Director of Public Prosecutions v Cabraja
[2023] VCC 1770
•28 September 2023
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
CR-21-02411
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| VERKA CABRAJA |
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JUDGE: | HIS HONOUR JUDGE CAHILL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 26 September 2023 | |
DATE OF SENTENCE: | 28 September 2023 | |
CASE MAY BE CITED AS: | DPP v Cabraja | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1770 | |
REASONS FOR SENTENCE
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Subject:Attempt to possess a commercial quantity of a border-controlled drug reasonably suspected of being unlawfully imported
Catchwords: interception of an importation of 11 kg of methamphetamine, 2.8 kg of heroin and 1.59 kg of cocaine – controlled delivery of a crate – responsible for receiving the crate and transporting it to other premises.
Legislation Cited: Justice Legislation Amendment (Criminal Procedure Disclosure and Other Matters) Act 2022 (Vic); Criminal Procedure Act 2009 (Vic); Criminal Code 1995 (Cth); Crimes Act 1914 (Cth); Corrections Act 1986 (Vic)
Cases Cited:Markarian v The Queen (2005) 228 CLR 357; R v Hai Van
Nguyen; R v Phuong Thu Thi Pham [2021] NSWCCA 238; Nguyen v R; Phommalysack v R (2011) 31 VR 673; Suky Lieu v The Queen [2016] VSCA 277; Pham (2015) 256 CLR 550; DPP (Cth) v Thomas [2016] VSCA 237; R v Shi [2014] NSWCCA 135; Maxwell [2013] VSCA 50; Worboyes v The Queen [2021] VSCA 169; Biba [2021] VSC 327; R v Verdins (2007) 16 VR 269; Collins [2015] VSCA 106; Tran v The Queen [2021] VSCA; Li v The Queen [2021] NSWCCA 100; DPP (Cth) v Wang [2019] VSCA 250; Kuo v R: Huang v R; Shih v R [2018] NSWCCA 270; Biango v The Queen [2018] VSCA 210; Shakhanov [2019] VSCA 38; Postiglione (1997) 145 ALR 408; Power v The Queen (1974) 131 CLR 623
Sentence:Total effective sentence of nine years and six months’ imprisonment; minimum non-parole period of six years; 454 days presentence detention
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APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Mr B Stephens | Commonwealth Director for Public Prosecutions |
| For the Defence | Ms Joosten | Giorgianni and Liang Lawyers |
HIS HONOUR:
1Verka Cabraja, you have been found guilty of:
(a) one charge of attempting to possess a commercial quantity of a border controlled drug, namely methamphetamine, reasonably suspected of being unlawfully imported into Australia contrary to subsections 307.8(1) and 11.1(1) of the Criminal Code 1995 (Cth); and
(b) one charge of attempting to possess a commercial quantity of a border controlled drug, namely heroin, reasonably suspected of being unlawfully imported into Australia, contrary to contrary to subsections 307.8(1) and 11.1(1) of the Criminal Code 1995 (Cth);
(c) one charge of attempting to possess a marketable quantity of a border controlled drug, namely cocaine, reasonably suspected of being unlawfully imported into Australia, contrary to contrary to subsections 307.9(1) and 11.1(1) of the Criminal Code 1995 (Cth);
2The maximum penalty for the commercial quantity offences is life imprisonment.
3The maximum penalty for the marketable quantity offence is 25 years' imprisonment
Circumstances of offending
4You committed these crimes on 18 February 2021.
5On 1 January 2021, a shipment of two wooden crates landed at Melbourne Airport from South Africa.
6Australian Border Force officers examined the shipment and found methamphetamine concealed within a sculpture in one of the crates.
7Federal Police opened both crates.
8Hidden within them was:
(a) 11.04 kilograms of pure methamphetamine[1]; and
(b) 2.8 kilograms of pure heroin[2]
(c) 1.59 kilograms of pure cocaine[3]
[1] A commercial quality of methamphetamine is 750 g
[2] A commercial quality of heroin is 1.5 kg
[3] A commercial quantity of cocaine is 2 kilograms
9The combined estimated wholesale value of the drugs was between $2,970,000 and $4,098,000.
10Federal Police removed the drugs and reconstructed one of the crates and the sculptures, substituting an inert substance for the drugs, for a controlled delivery.
11The consignee of the shipment was named as John Jebbe. The delivery address was 42 Griffiths Street Belfield. The contact phone number for the consignee was 0469789316 ('316').
12Toni Ukram was responsible for receipt of the consignment in Australia.
13On 17 February 2021, using the 316 SIM card, Ukram spoke to the freight company representative to arrange for delivery of the consignment next day.
14In the evening, he gave you the 316 SIM card.
15On the morning of 18 February 2021, the freight company representative left a voice message, on the 316 number, the consignment would be delivered that afternoon and requested a return call to confirm delivery.
16Five minutes later, using the 316 SIM card, you phoned the representative. You confirmed the afternoon delivery.
17
At midday, you messaged the Griffiths Street, Belfield address to
Massimo Crisciglione, who was to help with the receipt of the consignment.
18About an hour later, using the 316 SIM card, you called a friend, known to Crisciglione and you. You asked if 'something' could be brought to their home in the afternoon to store for an hour or two.
19A few days earlier, Crisciglione had asked the same friend if they would store a crate of expensive wine at their house for a few hours.
20Around 3.30 pm, a Federal Agent, pretending to be a delivery driver, delivered the crate to the Griffiths Street address. You were there with Crisciglione and another man, Joseph Berhe. Berhe signed for the crate.
21It was heavy. The men unloaded it onto the nature strip.
22The house at Griffith Street was unoccupied.
23You phoned Ukram to let him know a crate had arrived. After that call, you told Crisciglione and Berhe the crate had to be moved before it was opened. You told Berhe to order a taxi.
24While you were waiting for the taxi, Ukram arrived, took a photo of the crate and left.
25When a Maxi taxi arrived, it was apparent the crate was too big and heavy to be loaded into it.
26You drove Crisciglione to a nearby shopping centre where he approached the driver of a tow truck which was coincidentally parked in the car park.
27The driver agreed to transport the crate on his tow truck. He drove to Griffiths Street and loaded the crate onto his truck.
28Crisciglione got in the truck with him and directed him to an address at Lewis Street, Thornbury.
29You drove there, with Berhe.
30The tow truck driver unloaded the crate into the driveway at 6 Lewis Street, Thornbury.
31You called Ukram and gave him directions to Thornbury.
32Shortly after, Ukram arrived with another man, Kingsley Iwunze.
33The four men opened the crate and unwrapped two statues.
34Iwunze smashed open one of the statues. The other, with the smashed pieces of the first, were put into Ukram's van.
35As Ukram and Iwunze were about to drive off, police, who were watching the premises, closed in and arrested them.
36You left with Crisciglione, walking by a back street behind Lewis Street. You left your handbag behind.
37It was open to the jury to find you fled from police because you believed the crate contained border controlled drugs.
38From your conversations, which were captured by police surveillance, with Crisciglione and Behre at Griffiths Street and Lewis Street, it was plain enough you had that belief.
Arrest and guilty plea
39On 12 March 2021, police arrested you at your St Kilda home.
40At interview, when police put to you, you had attempted to get possession of drugs, you denied any involvement.
41You denied using the 316 number.
42When police told you they found your handbag at Lewis Street, you said it had been stolen.
43When confronted with evidence about the delivery of the crate to Lewis Street, you said you believed it contained hair extensions for a friend. You said you expected to receive $1600 worth of hair extensions for collecting the crate.
44They were demonstrable lies. It was open to the jury to find you told them because you knew truthful answers would incriminate you in an attempt to obtain possession of drugs.
45You were charged and remanded in custody.
46On 18 November 2021, you were admitted to bail.
47On 24 February 2023, a jury was empanelled for your trial.
48You maintained your denial of any knowledge of drugs in the crate and relied on the hair extensions account, which you had given to police, as your defence.
49The jury delivered guilty verdicts on 9 March 2023.
50In my view, Crown case was a strong one and your conviction was inevitable.
Criminal Record
51You have admitted a limited criminal record.
52On 25 February 2020, at Heidelberg Magistrates Court, for dishonesty offences, you were released on an adjourned undertaking without conviction.
Personal circumstances
53You were born in February 1967 in Bosnia.
54You are the youngest of eight children. Your parents were farmers. Your father died when you were nine years old. When you were 11, because your family was in poor circumstances, your mother sent you to work as a maid for an unwell woman. You were very lonely during the time you were with her.
55After two years, you returned to the family farm.
56You completed school to Year 12 equivalent and then continued to work on the farm.
57When were 20 years old, you married.
58In 1998, your daughter was born.
59Two of your sisters migrated to Australia.
60In 1989, with your husband and daughter, you migrated too.
61In Australia, your husband was unhappy and unsettled. He started drinking and became abusive. You left him in 1997.
62You worked in aged care and saved for your own home where you raised your daughter.
63Around 2009, you were diagnosed with thyroid cancer.
64In 2012, your mother, who had also migrated here, passed away.
65While your surgery and chemotherapy were successful, during treatment in 2015 and 2016,[4] you were unable to work. You befriended a neighbour who helped you. He moved into your home, he became possessive and abusive. You were scared of him and eventually sold your home to get rid of him.
[4] Exhibit 5, medical notes
66Since, you have lived in transitional housing.
67While you were on bail, you moved into public housing at Brunswick. You politely and gratefully accepted supports offered to you under a program for older people who live in public housing. You were a well-liked, but quiet tenant[5].
[5] Exhibit 4, older persons high-rise support program, case manager
68Your niece has known you all her life.[6]
[6] Exhibit 3
69She described you as strong, considerate and supportive.
70She wrote your life went downhill after your divorce. In her words, bad choices of friends and partners led to your current predicament.
71In her opinion, because of your strong upbringing, she is confident you can change your ways and reconnect with family.
72Your two sisters, your brother-in-law and your partner, with whom you were living when you were arrested, attended court for your plea hearing and sentence. Your brief interaction with them showed me they continue to support you.
73Your daughter also is supportive. She is a dental nurse and would have attended court had her work commitments allowed.
74Carla Lechner, a clinical psychologist assessed you on 17 July 2023.[7]
[7] Exhibit 2
75You told Ms Lechner, you were an occasional drinker. You said after your cancer diagnosis and your house sale, when you were living at different places, you smoked cannabis, sometimes daily and experimented with ice 'twice'.
76You maintain your innocence. You told Ms Lechner, as a favour, you let someone know when the boxes arrived, and you expected to receive hair extensions for your trouble.
77Psychometric testing show you have a high level of psychological distress, extreme depression and complex PTSD, in the context of a history of domestic and sexual violence.
78When you were remanded in custody in March 2021, following your arrest, you sought help from Western Region Centre against sexual assault (WestCASA), where you reported a recent sexual assault prior to your incarceration and family violence by a previous partner[8]. You saw a counsellor from August 2021 until you were admitted to bail in November 2021.
[8] Exhibit 7
79You have ongoing issues with low mood and PTSD. In prison, you are prescribed Sertraline for depression, and Prazosin for your PTSD associated nightmares. You are on a waitlist for counselling[9].
[9] Exhibit 8
80While you wait, you are working in industries to keep yourself occupied.
81You have also completed a number of behavioural and vocational programs.[10]
[10] Exhibit 6
Sentencing submissions – defence
82In comprehensive written[11] and oral submissions, your counsel, Ms Joosten, acknowledged a term of imprisonment is the only appropriate sentence in the circumstances of your case.
[11] Exhibit 1
83She submitted your total effective sentence and your non-parole period should be moderated to take into account:
(a) your limited and unsophisticated conduct;
(b) Covid-19 related custodial hardship, particularly in 2021;
(c) your poor mental health;
(d) the totality principle;
(e) the parity principle.
84She submitted, considering your very limited criminal record, your good work history and your family support, you have very good prospects of rehabilitation.
Sentencing submissions – prosecution
85Mr Stephens, who appeared for the prosecution, submitted[12] considering the seriousness of your conduct, the only appropriate sentence is a term of immediate imprisonment with a non-parole period.
[12] In helpful written (exhibit B) and oral submissions
86He submitted you played a trusted and significant role in the drug enterprise and exercised a degree of supervision over Crisciglione and Berhe.
87He submitted your participation, while similar, was slightly higher than theirs.
88He acknowledged the similarities and dissimilarities between the circumstances of the offending and the personal circumstances of the co-offenders and you.
89He helpfully provided me with a table which summarised the sentences of Ukram Iwunze, Crisciglione and Berhe.
90I have read Judge Chettle's reasons for sentencing those men.
91Mr Stephens acknowledged your previous good character, apart from a relatively minor court appearance, while generally to be given less weight as a mitigating factor, should not be overlooked.
92He submitted my assessment of your prospects of rehabilitation should be qualified by your lack of remorse and insight into your offending.
93Mr Stephens also provided me with a table of intermediate appellate cases which concerned offenders who were also involved in the collection and movement of unlawfully imported drugs.
Consideration
94The maximum penalty of life imprisonment demonstrates the inherent seriousness of attempting to possess a commercial quantity of a border-controlled drug. It serves as a yardstick and a basis for comparison between your case and the worst case.[13]
[13]Markarian v The Queen (2005) 228 CLR 357.
95The sentencing principles in federal drug importation and possession cases are well-established:
(a) the offender's role and involvement in the enterprise, the sophistication of the enterprise and the amount of drugs involved are relevant to the assessment of the seriousness of the offending;
(b) because of the difficulty in detecting the offending and the great harm stemming from the distribution of illicit drugs in the community, significant weight is attached to the principle of general deterrence;
(c) for involvement at any level, an offender should expect a significant sentence;
(d) as a matter of common sense, it should be inferred, unless there is evidence to the contrary, the person who possesses or imports drugs is doing so for profit; and
(e) prior good character is generally to be given less weight as a mitigating factor.[14]
[14]R v Hai Van Nguyen; R v Phuong Thu Thi Pham [2021] NSWCCA 238 at [72] followed in Nguyen v R; Phommalysack v R (2011) 31 VR 673 at [34] and Suky Lieu v The Queen [2016] VSCA 277 at [41]-[43].
96Here, the enterprise was substantial. The drugs were concealed in heavy sculptures packed into two large crates. The quantity of drugs you attempted to collect was large. In combination, more than 15 times the statutory commercial quantity. While relevant, quantity is not the sole nor chief determinant of the appropriate sentence. Role is another determinant.
97The prosecution accepted that you were neither a principal nor an organiser. You received directions from Ukram who was higher in the organisation’s hierarchy. He trusted you with the contact SIM number for the drugs consignment. You dealt with the freight company to accept delivery of the crate and you gave direction to Crisciglione and Berhe, who helped collect it.
98You had an important role to accept delivery of the crate for its contents to be removed.
99Criminal drug enterprises can only prosper because people are willing to undertake a role, even a limited one. Regardless of the level of involvement, persons who participate in the illicit drug trade should expect heavy penalties.[15]
[15]R v Shi [2014] NSWCCA 135, [34].
100Financial reward is another determinant of sentence.[16] The estimated wholesale value of the drugs which you attempted to possess, ranges between $3 million and $4 million.
[16]Maxwell [2013] VSCA 50.
101I reject your explanation you expected to receive $1600 worth of hair extensions for your trouble.
102While I am not able to make any finding of the actual amount you expected to profit, the obvious inference is you were involved for financial gain.
103While the consignment of drugs was relatively large and very valuable, your involvement was relatively brief, one day, and, as your attempts to move the crate, initially in a maxi taxi and then a randomly found tow truck demonstrate, unsophisticated.
104In my view, the objective seriousness of your offending falls below mid-range for offences of the type.
105Under s16A of the Commonwealth Crimes Act 1914, I am required to impose a sentence that is of a severity, which is appropriate in all the circumstances of your offending.
106A term of imprisonment is the only appropriate sentence in your case. Your counsel did not argue otherwise.
107I am also required to have regard to the non-exhaustive list of matters set out in s16A(2) of the Crimes Act 1914, as far as they are relevant and known to the court.
108There are mitigating factors which I have taken into account to moderate the sentences I will impose:
109Firstly, during the COVID-19 pandemic, gaol has been harder for all prisoners who have been detained in greater isolation, with increased restrictions on visits and programs and the risk of COVID-19 infection.[17]
[17] Biba [2021] VSC 327.
110While it does not loom large as a consideration in the sentencing calculus, I am satisfied federal prisoners, who are denied a State prisoner’s opportunity for sentence reduction for emergency management days, suffer an additional grievance.[18]
[18]Corrections Act 1986 (Vic), s 58E.
111Secondly, you suffer significant psychological distress, depression and PTSD. I am satisfied, because of your psychological conditions, prison will weigh more heavily on you than a person in normal health and there is a serious risk your imprisonment will adversely impact your mental health.[19]
[19] R v Verdins (2007) 16 VR 269, [8].
112You have admitted a criminal record of very limited relevance. This is the first time you have been incarcerated.
113While your positive personal circumstances, including your good work history and otherwise law-abiding life, are less significant in the sentencing synthesis, I do not overlook them.
114Although you show no remorse in prison, you have done your best to improve yourself by engaging in programs, working and seeking help for your psychological problems.
115You have strong family support.
116Generally, I assess your prospects of rehabilitation to be very good.
117I have given careful consideration to the operation of the parity principle.
118Crisciglione and Berhe pleaded guilty to a charge of attempting to possess a commercial quantity of a border controlled drug, namely the 2.8 kilograms of pure heroin which had been concealed in the crate; nearly two times the statutory commercial quantity and which had a street value of about $1.4 million.
119Like you, they were recruited to collect the crate, which had contained the imported drugs, and to take it to a location where the contents could be removed.
120Unlike you, each of them had prior convictions for drug trafficking and possession.
121Judge Chettle sentenced each of them to five years and six months imprisonment.
122Iwunze pleaded guilty to the same charge, that is, attempting to obtain possession of the 2.8 kilograms of heroin. He conducted counter surveillance when the crate was being delivered and he helped remove the contents after the crate was opened and to put the sculpture and the debris of the smashed sculpture into Ukram's van. He had no prior convictions. Judge Chettle sentenced him also to five years and six months imprisonment.
123Because Ukram had more responsibility than you, the objective seriousness of his offending was greater than yours. He pleaded guilty to a single charge of attempting to possess a commercial quantity of border controlled drugs, namely the amphetamine, the heroin and the cocaine which were the subject of the charges for which you are before the court. Judge Chettle sentenced him to 11 years imprisonment. [20]
[20] Crimes Act 1914 (Cth), s 16BA.
124In Collins,[21] the Victorian Court of Appeal said:
'The principles governing parity are well-established. Equal justice requires that like offences be treated alike, but also that relevant differences between offenders be capable of being treated as justifying different outcomes. If there is a “marked” or “manifest” disparity between sentences which gives rise to a justifiable sense of grievance on the appellant’s part, then the parity principle may be said to have been infringed. However, no justifiable sense of grievance can be said to arise where it was reasonably open to the sentencing judge to differentiate between co-offenders in the way in which he or she did'.
[21] [2015] VSCA 106, [23].
125In the sentences I impose, taking into account the differences in offending and personal circumstances of the co-offenders, I will ensure that the sentences I do impose do not give rise to a justifiable grievance on your part.
126I have read the authorities and the prosecution table of comparative cases. While sentencing practices are but one consideration, I have used the authorities for guidance to identify and apply the sentencing principles and as a yardstick against which to examine the appropriate sentence in your case.
127Because you are to be sentenced for a number of offences which arise out of one transaction, I will impose individual sentences and make cumulation orders to ensure your total sentence is 'a just and appropriate measure of [your] overall criminality'.[22]
[22] Postiglione (1997) 145 ALR 408, 416-17, 442-43.
128Considering the matters favourable to your rehabilitation prospects, I am satisfied it is appropriate to impose a longer than usual parole period, to give you the opportunity to continue your reformation under conditional freedom.[23]
[23] Power v The Queen (1974) 131 CLR 623.
Conclusion
129Ms Cabraja, by the sentence I impose, I must denounce your conduct, punish you and deter you and others from committing crimes of the same or similar kind. I must also look to your rehabilitation.
130Considering the circumstances of your offending, your personal circumstances and antecedents, and endeavouring to produce a sentence which reflects and promotes the purposes of sentencing in a manner appropriate to you:
(a) On Charge 1, attempting to possess a commercial quantity of an unlawfully imported border controlled drug, namely methamphetamine, you are sentenced to nine years imprisonment which is to commence today.
(b) On Charge 2, attempting to possess a commercial quantity of an unlawfully imported border controlled drug namely heroin, you are sentenced to seven years imprisonment which is to commence on 28 January 2026.
(c) On Charge 3, attempting to possess a marketable quantity of an unlawfully imported border controlled drug, namely cocaine, you are sentenced to five years imprisonment which is to commence 28 March 2028.
131By fixing the commencement dates, my intention is that four months of your sentence on Charge 2 and two months of your sentence on Charge 3 should be served cumulatively on your sentence on Charge 1 and each other. Your total effective sentence is nine years and six months imprisonment.
132To mitigate your punishment in favour of your rehabilitation through conditional freedom, I direct you serve six years of your sentence before you are eligible for parole.
133I declare you have already served 454 days of your sentence by way of presentence detention.
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