Director of Public Prosecutions v Dawid
[2012] VCC 717
•1 June 2012
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
CR-12-00237
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DORRY DAWID |
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JUDGE: | HER HONOUR JUDGE PATRICK | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 7 May 2012 | |
DATE OF SENTENCE: | 1 June 2012 | |
CASE MAY BE CITED AS: | DPP v Dawid | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 717 | |
REASONS FOR SENTENCE
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Catchwords:
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr H. Tighe | Office of Public Prosecutions |
| For the Accused | Mr Z. Zayler |
HER HONOUR:
1 Dorry Dawid, you have pleaded guilty to one Charge of trafficking in a drug of dependence in a large commercial quantity (Charge 1) and one Charge of trafficking in a drug of dependence (Charge 2). Charge 1 relates to methylamphetamine and Charge 2 relates to cocaine.
2 The maximum penalty in relation to Charge 1 is life imprisonment. The maximum penalty in relation to Charge 2 is 15 years’ imprisonment.
3 The prosecution sought orders for disposal of certain items, forfeiture of certain items and an order for the taking of a forensic sample pursuant to s.464ZF of the Crimes Act 1958. Your counsel said there was no objection to those orders being made.
4 The circumstances of your offending are set out in a Summary of Prosecution Opening. The matters in that prosecution opening were agreed with the following clarification. It is accepted by the prosecution and defence that the amount trafficked by you in relation to Charge 1 was between three and four kilograms of mixed methylamphetamine. The prosecution submits, and defence agrees, that it would make no material difference in sentence whether the amount was three or four kilograms. The prosecution also accepted that a portion of the total quantity of the methylamphetamine was at the lower range of purity. It was accepted that half a kilogram of the methylamphetamine was of such poor quality that it was proposed that it would be returned to the supplier.
5 Defence counsel said there would be no contest in relation to the amount of cocaine. He agreed that the evidence would establish that you trafficked in at least four ounces of cocaine. The defence position is that whether it was four or six ounces of cocaine the sentence would, in the circumstances, be the same. On that basis, the Summary of Prosecution Opening was agreed to and tendered as Exhibit A. The circumstances of your offending are set out in that summary. In brief, the circumstances were as follows.
6 In October 2010 the Victorian Police Drug Task Force identified you and two others as suppliers of methylamphetamine. Amongst those to whom you were supplying methylamphetamine was Neil Turner. Between 20 October 2010 and 27 January 2011 a police covert operative made a number of evidentiary purchases of methylamphetamine from Turner. You and Richard Barkho were identified as suppliers of methylamphetamine to Turner. During the police investigation further evidence was derived from telephone intercept and listening device materials. Those materials, in conjunction with other evidence, established that you were in regular contact with, and a supplier of, methylamphetamine to Turner and others.
7 It is the Crown case that you trafficked quantities of methylamphetamine and cocaine with such frequency that it can be said that you were in the business of trafficking as defined in R v Giretti [1986] 24 ACrimR 112. That means that you were engaged in the continuing trade or business of dealing in drugs and offending “on a regular and commercial basis in the transmission of drugs from source to consumer”. It is also alleged that you, Barkho and another were acting in concert in the trafficking of drugs. It is the Crown’s view that you and Barkho are the most serious offenders of those charged with offences arising from this police operation. None of those persons have yet been dealt with by the courts.
8
The Crown case is that you and Barkho trafficked in 3.849 kilograms of methylamphetamine with the qualification that I have previously set out. The valuation of the methylamphetamine trafficked by you has been calculated on the basis that you sold the methylamphetamine for $2,500.00 per ounce, there being a total of 137.4 ounces in 3.849 kilograms. There would, of course, be a lower value if less were trafficked. That trafficking is the subject of Charge 1.
I am sentencing you on the basis that you trafficked between three and four kilograms of methylamphetamine.
9 The Crown case is that you trafficked in 168 grams or approximately six ounces of cocaine with a total sale value of $60,000 when sold at $10,000 per ounce. That trafficking is the subject of Charge 2. I am sentencing you on the basis that you trafficked between four and six ounces of cocaine.
10 Police discovered that you and Barkho were supplied with commercial quantities of drugs from a supplier in Sydney. I note that a large commercial quantity of methylamphetamine is one kilogram of mixed substance containing methylamphetamine or 750 grams of pure methylamphetamine.
11 Analysis of the methylamphetamine demonstrated that the methylamphetamine trafficked by you had a range of purity between six and sixteen per cent. It is the Crown case that the quantity of methylamphetamine trafficked by you was at the lower end of the mid-range of a large commercial quantity trafficking scale, and that the quantity of cocaine trafficked was at the lower end of the mid range of a trafficking scale. The defence submission is that your offending involved in Charge 1 is at the lower end, bearing in mind the range of purity, to which I have previously referred.
12 A number of exhibits were tendered on your behalf, being report of Mr Patrick Newton, forensic and clinical psychologist, dated 3 May 2012 (Exhibit 1), reference from Mr Tony Cant dated 1 May 2012 (Exhibit 2), reference from Ms Maria Hatzikourtis dated 2 May 2012 (Exhibit 3), reference from Mr Eddie Dawid dated 20 April 2012 (Exhibit 4), reference from Ms Sahilu Mekuria dated 2 May 2012 (Exhibit 5), reference from Mr Robert Albano dated 1 May 2012 (Exhibit 6) and reference from Ms Teresa Giancola dated 19 April 2012 (Exhibit 7).
13 I have taken into account your personal circumstances as set out in the report of Mr Newton (Exhibit 1). You are now 36 years old. You grew up as the second of five children born to your immigrant parents. You have had, and continue to have, a very caring and supportive family. I note that your parents, three brothers, and your sister and her husband were in court to support you. There were also a large number of family friends and friends of yourself. You left school early and, according to Mr Newton, are functionally illiterate. You worked primarily as a labourer and in factory positions. Mr Newton refers to your ongoing problems with poor self esteem.
14 In 2003 you established your own café/restaurant business, borrowing a significant amount of money from family and friends to finance the project. The business ultimately went into liquidation in about 2006. You were left with debts, on your report, of approximately $200,000. You still owed money to family and friends. You were unemployed for a period then obtained manual work but injured your back in 2009 and were laid off.
15 You began using illicit drugs in 2005 to 2006 and your drug use increased when your business went into liquidation. You engaged in regular use of relatively high levels of illegal drugs from late 2005 into mid 2007. This led to difficulties with your family as well as the breakdown of your relationship with your then fiancée. You left Australia in 2007 in an effort to break free of your addiction to drugs. When you returned to Australia later that year you relapsed again into regular use in social contexts. According to Mr Newton, your arrest has opened your eyes to the full gravity of your drug abuse, as has your exposure in custody to individuals suffering from severe drug problems. On that basis, you reject the prospect of any future drug use and express your remorse for your involvement in the drug trade.
16 You told Mr Newton that your involvement in this offending had arisen out of your connection to the drug using subculture and had been primarily motivated by a desire to obtain funds to repay the money owed to your family. Mr Newton says you expressed remorse, shame and embarrassment for the offending. You told Mr Newton that your arrest had come as a watershed in your life and that you had been overcome with shame at the disgrace you had brought upon your family name. You told him you are resolved to stay away from any illicit drug use in the future.
17 Mr Newton says that you present with symptoms of elevated anxiety and are continuing to experience difficulties in adjusting to the custodial environment. He says your symptoms are sufficiently severe to warrant the diagnosis of an Adjustment Disorder with Anxiety. It is his opinion that your drug use prior to your arrest was sufficiently severe to warrant the diagnosis of Stimulant Abuse but not sufficiently severe to meet the diagnostic criteria for Stimulant Dependence.
18 Mr Newton says that you have had no prior treatment for your drug problems and that you would benefit from a structured program of education and counselling. He estimates you to be of below average intelligence and comments on your extremely poor literacy skills. Mr Newton’s opinion is that in order to achieve your rehabilitation you should be provided with close supported supervision to make sure that you access the rehabilitative support that you require. He considers you need structured education and counselling with a strong educative focus. He also supports your participation in remedial literacy and vocational training.
19 You have no prior criminal record.
20 In his reference, Mr Cant describes his dealings with you whilst providing advice to you in relation to the financial affairs of your café/restaurant. He describes your remorse and disappointment in relation to what was described as poor judgment in investing in the business.
21 A former employer, Ms Hatzikourtis, speaks positively of you in her reference and says the business that she is now involved with would employ you in the future if an opportunity arose. The attached reference from Ms Samantha Hatzikourtis also speaks positively of you in personal terms.
22 The reference from your brother, Eddie, describes your upbringing and your strong and determined work ethic. He describes your pursuit of an ambition to own and manage your own business. Your family were proud of what you had achieved but you sold the business that you had started and then opened the restaurant, which, as I have said, was unsuccessful. Your brother says that you are remorseful for your actions and are sorry for the pain and suffering you have caused, in particular, to your mother and father. He describes you as a caring and affectionate person.
23 The other references also speak well of your good nature and the hard work that you have engaged in in the past.
24 In mitigation on your behalf, your counsel submitted that your guilty plea should be considered to have high utilitarian value. He submitted that persons facing a similar charge often choose to test the Crown case on the basis that the Crown cannot prove that the offender intended to traffick in a large commercial quantity through the period of offending. Your counsel said that in this case you chose not to do so and had indicated your plea of guilty to both Charges at the first available opportunity. He suggested that the value of your plea in terms of its utilitarian value and the level of remorse that could be inferred from it could not be overestimated. Your counsel submitted that your plea in these circumstances is a very significant mitigating factor and should attract a substantial discount on sentence. Your counsel referred me to comments made by the Court of Appeal in R v Whitlow [2009] VSCA 103. I have considered that case and note and apply the principles set out there.
25 As I have said, your counsel relied on your plea of guilty as an expression of your remorse and the report of Mr Newton and other references in support of the proposition that your remorse is genuine. Your counsel submitted that your lack of prior convictions, whilst potentially less mitigatory in view of the seriousness of your offending, did support a conclusion that your prospects of rehabilitation are very good. In this respect your counsel also relied on the way in which you have used your time on remand, your history of hard work and your family support. Your counsel also referred to your desire to rebuild your life as expressed to Mr Newton.
26 Your counsel accepted that the relevant sentencing purposes would include general deterrence, denunciation and punishment. He submitted that specific deterrence ought have less weight given your acceptance of responsibility and your lack of prior convictions. Your counsel submitted that the sentencing purposes must be balanced by the purpose of rehabilitation and various factors in mitigation.
27 In relation to your role, your counsel submitted that you should not be sentenced as a principal, but rather on the basis of the comparative scale of your trafficking. Your counsel submitted that your offending was at the lower range of trafficking in a large commercial quantity of drugs. Whilst conceding that the poor quality of a kilo of the substance did not reduce your moral culpability, he submitted that quality was relevant as a factor determining the relative seriousness of the offence.
28 Your counsel submitted that your offending was more equivalent to a low range of this offending. Your counsel referred to the Court of Appeal decision in Trajkovski v R [2011] VSCA 170. In relation to current sentencing practices, your counsel referred to a number of cases, including R v Ryan [2009] VSCA 631, Issa v R [2009] VSC 633 and R v Elias [2011] VSC 423, Rizzo v R [2011] VSCA 146 and R v Chandler and Paksoy [2011] VSCA 338.
29 In relation to cumulation of sentence between the two Charges, your counsel submitted that there should not be cumulation, but if there were any cumulation it should be modest. Your cocaine trafficking was described as a sideline. Your counsel submitted that in relation to Charge 2 the offending would fall within a middle range of the offending and referred to Kapetanovic v R [2011] VSCA 103.
30 Your counsel urged me to consider the principal of totality and also the matters of your strong family support and that this was your first term of imprisonment. He submitted that a shorter than usual non-parole period would be justified given your guilty plea in the matter.
31 Your counsel submitted that the individual sentence on Charge 1 should not exceed six to seven years’ imprisonment and the individual sentence on Charge 2 should not exceed one to two years’ imprisonment. As I have said, your counsel had submitted that there was no need for cumulation but in the event that there was cumulation, the sentence should result in a total effective sentence of no more than seven to eight years’ imprisonment with a non-parole period of four to five years.
32 Finally, your counsel submitted that in sentencing you I should take into account that if you had been charged with offences under the Criminal Code (Cth) you would face lesser maximum penalties of 25 years’ imprisonment and 10 years' imprisonment. This is, at least in part, because of the different way quantities are calculated under the Commonwealth Criminal Code, there being no equivalent of mixed quantities.
33 The argument raised by your counsel is the same argument that was raised in the matter of Rasimi v R [2011] VSCA 365. In that case, as I understand it, it was argued that where the Director of Public Prosecutions has the power to institute a prosecution under either the State or Commonwealth legislation, then, if the defendant was charged with an offence under the State legislation, attracting a higher maximum penalty, the sentencing Judge must have regard to the penalty for the applicable Commonwealth offence when sentencing. In that case leave to appeal was granted and I understand that the appeal was heard by a Bench of five with the decision being reserved. Nettle JA and Beach AJA, in granting leave to appeal, set out the competing authorities. My view is that the preferred approach ought be that an offender is to be sentenced with consideration to the maximum penalty for the offence for which he or she was actually charged and to which he or she has pleaded guilty or been found guilty by a jury verdict. It may be that given the circumstances of your offending and all of the sentencing factors which have to be taken into account, including current sentencing practices, the ultimate sentence would not be any different if regard were had to the somewhat lower Commonwealth penalties for similar offending.
34 Your counsel also referred me to Sentencing Snapshot 102, “Trafficking in a large commercial quantity of drugs”.
35 The prosecutor submitted that the appropriate sentence would be a total effective sentence of nine to eleven years with a non-parole period of six and a half to eight and a half years. The prosecutor relied on a comparison with the sentences in R v Vasic [2010] VSCA 89, Trajkovski v R [2011] VSCA 170, R v Dagher [2011] VSCA 119 and Ly v R [2012] VSCA 24, and drew comparisons between the offending in those matters and the offending in this matter.
36 The prosecutor submitted that there should be about one year cumulation of the sentence on Charge 2. In relation to the question of the non-parole period, the prosecutor submitted that your prospects for rehabilitation were guarded, given the matters set out in Mr Newton’s report.
37 It is clear that you have engaged in very serious offending. The maximum penalty in relation to Charge 1 demonstrates that Parliament, on behalf of the community, regards this type of offending as one of the most serious types of crime. From the material available to me, it appears that you enthusiastically engaged in the business of drug trafficking. You were involved in obtaining relatively large quantities of drugs from Sydney, cutting them and dividing them into smaller amounts and on selling them. You were dealing with large amounts of money and were keen to operate an efficient drug dealing business. The courts have commented on numerous occasions on the evil nature of this trade. The production, distribution or use of illicit drugs causes harm to the individuals who consume them and to the community generally as a result of the activities of those persons using those drugs. Offenders who engage in drug trafficking at the level that you were engaged in are generally doing it to make a large amount of money. You were doing it to make money rather than merely to support your own habit. People found to be engaged in the business of trafficking in illegal drugs ought expect condign punishment if they are caught. Persons who contemplate engaging in the business of drug trafficking need to factor into their considerations that they will receive severe penalties if they are caught. It is to be hoped that such sentences might deter others who consider engaging in this form of business. Your offending must be strongly denounced and severely punished.
38 I have taken into account the matters raised in mitigation by your counsel. I consider that your plea of guilty has strong utilitarian value and is an expression of your remorse. I note that your indication of a guilty plea was made early and that you have never resiled from accepting responsibility for your activities. I accept that many in your situation go to trial on the basis that the Crown may not be able to prove the requisite intention over the total period of the charges. It appears to me that the Crown case in relation to you was relatively strong. It was your decision not to contest the matter. I do not entirely accept your counsel’s assessment of the value of your plea but I do regard your plea as having high utilitarian value in saving the cost and inconvenience of what could have been a relatively lengthy trial. You are entitled to a significant discount in sentence for your plea of guilty.
39 I also consider your plea of guilty to be an expression of remorse. I consider your remorse to be genuine. I note what you have said to others and accept that you now deeply regret your involvement in this activity and that you have gained insight as a result of your incarceration.
40 I consider that your prospects for rehabilitation are reasonably good. There are some difficulties for you in your lack of skills and education, but you have a history of hard work. It appears when things go wrong for you that you have a tendency to take the wrong course. I note the matters set out in Mr Newton’s report and consider that your prospects for rehabilitation would be considerably enhanced if you were able to engage in further education and counselling. I note you have strong family support. It appears that that support has been there for you throughout your life, but was not sufficient to prevent you from engaging in this offending.
41 Having considered the cases to which I was referred, I consider that your offending in Charge 1 falls towards the lower range of this type of offending, given the quantity and quality of the methylamphetamine that you were trafficking in. I also accept that your offending in Charge 2 would be towards the lower end of the mid-range of this offending. I have had regard to current sentencing practices in relation to this type of offending, based on the statistics set out in the Sentencing Snapshot 102, the cases to which I was referred, and other relevant recent cases summarised in the Victorian Sentencing Manual, together with my knowledge of other sentences in comparable cases.
42 In terms of your role, I am sentencing you on the basis that you were a wholesaler. You were obtaining the drugs from Sydney but you, together with Barkho, were head of the business that you were controlling in Melbourne. You played a leading and very active role in the planning for, and operation of, that business.
43 I consider that a somewhat shorter non-parole period would be appropriate, taking into account your early plea of guilty and good prospects for rehabilitation, as well as the matters raised in Mr Newton’s report. I also note that this is the first time that you have spent any time in prison. I do not consider that it would be appropriate to provide for a significantly shorter non-parole period given the seriousness of your offending and the matters I have set out. Some cumulation of the sentence on Charge 2 is appropriate, in my view, given that additional criminality, though I accept that your cocaine trafficking was a sideline to your main business. In fixing the sentences and degree of cumulation I have taken into account the principles of totality and proportionality.
44 Could you stand up, Mr Dawid.
45 On Charge 1 you are convicted and sentenced to a term of imprisonment of eight years and six months.
46 On Charge 2 you are convicted and sentenced to a term of imprisonment of two years.
47 Six months of the sentence on Charge 2 is to be served cumulatively on the sentence on Charge 1. The total effective sentence is a term of imprisonment of nine years. I fix six years and two months as the period that must be served before you are eligible for release on parole.
48 But for your plea of guilty, I would have sentenced you to a term of imprisonment of thirteen years and six months with a non-parole period of nine years and six months.
49 I declare that you have served 303 days by way of pre-sentence detention and order that that declaration be recorded in the records of the court.
50 I make the orders for forfeiture and disposal as sought by the prosecution. I make the order for the taking of a forensic sample from you.
51 The reasons for the making of that order are the seriousness of the circumstances of your offending, that the making of the order was not opposed and that the granting of the order is in the public interest.
52 Mr Dawid, I am required to tell you that when the authorities come to take a sample from you that you must cooperate with them. They will, I expect, come and take a sample by way of a saliva swab. If you do not cooperate with them the authorities are allowed to use reasonable force and may require you to take a blood test. I am sure that you will cooperate with them when they come to take the blood test.
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