Director of Public Prosecutions v Basic
[2014] VCC 1552
•12 September 2014
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR 13-01476
CR 13-01475
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| KRESIMIR BASIC MAMDOUH DAKIZ |
---
| JUDGE: | HIS HONOUR JUDGE CARMODY |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | Plea: 5 September 2014 |
| DATE OF SENTENCE: | 12 September 2014 |
| CASE MAY BE CITED AS: | DPP v Basic |
| MEDIUM NEUTRAL CITATION: | [2014] VCC 1552 |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr D. Porceddu | |
| For Offender Basic | Mr D. Cole | |
| For Offender Dakiz | Mr P. Dane QC |
HIS HONOUR:
1)Mamdouh Dakiz and Kresimir Basic, on 29 August 2014 you were found guilty by a jury of your peers of trafficking in a drug of dependence in not less than a commercial quantity. The drug of dependence was cocaine. This verdict was at the end of a long trial.
2)Mr Basic, the same jury found you guilty of the charge of knowingly dealing with the proceeds of crime.
3)In these reasons for sentence I will address the matters relating to the trafficking of cocaine in not less than a commercial quantity first and then address the sentencing matters for each of you separately. You have different prior convictions and you each have different other offending to be dealt with in this sentence.
4)The maximum penalty for the charge of trafficking in a commercial quantity of cocaine is 25 years' imprisonment.
5)In respect of the verdicts by the jury, I make the following findings. On 29 August 2014, a jury of 12 convicted Mamdouh Dakiz & Kresimir Basic, the accused in question, of trafficking in a drug of dependence, cocaine, in not less than a commercial quantity between 3 July 2012 and 24 July 2012.
6)Consistent with the jury's verdict of guilty for Charge 1 on indictment No.C1208782.6, I make the following findings of fact for the purposes of sentencing both you, Dakiz and Basic. I am satisfied beyond reasonable doubt of the following:
a) The reference to “Sheila, or girl”, in the telephone intercepts and listening device evidence in this case refers to the drug cocaine.
b) Dakiz and Basic were engaged in a joint criminal enterprise of trafficking cocaine.
c) The joint criminal enterprise is proven by the conversations between Basic and Dakiz set out in the Jury Book (Exhibit B).
d) That the cocaine was sourced by the accused from Hamzy in New South Wales and the payment of money was directed from Dakiz to Hamzy.
e) Foster was the courier for Hamzy of the cocaine to Melbourne. Foster delivered the cocaine to Dakiz.
f) Dakiz was the connection between Hamzy in Sydney and Basic was the connection to the lower level dealers of Mustica and Palahinjak in Melbourne. This was a joint criminal enterprise between them. Basic and Dakiz were each partners and had their role to play.
g) The cocaine delivered by Foster to Dakiz was placed with McPherson for safekeeping. The phone calls and coded conversations between Dakiz, Basic and McPherson established this fact.
h) Dakiz and Basic exercised custody and control over the cocaine in McPherson's house. In this regard Basic and Dakiz had the cocaine in their possession for sale.
i) The amount of cocaine I find is 830 grams, which is the amount of the drugs seized at McPherson's house and tested and weighed by Ms Poel. This is 1.6 times the minimum level for a commercial quantity.
j) The $205,000 seized from Foster by police at Wallan was money paid by Dakiz for the cocaine. The balance of the money, that is $155,00, is set out by Dakiz in phone calls which appear at Jury Book 115. The total deal was for $360,000. Hamzy and Dakiz discussed the loss of 200, meaning the $205,000, with Foster. This is the, "I did you a favour" phone call which is at Jury Book 154.
k) The calls between Mustica, Basic, referring to tuning up the car, is about the quality of the cocaine.
l) Mustica and Basic phone calls at Jury Book 176 after Mustica's arrest is about the deal in cocaine they had just completed before Mustica's arrest.
m) Palahinjak's conversation with Basic about paying money is part of the payment for the trafficking of cocaine.
n) The conversations between Dakiz, Basic, Mustica, Vouthas, Rick Palahinjak about raising money for payment by Dakiz are all part of the trafficking enterprise by Dakiz and Basic.
o) The conversations between Dakiz and Basic and McPherson are coded arrangements for the movement or collection of the cocaine to or from McPherson's house.
7)The case against Dakiz and Basic is circumstantial. The findings I have made are based on the only reasonable inference open on the facts proven by the prosecution beyond reasonable doubt. The combined force of all these facts establish the above findings consistent with the verdict of the jury.
8)Charge 2 only relates to you, Mr Basic. The evidence establishes that the money seized from you was money from Palahinjak. Conversations between Basic and Palahinjak set out the talk of the collection of money. Basic had collected that money organised by Palahinjak. The money was payment for drugs. The sum of $17,960 is proceeds of crime and was so to the knowledge of Basic. This is consistent with the jury's verdict.
9)On this charge the prosecution conceded that any sentence on this charge is appropriate to be served concurrently with the sentence in Charge 1. The verdict of trafficking includes the facts that supported the verdict in Charge 2.
10)Consideration of double punishment indicates that a sentence on Charge 2 for you, Mr Basic, is to be served concurrently with your sentence in Charge 1.
11)Mamdouh Dakiz, you have also pleaded guilty to other offending to be dealt with by way of sentence at the same time as the sentence for trafficking in not less than a commercial quantity of cocaine.
12)On indictment No.C1208782.4 you pleaded guilty to two charges. The plea was entered into the records of the court on 5 August 2014 before the trial proceeded. The two charges were knowingly deal with the proceeds of crime. This charge has a maximum penalty of 15 years' imprisonment.
13)The circumstances of this offence are set out in the prosecution opening dated 2 September 2014 as follows: Charge 1: as part of Operation Judged, on 24 July 2012, at approximately 9.50 pm, Dakiz was intercepted on Springvale Road, Waterways, driving a Holden Captiva rental vehicle. Police searched Dakiz and in the vehicle they located 6,600 in cash in Dakiz' wallet. This money was the proceeds of crime.
14)Charge 2: on 24 July 2012, trafficking in a drug of dependence, namely methylamphetamine. At the time of your arrest referred to in Charge 1 it was said that, when arrested, you then removed a resealable bag containing white powder from your jeans pocket and placed it on the bonnet of the vehicle. The bag was later analysed and found to contain 110 grams of methylamphetamine with a purity of 12 per cent.
15)Mr Dane, on your behalf, submitted on instructions that you had this amount of methylamphetamine for your own personal use. The amount of methylamphetamine was over 30 times the minimum trafficable quantity set out in the Drugs, Poisons and Controlled Substances Act. I do not accept you had this amount of methylamphetamine for your own personal use, but had for the purposes of trafficking a drug of dependence consistent with your plea of guilty to that charge.
16)On the day of your plea, 5 September 2014, you pleaded guilty to three summary charges that had to be transferred to this court pursuant to s.145 of the Criminal Procedure Act. The three charges that you pleaded guilty to were:
17)Charge 5. On 25 July 2012 you did store an authorized explosive, namely fireworks, without approval of the appropriate authority. This charge has a maximum penalty of five years' imprisonment. The prosecution summary sets out that in the search of your home at Unit 3, 186 Beach Road, Mordialloc, the police located a large assortment of fireworks.
18)Charge 6. On 25 July 2012, you did possess cartridge ammunition whilst not the holder of a licence under the Firearms Act. This charge has a penalty of 40 penalty units. The prosecution summary sets out that in the search of your premises on 25 July police found six rounds of varying caliber ammunition.
19)Charge 9. On 25 July 2012, you possessed a mobile phone jammer contrary to the Radio Communications Act 1992 without reasonable excuse. This offence has a maximum penalty of two years' imprisonment. The summary by the prosecution is that at the time of the search the mobile phone jamming device was located at your premises. This jamming device was an exhibit in your trial for the trafficking of cocaine.
20)On your plea there was no explanation or submission made in respect of the circumstances of these summary offences.
21)Mr Dakiz, I will now turn to your personal circumstances. You are now 42 years old. You left school at the age of 13 to pursue a career as a jockey in the racing industry. At age 31 you were injured in a horse training accident which resulted in your balance being affected due to a head injury. This injury finished your career as a jockey immediately. You stated that your occupation was now a panel beater shop investor.
22)Mr James Riley, retired horse trainer, gave evidence on your behalf. He stated that you were apprenticed to the late Geoff Murphy, horse trainer at Caulfield Racecourse. Mr Riley described you as an average jockey. He detailed the daily routine that you endured as a young teenager to progress through to riding as a jockey. He stated that Geoff Murphy was a big influence on your life and was more like a father figure to you. He stated that you were thoroughly uneducated, were a jockey of average quality and deferential in a manner to please people, trainers, owners and racing people in general.
23)Your sister, Freda Daguise, also gave evidence to support you. She stated you grew up in a strongly religious Muslim family. She said your parents could not understand your change to Western ways and your choice to become a jockey. You are the only son in the family. You have two sisters. Your parents are divorced. Your mother runs a cleaning business. Your father is an engineer. Ms Dakiz described your father as distant and disappointed that you are, in his eyes, “a failure”. The death of Mr Geoff Murphy and your riding accident occurred at approximately the same time. At age 31 you were dropped out of stable and organized employment. It was at that time that your slide into criminality began.
24)You have four prior court appearances. On 26 September 2002 you were convicted of false report to police and an attempt to commit an indictable offence and fined $1,000.
25)On 15 September 2008, at Broadmeadows Magistrates' Court, you were convicted of possessing ammunition without authority and fined $1,000.
26)On 2 September 2009, at Melbourne Magistrates' Court, you were convicted of possessing a weapon without authority, knowingly deal with the proceeds of crime, possessing equipment for the manufacture of a drug of dependence, possessing formaldehyde and benzaldehyde and heroin and sentenced to 12 months and placed on a 12 month Intensive Corrections Order.
27)On the same day you were convicted of trafficking in amphetamines and sentenced to 12 months' imprisonment wholly suspended for one year.
28)Your most recent court appearance was at the Melbourne Magistrates' Court on 1 April 2010, where you were convicted of possess amphetamines and provide false statement and fined an aggregate of $3500.
29)In the context of the matters for sentence in this case, you have two serious prior drug related offences for which you were sentenced to be imprisoned. The sentences were served in the community. You have a further prior conviction for possess amphetamines and received a fine as a penalty. These prior convictions for drug offences have direct relevance to the considerations of specific deterrence in your case.
30)You are divorced from your wife and mother of your two children. The two children are heard on the listening device intercepts placed in your car and the home of your co-offender, Mr Basic. Your daughters live with your ex-wife in Queensland.
31)Your sister described you as the father of the year. I am not sure that that is an appropriate accolade for someone like you who takes his children to places where the planning or executing of criminal activity takes place. In any event, it is clear that you love your daughters and look after them as much as you have been able to given your physical separation from them.
32)Kresimir Basic, you come from a hardworking family who migrated to Australia in 1973. Your father worked for the State Electricity Commission and moved to Melbourne in 1989. You grew up in the Glen Waverley area and went to school at Brandon Park Secondary College and finished Year 11. As a young teenager, you were identified as being a very gifted soccer player.
33)On your plea, Mr Hartnett tendered your sporting curriculum vitae, this was Exhibit B1.
34)As a teenager you were invited to Turina Soccer Club in Italy for a trial in 1998. You represented the State team, that is Victorian State team in underage soccer in 1995, 1996 and 1998. You were also part of the Melbourne Knights Soccer Club as a junior. You them played in Premier League for St Albans Soccer Club. As a young man you were on the path of a professional footballer. When you were overseas playing for Croatian club, Hrvatski, you suffered a double leg break. You were sidelined for one year. That appears in Exhibit B2.
35)You have coached juniors and played at the Dandenong City Soccer Club since your return to Australia in 2002.
36)You have worked as a plasterer, concreter and panel beater.
37)It was submitted that you have an interest in and dealing with wristwatches.
38)At the time of the trial you were unemployed and at the time of your interview with police in July 2012 you were also unemployed.
39)You are now 32 years old, single and have no dependants.
40)You have prior criminal convictions.
41)On 22 September 2004, without conviction, you were placed on an undertaking to be of good behavior for one year and attended a lifestyle program conducted by the Salvation Army. On that occasion the charge was recklessly cause serious injury.
42)On 20 September 2006, at Broadmeadows Magistrates' Court, you were convicted of burglary and theft and sentenced to nine months' imprisonment to be served by Intensive Corrections Order.
43)On 15 January 2008, at Melbourne, you were dealt with for breach of the ICO and ordered to complete the ICO period.
44)On 15 January 2008, at Melbourne Magistrates' Court, on the charge of drive whilst disqualified and other related charges, you were sentenced to 42 days' imprisonment which was suspended and fined.
45)On 28 February 2008, again for drive whilst disqualified, at Dandenong Magistrates' Court, you were fined.
46)On 4 June 2008, at Melbourne Magistrates' Court, you were convicted of affray and criminal damage and fined $2,000.
47)On 9 February 2009, at Melbourne Magistrates' Court, you were convicted and fined for possessing amphetamine and possessing ammunition without a licence on those charges. Collectively you were fined $1800.
48)On 27 January 2012, at Frankston, you were again dealt with for drive whilst disqualified, which was a month imprisonment suspended for 12 months. On other driving offences you were put on a bond.
49)The relevant matters from these prior court appearances are the possession of amphetamines appearance in February 2009 and the last appearance in Frankston on
27 January 2012.50)At the time of your offending by trafficking, in not less than a commercial quantity for cocaine, you were on a suspended sentence for drive whilst disqualified. This indicates that you have not taken the suspended sentence obligation seriously. Your prior criminal convictions in relation to drug offences is completely different to your co-offender, Mr Dakiz.
51)I have referred the charges, the subject of indictment C128782.5 to the Magistrates' Court at Melbourne together with the previously uplifted charges, they are summary Charges 7, 8, 9 and 16.
52)I am aware you have outstanding matters, but those allegations play no part in the consideration for the sentence on the two charges. The jury have delivered a verdict of guilty in respect of those two charges.
53)Sentencing Considerations
54)Sentencing considerations for the charge of trafficking in a commercial quantity of a drug of dependence includes deterrence both specific and general, just punishment, the amount or weight of the drug, the culpability of each offender and the role they have played in the offence.
55)In this case I find that both Dakiz and Basic are equally culpable in a joint criminal enterprise of trafficking in not less than a commercial quantity of cocaine. The role of Dakiz was the connection to Hamzy in Sydney and sourcing the drugs from him. The role of Basic was at the distribution end of the trafficking. Both Dakiz and Basic dealt with McPherson and used him as a safe storer of the drug where they had effective control of it for sale. The amount of the drug is 830 grams of cocaine. This is 1.66 times the minimum commercial quantity under the Drugs, Poisons and Controlled Substances Act. The amount of the drug is a significant consideration in sentencing of both you, Dakiz and Basic.
56)The quantity of the drug is a very significant indicator of the seriousness of the offending. In the quantity range between commercial quantity and large commercial quantity it is at the upper end of the range in this case. Both Dakiz and Basic are actively involved in the trafficking of drugs.
57)Mr Hartnett, for Basic, submitted his client had a minor role. I do not accept that submission and find that each of you are equally culpable in this criminal enterprise although you were involved in different aspects of it.
58)The significant difference between Basic and Dakiz is that Mr Dakiz has three relevant prior convictions for drug offences. In particular Dakiz' conviction for the possession of equipment for the manufacture of a drug of dependence and the trafficking in amphetamines referred to earlier in these reasons.
59)Mr Dakiz was sentenced to imprisonment on each of these offences. The sentences were served in the community by way of an ICO and a suspended sentence. This relevant personal circumstance differentiates Dakiz from Basic when fixing a sentence for drug trafficking of cocaine. The principle of parity for equal punishment for equal criminality is differentiated by this prior criminal history.
60)Dakiz is approximately ten years older than Basic. They each have limited education. They each have pursued sporting careers, Dakiz horse racing, Basic soccer. They each have had their professional sporting careers cut short by injury. The difference in their personal circumstances are unremarkable otherwise and do not raise matters separating them on sentence. Drug trafficking on the scale proven against each offender in this case for calls denunciation and just punishment.
61)In relation to the sentence of Basic for Charge 2, the prosecution conceded that a sentence for this charge of knowingly dealing in the proceeds of crime should be ordered to be served concurrently with the sentence of Charge 1. This concession was made to avoid imposing double punishment on Basic for this offence given the prosecution's case was that the money seized from Basic was the money that was part of Charge 1 offending.
62)I have regard to the sentencing snapshots that were tendered by Mr Hartnett during the plea for Basic. I have also had regard to the current sentencing practices in Victoria, in particular the principles recently set out by Hu Lan Pham v R.
63)In respect of Mr Dakiz, I also have sentencing considerations for the two charges for which you have pleaded guilty on indictment No.C1208782.4. The first consideration is that you have pleaded guilty to these charges. Your plea of guilty has utilitarian value of allowing the orderly and effective administration of justice, there was a certainty of outcome and a resolution of the substantive issues raised by your offending. Your plea allows for the preservation of court time and police resources to deal with other matters. Your plea indicates public confidence in the legal process set up to protect the community.
64)You have a prior conviction for knowingly dealing with the proceeds of crime for which you were sentenced to 12 months' imprisonment to be served by way of ICO. This sentence included other drug related offending. In this charge there is no suggestion of double punishment being applicable either by the prosecution or your counsel. The prior conviction for the same offending is an aggravating feature of your offending in this instance.
65)You also pleaded guilty to a charge of trafficking methylamphetamine. It was put on your behalf this methylamphetamine was for your own personal use, as I have said before. The amount of the drug was 110 grams at 12 per cent purity. In respect of this drug the trafficable quantity is three grams and a commercial quantity is 100 grams. The amount seized on you by police exceeded a commercial quantity. I do not accept your explanation of personal use and accept that you have pleaded guilty to trafficking methylamphetamine.
66)You have a prior conviction for trafficking amphetamine for which you received a 12 month suspended sentence. This prior conviction is an aggravating feature of this particular offence.
67)On the charge of possess unauthorized explosives, described as a large assortment of fireworks, you have pleaded guilty. You have also pleaded guilty to possession of cartridge ammunition. You have a prior conviction for the same offence. This is an aggravating feature of the offending but the number of the cartridges was limited to six.
68)You have also pleaded guilty to possessing a phone jammer. This is in the context of your criminal activity as a drug trafficker, however there is no evidence you used it for these purposes of offending.
69)In fixing a non-parole period for Mr Basic, I take into account that your offending occurred whilst on a suspended sentence and that you were convicted after a trial. This shows you have no remorse and rehabilitation is not a priority for you, that is you personally. It is your first period of incarceration.
70)In respect of Mr Dakiz on the non-parole period, you were also convicted after a trial. You have pleaded guilty to other criminal offences. You have prior convictions for all the similar offending and been given imprisonment dispositions to be served in the community in the past.
71)The prospects of rehabilitation for Mr Dakiz are limited and he would not be assisted by a long parole period.
72)In the cumulation of Mr Dakiz’s sentences I have taken into account the principles of totality in fixing the total sentence.
73)The basic purpose for which a court imposes a sentence of imprisonment are just punishment, deterrence both specific and general, rehabilitation, denunciation of your actions and the protection of the community.
74)In sentencing each of you, I must have regard to a range of factors such as the seriousness of your offences, your culpability for them and your personal circumstances. I am required to balance the interests of the community in denouncing your criminal conduct with the interests of the community in seeking to ensure as far as possible you as offenders are rehabilitated and reintegrated into society.
75)Mr Dakiz, on indictment No.C1208782.6, Charge 1, trafficking in not less than a commercial quantity of a drug, cocaine, you are convicted and sentenced to five years' imprisonment. This is the base sentence.
76)On indictment No.C1208782.4, Charge 1, knowingly deal with the proceeds of crime, you are convicted and sentenced to one year imprisonment.
77)On Charge 2, on that same indictment, trafficking in a drug of dependence, methylamphetamine, you are convicted and sentenced to 18 months' imprisonment.
78)On the summary charge, Charge 5, you are convicted and sentenced to six months' imprisonment.
79)On Charge 6 you are convicted and fined $600.
80)On Charge 9 you are convicted and sentenced to three months' imprisonment.
81)I order that the sentences for indictment No.C1208782.4 that six months of the sentence in Charge 1, and nine months of the sentence in Charge 2, and three months of the sentence in summary Charge 5 be served cumulatively on the sentence of Charge 1, indictment No.C1208782.6 and on each other.
82)That is a total effective sentence of six and a half years' imprisonment. I fix a non-parole period of five years.
83)I declare that you have served pre-sentence detention of 32 days to be deducted administratively from your sentence.
84)In respect of the charges on indictment No.C1208782.4 and the summary Charges 5 and 9, but for your plea of guilty I would have sentenced you to a total effective sentence of three and a half years with a non-parole period of two. That declaration relates to the plea indictment number C1207872.4.
85)Mr Basic, in respect of indictment No.C1208782.6, on Charge 1, that is the trafficking charge, you are convicted and sentenced to four years' imprisonment.
86)On Charge 2 you are convicted and sentenced to six months' imprisonment.
87)The total effective sentence is four years' imprisonment and I fix a non-parole period of three years' imprisonment for you.
88)I declare the pre-sentence detention of 46 days to be deducted administratively from your sentence.
89)I have signed the disposal orders requested and consented to by both prisoners.
90)(Disposal orders signed and acknowledged.)
91)I was also handed a forfeiture order which I read. I think people agreed to it, but when I read it I am not going to sign it unless you can convince me. The items sought are not to do with anything I have heard in this case and they seem to be to deal with gun which is the subject of some of the charges which I have ordered to be remitted to the Magistrates' Court. Is that right, Mr Cole?
92)MR COLE: Yes. I note that I think at least some of the matters relate to the specific charges that have been remitted.
93)HIS HONOUR: And perhaps other matters.
94)MR COLE: Yes, perhaps.
95)HIS HONOUR: Yes, so I do not propose to sign that forfeiture order.
96)MR PORCEDDU: Perhaps what we could do is by agreement, Your Honour. We can amend it and by agreement we can then forward it to Your Honour's associate. If there is anything that remains relevant to Your Honour's process we can ‑ ‑ ‑
97)HIS HONOUR: When you amend it. I will just read it, it says this. "Upon conviction" - in question to a passage on 29 August 2014, trafficking in a drug of dependence not less than a commercial quantity and upon being satisfied that a firearm was used in the commission of the said offence," that is ‑ ‑ ‑
98)MR PORCEDDU: No, no, no, I understand the point.
99)HIS HONOUR: That is not ‑ ‑ ‑
100)MR PORCEDDU: No, that is totally incorrect.
101)HIS HONOUR: Anyway, otherwise the disposal orders are signed. Thanks.
102)MR PORCEDDU: If Your Honour pleases.
103)HIS HONOUR: Was there anything else that was required? No?
104)MR COLE: No, Your Honour.
105)HIS HONOUR: Thank you.
106)MR PORCEDDU: No, Your Honour.
107)HIS HONOUR: Thanks. You can remove the prisoners.
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