Director of Public Prosecutions v Erbasi

[2017] VCC 928

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 16-02301

DIRECTOR OF PUBLIC PROSECUTIONS

v

ABDULHAMIT ERBASI

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JUDGE:	HIS HONOUR JUDGE MONTGOMERY
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	7 July 2017
CASE MAY BE CITED AS:	DPP v Erbasi
MEDIUM NEUTRAL CITATION:	[2017] VCC 928

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A. Moore
For the Offender	Mr A. Chernok

Pages 1 - 7

 

 

HIS HONOUR:

1Abdulhamit Erbasi, you have pleaded guilty to one charge of trafficking in a drug of dependence commercial quantity, namely methylamphetamine, one charge of trafficking a drug of dependence, namely MDMA, and a number of summary charges, charge 4, deal with proceeds of crime; Charge 7, possess prohibited weapon, and Charge 8, possess prohibited weapon.

2You have admitted your criminal history which deals with the years 2013 to 2015.  You have a number of court appearances for using and possessing methylamphetamine.  Perhaps more relevantly as to some of the charges you face here you have two prior court appearances for possessing prohibited weapons, one on 11 April 2014, which it would seem a diversion is ordered, and 13 September 2013.  I am not sure what the result was, it just says "All drugs and instruments seized and forfeited and destroyed."  I assume that was also a diversion.

3The facts of the matter are set out in Exhibit 1, the prosecution summary.  They are not disputed by your counsel.  I will not go to the facts in any great detail.  Any reader of these reasons can refer to that summary to place the sentences in their factual context.

4Briefly stated, the offending behaviour covered a period of approximately two weeks.  During that period you were the middle man of a drug operation.  Your brother, Abdulkadir Erbasi, was bringing methylamphetamine from New South Wales to Victoria.

5You were receiving the drugs and then on-passing them to sellers of the drug, one of whom was your father.  Without a named specific quantity, both parties accept that in relation to Charge 1 you trafficked in a quantity or intended to traffic in a quantity at the high end of what is termed commercial trafficking, that is just less than one kilo.

6After a consideration of the communication material I accept that that was the situation in relation to the amount trafficked, that is it was at the high end of commercial trafficking.

7In relation to Charge 2 trafficking in MDMA, as is set out in paragraph 9 of the prosecution opening, you were asked by one, Stephanie Cook, for 100 pills of ecstasy.  At paragraph 26 you received a phone call from her and she confirmed she wanted 100 pills.  In paragraph 50 police located a large zip lock bag at your premises containing 62.24 grams of ecstasy tablets.  They were located in a concealed compartment located behind the glove box of the vehicle concerned.

8Also found by police was the amount of $17,100 cash in $100 notes concealed inside a table in the living area of the house.  That is Charge 4. Deal with proceeds of crime, a black knuckle duster, that is Charge 7, and a black Taser which is Charge 8.

9Prior to committal mention in this matter through your lawyers you offered a plea of guilty to trafficking in a commercial quantity.  This was rejected by the prosecution.  A short committal was held and subsequently the prosecution accepted that offer.  Both parties put, and I accept that this was an early plea of guilty in this case.

10Your counsel filed written submissions and supplemented them orally.  He also tendered a number of exhibits.  I have taken the exhibits tendered into account and have taken into account also the written and oral submissions made by your counsel.  The exhibits included a psychological report from Ian Mackinnon, a report from Dr Kuen Chan, a reference of Dr Esma Kurt, a reference from Yusuf Erbasi, materials from the Assistant Principal of Wanganui Park Secondary College, certificates and courses you have attended whilst in custody, drug screen results and also a letter from yourself to me.

11I say in relation to that, although obviously it is self-serving, that is it is tendered for the purposes of assisting yourself, at least you took the trouble to write out that letter.

12In mitigation your counsel relied on one, your age, you are 23 and this is the first time you have spent in custody.  Two, your plea of guilty.  Three, the limited duration of the offending.  Four, that you are not the principal offender, but at a middle level.  Five, your background.

13Six, he submitted your prior convictions are not serious.  Seven, he relied on the factors set out in the psychological report concerning your drug use and mental health.  I will go to that shortly.  Eight, he submitted that you have shown signs of rehabilitation whilst in custody.

14Nine, your remorse as expressed through your plea of guilty and the letter you have written to me.  Ten, he submitted that your incarceration would be onerous in that you would be concerned about the health of your mother.

15In the psychological report of Mr Mackinnon dated 26 June 2017 he set out your family background.  You were diagnosed with epilepsy at age ten.  You began using cannabis and tobacco and alcohol during your mid-adolescence in the company of your peers and during your Year 12 studies you started using amphetamines.

16After your mother died in 2014 you began smoking ice on a regular basis.  In his report Mr Mackinnon sets out your progress whilst in custody.  You have been employed in the prison industries metals program and have completed certificates in welding and oxy cutting and commenced a spray painting certificate program.

17You told him that you enjoy that work and hope to utilise the facilities you have obtained when you are released.  Whilst in custody your health and fitness have improved and your weight has actually gone up some 24 kilos.  He said whilst in custody you seem to have overcome your depressed mood disorder and associated polysubstance abuse disorder.

18He said you appear to be currently abstaining from substance abuse and that is supported by the drug screens.  He said that your physical and mental health have improved significantly whilst in custody and you do not appear to pose a high risk of relapsing into substance abuse or offending when you are released from prison.

19Your functioning intelligence was within the normal adult range.  As I said, he diagnosed that you have two disorders, a depressed mood disorder and a polysubstance abuse disorder.  He tried to fit both of those disorders into the criteria of Verdins at the bottom of p.5, but as discussed during the plea the disorders described do not actually come under Verdins, but I take them into account as the background to your offending.

20In relation to your offending he said that because your parents were away working on orchards you and your brothers lacked effective parental control and thus when you encountered major difficulties in your life you began to use illicit substances.

21You entered adult life in an aimless state, low on ambition and motivation.  You said your involvement in drug abuse and trafficking also gave you a sense of purpose on a day to day basis, something previously lacking in your aimless existence.

22He said your behaviour was that of an individual neglecting your normal community and adult responsibilities, chronically distressed, habitually abusing illicit substances and acting in an anti-social manner with little thought for the likely consequences of your actions upon yourself and the wider community.  He said you appear generally to be able to manage yourself satisfactorily enough in the prison environment.  I take all those factors into account.

23Sentencing reasons:

24The basic purposes for which a court may impose a sentence are punishment, general deterrence, specific deterrence, denunciation and protection of the community.  In sentencing you I must have regard to a range of matters such as the seriousness of the offending, your culpability for it, your personal circumstances and those of the victim, if any.

25I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community seeking to ensure as far as possible offenders are rehabilitated into society.  I express my denunciation of your behaviour.  This is a serious example of drug trafficking for a substance that is prevalent in the community and causes great harm to members of the community, particularly those who are most vulnerable.

26You had an important role in this drug operation as being the middle man between your brother and the end sellers of the drug in Charge 1 to the users.  Thus general deterrence is the overriding sentencing consideration in my sentence here.  That is I have to impose a sentence that possibly will say to others who want to engage in this heinous drug trafficking not to do it.

27I am also required to consider specific deterrence.  That is to try and get into your mind that when you are released you do not go back into the drug world.  I am encouraged by what you are doing in gaol and I encourage you to keep doing it.  Specific deterrence still has a role to play here though in my view because you were in the drug world.

28I have expressed my denunciation.  I have to take into account what are called current sentencing practises.  I have been referred to and considered the case of Gregory [2017] VSCA 151. I have taken the view that because your case resolved before the case of Gregory was decided I will not increase the sentences as directed by the Court of Appeal in that case.

29If I was unfettered by current sentencing practises my sentence here would be of a much higher order than what it is.  You are given the appropriate discount for your plea of guilty.  It is an expression of responsibility by you for your offending and it has saved the court the cost and time of a jury trial.

30You have no serious prior convictions and I take that into account.  In assessing your prospects of rehabilitation, as I have already remarked, you seem to be making good progress whilst in custody.  It has been urged on me that I take into account and moderate the sentence because of your personal circumstances, that is your disorders, your drug use.

31I say this; your drug use does not seem to have affected your ability to conduct drug transactions in the way that is set out in the communications.  I have been provided with no material as to how you became involved in this drug trafficking through your brother.

32I have been asked to take into account your age and I do so solely on the basis that you are a young person who is in gaol.  Again, your age does not seem to have affected your ability to conduct drug transactions.  To some extent your drug use explains how you became involved in this trafficking, but as I said, I have absolutely no material as to the connection between you and your brother and how he did or did not talk you into selling the drugs he was bringing down from Sydney.

33I accept that you have shown remorse.  However, as I have said, your role in this drug trafficking was a significant one.  Taking all those factors into account and doing the best I can I impose the following sentences.

34On Charge 1, I sentence you to a term of imprisonment of five years, six months.  On Charge 2, a term of imprisonment of 12 months.  On Charge 4, a term of imprisonment of six months.  On Charge 7, a term of imprisonment of six months.  On Charge 8, a term of imprisonment of six months.

35I direct that Charge 1 be the base count and I direct that two months of Charge 2, two months of Charge 4, one month of Charge 7 and one month of Charge 8 be served cumulatively with each other and upon the base count.  What that means is that the total effective sentence is one of six years.

36I direct that you serve a period of four years before being eligible for parole. Pursuant to s.6AAA of the Sentencing Act I declare that if you had proceeded to trial and you were convicted you would have received a sentence of at least nine years with a non-parole period of seven years.

37I declare that the 422 days that you have now served be reckoned to be part of the term of imprisonment that I have just announced.  I have signed the other orders.  Are there any other matters I need to attend to?

38MR MOORE:  No, Your Honour.

39MR CHERNOK:  No, Your Honour, may it please the court.

40HIS HONOUR:  Thank you.  You may take Mr Erbasi out, thank you.

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