that the police have the power to use reasonable force to obtain the samples, but I trust that will not be necessary.
42 The prosecution also seeks an order for the forfeiture of firearms and the cash found and for the disposal of drug-related equipment and mobile phones. Again, they are consented to and not opposed respectively, and I make those orders.
43 Are there any other matters counsel wish to raise?
44 COUNSEL: No, Your Honour.
45 HER HONOUR: As to those orders, there is one that I have not signed, so I will attend to that outside in chambers, and they can be returned to court straight away, Mr Hughan.
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