Director of Public Prosecutions v Biricik
[2022] VCC 611
•06 May 2022
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised (Not) Restricted Suitable for Publication |
Case No. CR-21-00969
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| KORAY BIRICIK |
---
JUDGE: | HER HONOUR JUDGE DALZIEL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 09 February 2022 | |
DATE OF SENTENCE: | 06 May 2022 | |
CASE MAY BE CITED AS: | DPP v BIRICIK | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 611 | |
REASONS FOR SENTENCE
---
Subject:CRIMINAL LAW
Catchwords: Trafficking a drug of dependence – Attempting to possess a drug of dependence – Arson – Early plea of guilty before committal hearing
Legislation Cited: Drugs, Poisons and Controlled Substances Act 1981 (Vic); Sentencing Act 1991 (Vic)
Cases Cited: Salmi v The Queen [2020] VSCA 250; Anderson v The Queen; Smith v The Queen [2019] VSCA 42
Sentence: Convicted and sentenced to a total effective sentence of 3 years and 11 months’ imprisonment, with a non-parole period of 2 years.
Section 6AAA declaration: Conviction and total effective sentence of 5 and a half years’ imprisonment with a non-parole period of 4 years.
---
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr B. Sonnet | Office of Public Prosecutions |
| For the Accused | Mr M. Cenacchi | AUM Lawyers |
HER HONOUR:
1Koray Biricik, you have pleaded guilty to two charges of trafficking in a drug of dependence, one charge of attempting to possess a drug of dependence and one charge of arson.
2The prosecution provided a detailed summary of the facts giving rise to these charges, and about the surrounding circumstances. I will give a shortened description of the facts which are set out in the opening, but will take into account and sentence you on all the matters included in the Summary of Prosecution Opening.[1]
[1]Summary of Prosecution Opening for Plea dated 17 December 2021
3The offending for which I must sentence you occurred in 2019. In February that year you turned 21. You committed these offences with or in connection with two other men who have pleaded guilty before me, Dominic Luzza and Fawzi El-Cheikh. Luzza was the Victorian Treasurer of the Comancheros OMCG, and El-Cheikh an associate of Luzza and another member of that OMCG. You were aware of their connection to the Comancheros, but you were not a member of that group.
4Your offending was discovered during a larger investigation into the importation of border-controlled substances and trafficking drugs of dependence in Victoria. As part of that investigation a listening device was installed in the Toyota Corolla which you drove.
Charge 1
5Charge 1 concerns trafficking drug of dependence, namely methyl alpha-acetylphenylacetate an analogue of phenyl-2-propanone and fluorodeschloroketamine an analogue of ketamine, between 21 January 2019 and 28 May 2019.
6This charge relates to you collecting four consignments of drugs of dependence, which had been sent to Australia from China. You were not the person who ordered and paid for the drugs, but you were recruited to collect the drugs from the carriers, once they had arrived in Australia and been released by Australian Border Force (ABF). Each parcel had a false name and address as the Australian destination, and contained false details as to the contents.
7The first consignment arrived on 19 January 2019, via FedEx Australia. It weighed 8.5 kilograms and was labelled as containing a food preservative. This parcel was not inspected by ABF and was released. On 21 January 2019 you went to the FedEx depot in Derrimut in order to collect the parcel, you produced your own drivers’ licence and a handwritten note purporting to be from the person to whom the parcel was addressed. You took possession of the parcel.
8The prosecution case is that this parcel contained methyl alpha-acetylphenylacetate, which is an analogue of phenyl-2-propanone. Phenyl-2-propanone is a drug of dependence under the Drugs, Poisons and Controlled Substances Act 1981, and is used primarily in the manufacture of amphetamine and methylamphetamine. I shall refer to methyl alpha-acetylphenylacetate as MAPA.
9The second consignment you collected arrived in Australia on 22 April 2019, via DHL. It had a declared weight of 500 grams and was labelled as containing “packing bag”. This parcel was not examined by ABF and delivered to a collection locker at a store in Truganina. On 30 April 2019 you drove to that store and collected the parcel from the locker.
10The prosecution case is that the parcel you collected on 30 April 2019 also contained MAPA. The prosecution case is that you collected this parcel acting on the instructions of Mr Luzza.
11The third parcel you collected arrived on 12 May 2019, via TNT. It had a declared weight of 600 grams and was declared to contain a pigment. It was not examined by ABF. A person using a phone connected to Luzza contacted TNT a number of times between 13 and 15 May 2019.
12On 15 May 2019 you went to the TNT depot at Melbourne Airport and collected the consignment, using your name to do so.
13The prosecution case is that the parcel contained flurodeschloroketamine which is an analogue of ketamine. Ketamine is commonly used in medicine as a pain killer but is also a drug of dependence consumed by users for its hallucinogenic and dissociative effects.
14The final parcel which is the subject of Charge 1 arrived in Australia on 25 May 2019, via TNT. It was addressed in almost the same way as the previous parcel I have referred to and had a declared weight of 500 grams. It was labelled as containing a resin. This parcel was not examined by ABF.
15On 27 May 2019 Luzza contacted TNT regarding this parcel using a phone subscribed in another person’s name. The next day you collected the parcel from the TNT depot, producing your driver’s licence to do so.
16The prosecution case is that this parcel contained flurodeschloroketamine.
Charge 2
17Charge 2 concerns a failed attempt by you to collect a similar parcel.
18On 1 February 2019 a parcel arrived in Australia from China, via FedEx Australia. It had the same name and address details as the parcel which had arrived on 21 January 2019, to which I referred earlier. This parcel had a declared weight of 50 kilograms and was labelled as containing a food preservative.
19ABF examined the parcel, and it was determined to contain MAPA. The weight of that drug has not been stated, but I note that the declared weight of the parcel was 50 kilograms.
20On 4 February 2019 Fawzi El-Cheikh sent you a message telling you the address of the FedEx depot, and the details of what to include in a note in the name of the addressee of the parcel. The prosecution case is that Luzza was directing El-Cheikh, who was in turn giving direction to you.
21That day you went to the FedEx depot, driving your usual car, and produced a handwritten note in the terms set out by El-Cheikh in the messages. You were told that the consignment was being held by ABF and you left.
22This charge is put on the basis that you attempted to pick up the consignment knowing that there was a real or significant chance that it contained a drug of dependence.
23When your home was searched on 2 September 2019 the note used to attempt to collect this parcel was found, but on interview you denied attending FedEx on any occasion.
Gravity of Offending
24Regarding your participation in Charges 1 and 2, on 15 August 2019 the listening device in your car recorded you speaking to someone about Luzza, whom you referred to as Dom, and El-Cheikh. The prosecution have referred to the following passage:
Do you know how much money Dom owed him? 150,000. They used to make money together, a lot of money, bro. They used to import shit. I used to go collect them and every time I used to pick up, bro, it was, like, massive boxes, bro. He used to give me four, five hundred bucks for each time I get to pick it up.
25Your offending in Charges 1 and 2 was unsophisticated, in that you used your own car and identification when collecting or trying to collect the parcels. Whist this suggests a degree of naiveite, you were aware that you were collecting parcels of drugs of dependence, on behalf of Luzza, and you were being paid for this (in respect to Charge 1) and in respect to Charge 2 you knew that there was a real or significant chance that it contained a drug of dependence.
26The quantity of drugs has not been precisely identified in respect to either charge, although by reference to the declared weight of the parcels, in respect to Charge 1 there was a total quantity of approximately 9kg of MAPA and 1.1 kg of fluorodeschloroketamine. In respect to Charge 2 the declared weight of the parcel was 50 kilograms. I note that material before me in the other pleas connected to these packages indicated that the weight of the drugs in the parcels was generally slightly under the declared weight.
27The commercial quantity applicable to both MAPA and fluorodeschloroketamine was 500 grams. This is relevant to assess the objective gravity of the offending, and you are not being sentenced on the basis that you were aware of the actual drugs, or weights of the parcels you were collecting.
28I take the following into account in assessing the gravity of Charge 1:
(a) You knew you were collecting drugs of dependence;
(b) You did so on 4 separate occasions;
(c) You received payment in the range of $400 to $500 per each collected parcel;
(d) You were a willing tool of Luzza, whether or not you received your instructions from him directly or through El-Cheikh.
29You are to be sentenced for your role, and it is clear that you were a tool who was exposed to risk by being the contact person with the shipping companies. Nevertheless, people such as yourself who are willing to participate in trafficking, even in this way, are an essential part of the trafficking business, and the insulation of the organisers from detection.
Charge 3
30Charge 3 concerns your participation in setting on fire of a car being used by a person who allegedly owed Luzza money.
31In late 2018 Luzza went to the home of Nicholas Perechoden’s mother. He told her he was a friend of Perechoden, and that Perechoden owed him $50,000. At that time Perechoden was in prison.
32On 2 May 2019 Perechoden was released from prison. After his release he rented a 2019 Huyndai i30 sedan, for his daily use.
33On 5 June 2019 at 4.40 am you drove your Corolla past Perechoden’s home. Instead of your usual registration plates “cloned plates” - that is plates which were associated with a vehicle of the same colour and type as your Corolla – were attached to your car.
34A short time later you pulled up behind the Huyndai which was parked on the street in front of the house next to Perechoden’s home. Another man got out of your car, doused the Huyndai with an accelerant, and set the car on fire. He then then got back into your Corolla, and you drove away.
35The value of the Huyndai was approximately $21,000. It was completely destroyed.
36Your made admissions to this offence which were recorded on the listening device in your car. The prosecution have noted statements by you in July and August 2019:
27 July 2019: “because of these debts cuz, the shit I been doing is bad. Have you seen the news… they’re looking for my car …. The attempted murder… I was not involved in that…. “My mate just said to me, I will give you five hundred bucks if you burn a car and I said cuz what if I take my own car, I’ll just use some plates and he said he would give me at thousand then and I’m like done! So I did it and then a couple of days later this cunt gets fucken shot” (emphasis added)
8 August 2019: “Do you watch the news? See what happened in Reservoir? Surely you saw it in jail. You would’ve seen my car on the news. Bro, a lot of very, very bad stuff happened. After that, the guy got shot and he nearly died. But they didn’t find no evidence. The cops had a press conference and they went Facebook Live. They’re the highest detectives in Melbourne. They thought the car got burnt out”.
19 August 2019: in response to a male asking about whether you were there for the Reservoir thing you said “yeah, me and Adam Omar went by ourselves and burnt the car”.
37When you were arrested for this offence, on 10 September 2019, you were interviewed. You denied any involvement in the arson. In a later interview on 12 September 2019 when confronted by the material obtained from the listening device in your car you said you had been exaggerating about being involved in the arson.
38Whilst you were not the organiser of this arson, you agreed to take part in it, for payment of $1,000. You had sufficient initiative to put or arrange for cloned licence plates on your car in an attempt to avoid detection for the offence. This was planned offending, carried out for money.
Charge 4
39Between 16 July and 12 September 2019, you trafficked in cocaine. This offending was proved by statements you made in your car, which were captured by the listening device. During the charge period you sold cocaine in quantities between 1 gram and 3.5 grams.
40The prosecution Opening sets out some of the evidence of this trafficking, setting out 15 instances of trafficking which are described as a sample of your trafficking during the charge period. I will further summarise the material in the Opening:
§26 July 2019 – you discussed drugs and money owed, with another person, and with another associate you discussed purchasing “1 ball”, that is 3 to 3.5 grams of cocaine;
§27 July 2019 – you had the discussion with friends which I have quoted from earlier and then discussed selling 3 grams of cocaine, which had been packaged into deal bags. You purchased “a ball” from someone, and then said you needed to deliver the drugs to someone. You sent an SMS to a customer telling him you had drugs if wished to get them and explained you could not sell to him on credit anymore. You told him you would sell the “ball” for $950. You discussed with an associate that a customer wanted “4” but that you only had “2” left;
§28 July 2019 – you sold cocaine to someone, in your car, for which he paid $900. You told someone that you had sold nearly half a bag of cocaine that week. You said you sourced a “q” for between $1.9 – 2k. A customer contacted you, but you were out of stock;
§29 July, 3 August, 4 August 2019 – via SMS communication you received an order from a regular buyer, Kumru, who was on at least one occasion on-selling the drug;
§8 August 2019 – you discussed with dropping off 1 gram to sell and retaining the other gram, but you were unhappy to be selling just 1 gram;
§15 August 2019 – you and a supplier, MK, discussed the quality of the drug and whether it had been excessively cut. You placed an order for more cocaine and then later let a customer know that you had drugs in stock;
§16 August 2019, you sold 1.5 grams of cocaine, and then spoke to another customer telling him you had 14 grams of powder. A customer asked you to bring the ounce and the scales;
§17 August 2019, Kumru asked to purchase “the usual” to which you responded that it would be cash up front. Later you discussed with the supplier, MK, that you needed “half a bag”;
§18, 23 and 24 August 2019, you discussed with various associates purchasing and selling cocaine from and to them;
§31 August 2019, you had a conversation with an unknown person about trafficking cocaine, buying and selling, and the profit margin you achieved;[2]
§1 September 2019 – Kumru asked to purchase “1 or 2” but you replied that did not have any in stock.
[2]Depositions 5848- 5850
41Your home was searched again on 12 September 2019, and you were arrested. In the search police seized your mobile telephone, and also a set of scales and multiple small empty press-seal deal bags, from your car. When interviewed you denied being involved in drug trafficking.
42Whilst your trafficking was at a low level, the information provided to me indicates that you were selling to others who were themselves on-selling the cocaine. You expressed displeasure at selling 1gram amounts, only.
43You were making money from the trafficking, and even if I accept that you were using the drug yourself, this was not lowest level street trafficking. This charge covers nearly two months of trafficking, and the material indicates that this was regular conduct, at times daily, with you frequently in contact with both buyers and sellers.
Personal Circumstances
44At the time of the offending you were 21 years old, and are now 24. You were born and raised in Melbourne. You mother and father are originally from Turkey, with your father living in this country since he was 6, and your mother since her marriage to your father.
45You have a younger brother. Your family are law abiding people – your father worked at Ford for many years, and thereafter in security. Your mother has looked after the family and also worked as a cleaner.
46You have described your home life as happy and harmonious. Your family went on holidays together, including to Turkey and Europe to visit family. You say that you got on well with your parents, and kept your drug use from them.
47You were a mostly healthy child and teenager, with the only issue being asthma, which at least twice required attendance at the Royal Children’s Hospital. You have managed it with Ventolin, but when you were on remand the condition became somewhat worse.[3] Asthma is a condition which makes a person more vulnerable if they contract COVID-19.[4]
[3]Psychological Report by Mr Bernard Healey, dated 7 November 2019, page 3 (Report by Mr Healey dated 7 November 2019)
[4]Letter from Dr M. Erciyas, dated 10 April 2020
48You progressed through primary and secondary school in an unremarkable way. As a teenager you played soccer, but once you were 18, and had started to use cocaine, this interest fell away.
49After you had completed Year 10 you attended the Sports Education Centre in Maribyrnong, where you completed Years 11 and 12. You report that whilst at school you related well to the teachers and other students and there were no major discipline issues. In Years 11 and 12 you focussed on soccer, but also were involved in netball and baseball. After Year 12 you started a Certificate of Sports and Recreation, but you only completed 6 months of that 12 month course, as you had decided you did not want to take the next step of studying physical education at a tertiary level. You also were taking cocaine by that time, which interfered with your education.
50You report that you later tried to do a Building Certificate course, but that you could not cope with the maths, and your cocaine abuse interfered with your ability to continue with the course. Whilst on bail you found work in a freight warehouse but had to leave that employment, as it was a business which had been identified in the broader investigation. You then found work at a supermarket in Craigieburn, in May 2021. In order to comply with your bail and treatment requirements you worked part time. A very positive reference was provided by this employer, praising your development and work ethic.
51A reference was provided from a cousin for whom you worked part time without pay, when his business was suffering due to the pandemic lockdown.
52You report that you started using cocaine when you were 18, in a social setting at clubs. By the age of 20 you were inhaling up to 2 grams of cocaine a day. You report that this use of cocaine continued until you were remanded.
53When Mr Healey interviewed you in December 2021 you reported complete abstinence from drugs since your release on bail in April 2020.
54You reported also that you have abandoned contact with the associates you had in the drug scene. You have engaged with counselling related to drug abuse, through Lamberti Associates, and have provided urine samples for screening twice a week. You reported that after you were bailed, in the context of addressing your drug addiction and the COVID-19 restrictions, you were for a time prescribed anti-anxiety medication.
55Whilst on bail you were on a curfew, lived at home with your parents, and went to the gym 5 times a week. Your health was better although you still required Ventolin for your asthma.[5] You attended a chiropractor for back pain in January 2022.
[5]Psychological Report by Mr Bernard Healey, dated 10 December 2021, page 3 (Report by Mr Healey dated 10 December 2021)
56References were provided from your employers, family and friends. Those who knew your family and you as you grew up were shocked by your offending. They have said that they consider the offending out of character for you, describing you as a respectful person to your peers and elders.
57You are fortunate to have a supportive network of family and family friends, as well as an employer who has given you work and promoted your development despite these charges.
Mental State
58Mr Healey assessed you first in November 2019 not long after you were remanded in custody, and again in December 2021 after you had been on bail for around 18 months.
59When he assessed you in November 2019 Mr Healey conducted testing relevant to your intellectual functioning and personality. The result was a full scale IQ of 84. The personality test did not indicate any major psychological or emotional disturbance, but it indicated that you were vulnerable to substance abuse, consistent with your history of abuse of cocaine.
60Mr Healey administered the same battery of tests in December 2021, and your IQ score had improved by 2 points to 86. The personality testing was consistent with the 2019 results, with indications of Bipolar issues, although not amounting to a diagnosis of that disorder.[6]
[6]Report by Mr Healey dated 10 December 2021, page 5
61Mr Healey, in the second report, said:[7]
There was an updating of his situation since the November of 2019 when he was still in prison. Clearly some quite dramatic changes have occurred in his functioning since that time which really reflect very strongly in a practical way upon genuine remorse and the determination to remove himself altogether from the drug scene and to cease the intake of any illicit drugs.
[7]Report by Mr Healey dated 10 December 2021, page 7
62It was submitted on the plea that you have a very low IQ and were thus easily seduced into this offending. This was expanded by submitting that you were “seduced by patched motorcycle club members and became addicted to cocaine” leading to debt and thus to trafficking to pay the debt. [8]
[8]Defence Chronology and Outline of Plea Submissions dated 28 January 2022, paragraph 10a, 13 & 14
63I do not accept that the testing by Mr Healey indicates that you have what your counsel described as “very low IQ”. The testing shows that your intellectual functioning, described by Mr Healey as below average, falls in the Low Average Range. Whilst you were young at the time of this offending, and no doubt immature, I do not accept that your intellectual functioning made you vulnerable to others involving you in this offending, or reduced your moral culpability.
Other Matters raised on the Plea
Role
64It was submitted that you were a bit player taking great risks for very little gain. I accept that your actions in collecting the parcels, or attempting to do so, place you low in the hierarchy of the larger trafficking enterprise. You were being paid $400 to $500 per parcel, a decent sum for little work, although you were most at risk of detection.
65Regarding the arson, you participated for payment, knowing what would occur. You took steps to avoid detection by putting cloned plates on your vehicle, and on the material before me your involvement was established by the admissions you made which were captured by the listening device in your car.
66Regarding Charge 4, you were actively engaged in trafficking. I accept that the quantities involved in each transaction were low, although not at the lowest end, but you were purchasing drugs and on-selling them, not simply acting as an agent of someone else.
Guilty Plea & Remorse
67Your plea of guilty was entered shortly before the committal hearing. I will treat it as having been entered at an early stage. The utilitarian benefits of the pleas are significant, particularly so in the context of the pandemic and the effects of lockdowns on the operations of the court. Furthermore, you indicated your willingness to plead in May 2021, and when you would have been aware that you faced the risk of returning to prison under the more onerous conditions caused by the pandemic. Your pleas of guilty give rise to real mitigation of your sentences.[9]
[9]Worboyes v R [2021] VSCA 169
68I accept that your pleas are also an indication of your remorse. I have already noted Mr Healey’s comments about this. Your employer, who is aware of the charges you face, writes that he has discussed with you your progress and situation. He considers you are remorseful and actively trying to better yourself.[10] He says that you are “aware of your community views and [you have] indicated that [you] would never want to put [your] family or friends in a similar situation.”
[10]Letter of Mr H.Konak dated 31 January 2022
69The letters from your family and friends also say that you are ashamed and remorseful for having taken part in these offences.
Remand Period
70Mr Healey said that you reported that your experience of custody was stressful. You were in custody for the first time and report that you were on lockdown for a month when first remanded, as well as going through withdrawal from cocaine. You were bailed approximately month after the pandemic began to affect the State and prisons. You did manage to complete some courses whilst in custody, both vocational and drug abuse related. [11]
[11]Report by Mr Healey dated 10 December 2021, pages 3, 8
Prospects of Rehabilitation
71A report form Lamberti Associates written in January 2022 sets out your participation in counselling to address your drug addiction. It confirms that you were cooperative with the rehabilitation treatment provided, attending weekly for counselling, participating in Narcotics Anonymous, and twice weekly supervised urine screens. Ms Brown, the author of the report, says that with counselling you came to appreciate the impact of the drug abuse on your life, and that you have developed insight about why you were abusing cocaine. You needed to learn to regulate your emotions more effectively and counselling assisted you in developing skills in that area. She considered you have made remarkable progress in your recovery, and that with continued support and treatment you should improve further.
72Mr Healey noted that the drug use disorder which he identified will remain an issue for you for a number of years, despite the good efforts you have made so far.[12]
[12]Report by Mr Healey dated 10 December 2021, page 9
73I accept that you have very good prospects of rehabilitation, provided you can remain free of drugs. You have no other criminal record and you have made very good efforts whilst on bail. With the continued support of your family and network you have the capacity to stay out of trouble.
74I do not go as far as saying your prospects are excellent, as I retain a level of concern about your judgment. You became addicted to drugs in a social context, and then committed offences for money. You stopped offending because you were caught, not because of any insight. I accept, on the other hand, that you are now older and have had ample opportunity to reflect and appreciate that your actions affected not only you but also your friends and family.
Effect of medical conditions on custody
75I accept that asthma and back pain will to an extent make your experience of custody more onerous than a person without those conditions, but in view of the material before me about the seriousness of those conditions, this gives rise to only a modest mitigation of your sentences.
Parity
76Charges 1 and 2 have connections to Mr Luzza and Mr El-Cheikh. In respect to Charge 1, it was Luzza who was ordering the drugs and he has been charged with importing a commercial quantity of a border controlled drug, in respect to many more parcels than the four to which you have pleaded guilty. Whilst I am sentencing you on the basis that Luzza ordered each of the parcels you collected, none of the 4 parcels in Charge 1 fall under the importation charge for Luzza, and one of the 4 is encompassed by Luzza’s Charge 2.
77The offending which is the subject of Charge 2, in your matter, forms one of 4 attempts to possess a drug in respect to Luzza (Charge 2 on his indictment). As with Charge 1, it was Luzza who ordered the drugs. Furthermore, you were acting under the instructions of El-Cheikh who in turn was instructed by Luzza. I note that El-Cheikh, unlike you, has significant prior convictions. At the time of sentencing, you I have yet to sentence Luzza or El-Cheikh.
Concluding Remarks
78General deterrence is an important sentencing consideration in respect to all the charges you are facing, and the sentences must give effect to specific deterrence, moderated to a degree. I must also give weight to the purposes of just punishment, denunciation and protection of the community.
79You are now a 24 year old young man. You have the support of your friends, family and employer. I consider you have very good prospects, subject to you remaining drug free. Some of the acts for which you are being sentenced today occurred more than 3 years ago. In the period between the offending you have served 226 days on remand, been on bail for more than 18 months, and made real progress towards your rehabilitation. Over this time the potential of return to prison has been hanging over your head, which will have been stressful for you.
80On other hand you engaged in serious criminal behaviour. The evidence before me is that you engaged in this offending to make money. Whilst it may be the case that you owed money to your own suppliers, there is no evidence before me that you were forced or persuaded to engage in this offending. Charges 1 and 4 involve repeated offending, and in respect to Charge 4 you were actively and frequently engaged in trafficking cocaine. Your moral culpability is high.
81Furthermore, in respect to Charge 3, you agreed to assist in the arson of a car, on behalf of Luzza, for a payment of $1,000. Setting fire to and destroying another person’s car is serious offending, and taking money to do so means that your moral culpability for this offence is high.
82I was not referred to any cases to assist with current sentencing practice. In respect to the charge of arson, in order to gain an understanding of current sentencing practice I have considered the cases of Anderson v The Queen; Smith v The Queen [2019] VSCA 42; , and Salimi v The Queen [2020] VSCA 250, as well as the cases summaries in Salmi.
83Your counsel submitted that it would be open to me to impose a sentence combining the time you have served in custody already with a community correction order. The prosecution submitted that a sentence with a non-parole period was called for, implicit within which it was submitted that a term of imprisonment longer than 7 months, which you have already served, is required.
84I must impose a sentence which is no more severe than is required to reflect the sentencing facts and purposes. Taken together, you committed a range of offences over approximately 9 months in 2019, and there must be a degree of cumulation between the sentences imposed to reflect the different criminality. The ultimate total sentence should reflect but not exceed the totality of your offending.
85Whilst a combination sentence could encompass the time you have spent on remand, plus another 12 months, I have concluded that such a result would be inadequate in light of the facts of your case, and the sentencing purposes and principles.
86On Charge 1, trafficking a drug of dependence, you are sentenced to one year and six months’ imprisonment.
87On Charge 2, attempting to possess a drug of dependence, you are sentenced to five months’ imprisonment.
88On Charge 3, arson, you are sentenced to two years and nine months’ imprisonment.
89On Charge 4, trafficking, you are sentenced to two years and six months’ imprisonment.
90The sentence on Charge 3 is the base. I direct that six months of the sentence on Charge 1, two months of the sentence on Charge 2 and six months of the sentence on Charge 4 be served cumulatively on each other and upon the sentence on Charge 3. This results in a total effective sentence of three years and 11 months’ imprisonment, and I set a non-parole period of two years. I have imposed a relatively short non-parole period reflecting your positive prospects for rehabilitation.
91I declare, pursuant to s6AAA of the Sentencing Act, that if you had not pleaded guilty, I would have sentenced you to five and a half years' imprisonment with a non-parole period of four years.
92I will make the forfeiture and disposal orders by consent.
---
3
0