Director of Public Prosecutions v Durak

[2018] VCC 1302

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 18-01440

DIRECTOR OF PUBLIC PROSECUTIONS

v

OZAN DURAK

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JUDGE:	HER HONOUR JUDGE LAWSON
WHERE HELD:	Melbourne
DATE OF HEARING:	20 August 2018
DATE OF SENTENCE:	27 August 2018
CASE MAY BE CITED AS:	DPP v Durak
MEDIUM NEUTRAL CITATION:	[2018] VCC 1302

REASONS FOR SENTENCE
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Catchwords:              Criminal law – sentencing – trafficking in a drug of dependence, commercial quantity (methylamphetamine) – possess drugs of dependence (cannabis, Oxazepam and Ketamine) and related summary offences of failure to comply with direction to assist – deal property suspected of being the proceeds of crime – term of imprisonment imposed

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr P. Pickering	John Cain, Solicitor for the Director of Public Prosecutions
For the Accused	Mr S. Andrianakis	Sephen Andrianakis & Associates

HER HONOUR: 

1Ozan Durak, you have pleaded guilty before me on indictment to 1 charge of trafficking in a drug of dependence, not less than a commercial quantity, the drug being methylamphetamine, on 28 December 2018, and three charges of possession of drugs of dependence; charge 2 relates to the drug, cannabis; Charge 3 relates to the drug, Oxazepam; and Charge 4 relates to the drug, ketamine; and the possession charges relate to 28 December 2018 also. 

2In addition, you have pleaded guilty to a related summary offence, being Summary Charge 10, failure to comply with direction to assist, contrary to s.465AAA of the Crimes Act 1958; deal with properties suspected of being proceeds of crime, a sum of cash of $40,000, contrary to 195 of the Crimes Act 1958; and deal with property suspected to be proceeds of crime, being a motor vehicle, HSV GTS, registered “ZSE 142”.

3You also admitted your criminal history.  Of relevance, on 28 May 2015, at Broadmeadows Magistrates' Court, you were convicted of traffic methylamphetamine; traffic GHB; possess cocaine; possess methylamphetamine; and deal property suspected of proceeds of crime, as well as other charges relating to the possession of cartridge ammunition without a licence or permit; possess a prohibited weapon without exemption or approval; and possess a Schedule 4 poison, for which you received an aggregate term of six months' imprisonment, together with a community corrections order, the duration of which was 12 months. 

4That sentence was appealed to the Melbourne County Court on 18 June 2015 and the appeal was allowed.  The orders of the Magistrates' Court were set aside and in their stead, orders of a similar nature were imposed. 

5The current offending is a far more serious example of the charge of trafficking in a drug of dependence, involving, as it does, a commercial quantity of methylamphetamine. 

6The background to the offending is, that at the time, you were living at
367 Princes Highway, Corio, with your girlfriend, Tugba, and her six year old son.  You had been living at those premises for about 12 months. 

7The co-offender in this matter, Emran Durak, is your older brother.  He is aged 36.  He was living at your parents' property at 21 Degraves Street, Mickleham at the time of the offending.

8Emran Durak is due to plead guilty to more minor offending, involving the possession of drug charges in the Magistrates' Court shortly. 

9Your offending was uncovered as a consequence of a police operation known as "Tapeable 2017".  That operation was into suspect trafficking of drugs from storage units located a Craigieburn Storage King.  A friend of yours, Sedat Elmas, rented a storage unit at those premises on 10 July 2017.

10On 10 October 2017, Elmas transferred to a different storage, namely Unit 32 at the facility.  Your old brother, Emrah, asked him and was permitted to place some possessions into his new unit.  A black and yellow Stanley portable toolbox was one of the items that was moved into the storage by both yourself and your brother, Emrah. 

11As a result of police reviewing CCTV footage of you and your brother’s movements in and out of Unit 33, between 23 November and
23 December 2017, police obtained search warrants pursuant to the Drugs, Poisons and Controlled Substances Act 1981.

12The police executed those search warrants on 28 December 2017 at both the Corio property where you were living and the Mickleham property where your brother was then living. 

13At your address in Corio, police located cash, mobile phones, a zip-lock bag containing a small amount of cannabis and some seedlings, various keys, including one to Unit 33 storage unit at the Craigieburn Storage King facility, a safe containing a zip-lock bag of cannabis and a zip-lock bag of methylamphetamine. 

14Police also found a Holden Commodore, registration number ZSB 132 that had been purchased by you from Alan Mance  Motors, Footscray, on 13 December 2017.  The purchase was made with a payment of $30,000 cash, paid by your older brother, Emrah and a further $23,000 cash paid on a separate occasion.  The vehicle was registered in your friend, Elmas’ name, who also provided another vehicle as a trade-in as part of the purchase.  It is believed that the cash used to purchase the vehicle was from the proceeds of crime and that relates to Summary Charge 14. 

15When police searched your brother's home in Mickleham, they located various items that are the subject of the Magistrates' Court matters that he now faces.

16Police simultaneously a search warrant at the Craigieburn storage unit. At Unit 33, they located the Stanley toolbox, inside of which was a safe.  Inside that safe, police located five snap-lock bags of methylamphetamine.  The total quantity of methylamphetamine seized was 649 grams and that constitutes Charge 1, trafficking in a drug of dependence, commercial quantity. 

17The certificate of analysis provided by Kathleen Poel of 18 June 2018, confirms the weight of the pure drug varied between 494 grams and 530 grams. 

18The prosecution accept that the charge has been laid on the basis that you had in your possession, methylamphetamine that was fractionally below the threshold quantity for a large commercial quantity of methylamphetamine.  From 1 November 2017, 500 grams of pure methylamphetamine is deemed to be a large commercial quantity.

19Police also seized cannabis, ketamine and an Oxazepam tablet.  The total weight of cannabis seized was 39.7 grams and the plants seedlings weighed
3.9 grams (Charge 2 on the indictment).  Police located a plastic bag containing 0.3 grams of ketamine (Charge 4 on the indictment) and a tablet of Oxazepam (Charge 3 on the indictment).

20It was accepted by the prosecution that there was no evidence of you trafficking in the cannabis, ketamine or the Oxazepam and therefore you are to be sentenced on the basis of possession simpliciter, in respect of those charges, and not possession for trafficking purposes, given that there is no other evidence that links those drugs to trafficking.

21Police also located in the storage Unit 33, a portable fridge with snap-locks bags inside, vacuum-sealed bags, as well as a silver money counter and a Clarichem drug testing kit.  The kit allows the user to test drugs prior to use and is commercially available.  I am satisfied that those various items constituted your tools of trade for the purposes of trafficking in drugs. 

22You are to be sentenced on the basis that you possessed the methylamphetamine for the purposes of trafficking on the one day only, namely 28 December 2017. 

23Following your arrest, you were interviewed, but made a "no comment" record of interview.

24When police made a request for access codes to your mobile phone, you declined and that relates to the related summary offence, Charge 10. 

25The seriousness of the offending is reflected in the maximum prescribed penalties for each of the charges and they are as follows:  Trafficking drug of dependence, commercial quantity, 25 years, level 2.  Possession of a drug of dependence, personal use, 30 penalty units or one year.  Fail to comply with directions, two years.  Deal with property suspected of being the proceeds of crime, two years. 

26Following your arrest, you were remanded in custody and have been in custody since that time.  Your matter settled at an early stage, at committal, prior to any evidence being called and the matter then proceeded by way of straight
hand-up brief. 

27Insofar as your role was concerned, I am satisfied that you were trafficking in methylamphetamine on the date of the arrest and that this was not an unsophisticated operation, as was suggested by your counsel.  Rather, you had arranged for the drugs to be held at the secure storage unit.  The drugs were all securely stored in the unit that was being rented by a third party.  You made efforts to distance yourself from the control of the rental unit and you were also organised and you had the necessary equipment to weigh and bag the drugs to on-sell them to end users. 

28Mr Andrianakis, on your behalf, confirmed that it was a serious example of trafficking in a drug of dependence, commercial quantity, and that both denunciation and deterrence were important sentencing factors.  He considered that a term of imprisonment was appropriate. 

29By way of personal history, you are now 34.  You are a carpenter by occupation.  You intend, upon your ultimate release, to return to live at the Corio residence with your girlfriend and her son and it is proposed that you will be married. 

30Dr Aaron Cunningham, forensic psychologist, has assessed you and provided a report, dated 16 August 2018.  He noted that you had a stable childhood with no indication of abuse or trauma.  You were born in Victoria, Australia, to parents who are of Turkish origin.  Your parents raised you in St Albans with your older brother and one younger sister.  Both parents are very supportive of you and have been present for the court hearings.  They no longer work.  Your father worked as a carpenter, but due to a work-related injury some time ago, has not worked.  Your mother previously worked as a factory hand.

31You initially left home at age 19 or 20, to live with a girlfriend, but that relationship broke down.  You then returned to the family home, before moving out with another friend and girlfriend in your mid-20s.  You ultimately returned back home.  Your parents decided to return to Turkey to live and sold the family home.  Thereafter, you were homeless at times, sleeping in your car and lost without the support of your parents.  You began living with a friend in Kingsville. 

32You have been in the relationship with your girlfriend for about 12 months.  It is a solid relationship and she is very supportive of you.  She regularly visits you in prison, together with your mother.  Your parents have now relocated to Australia to provide you with their ongoing support. They commute between Turkey and Australia, as they have homes in both places. 

33You have completed Year 10, but have a patchy work history.  You have had some work as a carpenter and a forklift driver over the years.  You attempted but did not complete an auto electrician apprenticeship.  You have periods of unemployment associated with your inability to work due to heavy drug use. 

34Your history of drug use commenced when you were in your late-teens, commencing first using cannabis and then amphetamines around the age 16 or 17. You commenced using methylamphetamine from about the
early-2000s.  You had a heavy addiction, using approximately seven grams per day.  At the time of the commission of the offences, you were offending in order to feed your addiction. 

35Since being in gaol, you have settled and negative drug screens were produced to the court.  You now express a desire to undertake further drug and alcohol treatment and you are currently on the wait list for such programs whilst in prison. 

36Dr Cunningham could not establish any indication of mental illness.  He noted that you engaged in drug trafficking because you needed the money to survive and that you were lost in the lifestyle associated with methylamphetamine use.  You expressed to him your desire to rid yourself of your addiction and stated that you are now motivated to commit yourself to your family.  You understand now what you did was wrong and you want to gain stability when you return back into the community and also to obtain employment.

37You currently occupy a position of some responsibility within the prison, working as a food billet. 

38I have had regard to all the matters that were put on your behalf in mitigation.  Your plea has real utility, it was entered at an early stage.  Through your early plea, you have spared the State the cost and inconvenience of a trial.  You have facilitated justice and your sentence will be discounted accordingly.  I am also satisfied that the plea is indicative of some remorse on your behalf. I have taken into account what you said to Dr Cunningham and I consider that you are now more genuinely motivated to change. 

39Overall I am cautiously optimistic about your prospects of rehabilitation.  You will need to make good your expressed desire to stop using drugs and also you will need to obtain remunerative employment in the future and settle down in order to make good your expressed intention. 

40The offending is very serious and clearly worth of the court's denunciation on punishment.  Both general and specific deterrence play a significant role in your sentence.

41Ultimately I must impose a sentence that is just in all the circumstances and provides the best prospects for your rehabilitation in the future.

42Mr Andrianakis detailed a number of cases that dealt with not dissimilar offending and in addition, the prosecutor referred me to another case that has been recently decided in this court.  Whilst they provide some guidance, they are used as a yardstick only and ultimately, I must sentence you on the facts before the court.  Current sentencing factors are a factor in formulating the appropriate sentence, but not the only factor.

43In the past courts have consistently emphasised the need to denounce offending such as this, involving trafficking in a drug of dependence, commercial quantity and have emphasised the significance of general deterrence in any sentence.  Such offending does warrant stern punishment. 

44I shall now proceed to impose the court orders.  So could you please stand,
Mr Durak. 

45On Charge 1 on the indictment, convicted and sentenced to four years' imprisonment.

46Charges 2, 3 and 4, you will be sentenced to an aggregate term of imprisonment of one month imprisonment. 

47Summary Charge 10, convicted and sentenced to three month's imprisonment.

48Summary Charges 13 and 14, convicted and sentenced to six months' imprisonment on both charges.

49I make the following orders in respect to cumulation.  In respect to Summary Charges 10, 13 and 14, one month of each of those charges is cumulative upon each other and upon the sentence imposed on the indictment. 

50That makes a total effective sentence of four years and three months and I fix a non-parole period of two years and nine months.

51I make a declaration of pre-sentence detention of 242 days and I direct that that be entered into the records of the court.

52I make the following s.6AAA declaration, but for you plea of guilty, I would have imposed a term of imprisonment of six and a half years, to serve four and a half years.

53I make the disposal order sought and the forfeiture order sought. 

54I think that covers everything, Mr Pickering.

55MR PICKERING:  Yes, Your Honour.  The disposal order, there was an amended version that was sent to your associate­.  I take it that Your Honour has that?

56HER HONOUR:  Yes, I believe so.  I have got ‑ ‑ ‑

57MR PICKERING:  It was dated 24 August.  Maybe it's the same one.

58HER HONOUR:  27 August, I have got.  We will just have a look, Mr Pickering.

59MR PICKERING:  If not, Your Honour, I ‑ ‑ ‑

60HER HONOUR:  And if they are different from the ones ‑ ‑ ‑

61MR PICKERING:  It gains a couple of items, that's all, Your Honour.  It was ‑ ‑ ‑

62HER HONOUR:  All right. 

63MR PICKERING:  But other than that's, it's not different in substance. 

64HER HONOUR:  Let's have a look.  It is - there are nine on the ones I have.  Twelve, all right.

65MR PICKERING:  Yes. 

66HER HONOUR:  That is fine. 

67MR PICKERING:  If Your Honour pleases. 

68HER HONOUR:  All right, I will hand those orders down.  Otherwise, that completes the matter and Mr Durak can be taken back downstairs.  Thank you. 

69MR PICKERING:  If Your Honour pleases. 

70HER HONOUR:  Thank you both.  We can stand down.

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