Director of Public Prosecutions v Daoudi

[2019] VCC 2057

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 18-02152

DIRECTOR OF PUBLIC PROSECUTIONS

v

YAMINA DAOUDI

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JUDGE:

HIS HONOUR JUDGE SMALLWOOD

WHERE HELD:

Melbourne

DATE OF HEARING:

4 December 2019

DATE OF SENTENCE:

6 December 2019

CASE MAY BE CITED AS:

DPP v DAOUDI

MEDIUM NEUTRAL CITATION:

[2019] VCC 2057

REASONS FOR SENTENCE

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Subject:

Catchwords:

Legislation Cited:

Cases Cited:

Sentence:

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APPEARANCES:

Counsel

Solicitors

For the Office of Public Prosecutions

Mr S. Ginsbourg

Commonwealth Director of Public Prosecutions

For the Accused

Mr L. Barker

Emma Turnbull Lawyers

HIS HONOUR:

Yamina Daoudi, you have pleaded guilty to one charge of importing a commercial quantity of a border controlled drug.  That crimes carries a maximum penalty of life imprisonment. 

You are now 32 years of age. 

You pleaded guilty at a late time, but you still must get the benefit of that plea of guilty. 

In these circumstances, remorse is somewhat problematic, but I do give you the benefit of the doubt in relation to that.  You also, of course, must get the utilitarian benefit of that plea of guilty.

You have no prior convictions.

I will go through the summary of the matter in a moment, but point out from the outset that your co-accused, a Mr Azar, on this particular charge, was sentenced by me to be imprisoned for a period of seven years.  In those circumstances and bearing in mind the matters relating to him, I probably would have given a minimum term of around about four years.  The situation is that he was younger than you, but in these circumstances, parity plays a very significant role indeed. 

It is clear on the materials that he was an organiser, and that you were an active facilitator.  He was the one who had all the money.  Indeed, upon trying to flee the country, he was found with something in excess of $50,000, or the equivalent to $50,000.  In the preceding three weeks he, through money exchanges, had gone through something approaching $200,000.  He, clearly, in these circumstances, there is no evidence related to you in regard to those matters, had a far more significant role.

You, at that time, were also in a relationship with him and I accept, on the balance of probabilities, that you were somewhat vulnerable and to a certain extent, exploited.  His reward from all this was to be clearly much greater than yours and, as I have said, he seemed to be controlling the purse strings.  In those circumstances, your sentence has to be significantly lower than his.  I make those comments at the outset, because I have grave doubts about a lot of what I have been told about the lead-up to all this.  I just want to make it clear why you are getting a lesser sentence than him.

The circumstances of the offending are contained in the Crown opening.  That is, that you, in cahoots, if you like, with Mr Azar, recruited a Mr Vankerckhove to bring bottles of wine into Australia.  Those bottles of wine contained MDMA with a pure weight of 705 grams. 

The circumstances are that you are apparently a Belgian national.  You were living in Port Melbourne.  You co-offender was a French national who was present in Melbourne at the time of the offending.  He was then 28, you were 31.  He was a member of a syndicate of French and Belgian nationals that had been importing controlled drugs into Australia, mostly through the postal system, since at least January of 2018 and I have already indicated the sort of money that he had been dealing with.

The Crown, very fairly, does not allege that you were involved in any of the activities of the syndicate, other than that in the charged importation.  There is, however, a lead-up to that importation, which I will go through in a moment. 

Messages extracted from a mobile phone show that, as I have said, I think in the weeks leading up to the offence, you were in an intimate relationship with Mr Azar and on the Crown opening, acting under his direction.

The background was that in early-2017, you had met a 21 year old woman named Shanti Vankerckhove from mutual friends in Belgium.  You became friends and continued to see on another regularly.  Ravi Vankerckhove, who later carried the drugs that are the subject of this charge, was her brother.  He was about 18 months older than her. 

In about September of 2017, you came to Australia and according to the material before me, you told Mrs Vankerckhove that you had a lot of money problems in Belgium. She says that you told her that you wanted to be really rich and you were going to Australia because you believed you could make a lot of money here.  Your defence counsel disputed that.  I am not going to make a finding into what the reality of that conversation was.  But in any event, you came to Australia and remained in contact with her through Facebook.

In around February of 2018, you posted on Facebook that you would buy a ticket for someone who would bring you chocolate.  You said that that was 'Not a joke'.  Shanti Vankerckhove saw that post and said she had been thinking of coming to Australia.  Almost immediately after those posts were exchanged, you made a voice call to her, again using Facebook messenger, and told you her that you were fond of Belgian chocolate, that you had almost run out and that you wanted her to bring some here for you.

You offered to pay for plane tickets and accommodation, to come and visit you and bring some chocolate.  You told her that you would also pay for a friend to come and keep her company at times that you were busy working.  You told her that you wanted her to come in a couple of weeks.  You also said that you could get discounted tickets through a friend who worked in a travel agency.  It is clear at the time that contact was made, you were aware that contraband of some sort was going to be brought into Australia.  Common sense says that has to be the case.  In any event, Ms Vankerckhove accepted your offer, and decided to get her brother to come with her.  He agreed.  She remained in almost daily contact with you. 

On 23 February 2018, you had given her a list of the brands of Belgian chocolate you wanted and during the course of discussing that, you said that you also wanted her to bring some wine.  You told her that wine was very expensive and not available in Australia.  You told her that you had already ordered and paid for the wine, that there were six bottles.  You asked her that her and her brother bring three bottles each and that a friend will deliver the wine to her.  Clearly at that point in time, you knew that there were six bottles of wine to be brought in.  As I understand it from my memory, your messages indicating that three was the limit that one person could bring in, that is why the friend was required. 

You had told Mr Azar that you had recruited Ms Vankerckhove and her brother to bring the wine bottles.  On 26 February 2018, he booked a return flight for Ms Vankerckhove that departed Brussels on 1 March and arrived in Melbourne on 2 March.  You told her that you were unable to secure a ticket for her brother on the same flight, but promised her that he would be given a ticket for a later flight.  Mr Azar later booked a room in a hotel in Melbourne for her to stay on her arrival and that was for two nights, with a checkout of 5 March of 2018. 

Around about 28 February, you told her that a person named Mahi would contact her and bring her the wine before she was due to leave and that in effect all took place.  On 28 February, a person using a Facebook profile named Mahi contacted her.  Again, the wine was given to the brother as I understand it, in a supermarket carpark in Brussels.

He returned from the meeting with six wine bottles that he showed to her.  They divided the bottles between them.  At Mr Azar's request, you told
Ms Vankerckhove to wrap the bottles carefully before packing them.  It is important to note here, and you are only to be sentenced for the one importation, I clearly understand that, but it is a situation where there are six wine bottles. The three that were actually intercepted in Australia had 705 grams of pure MDMA in them. It would be remarkable that the three that were taken at random by the two people that did not know what was going on, also had the MDMA in them.  So clearly you were aware that, in my view, at that stage, that some contraband at least of some description was going to be brought into Australia by her.

On 2 March, Ms Vankerckhove arrived at the Melbourne Airport carrying the three wine bottles in her suitcase.  You had told her that you were not able to meet her at the airport.  She arranged for a friend Alex to meet her and take her back to the city.  After arriving in the city, she contacted you, but then it was after 2 am.  You said that you would come over with someone to collect the wine and the chocolates.  A short time later, you and Mr Azar drove to the Grand Chancellor Hotel where she was, met her and Alex outside the front of the building. Alex had carried the wine and chocolate which had been purchased, down to the front of the hotel and gave it to you and Mr Azar.  They talked for about five minutes before the two of you left.  It is at 2 o'clock in the morning, you are clearly aware that the bottles have been delivered to Mr Azar.  It is a pretty strange time to be picking up chocolate. 

In any event, those wine bottles had been in the possession of a - certainly at least Mr Azar for about three days before what occurred next.  During that period of time, as I understand it, leading up to the arrival of the brother, on
8 March, there were a number of communications between you and Mr Azar about payment of $1,000, about how you got the jewels and all sorts of matters, such as that.  It has been put here this is a reckless intent and I do not propose to go beyond that.  I will sentence on that basis obviously.  Certainly by the time the return flight was booked for the brother, you must have had grave suspicions indeed as to what all this was about. 

In any event, the brother arrived with his three bottles. He was unable to get through Customs, and was searched. The wine with the drugs in it was seized and tested positive to MDMA.  As I have indicated, those bottles were examined and found to be carrying a total weight of pure MDMA at 705 grams.  There are then a number of communications that took place between the people involved and it is at that point in time that you and Mr Azar determine to flee Australia, realising that there was a serious problem with the brother.  You both went out to the airport, and tried to get the earliest possible tickets to Paris. That was for that night.  You were then arrested at the airport after Ms Vankerckhove had made a statement to police and the matters proceeded from there.

As I had indicated, there was a lot more to it than that.  But as I have indicated, I have to sentence on the basis that this was a reckless intent, rather than an actual knowledge, but is a situation where you clearly must have been or very aware that what was being done, whatever it was, was being done unlawfully.  You in fact at one stage told Mr Azar what lies you had told to the courier, so as to not raise her suspicions.  You referred to the bottles, as I have indicated, as jewels and talked about payment and that you would not have taken the risk for that much money.

It is pretty clear to me that you were about to receive a great deal of money for this.  Clearly it is commercial importation.  There was going to be some profit to you.  I am aware of what the Crown opening says about your comments before coming to Australia.  I think it would be dangerous for me to take that too far in terms of what you might have received out of all this.  As I have said, I sentence on that basis of recklessness, despite grave concerns as to the veracity of a lot of the things that I have been told.  In any event, you have no priors and you are definitely going to be deported. 

Your counsel provided a number of matters on your behalf, a number of documents, all of which I have taken into account.  I accept that you are in a fairly isolated situation in custody in this country.  There is only one other French speaking person in the gaol, but as you have clearly indicated, you can speak English to a certain level.  Your history is that you are the second of four children.  Your parents went to Belgium from Morocco, when your father was 23.  He is now retired.  You have as I have said other siblings, they have all done well.  As far as I can work out, no one has been in trouble, but you, and I am assured in your counsel's submissions that you are the first.  I accept that you miss your family greatly and indeed there has been travel to Australia to visit you.

Your educational history is such that upon completing secondary school, you left and had a number of jobs.  You also did undergraduate degrees and you have been employed as a librarian, employed as an architect student and ultimately you obtained the degree of master of architectural which was conferred on you in December 2013.  It is clear from the materials before me that you do have a strong work ethic and it is confirmed I think in the messages that were intercepted, or at least obtained by police, that you were working at the time all this occurred.  I have already indicated you were in a relationship with this man, which must have been of very short duration, if I am being told the truth that you had not met him before, and I do not think I need to go through all of that again.

You had been in a previous relationship which had faltered and came to Australia in the course of all that.  I will accept for these purposes that you were vulnerable and that Mr Azar would have had a - having dealt with him previously, a certain charm about him which you might have found very comforting in all these circumstances.  In any event, we will work on the basis you did find your own accommodation, you had to find your own employment and it was him that led you into all this.

I do not think I can be any fairer than that, bearing in mind what I have indicated about my deep suspicions about all this.  Whilst you have been in gaol, I do accept that you have done everything you can to advance your rehabilitation.  You have been a trusted worker in horticulture at the Dame Phyllis Frost Centre.  You have used your skills and architectural design skills to design areas within that prison, for the benefit of prisoners and staff.  You also painted murals, as I am told, this is confirmed in the documentation, to cheer the place up and encourage 'Mindfulness'.  You generally work during the course of the day and I accept that you have in all probability been a model prisoner.

You have involved yourself in a Red Cross Program and that can only be described as laudable.  You have also undertaken RMIT University undergraduate subject, entitled 'Comparative Criminal Justice Systems' and you have completed that course with a high distinction.  Again, that shows that you have been endeavouring to rehabilitate and further yourself, but also indicates that you are far from being an unintelligent woman.  It is hard to accept the level of naivety that your counsel urged upon me.

In any event, a number of character testimonials have been tendered on your plea and I accept what is said there.  They all speak well of you.  They talk about your trusting nature and your ties to your family.  They also talk about remorse, but in these circumstances, with importations, it is usually - in your case, no different, they are problematic.  As I have indicated, I will give you the benefit.

In some of those references, in your own letter that you wrote, you endeavour to disavow this offending.  We discussed that before the plea started.  I do not accept your level of involvement was that of someone totally naive or innocent.  You told lies.  You told them deliberately.  You were obviously working in concert, though you were obviously to a much lesser degree than Mr Azar and as I think the prosecutor very generously said, you have been less than forthcoming with your role in all this.

The prospects of your rehabilitation should be good, but you are going to be deported, so that is of little significance.  In the overall situation, the risk of you reoffending, in this country at least, would have to be zero.  I take all those matters into account on your behalf, however, it has to be always born in mind that importing drugs of this nature into the country is a very serious offence indeed, as indicated by a maximum penalty of life imprisonment.

You are fortunate that you do have matters in mitigation and you were, as I say, working on the parity that your co-accused had a much greater role than yourself.  He was given seven years for this charge.  I should also point out that his total effective sentence was nine years, but he had other importations he was charged for.  The one I have referred to already, he was not charged for and nor were you.  He pleaded guilty to one other importation which involved drugs being sent into the country, intercepted after your arrest which were addressed to you at your premises in Port Melbourne.

You are not charged with that and while there is no cause for suspicion, it is certainly not a matter I take into account in your sentencing.  In any event, doing the best I can, with all that material, on the charge of importation, you are sentenced to be imprisoned for a period of four years.  I direct you serve a minimum term of two years and three months before becoming eligible for parole.  I direct that a period of 637 days you reckon as having been served under that sentence. 

Pursuant to s.6AAA of the Sentencing Act, I say that but for your plea of guilty, you would have been sentenced to be imprisoned for a period of six years, with a minimum term of four. 

MR BARKER:  As Your Honour pleases.

HIS HONOUR:  Now I understand there is no ancillary orders I need to make?

MR GINBSBOURG:  No, Your Honour.

HIS HONOUR:  No, all right.  There's no other orders at all I need to make?

MR GINSBOURG:  No, Your Honour.

HIS HONOUR:  Very well.  You can take her now, thank you.

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