Director of Public Prosecutions v Findlay

[2018] VCC 276

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 17-01299

DIRECTOR OF PUBLIC PROSECUTIONS

v

ANDREW FINDLAY
DIMITRI SHAKHANOV

---

JUDGE:	HIS HONOUR JUDGE MULLALY
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	9 March 2018
CASE MAY BE CITED AS:	DPP v Findlay & Anor
MEDIUM NEUTRAL CITATION:	[2018] VCC 276

REASONS FOR SENTENCE
---

Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr Kevin Armstrong	CDPP
The Accused Findlay The Accused Shakhanov	Mr Justin Hannbery Mr Peter Morrisey SC	Tony Hannebery Lawyers Zahr Partners

HIS HONOUR: 

1Dimitri Shakhanov and Andrew Findlay, you have pleaded guilty to one charge of attempting to possess a commercial quantity of a border controlled substance being methyl amphetamines.

2The maximum penalty for that offence in terms of imprisonment is life imprisonment. 

3The relevant background to your crime commences in mid-June of 2016 with the federal authorities detecting the importation of 209.79 kilograms of pure methyl amphetamines, secreted in shipping containers imported into the docks at Melbourne.  The address for those containers was X and Y packaging at 2/10 Turbo Drive, Bayswater North.

4The Federal Police substituted inert substances for the drugs.  Following the delivery of the goods to the address in Bayswater North, the drugs were more or less divided in half and put in large cardboard boxes.

5Two men, An Vi and Raymond Lach took 114.74 kilograms of what they thought was methyl amphetamines in a hire van to the Maribyrnong area.  They left the van in the street where it was picked up shortly thereafter by a Vy Thi Nguyen.  That man drove the hire van to his factory in Braybrook.  He unpacked the boxes, dividing the packages containing the crystalline substance into other bags, boxes and containers which he then put in his own car.  Then the van was returned to where it had been left.  On his return to the factory, Vy Nguyen was arrested.

6The men I have mentioned have pleaded guilty and have been sentenced by Judge Maidment.  The conduct of those men, especially Vy Nguyen, is highly relevant to the conduct of you men in terms of parity.

7I say this because, as I now turn to your conduct, the methodology you employed or was employed in your instance is very similar to that that was involved by Vy Nguyen and others.

8And so it was that on the morning of 1 July 2016, Vy and Lach again attended the Bayswater North factory in the same hire van and loaded seven large cardboard boxes containing a 107.87 kilograms of the crystalline substance which they thought was amphetamines.  The van was driven to Pointside Avenue in Bayswater and left unlocked and unattended. 

9You two men had driven separately to the Bayswater area.  You had made arrangement between yourselves the night before and earlier on 1 July 2016.  These arrangements were made, in part, by text messages which were later found by the police on one of the phones in your possession, Mr Shakhanov.

10Records of the telephone calls from that phone were also located but there is no evidence of what was said between you two.  The text messages make it clear that you, Mr Shakhanov, were most anxious that you, Mr Findlay, be on time and in a car the next morning. 

11You, Mr Findlay, responded in terms that make it clear that you would dependent on getting a lend of your sister's car and she, as a hairdresser, would be doing a haircut in the Black Rock are at 9.30 in the morning. 

12The next morning you, Mr Findlay, responded to a text message from Mr Shakhanov which said in terms "Be here time".  Your response was that you may have to train it if she's not back in time.  Later you said that you needed to shower.  Mr Shakhanov reiterated the urgency with an immediate response in which he said, "No, no, no, no.  You please listen.  Get it come ASAP".

13Fifteen minutes later at 10.01, your text, Mr Findlay, was "Is there another car?  She's gonna start abusing me?".  Later at 10.42, and then for the next minute, you, Mr Shakhanov, called you, Mr Findlay, four times with a final call being made at 10.59.

14I will say more of what can be made of your, Mr Findlay's, more casual or less urgent behaviour compared to that of you Mr Shakhanov.  In any event you, Mr Shakhanov, drove a Toyota Prada Landcruiser to the Bayswater area and you, Mr Findlay, drove a small Hyundai Getz borrowed from your sister.

15You met up and parked in Bayfield Road East, a street in Bayswater North just after midday.  You then spoke and thereafter you, Mr Shakhanov remained in that area while you, Mr Findlay, drove off to Canterbury Road, Bayswater and specifically to the car park of the Bunnings store on Canterbury Road.

16At this point I note that you, Mr Shakhanov, had a second mobile phone - a BlackBerry.  You, Mr Findlay, just had your own mobile phone.  Once at Bunnings you, Mr Findlay, were met by Lach and Vy.  Vy got into your car; thereafter you, Mr Findlay, drove to the Pointside Avenue area and parked in front of the hire van.

17You then unloaded the seven boxes, cramming them somehow into your sister's Hyundai.  You, Shakhanov, had driven to the Pointside Avenue area but were separate from where Findlay was but in a position where you could keep his labouring activities under surveillance.  Once loaded, you then drove to the Highett area. 

18In a very odd part of this enterprise you, Mr Shakhanov, once in the Highett area went and got a shopping trolley.  You, Mr Findlay, unpacked two boxes from your car and they were put into the shopping trolley.  All this was around two in the afternoon in an ordinary suburban street.  You, Mr Shakhanov, parked nearby and then came to where the shopping trolley was and then walked it to a garage at 2/359 Highett Road, Highett. 

19You put the boxes in your own Nissan Navarre which was parked in the garage.  After some small movements of your car, Mr Findlay, Mr Shakhanov returned to where you were and he loaded the remaining five boxes into the shopping trolley.

20They were then pushed - that is, the overloaded trolley - was pushed to the rear of the unit.  It was at this point that you, Mr Shakhanov, were arrested.  You, Mr Findlay, had driven off in your sister's car to her residence in South Yarra, I assume to return it.  You were arrested there.

21Both of you made no comment when interviewed by the police.  Both of you have been held on remand since your arrest on 1 July 2016.  That has been calculated at 616 days.

22The quantity of the methyl amphetamine was 143 times the commercial quantity.  The value of the drugs if sold at one kilogram lots was estimated between $19.26 million and $29.96 million.  If sold in one gram lots, the value was estimated between $31.1 million and $107 million.

23In assessing the gravity and the moral culpability involved in this example of an attempt to possess a commercial quantity of a border controlled drug, matters to be considered were comprehensively set out in the case Nguyen v The Queen; Phommalysack v The Queen (2011) 31 VR 673 at 33.

24I will not recite all the matters articulated by Maxwell P in the 13 sub-paragraphs.  They were contained in the prosecution's submissions and relevantly addressed by counsel for each of you and the prosecutor.  I have considered them all insofar as they apply to this case. 

25A relatively simply consideration is that set out in paragraphs 4 and 5, in which Maxwell P said

"Although the weight of the drug imported is not the principal factor to be considered when fixing sentence, the size of the importation is a relevant factor and has increased significance when the offender is aware of the amount of drugs imported.  Ordinarily, the amount of the drug involved in an importation is a highly relevant factor in determining the objective seriousness of the offence, even to the extent of assessing that a particular offence is in the worst category of its type.   In many cases, the only factor that would lead to a determination that one importation is worse than another would be the amount of drug involved where otherwise the circumstances of the importation were the same or very similar."

26Here the amount of 107 kilograms, being a 143 times the commercial quantity makes this matter self-evidently a very serious example of this offence.  However, other factors relating to your role and knowledge and profit are more problematic and additionally add a gloss to the factor that this was 143 times the commercial quantity.

27Starting first with the role of each of you.  What was said in Nguyen and Phommalysack, in this regard takes up the principles explained by the High Court in the earlier case of Olbrich.  I will refer to that shortly but I also refer to another more recent case in the Court of Appeal involving cannabis cultivation.  Its relevance flows from the defence submission that the role of both of you men was akin to what has become known as crop-sitters in cannabis cultivation cases.

28In short those crop-sitters are said to be at the lowest level, simply minding and tending to the contraband, keeping the real entrepreneurial drug traffickers at arms' length from all the associate risks until the crop is harvested and then taken for distribution. 

29The case that I will refer to is Nguyen, Quy v The Queen [2017] VSCA 127 but in any event, Maxwell P in Nguyen and Phommalysack said on the topic of role that:

"The criminality of an offender must be assessed by consideration of the involvement of the offender in the steps taken to effect the importation.  Where it is capable of being discerned, the role played by the offender is of great importance in assessing the objective criminality of the offence.  Problems may emerge when a sentencing court attempts to categorise the role of the offender in the drug enterprise, as in many cases the full nature and extent of the enterprise is unlikely to be known to the Court."

30As mentioned, the Court of Appeal in Nguyen, Quy v The Queen [2017] VSCA 127 said the following, quoting at length from Olbrich, paragraph 29:

The necessity of broadly characterising the role of an offender in this type of context was rejected by the High Court in R v Olbrich.  Gleeson CJ, Gaudron, Hayne and Callinan JJ stated that 'It is understandable that, in order to promote consistency in sentencing, appellate courts, when expressing views about sentences for drug offences, have sometimes categorised the role of an offender, where it is known, in a scheme of importation or distribution.  Similarly, sentencing judges who are dealing with several co-offenders may consider such categorisation relevant in differentiating between individuals.  However, the utility of such an exercise is necessarily limited by the extent to which the material facts are known.  What may be a convenient shorthand method of describing facts of particular cases should not be elevated to an essential task to be undertaken in every case, regardless of whether it is possible or appropriate.'"

31Their Honours then went on in describing the particular of Qui Nguyen, that being of a crop-sitter.  They said the following:

"Thus a finding that an offender was not a principal or organiser may not prevent the conclusion that the offending involved a significant participation in a criminal enterprise."

32In this case, it was asserted that you, Mr Shakhanov, having got yourself into debt, took up an offer of easy but relatively small amounts of money by agreeing to pick up the boxes, hold on to them until it was safe for the boxes to be delivered to the real entrepreneurial drug importers and traffickers.  For you,
Mr Findlay, it was said that your role was even lower and briefer.  You were helping a friend pick up and get up the boxes to where he lived in Highett and that was the beginning and end of your involvement. That is as I understand the submissions made by counsel for both of you.

33The prosecution contended that in your case, Mr Shakhanov, you having and using a BlackBerry, the communication device used by others in this enterprise, your organisation of Mr Findlay, your use of gloves at relevant times and the fact that the whole seven boxes were taken by you to be put in your car indicates that you were significantly involved in the enterprise.

34You, it was said by the prosecution, are on a similar level as Vy Nguyen.  Your counsel, in submitting that you were at a lower level to that of Vy Nguyen added to the equation that Nguyen, unlike you, had opened the boxes and distributed them into other bags and receptacles, indicating he was at the early stages of some level of distribution or sorting.  As he pointed out that Mr Nguyen pleaded guilty to a charge of trafficking; you were arrested before any boxes could be opened and examined. 

35I have revisited the written submissions and what was said in the plea by all parties on the topic of role.  I am well mindful of the difficulties in determining the role of an accused but in this case, I am firmly of the view that you, Mr Findlay, were very much a transportation foot solider at the lowest and briefest level of involvement and you were brought into it by Shakhanov.

36That said, what you did was part of a very serious crime, one that would have seen vast profits made at great cost to the community.  The drug that you attempted to possess is a scourge; all involved, at whatever, must be denounced and punished. 

37You, Mr Shakhanov, were more involved that Mr Findlay and were akin to the behaviour of Nguyen, though perhaps you were more engaged as a transporter than he appears to have been, given other aspects of the case against him as set out in Judge Maidment's reason for sentence, in particular at paragraphs 3 and 4, and 18 and 19. Again, your conduct was part of a serious criminality involving vast amounts of a dreadful drug. 

38As to other aspects set out in Nguyen, that is Nguyen and Phommalysack, the question of what rewards you two were to get is unclear. 

39From the material produced on the plea, it was submitted that you, Mr Shakhanov, were under financial pressures, having debts and having been through bankruptcy.  Your intention was to make money from your involvement but there is little beyond your instructions that it was modest and not the sort of figure of $20,000 admitted by Mr Nguyen to be what he expected.

40I add that Judge Maidment did not accept that this amount of $20,000 put forward by Nguyen was accurate or was, he was to expect, as little as $20,000 dollars. 

41As to you, Mr Findlay, again it is unclear but I am from all the material of the view that your reward was unlikely to be dependent on the volume on any sales of the drugs but a fee for picking up the drugs as Shakhanov's helper.

42While I will deal shortly and in more detail with your personal circumstances, it is to be noted that you Mr Shakhanov have no prior convictions and you,
Mr Findlay, have one appearance before a Magistrates' Court for possession of cannabis for which you were placed on an adjourned undertaking without conviction. 

43What is to be understood, that given the nature of the crime and the seriousness of this example of it, matters such as previous good character are of less weight.  That said, aspects of your individual circumstances are not overlooked, especially with regard to what prospects each of you have for reform.

44Before dealing with each of your personal circumstances separately, I pause to make clear that in terms of the gravity of the crime and your roles and your individual moral culpability.  I consider this as a very grave example of the always serious crime of attempting to possess a border controlled drug in a commercial quantity.  The vast quantity of 143 times the commercial quantity speaks for itself.  Your roles are as I have just set them out but that is not to be seen as rendering your overall offending as itself minor.  You are perhaps lower in role than others in an always grievous and harmful crime.  Your moral culpability was high, particularly you Mr Shakhanov as more of the organiser than Mr Findlay. 

45There was nothing put forward as to your mental states that would diminish your moral culpability.  You both made diabolically bad decisions but you knew what you were doing was serious offending when you took the risks in pursuit of money.

46As to your personal circumstances, Mr Shakhanov, you are now 30 years old.  You were born in the Ukraine and migrated at the age of seven.  Your father drank heavily and was harsh on your mother, such that you grew up in constant fear and developed a sense of the need to protect her.

47She left your father when you were 12.  Your mother and you and four younger brothers moved to the housing commission flats in Prahran.  You grew up in that environment, leaving local schools at 16 to commence work. 

48You have always enjoyed a close relationship with your mother.  Her support is a central part of your prospects to settle and rehabilitate after release from prison.  She gave evidence before me. 

49You suffered a retinal detachment in your left eye at age 14.  You lost the sight in that eye.  You have, to your credit, somehow got on with work and life including sporting endeavours; indeed, as a soccer goalkeeper despite this disability.

50You have worked solidly as a plasterer and I have read and heard evidence of your good work ethic.  You have done this despite the added health problems that you have in the form of debilitating migraines.

51You have a long term partner and a young son who means a lot to you.  Importantly, at the moment, your partner supports you and visits you in prison; no easy matter, given you are at Fulham. 

52You have used cannabis for a long time, asserting that it helps with the management of pain and the distress that you have from the headaches.  You are medicated in prison for your headaches.

53Understandably, you have reacted to your current bleak circumstances.  Thus you were assessed by a Mr Newton, the forensic psychologist, as having an adjustment order with depression.  It is not said that this matter gives rise to any particular mitigatory matters.  Prison is hard for you but that merely states the obvious and indeed is the point of incarceration.

54You will need help and support on your release to re-adjust.  Fortunately, the array of supporting testimonials from good friends and the evidence from people who know you well, including your mother and a work mate indicated that you will return to a good community of people who want you to do well and re-establish yourself.  It will be up to you as to whether you let them down or honour their obvious commitment to you. 

55Your financial troubles that led to bankruptcy and debts probably prompted you to try and get quick money and that was part of this ill-advised involvement in serious drug offending.  It is hoped that on your release you can show your work ethic and stay away from temptations of quick money and drug use.

56To your credit, you have used your time in prison as well as you could, undertaking many courses and rehabilitative programs.  Because of the seriousness of this crime, other sentencing matters mentioned already or set out in s.16A of the Commonwealth Crimes Act must take precedence over matter such as your prospects for rehabilitation.

57But nonetheless, those matters are, in my view, positive for you.  They weigh in your favour.  It is just the actual weight to be given to them in this case is less than other factors tending more to punishment. 

58The point to be understood is that all the considerable evidence gathered on your behalf is not overlooked but its weight must be less given the importance of deterrence and punishment for the serious crime you committed.  Although inevitable, imposing a gaol term on a person without previous blemish is always a grave step and I do so mindful that with your health problems, and with your wife and son in particular growing up without you, each day in gaol will be hard.

59I weighted into the equation your shame at what you did and how it has affected your family.  You plea of guilty is of real value in mitigation.  Your sentence will be less than would otherwise have been the case.  Your attitude is one of contrition and remorse, matters that I have weighed in your favour.

60In cases of this kind, parity looms large.  Your counsel understandably concentrated a good deal on why Vy Nguyen was more seriously involved in this drug enterprise and how, because of those differences and your more favourable personal circumstances, you should be punished with a term of imprisonment significantly less than that imposed by Judge Maidment on Vy Nguyen.

61The prosecution contended that you and Vy Nguyen were on an equal footing or near equal footing and there should be no difference in the sentence imposed.  The principle of parity is part of the bedrock sentencing consideration of consistency. 

62You should not be left with any justifiable grievance by reason of the sentence I impose on you compared to the sentence I will impose on Mr Findlay and vice  versa, and in comparison to the sentence imposed on Vy Nguyen for what was a different crime and to a lesser extent the other men sentenced by Judge Maidment.

63The concept to emphasise here is that it must be a justifiable sense of grievance.  In my view, the sentence imposed on Nguyen reflected his more protracted role in the criminal enterprise over some many weeks.  His efforts at so called assistance to the authorities was seen as merely self-serving and did not warrant any reduction in sentence.  He was not seen as contrite or genuinely remorseful beyond his plea of guilty.  Judge Maidment, like myself here, could not calculate Mr Nguyen's likely reward but he did not accept, as I have said, that the amount was as little as the $20,000 proffered by Mr Nguyen.

64Of importance was Mr Nguyen's prior conviction in 2008 for trafficking in heroin, which resulted in a 12 month community-based order.  In the end I see some difference  between your criminality and the more serious involvement of
Mr Nguyen.  When they are added to the more subjective circumstances connected to you, compared to him, I conclude there must be a difference and a lower sentence for you than that imposed on Mr Nguyen.

65The difference cannot lead to me imposing a sentence that is not appropriate to all the circumstances of the crime committed by you as the offender.  In my view, the lowest sentence I will announce is what justice requires and not some predetermined, precise percentage of that imposed on by a different judge on a different accused for a different crime.  The sentence, in my view, simply applies to principles of parity as best I can do so.  I have also revisited your sentence and that of Mr Findlay to ensure that the important parity between the two of you is properly expressed.

66You, Mr Findlay, if I can turn to your personal circumstances, I will defer the announcement of sentence on both of you until the end.  You, Mr Findlay, are a younger man, now 25.  You were raised in the main in St Kilda/South Yarra area.   Your parents separated when you were about 14 and you initially were with your father and then had periods back in South Australia with your mother in the period of your late teens.  There were periods when you were just with your sister.  You moved between Adelaide and the south-east or bayside suburbs of Melbourne, right up until you got involved in this crime.

67Your own letter indicates that you suffered significantly as a consequence of the breakup of your parents' marriage, but you picked up when you went to live in Adelaide and you picked up for a time when back in Melbourne.  You were working and engaged in your sporting club.  Cricket is your keen interest. 

68You have used cannabis for a long time.  You have also abused prescription drugs, but for important periods you were able to put those habits behind you.

69In your account you speak of a motor vehicle where you suffered significant spinal injuries and during treatment discovered congenital bone disease, all of which limited your capacity to work and play cricket.  You speak of deteriorating, especially under the added burden of the debt from the motor vehicle accident.  You thereafter fell back into cannabis use and the abuse of Valium and Xanax.  You describe being depressed, which I have no doubt was the case.

70In a psychologist's report the accident is described as a suicide attempt but in the end the ongoing consequences are the same.  You were, it seems to me, off the rails from that point on.  You describe having a sense of hopelessness and fuelled by drugs you endeavoured to get quick money by doing what you did in picking up and transporting the boxes full of what was thought to be methyl amphetamine.

71You write of how your time in prison has made you fully appreciate the people who genuinely care for you.  The letters written by your mother, sister, cousin, grandmother and good and long term friends from your cricket club all make clear that they see a lot in you and they are dedicated to helping you settle and come good on your release.  The testimonials are very insightful and give me confidence in your rehabilitation.

72At this point I will not repeat what I have said about the relative weight to be given to your rehabilitation, but in that context your prospects, like that of
Mr Shakhanov, are very solid.  You have done all you could in the prison in terms of courses and programs.  You have stayed away from drugs, evidenced by your drug screens. 

73Your plea of guilty is of significance.  The prosecution was relieved of proof of your knowledge of the contents of the boxes.  No small matter.  As with Mr Shakhanov, your sentence will be less because of all that flows from your plea of guilty.  You have saved resources that would have been involved in the prosecution. Yours is an attitude of contrition and genuine remorse.

74By reference to the sentencing purposes or relevant factors set out in s.6A(2) of the Commonwealth Crimes Act I make clear my sentence must contribute to sending an unequivocal message of deterrence.  It must be clear that if you are involved or get yourself involved in drug importation, especially in large volumes, then lengthy terms of imprisonment await.  Deterrence to others is a principal, if not the principal purpose of the sentence.  Deterrence to each of you to a degree is required given the seriousness of the crime, notwithstanding your past good characters.

75I have, in accordance with the principles set out by the High Court in Pham and Dalgliesh, considered other sentence imposed in this and other States for this offence at the level of criminality involved here.  Those matters are a helpful yardstick as are more directly the sentences imposed by Judge Maidment, some of which were confirmed by the Court of Appeal.  Those sentences, of course, which enliven the question of parity go beyond the aspect of just being a yardstick, but in the end lengthy sentences which are appropriately stern must be imposed.  I will fix a minimum term, which is what I consider is the minimum incarceration that justice requires.

76Given all the circumstances a significant period of potential parole is indicated for both of you men with much to live for on your release.  There are no fixed formulas.  It is in the end the length of the time of potential parole that matters.  The sentences I am about to announce are, in my view, restrained, given the maximum term that applies to this offence, given the volume of drug involved.  However, the proper recognition of all the circumstances, especially your role or the role of both of you and especially you, Mr Findlay, and the positive aspects of both of you as offenders in this case and especially the principles of parity leads to this, as I have described, restrained outcome.  You may yourselves not see that but I assure you it is.

77Mr Shakhanov, can you please stand, and Mr Findlay?  For committing the crime of attempt to possess border controlled substance, that being methylamphetamine, in not less than a commercial quantity, you,
Mr Shakhanov, are sentenced to nine years' imprisonment and I fix a minimum term of six years.

78You, Mr Findlay, are sentenced to a term of imprisonment of seven years and I fix a minimum non-parole period of four years.  Both you men have served 616 days, that figure having been reckoned.

79I declare that the 616 days is part of the sentence that I have just imposed.

80I will ensure that that declaration is entered into the records of the court so the prison authorities are left in no doubt that each of you have already done 616 days of the sentence that I have just imposed.  In accordance with the Commonwealth Sentencing Procedures and Practices, I announce that the sentences commence today.

81Had you pleaded not guilty to these offences and been found guilty of them, in your case, Mr Shakhanov, the sentence would have been 12 years with a minimum of nine, and in you case, Mr Findlay, ten years with a minimum of seven.

82Are there any other orders required?

83COUNSEL:  No, Your Honour.

84HIS HONOUR:  Mr Morrissey?

85MR MORRISSEY:  No, Your Honour.

86HIS HONOUR:  Thank you.  Mr Shakhanov and Mr Findlay, can I say that I have seen you both engage in this process of the sentencing in a way that I rarely see.  However, I note, and it should be noted, that I have never seen a courtroom so full of supporters as is the case here, but unfortunately there is no time for you to spend time with them right here and now.  You must be taken by the prison authorities now before I leave the Bench.  Thank you.

87I repeat my gratitude to the parties for their very significant assistance in this matter.

88COUNSEL:  As Your Honour pleases.

- - -