Director of Public Prosecutions v Erbasi
[2022] VCC 342
•18 March 2022
| IN THE COUNTY COURT OF VICTORIA | Revised Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
CR-20-00122
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ABDULKADIR ERBASI |
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JUDGE: | HIS HONOUR JUDGE MULLALY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 23 November 2021; 3 December 2021 | |
DATE OF SENTENCE: | 18 March 2022 | |
CASE MAY BE CITED AS: | DPP v Erbasi | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 342 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence; Trafficking in not less than a commercial quantity of methylamphetamine; Possession of drugs of dependence; Knowingly deal with proceeds of crime; COVID-19 times; Plea of guilty; Mitigatory benefits.
Cases Cited: DPP v Condo [2019] VSCA 181; Worboyes v R [2021] VSCA 169; 96 MVR 344; Gregory (a pseudonym) v The Queen (2017) 268 A Crim R 1; Fernando v The Queen [2017] VSCA 208; Lytras v The Queen [2020] VSCA 150.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr D. Porceddu | Office of Public Prosecutions |
| For the Accused | Mr V. Peters | Chris Mclennan & Co |
HIS HONOUR:
1 Abdulkadir Erbasi, you have pleaded guilty to one charge of trafficking in methylamphetamines in not less than a commercial quantity. You also have pleaded guilty to a rolled-up charge of possession of drugs of dependence being MDMA and 1,4 Butanediol, and finally, you pleaded guilty to one charge of knowingly dealing in the proceeds of crime, being cash. The circumstances of your offending were set out in an agreed summary of the prosecution opening tendered on your plea hearing. The offending, in particular, Charge 1, the trafficking in a commercial quantity of methylamphetamines is self-evidently very serious. That said, I can be brief in setting out the facts and circumstances.
2 Put simply, you were the head of an organised syndicate supplying methylamphetamines in the north-east of Victoria via a number of co-accused drug distributors in the hierarchy. The period of time involved in this offending was from 20 April 2016 to 11 May 2016; a period of three weeks. The evidence of the trafficking was secured mainly by intercepted telephone calls. From those calls it was calculated you traded in 3,186.37 grams of methylamphetamines which is over 12 times the level of commercial quantity.
3
As the head of the syndicate, you sourced the methylamphetamines from Sydney. You then had couriers, mainly one man, Rhykah Wilson, pick up the drugs from you in Melbourne and deliver them to your younger brother who lived in Shepparton. Your brother, Hamit Erbasi, would then traffic the drugs to other distributors in smaller quantities. The investigation uncovered
16 others in the distribution chain, including your father. The main courier, Rhykah Wilson, would also deliver large amounts of cash provided by your brother back to you as payments for drugs supplied and sold. The various lower level distributors were supplying drugs which were ultimately sold on to users in Echuca, Kyabram, Shepparton, Mooroopna and towns along the Victorian/New South Wales border. It was a well organised syndicate, spreading the harmful drug, ice, into rural and regional towns. I will say more of the destructive effect of this drug shortly.
4
On 11 May 2016, the police executed warrants at your house in Morang in the northern suburbs of Melbourne and on your brother's address in Shepparton and 12 other locations in the
North East Victoria. You were not present at your address at the time of the raids. You remained at large until your arrest on 12 August 2019. What was found in your premises was methylamphetamines which became part of the total amount of the 3.1 kilograms. Also, there was a small amount of MDMA, 1.5 grams and 22.5 grams of 1,4-Butanediol which became the rolled-up charge, Charge 2. Police also found $35,850 in cash which became Charge 3. There were various other items connected with trafficking in drugs found.
5 Of the 16 co-accused, 15 were dealt with in the Magistrates' Court. The other one, your brother, was sentenced by now-retired Judge Montgomery of this court on 7 July 2017. The sentence imposed by His Honour was for trafficking in a commercial quantity of methylamphetamines and other offences. The sentence for that charge - the trafficking in a commercial quantity was five years and six months. Also, 12 months for a charge of trafficking in MDMA; six months for dealing in the proceeds of crime; six months for two weapons charges. With orders for cumulation, the total effective sentence imposed on Hamit Erbasi was six years with a non-parole period fixed at four years. He had 422 days on remand which was declared as part of his sentence.
6 For completeness, in September 2016, Wilson received two years with a non‑parole period of 12 months for trafficking in methylamphetamines and other drug and driving offences. This was imposed by the Shepparton Magistrates' Court. There were other sentences of imprisonment and sentences of community corrections orders imposed by various Magistrates' Court on the remaining co-accused in 2016 and 2017.
7 As noted, you were not arrested until August 2019. There were, at that time, warrants for your arrest. You were remanded and pleaded guilty to a range of offences in the Magistrates' Court on 26 May 2020. The court there imposed a sentence of imprisonment and declared 288 days as part of the sentence imposed. That sentence expired on 11 July 2020. You have been on remand since that time.
8 I turn now to an aspect of this matter which needs to be touched on but I make it clear it is not something that in any way is attributed to you or your fault. The court records indicate that you had various solicitors acting and then ceasing to act for you throughout 2020. Very unfortunately, you ended up being represented by a lawyer whose name is Ms Nida. The transcripts of various hearings such as bail applications and case conferences held in the County Court in which Ms Nida appeared revealed an astonishing level of incompetence with no insight. Fortunately, the legal authorities have taken steps with regard to Ms Nida. I do not need, as I said, to dwell on this set of circumstances. But nor will I ignore it. At all times, but especially in these times of crisis in the criminal justice system, it is essential that sound professional assistance is provided to an accused person and thereby to the court. Plainly, in this case, the proper resolution of the matter was delayed by the incompetent lawyer that represented you up until the end of 2021.
9 As I said, none of this can or will be sheeted home to you, Mr Erbasi. On the contrary, the delay is mitigatory. All this is starkly exposed when one compares what occurred when Ms Nida was no longer involved. The trial had been listed for the final directions hearing set down for 23 November 2021. New solicitors were instructed and gave notice to the court that they were acting by formally filing a notice on 18 November 2021. At the hearing on 23 November 2021, the new solicitor who had only recently became involved made clear that negotiations between you and the prosecution were underway. Those negotiations led speedily to the sensible current resolution, with you being arraigned and pleading guilty to the three charge indictment on 3 December 2021. Thus within 10 days of having competent lawyers being appointed, the case was finalised. This was two and a half years after your arrest, in which time you lost the opportunity for concurrency with the sentence imposed around that time. After arraignment, your plea was all but ready and was held up until 10 February due to courts summer break and crowded listings at that time.
10 I will say more of the very significant benefit you will receive for your plea of guilty in these pandemic times. The point here is important, that the delay until the resolution being as lengthy as it was, was not of your making and, in my view, is a matter of mitigatory weight.
11 I need to return to your offending and my assessment of its gravity. As noted already, the trafficking in methylamphetamine in the amounts involved here is self-evidently very serious offending. Drug offences such as yours are to be assessed by reference to the quantities involved. The amount of over 3.1 kilograms being 12 times the commercial quantity, elevates the gravity of what you did. The entrepreneurial aspect of distributing methylamphetamines into the community and here into regional towns and districts also adds to the seriousness. Although the Court of Appeal have made clear it is not for sentencing courts to interpret or compare the level of dangers between one drug and the other. What I said in an earlier sentence in a matter of Condo,[1] Mr Condo was at the top, or at the joint top, of a syndicate trafficking methylamphetamines in the Mildura area, was the following.
[1]DPP v Condo [2019] VSCA 181.
12 These remarks are about the drug methylamphetamines and ice. The remarks were quoted in the Court of Appeal decision in Condo where the Director successfully appealed the sentence that I imposed. What was said and quoted in Condo was the following:
Ice is a scourge throughout Victoria. Ice contributes to crime and not just crimes of dishonesty as users seek money to purchase this drug, but also to violent crime, that is violent drug-fuelled crimes in homes, the streets and on the roads. The courts regularly confront crimes committed by offenders where the explanation put forward is that the offender is addicted to ice. This drug is a corrosive force in our community. The courts must play an important role in dealing with this social problem by imposing stern deterrent sentences to those entrepreneurial drug traffickers who seek to profit from the misery this addictive drug causes.[2]
[2] Ibid [15].
13 There is no dispute from your counsel that the amounts involved in Charge 1 establishes that this was grave offending. The prosecution emphasised this as well. As I will make clear, the sentencing purposes of denunciation, deterrence, protection of the community and punishment are all well to the fore. There are other matters personal to you that operate to mitigate, but not all of them. By that I mean you have relevant concerning prior convictions. You are not to be repunished for those matters but they impact on my assessment of your chances of reform and the need of deterrence to you specifically.
14 In October 2013, you were sentenced by the County Court sitting in Shepparton, as I read it, to a total effective sentence of two years with a non‑parole period fixed of 10 months. This was for trafficking in methylamphetamines, possession of a handgun and dealing in the proceeds of crime, recklessly causing injury and other bail and driving offences. In August 2015, you were sentenced by the Shepparton Magistrates' Court to 60 days imprisonment which was the time that you had, to that point, spent in custody and, thereafter, you were placed on an 18-month community corrections order for, again, trafficking in methylamphetamines and trafficking in the drug GBH and there was also a weapons charge. Thus, you were the subject of a community corrections order at the time of this offending.
15 As was made clear in the conditions of that community corrections order, you were a drug user at the time. In fact, you had embarked on some in-patient rehabilitation around that time. To try and understand your drug use and your drug trafficking, I need to outline your background, in particular, your fall from what was a promising start to your adult life. You are now 34 years old. In fact, you turned 34 years old on Tuesday of this week. Your parents migrated to Australia from Turkey. You were born in Melbourne, the eldest of four siblings, that is two younger brothers and a younger sister. One of your brothers I have spoken about already, Hamit Erbasi who is a co-accused.
16 Your early family life was close and save for the sadness of an infant cot death of another sister, it was relatively stable. When you were around 11 years old your parents moved from Melbourne to Shepparton for employment. You completed secondary school at Shepparton High School where it was said you were the vice-captain in Year 12. You were also a talented soccer player, playing for Victoria at under 16 level. After school, you completed an accounting course at a TAFE.
17 You and your then partner married, although you were very young at the time, being 20 years old. You and your wife lived in rented accommodation and you worked part-time washing cars. Your counsel described that you felt the pressure of family expectations and that you were fairly quickly unhappy in the marriage. You and your wife moved back to your parent's house in Shepparton and you became disillusioned, lost and depressed. It was at this time it seems, you started using and then trafficking ice to cope and to financially support yourself and your wife. You told the neuropsychologist, Mr Staios, who was engaged to assess you for this plea, that your substance abuse increased significantly and in turn your relationship deteriorated.
18 Around this time in 2013 or just before, you were arrested and sentenced by the County Court as I described with the head sentence and the non-parole period. You were released on parole, but it seems after only five weeks you relapsed and your parole was breached and you were required to do the whole sentence, being released in 2015. You were then charged with the other drug trafficking offences I spoke of and sentenced to the 60 days which you had done on remand and the community corrections order. You had commenced, it seems, a period of in-patient drug rehabilitation, but that, or the steps along that pathway, were very fragile, and it seems within a short period you fell into drug use again.
19 Thereafter, the drug trafficking syndicate was established that I am now dealing with you. That is, it commenced in 2016 and the offending was in April to May 2016. Early on in this saga, your first marriage ended on your arrest and incarceration.
20 You told Mr Staios that following a one-night stand a daughter was born. She is about eight now and you keep in contact and remain on amicable terms with her mother.
21 But more importantly, in 2015-16, around that time, you reconnected with an old high school friend, Rebecca, and you have been with her in a stable relationship for a number of years. That remains that case, notwithstanding your incarceration since 2019. She remains supportive. You and she have two young daughters. Sadly, both have congenital cardiac conditions requiring significant medical intervention. This causes real stress. Your partner's post-natal depression, your children's medical conditions and your financial difficulties have seen you at times relapse into drug use. But it seems also through 2017, 18 and 19 you were able to gain some stability, mainly with the aid of your father-in-law, who assisted you to establish a small mobile food van business and with his help you were able to secure solid accommodation in the northern suburbs of Melbourne.
22 I heard helpful genuine evidence from your father-in-law. He emphasised that what he had seen in you is your commitment to do better; to be around to look after your family and not let your partner, your children or him down again. He is sticking by you as someone who can, when you are released, work the food van and support your family. Your own parents, family and your wife and children are supportive of you, visiting you weekly in prison and remaining in regular phone contact.
23 Your counsel submitted that despite your criminal history, culminating in this next level drug trafficking in 2016, with your partner and your focus on your children you have some prospects of reform. In my view, it is hard to be optimistic, but in the end, it is in the communities' interest if you are rehabilitated. The Sentencing Act makes clear that the relevant sentencing purpose for the court is to establish conditions that may facilitate your rehabilitation. The only practical tool I have in this regard is to allow for a period of potential parole, by fixing a non-parole period and a head sentence in the orthodox way. You have failed on parole and a community corrections order in the past, but your circumstances now could be said to be different upon your release, with more stability, more family responsibilities, accommodation and work.
24 You will need to be under close supervision and for some time. That scenario indicates to me that despite your past it would be beneficial to establish conditions that may facilitate your rehabilitation by allowing for a lengthier period of potential parole. Whether and when you are released on parole is for others, not the court.
25 There are a number of other sentencing matters which I might refer to as policy considerations of general application in these difficult times in which the criminal justice system now labours. First, your plea of guilty, which as I have outlined, came speedily after proper professional attention was given to negotiating an appropriate settlement of these charges. You had faced more serious charges up to that point. A plea of guilty in complex cases involving many intercepted telephone calls, many in different languages is always seen as a plea of great value. It saves the community much by reason of a trial not being needed to resolve all the disputes and the finding of guilt or otherwise. The benefit to be secured for a plea of guilty is in the form of lower sentences or a lower sentence than would otherwise have been imposed if you went to trial and were convicted.
26 The Court of Appeal, in the important case in these COVID times of Worboyes,[3] gave guidance to sentencing judges that the utilitarian benefit to be accorded to those who plead guilty in these pandemic times must be greater and palpably so than in earlier times. The court said in Worboyes and I quote:
It is not an overstatement to say that the criminal justice system in this state is in crisis requiring a response from the courts. We, therefore, consider that whilst the courts of this state continue to labour under the adverse effects of the pandemic, the Sentencing Court should view a plea of guilty as carrying with it a greater utilitarian benefit than at other times and in other circumstances and concomitantly as attracting an augmented mitigatory effect on sentence simply because the plea would benefit the beleaguered administration of justice. Given the unhappy state of the court's list, the courts must, in an endeavour to alleviate the strain on the system, encourage those accused who are guilty to so plead. Such encouragement must come from an actual and palpable amelioration of sentence.[4]
[3]Worboyes v R [2021] VSCA 169; 96 MVR 344.
[4] Ibid [35].
27 While your brother, for instance, received a benefit for his plea of guilty, yours must be greater, having the ultimate effect of being an equalising factor for and against you relative to him. There are issues of parity and disparity with respect to your sentence and his. None of these considerations, of course, are precisely mathematical. It is all about avoiding a justifiable sense of grievance either in you or him. The key concept here is a justifiable sense of grievance. In these days and guided by Worboyes, the palpably greater utilitarian discount or amelioration operates to draw your sentence closer to his than would have been the case had the pleas and sentences been imposed at or around the same time – his sentence being imposed nearly three years before the onset of the COVID caused crisis.
28 A further important general consideration arising from COVID is that you have spent most of your remand in a prison system that was and is much affected and thus more onerous than before COVID. Corrections necessarily had to impose harsh restrictions. There have been longer lockdowns and in greater numbers. There have been quarantine periods where prisoners have been in isolation. There have been limited or no visits; limited or no vocational educational or rehabilitation programs; limited work or employment. In short, prisons have been different during the COVID times and more onerous on prisoners. I am authorised to mitigate your sentence because of this.
29 I made a good deal, of course, of the utilitarian benefit of your plea as I am required. I do also see that your plea has further mitigatory benefits, as an acknowledgement by you of your wrongdoing and an expression of remorse. It adds to what I said about your prospects for the future not being entirely grim.
30 I have mentioned the decision and the circumstances in the matter of Condo.[5] I have also considered important guiding decisions in drug trafficking at the level of commercial quantity of Gregory,[6] Fernando,[7] and Lytras.[8] It is notable that in your case there are a number of the concerning features outlined in Gregory. That being an amount that is a significant multiplier of the commercial quantity level and it is at or indeed over the large commercial quantity. Your higher position or role in the hierarchy and your relevant prior convictions. However, as the Court of Appeal in Lytras made clear, there must always be a careful analysis of all the unique circumstances of the offending and you as the offender.
[5]DPP v Condo [2019] VSCA 181.
[6]Gregory (a pseudonym) v The Queen (2017) 268 A Crim R 1.
[7]Fernando v The Queen [2017] VSCA 208.
[8]Lytras v The Queen [2020] VSCA 150.
31 Thus, the concept of sentencing practices established by other cases must always been seen as but one factor, not the dominant and certainly not a sentencing consideration that caps and collars the always wide sentencing discretion. That is made all the more stark by reason of the circumstances of your plea of guilty in these days of the COVID caused crisis. Thus all that was helpfully set out in Gregory must be seen as tempered considerably or palpably by reason of what was articulated in Worboyes. However, what is and remains the paramount purpose is the message of deterrence and denunciation. You, Mr Erbasi, must not return to drug use and trafficking. Others must understand that but for these unusual circumstances, very stern and lengthy sentences await those who sell methylamphetamines at your level.
32 I turn to sentencing. In my view, all the circumstances are such that the other drugs that were found in your premises which were at small levels and the $38,000 in cash which I consider must be connected as profits of the crime of trafficking, Charge 1. Thus the sentences that I am to impose will be all concurrent. That is concurrent with the head sentence or base sentence of Charge 1. I do take into account totality generally and the fact that you have served a significant period of time in custody, some of which was undergoing sentence. That will be taken into account in a general way. But as to the time that you have spent in custody that is attributable to this sentence, I just need to consult with the lawyers to make sure that I have got the exact number of days. Mr Porceddu, what is the PSD to this point?
33 MR PETERS: I can give you my calculation.
34 HIS HONOUR: Mr Peters. Thank you.
35
MR PETERS: Yes. 577 days as at 8 February, the plea date and another
39 days - - -
36 HIS HONOUR: Yes. Can you do the maths?
37 MR PETERS: 616 days total pre-sentence detention on these charges.
38 HIS HONOUR: Thank you. Do you agree with that, Mr Porceddu? You are just offline - muted.
39 MR PORCEDDU: 606 days, 577 plus 39. I agree with that.
40 HIS HONOUR: 616 days.
41 MR PORCEDDU: 606, 6-0-6.
42 MR PETERS: 606.
43 HIS HONOUR: 606. Thank you very much. Right. There will be a declaration of 606 days PSD and I have spoken about the whole totality.
44 MR PETERS: I think that is 616, Your Honour. 577 plus 39 is 616.
45 MR PORCEDDU: Just pardon me, Your Honour.
46 HIS HONOUR: It is 616, yes. My staff have added it as well.
47 MR PORCEDDU: Thank you, Your Honour. Yes.
48 HIS HONOUR: Thank you. 616.
49 MR PORCEDDU: 616, yes.
50 HIS HONOUR: Thank you very much. With respect to Charge 1, the trafficking a commercial quantity of methylamphetamines, you are to be sentenced to a period of six years and nine months. For the possession of a drug dependence, you are sentenced to a period of imprisonment of one month. For knowingly deal with the proceeds of crime, 38,000, you are sentenced to a period of imprisonment of 12 months. As I said, in all the circumstances, the two latter sentences will be concurrent. The total effect of sentence, therefore, is the sentence that I have just announced and I impose a non-parole period of three years and nine months imprisonment. I declare that 616 days has been served on that sentence and that period of time having been reckoned it will be declared as part of the sentence that I have just imposed. I will ensure that that declaration is entered into the record to the court so that you are under - the prison authorities are left I no doubt that you have already served 616 days of the sentence that I have just imposed.
51 Had you pleaded not guilty to these offences and been found guilty of them I would have imposed a sentence of nine years with a minimum term of seven years. Is there anything further required?
52 MR PETERS: No, Your Honour.
53 MR PORCEDDU: Your Honour, there's a disposal order and a forfeiture order that was also part of that - - -
54 HIS HONOUR: (Indistinct words). Thank you. They will be signed. The collateral, all the consequential orders requiring forfeiture and disposal will be signed as well.
55 MR PORCEDDU: Thank you, Your Honour.
56 HIS HONOUR: All right. I am grateful to parties for their assistance. Mr Peters, do you need to speak to your client at all or can you do that otherwise?
57 MR PETERS: I've got no arrangement to do it otherwise. If I can speak to him now, Your Honour, it would be appreciated. If not, I'll make other arrangements.
58 HIS HONOUR: Talk to my staff. Everyone else get offline and we'll continue ‑ I've got to continue with other hearings. Thank you.
59 MR PETERS: Thank you, Your Honour.
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