Director of Public Prosecutions v Basel
[2016] VCC 1172
•12 August 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-16-00661
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| AYHAN BASEL |
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JUDGE: | HIS HONOUR JUDGE RYAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 12 August 2016 | |
CASE MAY BE CITED AS: | DPP v Basel | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 1172 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms C. Hollingworth | Solicitor for Office of Public Prosecutions |
| For the Accused | Mr T. Sawyer |
HIS HONOUR:
1 Ayhan Basel, on 26 July you pleaded guilty to Indictment F13449662 containing ten counts, being traffic in a drug of dependence in a commercial quantity, Charge 1; traffic in a drug of dependence, three charges, Charges 2, 3 and 10; and possess a drug of dependence, six charges, Charges 4 to 9 both inclusive. As well, you pleaded guilty to three related summary offences, being two charges of possess a controlled weapon, namely a knuckle duster and a tear gas canister; and a charge of possession of the proceeds of crime.
2 The maximum penalty for trafficking in a drug of dependence in a commercial quantity is 25 years' imprisonment. The maximum penalty for trafficking in a drug of dependence is 15 years' imprisonment. In the circumstances of your offending, the maximum penalty for possessing a drug of dependence is five years’ imprisonment and/or a fine of 500 penalty units. In respect of each of the related summary offences, the maximum penalty is two years' imprisonment or a fine of 240 penalty units.
3 Tendered as Exhibit A on the plea was the summary of prosecution opening. In summary, until three days prior to your arrest, you had been living at your family home. At the time of your arrest you were living in a flat in Waverley Road, East Malvern. On 8 October 2015, police, whilst on route to execute a warrant at your new address, intercepted you whilst you were a passenger in a Honda Civic sedan. You were searched and found to be wearing a satchel that contained vials of GHB and $1,515 cash. The cash is the subject of the related summary offence of dealing in the proceeds of crime. Shortly thereafter, police executed the search warrant at your address and found caches of drugs in your bedside table, wardrobe, TV cabinet and a chest of drawers in your bedroom. There was a safe in your wardrobe and when you opened it for police, it contained more drugs.
4 The drugs were found in various containers, including zip-lock bags, boxes, vials and plastic and glass bottles. The drugs were found in various forms including tablets, powder and liquid. Police also found a knuckle duster and a tear gas canister, which are the subject of the two remaining related summary offences.
5 In essence, police found in your possession 4,485.7 grams of 4-Butanediol (‘GHB”), this substance being the subject of Charge 1; LSD, the subject of Charge 2; MDMA, the subject of Charge 3; methylamphetamine, the subject of Charge 4; Ketamine, the subject of Charge 5; steroids, the subject of Charge 6; cocaine, the subject of Charge 7; Diazepam, the subject of Charge 8; cannabis, the subject of Charge 9; and N,N-Dimethyltrypetamine, the subject of Charge 10. The case against you was that you were in possession of each of the drugs that are the subject of Charges 1, 2, 3 and 10 for the purposes of sale.
6 You admitted your criminal history, which is of little relevance to the sentencing exercise, save that you committed the instant offences whilst on a community corrections order. In addition, you are the subject to an arrest warrant issued from the Penrith Local Court on 20 September 2014 for possess a prohibited drug, two charges; supply a prohibited drug, two charges; and deal with property suspected of the proceeds of crime, two charges.
7 As well, I was informed during the course of the plea, and it was accepted by your counsel, that there is an outstanding warrant for you in Queensland in respect to an offence that is said to have taken place on 26 June 2014, being possess GHB, as well as failing to appear on 20 August 2015.
8 You were arrested and interviewed under caution and made a largely “no comment” record of interview, but said that you had a drug problem and used approximately 50 millilitres of GHB a day. You told the police you had previously tried to get help for your drug habit. You were remanded in custody and were granted bail on 30 October 2015. As at the date of your plea, you had spent 22 days on remand by way of pre-sentence detention.
9 When you were released on bail, you were subject to the Court Integrated Services Program (“CISP”), and three reports provided to the Magistrates’ Court whilst you were on bail formed Exhibit 5 on your plea. Through this program, you received assessment for drug and alcohol abuse and counselling in that respect.
10 Tendered as Exhibit 4 on the plea were a bundle of results of urine analysis for the months of November and December 2015 and January, February, April and May of 2016. Generally it can be said that your urine analysis demonstrated that you were free from drugs, save for three occasions being in January 2016 when the metabolites of cannabis were present in your urine and in April and May 2016 when benzodiazepines were found to be present in your urine.
11 After leaving the CISP scheme, you maintained a regime of counselling until the date of your plea.
12 Tendered on your plea as Exhibit 2 were a bundle of references mainly from members of your family. Each of them deposed as to your deterioration in 2014, owing to your drug use, a deterioration that changed an intelligent, university educated young man into a person who had little respect for his family and their love for him and one who was entirely self-centred and lived the life of a drug addict.
13 It was put on your behalf that your deterioration into the life of a drug addict was predicated by the break-up of a tumultuous relationship that you had with a young woman named Sara. However, as the plea developed, it was plain that your drug use and its escalation predated the breakdown of that relationship.
14 You come from a migrant family, who to my mind, worship the ground on which you walk. Your father was called to give evidence on the plea. It is plain that he and your family did everything in their power to assist you to rehabilitate yourself from your drug use.
15 In February 2014, your father took you to Cyprus for a period of approximately six weeks, where you were seen by a relative, a qualified psychologist, who treated you during that period. Your father swore that you became “clean” during this period and that you benefited from the counselling and appeared to be happy, prior to your return to Australia. However, as soon as you arrived in Australia, you returned to your old ways.
16 Your problem was the subject of many family meetings and at one stage your father had arranged, in principle, for you to attend a rehabilitation centre in Queensland that was to cost the family $60,000, a cost that they were only too ready to meet if it changed your way of life. You refused to undertake this process of rehabilitation.
17 Your uncle, Tamay Basel, was the author of a reference that formed part of Exhibit 1 and he also gave evidence on your behalf. He described you as a good kid who was smart but headstrong. He said you came from a close family and he had watched you grow up. He said, whilst a secondary student, you did not struggle with your studies and you had a good group of friends. You attended Victoria University and undertook a degree in Building Engineering. Your uncle is a building engineer and operates his own business, and during your university holidays, you worked as a labourer until you had gained enough knowledge from your study to work in the office. He swore that prior to 2014, you demonstrated a good work ethic, but in 2014, you became unreliable. You showed a lack of drive and he gave you an ultimatum, "Give up drugs or get out." You chose to get out.
18 Your uncle swore that since your release from prison, you have returned to be your former self and he has provided labouring work for you since that time. He said that you reside with your parents in the family home and was somewhat critical of them for their treatment of you, because he said they did everything for you.
19 Your younger sister, Pinar, gave evidence on your behalf. She said that she was particularly close to you and was aware that prior to 2014, you were using drugs recreationally, but that your drug use escalated in 2014. She described your life at home in 2014 and after, as being one where you slept all day and went out at night. She swore that you divorced yourself from your former friendship group and had new friends, who she described as "undesirable". These people were never welcomed into your family home and she saw them only when they dropped you home in the mornings, after you had been out at night.
20 Your sister swore that since your release from prison, you have returned to your former self. You are working, going to the gymnasium and generally speaking, living a normal life within your family home. I note that tendered as Exhibit 3 was a report from Mark Jans, physiotherapist, who opined that you had injured you knee five months ago and that he had treated you for the injury and that it required surgery “as soon as possible”. The opinion in respect to need for surgery, does not sit well with your work as a labourer, nor with you attending a gymnasium on a regular basis with your sister, Pinar.
21 Mr Sawyer of counsel, who appeared on your behalf, emphasised your early plea of guilty and the benefits that should flow to you from that plea. Further, he emphasised the process of rehabilitation that you have undergone since your release on bail and that this ought not to be interrupted. His primary submission was that you ought to be released on a community corrections order with conditions. In the alternative, he submitted that a short, sharp sentence of imprisonment when combined with a community corrections order, met all the purposes of sentencing in your case. I do not agree.
22 As an educated young man, a qualified building engineer, you chose to use drugs and to traffic in them. Even if I were to accept your answers to police questions that you had a personal habit of 50 millilitres of GHB per day, found in your possession was well over 80 days’ supply of that substance. At the time of your arrest, you had twice the commercial quantity of the drug GHB in your possession. It was in your possession for sale. As well, you had in your possession for sale LSD, MDMA and N,N-Dimethyltrypetamine. You were also in possession of methylamphetamine, Ketamine, steroids, cocaine, Diazepam and cannabis. Whilst being in receipt of social security benefits, upon arrest you were found in possession of $1,515 in cash. A perusal of the exhibit list to the depositions demonstrates that the GHB in your possession was held in containers ranging from 100 millilitres to 1.5 litres
23 Despite being portrayed as a hopeless drug addict, drug trafficker, you were able to attend the gymnasium regularly with your younger sister, prior to leaving home. There were free weights found in your room in the flat at East Malvern, as was a quantity of steroids, which your counsel described as “a new cycle”. This statement contains an implication that you were no stranger to the use of steroids and that they were in your possession for body building purposes.
24 I do not accept that the breakdown of your relationship with Sara was the catalyst to your deeper involvement in the drug world. As an intelligent, highly educated, young adult, you decided to experiment with drugs and thereafter became a user and a poly-drug trafficker. In addition, it is plain from the possession charges on the indictment, that you were a poly-drug user at the time of your arrest.
25 With the unflinching support of your family, you have been able to commence the long path towards rehabilitation. However, your rehabilitation is but one of the purposes of sentencing. General deterrence, public denunciation and just punishment, to my mind, are the principal sentencing purposes in arriving at an appropriate sentence in your case.
26 Illicit drugs are a cancer in our society. Illicit drugs are inherently dangerous. GHB, whilst used as a party drug, is a general anaesthetic. Used in small doses, it creates a feeling of euphoria, something akin to alcohol, and increases libido. Used in excessive amounts, it leads to unconsciousness, spasming and its use has been known to result in death.
27 The sentencing regime that applies to drugs of dependence is a weight-based system. It is not a system that discriminates between drugs. I merely descend into a description of the drug GHB and its effect, to demonstrate that like all drugs of dependence, it is a dangerous substance and is but one of many substances that strike at the very fibre of our community. Trafficking in these substances calls for condign punishment.
28 You pleaded guilty at an early stage and you are entitled to the benefits that flow from such a plea, being that it is evidence of your remorse and that it facilitates the course of justice. Since your release on bail, you have commenced a process of rehabilitation. You are working. You live at home with a very supportive family. You have undertaken counselling and in the main, have remained drug-free. All of these matters must be taken into account in arriving at an appropriate sentence in your case.
29 At the end of the plea, I had you assessed for suitability for a community corrections order, in combination with a term of imprisonment. You have been assessed as suitable for a community corrections order with conditions. In my opinion, a community corrections order alone, although punitive in nature, does not adequately reflect the application of the principles of general deterrence, just punishment and public denunciation in the circumstances of your offending and your personal circumstances.
30 Could I just check please, for the purpose of the exercise, the - no, that is all right.
31 Would you please stand.
32 Taking into account the circumstances of your offending and its effects, with your personal circumstances and antecedents, and endeavouring to produce a sentence that reflects and promotes the purposes of sentencing in a manner appropriate to you and your offending, I sentence you in respect to all charges to an aggregate sentence of 23 months' imprisonment, together with a community corrections order for a period of four years, with conditions:
(1)You be supervised by the Secretary to the Department of Justice or his delegate;
(2)You undertake assessment and treatment for your drug abuse and dependency; and
(3)You undertake programs that address factors relating to your offending behaviour.
33 In respect of the aspect of this sentence, which includes a community corrections order, I may only make that order with your consent. Do you consent to that aspect of this sentence?
34 PRISONER: Yes.
35 Pursuant to s.6AAA of the Sentencing Act 1991, I declare that but for your plea of guilty, I would have sentenced you to six and a half years' imprisonment, with a minimum term of four years' imprisonment.
36 You may be seated.
37 Mr Sawyer.
38 MR SAWYER: Yes, Your Honour.
39 HIS HONOUR: In respect to the application for a forensic sample, do you have instructions in respect to that matter?
40 MR SAWYER: That is not opposed, Your Honour.
41 HIS HONOUR: Thank you very much.
42 Now I have made the orders, the disposal orders and the forfeiture orders and I will hand down three copies of each.
43 Now, Mr Basel, my associate will bring to you a document for your signature. It is a record of the community correction order that you have been place on.
44 MR SAWYER: May I leave the Bar table and just be with my client when that's done, Your Honour?
45 HIS HONOUR: Yes, certainly, Mr Sawyer.
46 MR SAWYER: Thank you, Your Honour. Thank you, Your Honour. That has been signed.
47 HIS HONOUR: Thank you. Mr Basel, would you please stand.
48
Now the community corrections order that I have place you on, comes into operation at the end of your sentence of 23 months. There are a number of conditions on the community correction order, that are there pursuant to statute. I have placed additional conditions on it.
(1) That the term of the order be four years' duration;
(2) That you be supervised by a Community Corrections officer for a period of four years;
(3) That you must undergo assessment and treatment for drugs of abuse and dependency, as directed by the Regional Manager; and
(4) You must participate in programs and/or courses that address factors relating to your offending, as directed by the Regional Manager.
49
If you breach that order, you commit an offence under the Sentencing Act,
a breach of a corrections order is punishable in its own right by a maximum period of three months' imprisonment. But you will be brought back to me, and I have the ability to re-sentence you anew.
50 If the parties and the prisoner can be provided with a copy of that document please. But before you do that, the Crown made application for what is known as a forensic sample, Mr Basel. I have made that order because of the seriousness of the circumstances of your offending warrant the order, that it was not opposed and that the granting of the order was in the public interest. The forensic sample that I have authorised is a mouth scraping, a buccal swab. But I am obliged to inform you that, if at the time of request, you do not consent to the taking of a mouth scraping under the supervision of an authorised member of the police, then the sample to be taken will be a blood sample and police may use reasonable force to enable that forensic procedure to be conducted.
51 I will hand down three copies of that order.
52 Are there any matters that need to be dealt with, Ms Hollingworth?
53 MS HOLLINGWORTH: Your Honour, just - I'm not sure if Your Honour declared the PSD, which was - - -
54 HIS HONOUR: I did not, but the sentence is exclusive of pre-sentence detention, as I understand the provisions of the Act.
55 MS HOLLINGWORTH: Yes.
56
HIS HONOUR: If you think that I ought to declare - I do not want the
pre-sentence detention to be taken into account in respect of this sentence.
57 MS HOLLINGWORTH: I see, yes, in relation to the - - -
58 HIS HONOUR: The 23 months was calculated, taking into account the fact that he had spent the days that he had in custody.
59 MS HOLLINGWORTH: Thank you, Your Honour.
60 HIS HONOUR: And as I understand the structure of it - - -
61 MS HOLLINGWORTH: That is how it works, yes.
62 HIS HONOUR: It is a maximum penalty of up to 24 months', exclusive of PSD.
63 MS HOLLINGWORTH: Yes, thank you. Yes.
64 HIS HONOUR: So I have structured the sentence in the way that I have.
65 MS HOLLINGWORTH: Yes.
66 HIS HONOUR: If you suggest that I need to declare PSD, I will, but I do not think I am obliged to.
67 MS HOLLINGWORTH: I don't think you do, I was just pulling it up in the sentencing manual, but Your Honour's more (indistinct).
68 HIS HONOUR: Thank you. I want to thank counsel for their assistance in this matter.
69 Would you remove the prisoner please.
70 I will stand down until when the next matter is. Ten o'clock. I will be out the back there.
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